Exhibit 13(b)(iv)
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement") is entered into as of
October 13, 2003 between Denver Investment Advisors LLC, a Colorado limited
liability company ("DIA"), and Westcore Trust, a Massachusetts business trust
(the "Trust").
R E C I T A L S
WHEREAS, DIA desires the Board of Trustees of the Trust to consider the
Trust's use of the ALPS ICS (as defined below); and
WHEREAS, the Board of Trustees of the Trust desires that DIA provide
the Trust with written indemnification of existing and future claims arising out
of use of the ALPS ICS.
A G R E E M E N T
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Definitions. Unless otherwise defined herein, the terms used
in this Agreement shall have the meanings assigned to such terms in this Section
1.
"Claims" means any and all actions, suits, claims, rights, causes of
action, demands, damages, losses, liabilities, expenses, costs, attorneys' fees
or charges of whatever kind or nature, whether contingent or fixed, whether
known or unknown, whether suspected or unsuspected, which any person (i) now has
or claims to have, (ii) at any time had or claimed to have, or (iii) at any time
hereafter may have or claim to have.
"Damages" means any and all costs, liabilities, obligations, losses,
claims, expenses, damages or judgments of any kind, including reasonable
attorneys' fees and the fees of accountants and experts.
"ALPS ICS" means the computer and software systems made available by
ALPS Mutual Funds Services, Inc., a Colorado corporation, which provides an
interface between the Internet and public data network service providers and the
Trust's transfer agent for purposes which may include communicating shareholder
data and/or transaction requests.
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"Indemnified Parties" means, collectively, (i) the Trust; (ii) each
current, former and future officer, trustee, beneficial interest holder,
employee, agent, attorney, predecessor, successor, representative or affiliate
of the Trust, but not DIA or any of DIA's current, former and future officers,
trustees, beneficial interest holders, employees, agents, attorneys,
predecessors, successors or representatives; (iii) any successor, assign, heir,
estate or legal representative of any of the parties described in clauses (i) or
(ii); and (iv) any series or portfolio of the Trust.
2. Indemnification.
(a) DIA shall defend, indemnify and hold harmless each
Indemnified Party from and against all Damages arising out of or resulting from
any Claims against such Indemnified Party related to or arising out of the use
of the ALPS ICS by DIA, the Trust, the Trust's shareholders or transfer agent at
any time (including prior to and on and after the date of execution hereof and
of any written agreement, if any, with DST Systems, Inc.).
(b) If any Indemnified Party receives notice of the assertion
of any Claim with respect to which DIA is or may be obligated to provide
indemnification (an "Indemnifiable Claim"), the Indemnified Party shall promptly
notify DIA in writing (the "Claim Notice") of the Indemnifiable Claim; provided,
however, that the failure to provide such notice shall not relieve or otherwise
affect the obligation of DIA to provide indemnification hereunder, except to the
extent that any Damages directly resulted or were caused by such failure.
(c) DIA shall have thirty (30) days after receipt of the Claim
Notice to undertake, conduct and control, through counsel of its own choosing
(subject to the consent of the Indemnified Party, which consent shall not be
unreasonably withheld), and at its expense, the settlement or defense thereof,
and the Indemnified Party shall cooperate with DIA in connection therewith;
provided, however, that (i) DIA shall permit the Indemnified Party to
participate in such settlement or defense through separate counsel chosen by the
Indemnified Party (subject to the consent of DIA, which consent shall not be
unreasonably withheld), provided that the fees and expenses of such counsel
shall not be borne by DIA unless one of the following conditions shall exist:
(x) DIA shall have failed to assume the defense of such claim or employ counsel
reasonably satisfactory to the Indemnified Party, or (y) there exists or will
exist a conflict of interest between the Indemnified Party and DIA which would
make it inappropriate in the reasonable judgment of DIA and the Indemnified
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Party for the same counsel to represent both DIA and the Indemnified Party and
(ii) DIA, in defense of any action assumed by it, shall not, without the consent
of the Indemnified Party, which shall not be unreasonably withheld, consent to
entry of any judgment or enter into any settlement of such action which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to the Indemnified Party of a release from all liability in respect to such
action. The Indemnified Party shall not pay or settle any Indemnifiable Claim
without DIA's consent, which shall not be unreasonably withheld. To the extent
that a party is the losing party in litigation regarding the reasonableness of
the withholding of a consent, that party shall bear the legal fees and expenses
of the other party to the litigation.
