AGENCY TRADING AGREEMENT
This Agreement is made as of August 21, 1998, between Xxxxxx Xxxxxxxxxx
Xxxxx, Inc. ("JMS"), each registered investment company ("Fund Company")
executing this Agreement, on its own behalf and on behalf of each of the
series or classes of shares, if any, listed on Schedule I, as amended from
time to time (such series or classes being referred to as the "Fund(s)"),
and Fund Affiliate (defined below) that has executed this Agreement. Fund
Company and Fund Affiliate are collectively referred to herein as "Fund
Parties". In the event that there are no series or classes of shares
listed on Schedule I, the term "Fund(s)" shall mean "Fund Company."
WHEREAS Fund Affiliate is either (i) an investment adviser to or
administrator for the Funds, (ii) the principal underwriter or distributor
for the Funds, (iii) a transfer agent for the Funds or (iv) a bookkeeping
and pricing agent for the Funds.
WHEREAS Fund Parties wish to have JMS perform certain recordkeeping,
shareholder communication, and other services for each Fund.
Recital
WHEREAS, JMS acts as trustee or custodian of certain tax-qualified employee
benefit plans and tax-exempt trusts in which plan assets are held
(individually, the "Plan," and collectively, the "Plans"), and invests and
reinvests Plan assets as directed by one or more investment advisors, a
Plan sponsor or an administrative committee, as the case may be, of each
Plan (a "Plan Representative"), or upon the direction of Plan participants
("Participants");
WHEREAS, JMS provides certain recordkeeping and other services for the
Plans, including processing of orders and instructions for the investment
and reinvestment of Plan assets in each Plan's investment options;
WHEREAS, JMS and the Fund Company desire to facilitate the purchase,
exchange and redemptions of shares of the Funds (the "Shares") on behalf of
the Plans through one or more accounts (not to exceed one per Plan) in each
Fund (individually, an "Account" and collectively, the "Accounts"), subject
to the terms and conditions of this Agreement; and
WHEREAS, the Fund Company and JMS desire JMS to serve as the Fund Company's
agent to receive and transmit orders and instructions regarding the
purchase, exchange and redemption of Shares, subject to the terms and
conditions of this Agency Trading Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the parties hereto agree as follows.
1. APPOINTMENT OF JMS
The Fund Company hereby appoints JMS as agent for the limited purpose of
accepting orders and instructions with respect to Shares purchased,
exchanged or redeemed by the Plans. JMS hereby accepts its appointment on
the terms and conditions set forth herein.
2. PRICING INFORMATION
The Fund Company will furnish, or caused to be furnished, to JMS on each
business day that the New York Stock Exchange is open for business
("Business Day") with: (i) net asset value information as of the close of
trading on the New York Stock Exchange or as at such other time at which a
Fund's net asset value is calculated as specified in such Fund's prospectus
("Close of Trading"); and (ii) in the case of Funds the principal purpose
of which is the generation of interest income, the daily accrual or
interest rate factor (mil rate). The Fund Company shall use reasonable
efforts to provide such information to JMS by [7:00 p.m.] Eastern Time
("ET") on the same Business Day.
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3. ORDERS FOR PURCHASE, REDEMPTION, OR EXCHANGE
JMS, as agent of the Fund Company, shall (i) receive from, or on behalf of,
Participants or Plan Representatives for acceptance as of the Close of
Trading on each Business Day (the "Trade Date") (based solely upon the
receipt of orders and instructions from such Participants or Plan
Representatives prior to the Close of Trading on any such Business Day)
orders and instructions for the purchase, redemption on exchange of Shares
held by the Plans, and (ii) upon acceptance of any such orders and
instructions, communicate such acceptance to the Fund Company and transmit
to the Fund Company orders and instructions to purchase, exchange or redeem
Shares for specified Accounts. On each business day, JMS shall aggregate
and calculate the net purchase and redemption amounts for such orders for
each Account and communicate such net aggregate amounts to the Fund Company
prior to [9:00 a.m.] ET on the Business Day next succeeding the Trade Date.
All communications herein shall be by facsimile or other form of written
electronic transmission. If provided in the applicable shareholder's
account application, dividends, capital gains, and other distributions will
be automatically reinvested on payable date at net asset value in
accordance with each Fund's then current prospectus.
