1
EXHIBIT (e)(1)(v)
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
As of October 1, 2000
ALPS Mutual Funds Services, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Dear Sirs:
Pursuant to an Amended and Restated Distribution Agreement,
dated October 1, 1997 (the "Former Distribution Agreement"), between the
undersigned, Westcore Trust, a Massachusetts business trust (the "Trust"), and
you, as amended by Amendment No. 1, dated October 1, 1998, Amendment No. 2,
dated October 1, 1999, Amendment No. 3, dated October 1, 1999, and Amendment No.
4, dated December 15, 1999 (collectively, the "Amendments"), you are currently
the distributor of shares of beneficial interest (together with the shares of
beneficial interest of the New Fund, as defined below, the "Shares") of the
Trust's MIDCO Growth Fund, Blue Chip Fund (formerly known as the Modern Value
Equity Fund), Flexible Income Fund (formerly known as the Long-Term Bond Fund),
Plus Bond Fund (formerly known as the Intermediate-Term Bond Fund), Growth and
Income Fund (formerly known as the Equity Income Fund), Small-Cap Opportunity
Fund, Colorado Tax-Exempt Fund, Mid-Cap Opportunity Fund, Small-Cap Growth Fund,
Select Fund and International Frontier Fund (together with the New Fund (as
defined below), the "Funds"). You and the Trust desire to amend and restate the
Former Distribution Agreement so that the Former Distribution Agreement and all
of the Amendments will be reflected in a single document. In addition, the Trust
desires to appoint you as its distributor for Shares of the International Select
Fund (the "New Fund"). This letter is to confirm that in consideration of the
agreements hereinafter contained, the Trust has agreed that you shall be (or
continue to be, as the case may be) for the period of this Agreement the
distributor of Shares of the Funds.
1. Service as Distributor
1.1 You will act as agent for the distribution of
Shares in accordance with the instructions of the Trust's Board of Trustees and
the registration statement and prospectuses then in effect with respect to the
Funds under the Securities Act of 1933, as amended, and will transmit promptly
any orders received by you for the purchase or redemption of Shares either
directly to the Trust's transfer agent for the Fund involved or to any qualified
broker/dealer for transmittal to said agent.
1.2 (a) You agree to use your best efforts to solicit
orders for the sale of Shares. You, at your own expense, shall finance
appropriate activities which you deem reasonable which are primarily intended to
result in the sale of Shares, including, but not limited to, advertising,
compensation of underwriters, dealers and sales personnel, the printing and
2
mailing of prospectuses to other than current shareholders, and the printing and
mailing of sales literature. In addition, you will provide one or more persons,
during normal business hours, to respond to telephone questions with respect to
the Funds. It is contemplated that you will enter into selling agreements with
qualified broker/dealers and other persons with respect to the offering of
Shares to the public, and in so doing you will act only on your own behalf as
principal.
1.2 (b) All Shares of the Funds offered for sale by
you shall be offered for sale to the public at a price per share (the "offering
price") equal to (a) their net asset value (determined in the manner set forth
in the Trust's Declaration of Trust and then current prospectuses) plus, except
to those classes of persons set forth in the then current prospectuses, (b) a
sales charge which shall be the percentage of the offering price of such shares
as set forth in the Trust's then current prospectuses. The offering price, if
not an exact multiple of one cent, shall be adjusted to the nearest cent.
Concessions by you to broker/dealers and other persons shall be set forth in
either the selling agreements between you and such broker/dealers and other
persons, as from time to time amended, or if such concessions are described in
the Trust's then current prospectuses, shall be as so set forth. No
broker/dealer or other person who enters into a selling agreement with you shall
be authorized to act as agent for the Trust in connection with the offering or
sale of its Shares to the public or otherwise.