(d) If DIA does not notify the Indemnified Party within thirty
(30) days after receipt of the Claim Notice that it elects to undertake the
defense of the Indemnifiable Claim described therein, the Indemnified Party
shall have the right to contest, settle or compromise the Indemnifiable Claim in
the exercise of its reasonable discretion; provided, however, that the
Indemnified Party shall notify DIA of any compromise or settlement of any such
Indemnifiable Claim.
3. Complete Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and replaces all prior negotiations and agreements, written or oral.
4. Amendment and Waiver. This Agreement may be amended, modified,
superseded, canceled, renewed or extended and the terms or covenants hereof may
be waived only by a written instrument executed by the parties hereto or, in the
case of a waiver, by the party waiving compliance. The failure of any party at
any time or times to require performance of any provision hereof shall in no
manner affect the right at a later time to enforce the same. No waiver by any
party of the breach of any term or provision contained in this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed
to be, or construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this Agreement.
5. Notices. All notices and other communications provided for
hereunder shall be in writing and shall be given by personal delivery, overnight
air courier (with signed receipt of acknowledgement) or by telecopy (with
"answerback" confirmation of receipt), addressed to the parties at their
respective addresses set forth on the signature page hereto, or at such other
address as shall be designated by either party in a written notice to the other
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party. All such notices and other communications shall be deemed to have been
delivered upon receipt.
6. Massachusetts Business Trust. The names "Westcore Trust" and
"Trustees of Westcore Trust" refer respectively to the Trust created and the
Trustees, as trustees but not individually or personally, acting from time to
time under the Amended and Restated Declaration of Trust dated November 19, 1987
as amended July 16, 1990 and as may be further amended from time to time which
is hereby referred to and a copy of which is on file at the office of the State
Secretary of the Commonwealth of Massachusetts and the State Secretary of the
Commonwealth of Massachusetts and the principal office of the Trust. The
obligations of "Westcore Trust" entered into in the name or on behalf thereof by
any of the Trustees, representatives or agents are made not individually, but in
such capacities, and are not binding upon any of the Trustees, shareholders, or
representatives of the Trust personally, but bind only the Trust Property, and
all persons dealing with any class of shares of the Trust must look solely to
the Trust Property belonging to such class for the enforcement of any claims
against the Trust.
7. Miscellaneous.
(e) This Agreement shall be binding upon each of the
undersigned and its representatives and assigns and shall inure to the benefit
of (and may be enforced by) each Indemnified Party.
(f) In the event any Indemnified Party seeks to enforce his,
her or its rights hereunder, such Indemnified Party shall be entitled to recover
all reasonable fees and costs incurred in connection therewith, including
reasonable attorneys' fees.
(g) This Agreement shall in all respects be governed under the
internal laws (and not the laws of conflicts) of the State of Colorado.
(h) If any provision of this Agreement is held to be illegal
or invalid by a court of competent jurisdiction, such provision shall be severed
and deleted, and neither such provision nor its severance and deletion shall
effect the validity of the remaining provisions hereof.
(i) This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
counterparts shall together constitute a single agreement.
(j) The section headings of this Agreement are inserted for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
(k) This Agreement shall continue from the day first above
written until the expiration of all applicable statutes of limitations for any
Claims.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
Denver Investment Advisors LLC
By: /s/ XXXXXXX X. XXXXX
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Print Name: Xxxxxxx X. Xxxxx
Its: Executive Manager
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Title
Address for Notices:
Denver Investment Advisors LLC
0000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Westcore Trust
By: /s/ XXXX X. XXXXXXXXX
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Print Name: Xxxx X. Xxxxxxxxx
Its: Vice President
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Title
Address for Notices:
Westcore Trust
c/o ALPS Mutual Funds Services Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxx Xxxxxx and Xxxxxx
0000 00xx Xxxxxx, #000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
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