4. SETTLEMENT
(a) Purchases. JMS will transmit the purchase price of each purchase order to
the Fund Company in accordance with written instructions provided by the
Fund Company to JMS for the applicable Fund by wire transfer prior to 1:00
p.m. ET, on the next Business Day following the Trade Date. JMS agrees
that if it fails to (i) wire the purchase price to the Fund Company before
such 1:00 p.m. ET deadline or (ii) provide the Fund Company with a Federal
Funds wire system reference number evidencing the wire transfer of the
purchase price to the Fund Company prior to such 1:00 p.m. ET deadline, it
will indemnify and hold harmless the Fund Company for which such purchase
order was
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placed from any liabilities, costs and damages either may suffer as a
result of such failure. The cost associated with any delayed wire is the
responsibility of JMS.
(b) Redemptions. The Fund Company will use its best efforts to transmit to JMS
the proceeds of all redemption orders placed by JMS by 1:00 p.m. ET on the
Business Day immediately following the Trade Date by wire transfer on that
Business Day. Should a Fund need to extend the settlement on a trade, the
Fund Company will contact JMS to discuss the extension. For purposes of
determining the length of settlement, the Fund Company agrees to treat the
Accounts the same as it treats other direct shareholders of the Funds.
Each wire transfer of redemption proceeds shall indicate, on the Fed Funds
wire system, the amount thereof attributable to each Fund; provided,
however, that if the number of entries would be too great to be transmitted
through the Federal Funds wire system, the Fund Company shall, on the day
the wire is sent, fax such entries to JMS or if possible, send via direct
or indirect systems access.
5. PARTICIPANT RECORDKEEPING
Recordkeeping and other administrative services to a Plan and Plan
Participants shall be the responsibility of JMS and shall not be the
responsibility of the Fund Company. The Fund Company will recognize, as
determined by JMS, each Plan or all Plans, as the case may be, as a single
shareholder and as an unallocated account in the Funds, and, in any event,
the Fund Company will not maintain separate accounts for Plan Participants.
6. FUND INFORMATION
JMS will perform a trade reconciliation to ensure that Plan and Account
assets are in balance. JMS shall notify the Fund Company of any
differences between the Plan and/or Participant balances maintained by JMS
and the Account(s) balances maintained by the
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Fund Company within two (2) Business Days of receipt of the Fund Company's
confirmation. JMS and the Fund Company shall determine and take, to the
extent applicable, appropriate corrective actions with respect to any such
differences. Upon the reasonable request of JMS, the Fund Company will
notify JMS in writing by electronic or telephonic communication facilities
of (i) the ex-date of all Fund distributions (dividends and capital gains)
and (ii) the reinvestment of Shares as of payable date of any such
distribution.
7. PROSPECTUS, PROXIES AND RELATED MATERIALS
The Fund Company shall provide Fund prospectuses, proxy materials, periodic
Fund reports and other similar materials that are required by law to be
sent to shareholders, in such quantities and at such times as JMS shall
reasonably request. JMS hereby expressly acknowledges that JMS, and not
the Fund Company, shall be responsible for the delivery of any such
prospectuses, reports and materials to Plan Participants or Plan
Representatives, as the case may be. JMS shall promptly deliver any such
prospectuses, reports and materials to Plan Participants or Plan
Representatives, as the case may be after delivery thereof by the Fund
Company.
JMS will vote Plan Shares as directed by Plan Participants or Plan
Representatives, as the case may be. JMS, in its capacity as Service
Provider hereunder, (and its agents), shall not in any way recommend action
in connection with, or interfere with the solicitation of, such proxy
votes.
8. MAINTENANCE OF RECORDS; PLAN INFORMATION; ACCESS
Each party shall maintain and preserve all records, as required by law, in
connection with providing services hereunder and in making Shares available
to the Plans. Except as otherwise provided hereunder, JMS shall provide
copies of all records relating to the Plans, Participants and Funds as may
reasonably be requested by the Fund Company to enable the Fund Company, the
Funds or their representatives to comply with any request
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of the Fund Company's internal or external auditors, any governmental
agency or similar entity, to otherwise enable it to comply with all
applicable state or Federal laws or to enable the Fund Company to fulfill
its obligations and perform its duties hereunder.
To the extent required under the 1940 Act, and the rules thereunder, JMS agrees
that records maintained by it hereunder are the property of the Funds and
will be preserved, maintained and made available in accordance with the
1940 Act.
Upon reasonable notice by the Fund Company to JMS, JMS shall make available
during normal business hours such of JMS's facilities and premises employed
in connection with the performance of JMS's duties and responsibilities
under this Agency Trading Agreement for reasonable visitation, inspection
and auditing by the Fund Company or a Fund, or any person retained by the
Fund Company or a Fund for such purposes as may be necessary or desirable
to evaluate the quality of the duties and responsibilities performed by JMS
pursuant hereto.