1.2 (c) If any Shares sold by the Trust are redeemed
or repurchased by the Trust or by you as agent or are tendered for redemption
within seven business days after the date of confirmation of the original
purchase of said Shares, you shall forfeit the amount above the net asset value
received by you in respect of such Shares, provided that the portion, if any, of
such amount re-allowed by you to broker/dealers or other persons shall be
repayable to the Trust only to the extent recovered by you from the
broker/dealer or other person concerned. You shall include in the forms of
agreement with such broker/dealers and other persons a corresponding provision
for the forfeiture by them of their concession with respect to Shares sold by
them or their principals and redeemed or repurchased by the Trust or by you as
agent (or tendered for redemption) within seven business days after the date of
confirmation of such initial purchases.
1.3 You shall act as distributor of the Shares in
compliance with all applicable laws, rules and regulations, including, without
limitation, all rules and regulations made or adopted pursuant to the Investment
Company Act of 1940, as amended, by the Securities and Exchange Commission or
any securities association registered under the Securities Exchange Act of 1934,
as amended.
1.4 Whenever in their judgment such action is
warranted by market, economic or political conditions, or by circumstances of
any kind, the Trust's officers may decline to accept any orders for, or make any
sales of, any Shares until such time as they deem it advisable to accept such
orders and to make such sales and the Trust shall advise you promptly of such
determination.
1.5 The Trust agrees to pay all costs and expenses in
connection with the registration of Shares under the Securities Act of 1933, as
amended, and all expenses in
-2-
3
connection with maintaining facilities for the issue and transfer of Shares and
for supplying information, prices and other data to be furnished by the Trust
hereunder.
1.6 The Trust agrees to execute any and all documents
and to furnish any and all information and otherwise to take all actions which
may be reasonably necessary in the discretion of the Trust's officers in
connection with the qualification of Shares for sale in such states as you may
designate to the Trust and the Trust may approve, and the Trust agrees to pay
all expenses which may be incurred in connection with such qualification. You
shall pay all expenses connected with your own qualification as a broker under
State or Federal laws and, except as otherwise specifically provided in this
agreement, all other expenses incurred by you in connection with the sale of
Shares as contemplated in this agreement.
1.7 The Trust shall furnish you from time to time,
for use in connection with the sale of Shares, such information with respect to
the Trust and the Shares as you may reasonably request, and the Trust warrants
that the statements contained in any such information, when so signed by the
Trust's officers, shall be true and correct. The Trust also shall furnish you
upon request with: (a) annual audited reports of the Trust's books and accounts
with respect to each of the Funds, made by independent public accountants
regularly retained by the Trust, (b) semi-annual reports with respect to each of
the Funds prepared by the Trust, and (c) from time to time such additional
information regarding the Trust's financial condition as you may reasonably
request.
1.8 The Trust represents to you that all registration
statements and prospectuses filed by the Trust with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, with respect to the
Shares have been prepared in conformity with the requirements of said Act and
rules and regulations of the Securities and Exchange Commission thereunder. As
used in this agreement the terms "registration statement" and "prospectus" shall
mean any registration statement and prospectus (together with the related
statement of additional information) filed with the Securities and Exchange
Commission with respect to any of the Shares and any amendments and supplements
thereto which at any time shall have been filed with said Commission. The Trust
represents and warrants to you that any registration statement and prospectus,
when such registration statement becomes effective, will contain all statements
required to be stated therein in conformity with said Act and the rules and
regulations of said Commission; that all statements of fact contained in any
such registration statement and prospectus will be materially true and correct
when such registration statement becomes effective; and that neither any
registration statement nor any prospectus when such registration statement
becomes effective will include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Trust may but shall not be obligated to
propose from time to time such amendment or amendments to any registration
statement and such supplement or supplements to any prospectus as, in the light
of future developments, may, in the opinion of the Trust's counsel, be necessary
or advisable. If the Trust shall not propose such amendment or amendments and/or
supplement or supplements within fifteen days after receipt by the Trust of a
written request from you to do so, you may, at your option, terminate this
agreement. The Trust shall not file any amendment to any registration statement
or supplement to any prospectus without giving you reasonable notice thereof in
advance; provided, however, that nothing
-3-
4
contained in this agreement shall in any way limit the Trust's right to file at
any time such amendments to any registration statement and/or supplements to any
prospectus, of whatever character, as the Trust may deem advisable, such right
being in all respects absolute and unconditional.