This Section 8 shall survive termination of this Agreement.
9. COMPLIANCE WITH LAWS
At all times the Fund Company and JMS shall comply with all laws, rules and
regulations, to the extent applicable, by virtue of entering into this
Agency Trading Agreement or otherwise.
10. REPRESENTATIONS WITH RESPECT TO THE FUNDS
JMS shall not make, nor shall it allow its affiliates to make
representations concerning a Fund or Shares, except those contained (i) the
then current prospectus of a Fund, (ii) current sales literature created by
or on behalf of the Funds, or (iii) current sales literature created by JMS
which has been submitted to, and approved in writing, by the Funds or
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their agents prior to the use or distribution of such sales literature by
JMS, its affiliates or agents.
11. REPRESENTATIONS, WARRANTIES AND COVENANTS
JMS represents, warrants, and covenants that: (a) it has full power and
authority under applicable law, the governing Plan documents and from the
appropriate Plan Representative(s), and has taken all action necessary, to
enter into and perform its obligations and duties under this Agency Trading
Agreement, and that by doing so it will not breach or otherwise impair any
other agreement or understanding with any other person, corporation or
other entity; this Agency Trading Agreement constitutes its legal, valid
and binding obligation and is enforceable against it in accordance with its
terms; no consent or authorization of, filing with or other act by or in
respect of any governmental authority, is required in connection with the
execution, delivery, performances, validity or enforceability of this
Agency Trading Agreement; (b) it will timely disclose to Plan
Representatives or Plan Participants, as the case may be, the arrangement
provided for in this Agency Trading Agreement; (c) it is registered, shall
register or is exempt from registration as a transfer agent pursuant to
Section 17A of the Securities and Exchange Act of 1934, as amended (the
"1934 Act") (it being understood by the parties hereto that failure on the
part of JMS to so register, if not exempt from registration, will
constitute a material breach of this Agency Trading Agreement 30 days after
the effective date of this Agency Trading Agreement or such earlier date on
which such failure constitutes violation of applicable law or regulation);
if required under applicable regulations, JMS will amend its TA-1 to
disclose its appointment hereunder as a limited purpose co-transfer agent
to the Fund Company;
(d) it is a bank [describe charter and entity with regulatory authority
over JMS];
(e) all purchases, redemptions and exchanges orders and instructions
received by it on any Business Day and transmitted to the Fund Company for
processing pursuant to this Agency Trading Agreement will have been
received and time stamped prior to the Close of Trading on such Business
Day;
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(f) all purchases, exchanges and redemptions of Fund shares contemplated
by this Agency Trading Agreement shall be effected in accordance with each
Fund's then current prospectus;
(g) it will comply with all applicable state and Federal laws and with the
rules and regulations of authorized regulatory agencies thereunder;
(h) the receipt of any fees by the JMS directly or indirectly relating to
the purchase, exchange or redemption of the Funds has been reviewed by
legal counsel to JMS and will not constitute a "prohibited transaction" as
such term is defined in Section 406 of the Employee Retirement Income
Security Act of 1974, as amended, and Section 4975 of the Internal Revenue
Code of 1986, as amended, for which an exemption is not available, and is
not otherwise prohibited by any other applicable law, governing instrument
or court order; and
(i) it will promptly notify the Fund Company in the event that it is
unable, for any reason, to perform any of its duties or obligations under
this Agency Trading Agreement or there is a material failure to comply with
the representation made herein above.
Each of the Fund Companies and Fund Affiliates represents, warrants, and
covenants as to itself only and not jointly that:
(a) it has full power and authority under applicable law, and has taken
all action necessary, to enter into and perform its duties and obligations
under this Agency Trading Agreement and that by doing so it will not breach
or otherwise impair any other agreement or understanding with any other
person, corporation or other entity;
(b) all purchases, exchanges and redemptions of Fund shares contemplated
by this Agency Trading Agreement shall be effected in accordance with each
Fund's then current prospectus.
(c) it will comply with all applicable state and Federal laws and with the
rules and regulations of authorized regulatory agencies thereunder; and
(d) it will promptly notify JMS in the event that it is unable, for any
reason, to perform any of its duties or obligations under this Agency
Trading Agreement or there is a material failure to comply with in the
representations made herein above.
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The Fund Company represents, warrants and covenants as to itself only that the
Funds are registered as investment companies under the 1940 Act and Fund
Shares are registered under the Securities Act of 1933, as amended.