1.9 The Trust authorizes you to use any prospectus in
the form furnished to you from time to time, in connection with the sale of
Shares. The Trust agrees to indemnify, defend and hold you, your several
officers and directors, and any person who controls you within the meaning of
Section 15 of the Securities Act of 1933, as amended, free and harmless from and
against any and all claims, demands, liabilities and expenses (including the
cost of investigating or defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which you, your officers and
directors, or any such controlling person, may incur under the Securities Act of
1933, as amended, or under common law or otherwise, arising out of or based upon
any untrue statement, or alleged untrue statement, of a material fact contained
in any registration statement or any prospectus or arising out of or based upon
any omission, or alleged omission, to state a material fact required to be
stated in either any registration statement or any prospectus or necessary to
make the statements in either thereof not misleading; provided, however, that
the Trust's agreement to indemnify you, your officers or directors, and any such
controlling person shall not be deemed to cover any claims, demands, liabilities
or expenses arising out of any untrue statement or alleged untrue statement or
omission or alleged omission made in any registration statement or prospectus in
reliance upon and in conformity with information furnished to the Trust or its
counsel by you and used in the preparation thereof; and provided further that
the Trust's agreement to indemnify you and the Trust's representations and
warranties herein set forth shall not be deemed to cover any liability to the
Trust or its shareholders to which you would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of your
duties, or by reason of your reckless disregard of your obligations and duties
under this agreement. The Trust's agreement to indemnify you, your officers and
directors, and any such controlling person, as aforesaid, is expressly
conditioned upon the Trust's being notified of any action brought against you,
your officers or directors, or any such controlling person, such notification to
be given by letter or by telegram addressed to the Trust at its principal office
within ten days after the summons or other first legal process shall have been
served. The failure so to notify the Trust of any such action shall not relieve
the Trust from any liability which the Trust may have to the person against whom
such action is brought by reason of any such untrue, or alleged untrue,
statement or omission, or alleged omission, otherwise than on account of the
Trust's indemnity agreement contained in this paragraph 1.9. The Trust will be
entitled to assume the defense of any suit brought to enforce any such claim,
demand or liability, but, in such case, such defense shall be conducted by
counsel of good standing chosen by the Trust and approved by you. In the event
the Trust elects to assume the defense of any such suit and retain counsel of
good standing approved by you which approval shall not be unreasonably withheld,
the defendant or defendants in such suit shall bear the fees and expenses of any
additional counsel retained by any of them; but in case the Trust does not elect
to assume the defense of any such suit, or in case you do not reasonably approve
of counsel chosen by the Trust, the Trust will reimburse you, your officers and
directors, or the controlling person or persons named as defendant or defendants
in such suit, for the fees and expenses of any counsel retained by you or them.
The Trust's indemnification agreement contained in this paragraph 1.9 and the
Trust's representations and warranties in this
-4-
5
agreement shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of you, your officers and directors, or any
controlling person, and shall survive the delivery of any Shares. This agreement
of indemnity will inure exclusively to your benefit, to the benefit of your
several officers and directors, and their respective estates, and to the benefit
of any controlling persons and their successors. The Trust agrees promptly to
notify you of the commencement of any litigation or proceedings against the
Trust or any of its officers or trustees in connection with the issue and sale
of any of the Shares.
1.10 You agree to indemnify, defend and hold the
Trust, its several officers and trustees, and any person who controls the Trust
within the meaning of Section 15 of the Securities Act of 1933, as amended, free
and harmless from and against any and all claims, demands, liabilities and
expenses (including the cost of investigating or defending such claims, demands
or liabilities and any counsel fees incurred in connection therewith) which the
Trust, its officers or trustees, or any such controlling person, may incur under
the Securities Act of 1933, as amended, or under common law or otherwise, but
only to the extent that such liability or expense incurred by the Trust, its
officers or trustees, or such controlling person resulting from such claims or
demands, shall arise out of or be based upon any untrue, or alleged untrue,
statement of a material fact contained in information furnished by you to the
Trust or its counsel and used in the Trust's registration statement or in the
corresponding statements made in the prospectus, or shall arise out of or be
based upon any omission, or alleged omission, to state a material fact in
connection with such information furnished by you to the Trust or its counsel
and required to be stated in such answers or necessary to make such information
not misleading. Your agreement to indemnify the Trust, its officers and
trustees, and any such controlling person, as aforesaid, is expressly
conditioned upon your being notified of any action brought against the Trust,
its officers or trustees, or any such controlling person, such notification to
be given by letter or telegram addressed to you at your principal office within
ten days after the summons or other first legal process shall have been served.