12. INDEMNIFICATION
JMS shall indemnify and hold harmless each of the Fund Affiliates, the Fund
Company and their respective officers, directors, partners, trustees,
members, shareholders, employees and agents ("Indemnitees") against any
loss, cost, damage, expense, liability or claim including, without
limitations, reasonable legal fees and other out-of-pocket costs of
defending against any such loss, cost, damage, expense, liability or claim,
suffered by all or any of such Indemnitees to the extent arising out of, or
relating to, (i) any actual negligent act or omission by JMS or its agents
relating to this Agency Trading Agreement or the services rendered
hereunder, (ii) a material breach of any of the representations, warranties
and covenants made hereunder, (iii) the failure to timely and properly
transmit orders and instructions to the Fund Company (or its affiliates),
(iv) cancellation or subsequent correction of any orders and instructions
transmitted to the Fund Company (or its affiliates), or (v) discrepancies
between Participant and Plan balances maintained by JMS and the Account(s)
balances maintained by the Fund Company (or its affiliates) due to errors
caused by JMS.
13. FEES AND EXPENSES
Each party shall bear all expenses incidental to the performance of its
duties and obligations under this Agency Trading Agreement. Each Fund
shall pay the cost of registration of its Shares with the Securities and
Exchange Commission and in any state where required. The cost of preparing
and printing prospectuses, proxy materials, periodic Fund reports and other
similar materials that are required by law to be sent to shareholders
generally shall be paid by the applicable Fund, and the cost of
distributing such items to Plan Participants or Plan Representatives shall
be borne by JMS, the Plans or Plan Representatives, as the case may be.
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JMS shall not be entitled to any fee from the Fund Company pursuant to this
Agency Trading Agreement.
14. TERMINATION OF AGREEMENT
This Agency Trading Agreement may be terminated at any time by any party
hereto upon thirty (30) days prior written notice to the other party hereto
or upon such shorter notice as is required by law, order or regulatory or
self-regulatory authority with jurisdiction over the terminating party or
at such time as the parties hereto may agree to in writing.
Notwithstanding the foregoing, this Agency Trading Agreement may be
terminated immediately either (i) upon a material breach by any party
hereto not cured within thirty (30) days after notice from another party
hereto or (ii) with respect to a Plan, upon the termination of services by
JMS to any such Plan. The provisions of Section 12 shall survive any
termination of this Agency Trading Agreement.
15. NOTICE
Each notice required by this Agency Trading Agreement shall be given in
writing and delivered personally or mailed by certified mail or courier
service, or sent through electronic or telephonic facilities, to the
intended recipient thereof at the following address or such other address
as one party may give written notice to the other party:
If to JMS, to: Xxxxxx Xxxxxxxxxx Xxxxx Inc., Attn: Xxxxxxx X. Xxxxxxxx,
0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000.
If to the Fund Company, to: 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx
00000-0000.
A notice given in accordance with this Section 15 shall be deemed given
upon actual receipt by the intended recipient thereof.
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16. CONFIDENTIALITY
Except as otherwise provided under this Agency Trading Agreement, all
notifications, reports, books, records, data and other information supplied
by one party to the other in connection with this Agency Trading Agreement
(collectively, "Information") shall remain the property of the party
supplying such information and, except as otherwise provided hereunder,
shall be kept confidential by the other party; provided, however, that
copies of any such information may be retained by a party to the extent
required by applicable law, court order, or the reasonable internal polices
of a party.
JMS and the Fund Company and Fund Affiliates acknowledge and understand the
competitive value and confidential nature of internal, non-public financial
and business information of the other parties hereto. The parties hereto
also understand that the information is to be considered as confidential,
proprietary and trade secrets of each other party and its affiliates. JMS
and the Fund Company and Fund Affiliates agree to use their best efforts
(the same being not less that that employed to protect their own
confidential and proprietary information) to safeguard such information and
to prevent the unauthorized, negligent or inadvertent use or disclosure
thereof. Except as otherwise provided hereunder, neither JMS nor the Fund
Company and Fund Affiliates shall, without the prior written approval of an
officer of another affected party, directly or indirectly, disclose
information to any person or business entity except for a limited number of
employees of each party (or their respective affiliates) on a need-to-know
basis. Notwithstanding anything in this Agency Trading Agreement to the
contrary, the parties hereto (or their respective affiliates) may disclose
any such information: (a) as may be legally required by a court or
governmental agency or entity; (b) which is or becomes available to the
general public through no act of, failure to act by, or fault of, the
disclosing party (or its affiliates); (c) which is subsequently disclosed
to a party hereto (or its affiliates) on a non-confidential basis by a
third party not having a confidential relationship with another party
hereto (or its affiliates) which rightfully acquired such information; or
(d) as independently developed by a party hereto (or its affiliates).
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17. COMPLETE AGREEMENT
This Agency Trading Agreement contains the full and complete understanding
of the parties with respect to the subject matter hereof and supersedes all
prior representations, promises, statements, arrangements, agreements,
warranties and understandings among the parties with respect to the subject
matter hereof, whether oral or written, express or implied.
18. MODIFICATION AND WAIVER
This Agency Trading Agreement may be modified or amended, and its terms may
be waived, only by a writing signed by each of the parties hereto;
provided, however, Schedule 1 hereto may be amended in writing, without the
need for signatures of the parties hereto, by the fund Company's delivery
of an amended Schedule 1 to JMS at least thirty (30) days in advance of the
effective date of any such amended Schedule 1, provided that this Agreement
shall immediately cease to apply with respect to any Fund at such time as
shares of such Fund are no longer offered to the public (except that this
Agreement shall continue to apply with respect to accounts in such Fund
created, and to purchases and redemptions of such Fund made prior to
cessation of public offering).
Any valid waiver of a provision set forth herein shall not constitute a waiver
of any other provision of this Agency Trading Agreement. In addition, any
such waiver shall constitute a present waiver of such provision only and
shall not constitute a permanent, future waiver of such provision.
19. COUNTERPARTS
This Agency Trading Agreement may be executed in several counterparts, each
of which shall be an original but all of which together shall constitute
one and the same instrument.
20. ASSIGNMENT
This Agency Trading Agreement shall not be assigned by a party hereto
without the prior written consent of the other parties hereto except that
the Agreement may be assigned to a
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successor Fund Affiliate for the Funds, or any of them, if one is appointed
without the consent of the other parties hereto.
21. HEADINGS
The headings of this Agency Trading Agreement are for reference only and
shall not otherwise affect the interpretation or construction hereof.
22. NON-EXCLUSIVITY
Each of the parties hereto acknowledges and agrees that this Agency Trading
Agreement and the arrangement described herein are intended to be
non-exclusive and that each of the parties is free to enter into similar
agreements and arrangements with other entities. JMS further acknowledges
that nothing contained herein shall prohibit the Fund Company or any
affiliate of either from providing administrative, sub-accounting, trustee,
recordkeeping or similar or related services to any employee benefit plan
(including a Plan) or from soliciting any such plan or sponsor thereof to
enter into any arrangement with the Fund Company or any affiliate of either
for such service.
23. GOVERNING LAW
This Agency Trading Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts, without
giving effect to the principles of conflicts of law thereof.
24. 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 an Amended and
Restated Declaration of Trust dated November 19, 1987 which is hereby
referred to and a copy of which is on file at the office of State Secretary
of the Commonwealth of Massachusetts and the principal office of the
Company. The obligations of "Westcore Trust" entered into in the name or
on behalf thereof by any of the Trustees, shareholders, or representatives
of the Trust personally,
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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.
IN WITNESS WHEREOF, the undersigned have executed this Agency Trading
Agreement by their duly authorized officers as of the date first written
above.
By: Xxxxxx Xxxxxxxxxx Xxxxx, Inc.
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Name: /s/ Xxxxxxx X. Xxxxxxxx
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Title: S.R.V.P. & Director
------------------------------------
By: Westcore Trust
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Name: /s/ Xxxxxx X. Xxxxxx
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Title: Treasurer
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By: ALPS Mutual Funds Services, Inc.
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Name: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Title: Chief Financial Officer
------------------------------------
By: Boston Financial Data Services
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Names: /s/ Xxxxxx X. Amendelaro
------------------------------------
Title: Client Service Officer
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SCHEDULE 1
TO AGENCY TRADING AGREEMENT
Fund
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Westcore Blue Chip Fund*
Westcore Colorado Tax-Exempt Fund*
Westcore Growth and Income Fund*
Westcore Intermediate-Term Bond Fund*
Westcore Long-Term Bond Fund*
Westcore MIDCO Growth Fund*
Westcore Small-Cap Opportunity Fund*
*Indicates that Fund is a "no-load" or "no sales charge" Fund as defined in
Section 26 of the NASD's Rules of Fair Practice.
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