You shall have the right to control the defense of such action, with counsel of
your own choosing, satisfactory to the Trust, if such action is based solely
upon such alleged misstatement or omission on your part, and in any other event
the Trust, its officers or trustees or such controlling person shall each have
the right to participate in the defense or preparation of the defense of any
such action. The failure so to notify you of any such action shall not relieve
you from any liability which you may have to the Trust, its officers or
trustees, or to such controlling person by reason of any such untrue, or alleged
untrue, statement or omission, or alleged omission, otherwise than on account of
your indemnity agreement contained in this paragraph 1.10.
1.11 No Shares shall be offered by either you or the
Trust under any of the provisions of this agreement and no orders for the
purchase or sale of such Shares hereunder shall be accepted by the Trust if and
so long as the effectiveness of the registration statement then in effect or any
necessary amendments thereto shall be suspended under any of the provisions of
the Securities Act of 1933, as amended, or if and so long as current
prospectuses as required by Section 10 of said Act, as amended, are not on file
with the Securities and Exchange Commission; provided, however, that nothing
contained in this paragraph 1.11 shall in any way restrict or have an
application to or bearing upon the Trust's obligation to repurchase Shares from
any shareholder in accordance with the provisions of the prospectuses or
Declaration of Trust.
-5-
6
1.12 The Trust agrees to advise you promptly in
writing:
(a) of any request by the Securities and Exchange
Commission for amendments to the registration statement or prospectuses then in
effect;
(b) in the event of the issuance by the Securities
and Exchange Commission of any stop order suspending the effectiveness of the
registration statement or prospectuses then in effect or the initiation of any
proceeding for that purpose;
(c) of the happening of any event which makes untrue
any statement of a material fact made in the registration statement or
prospectuses then in effect or which requires the making of a change in such
registration statement or prospectuses in order to make the statements therein
not misleading; and
(d) of all actions of the Securities and Exchange
Commission with respect to any amendments to any registration statement or
prospectus which may from time to time be filed with the Securities and Exchange
Commission.
2. Term
2.1 This agreement shall become effective as of the
date hereof and, unless sooner terminated, shall continue until September 30,
2001, and thereafter shall continue automatically for successive annual periods,
provided such continuance is specifically approved at least annually by (i) the
Trust's Board of Trustees or (ii) the vote of a majority (as defined in the
Investment Company Act of 1940) of the Funds' outstanding Shares, provided that
in either event its continuance also is approved by a majority of the Trust's
trustees who are not "interested persons" (as defined in said Act) of any party
to this agreement, by vote cast in person at a meeting called for the purpose of
voting on such approval. This agreement is terminable without penalty, on not
less than 60 days' notice, by the Trust's Board of Trustees, by vote of the
holders of a majority (as defined in said Act) of the Funds' outstanding Shares,
or by you. This agreement will also terminate automatically in the event of its
assignment (as defined in said Act).
2.2 Effective the date hereof, this Agreement amends
and restates the Former Distribution Agreement.
3. Miscellaneous
3.1 The Trust recognizes that from time to time your
directors, officers and employees may serve as directors, officers and employees
of other corporations or business trusts (including other investment companies)
and that such other corporations and trusts may include the name ALPS as part of
their name, and that you or your affiliates may enter into investment advisory
or other agreements with such other corporations and trusts.
3.2 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
-6-
7
November 19, 1987 which is hereby referred to and a copy of which is on file at
the office of the Secretary of State 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 its trustees, representatives or
agents are made not individually, but in such capacity, 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.
3.3 No provision of this agreement may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which an enforcement of the change, waiver,
discharge or termination is sought.
3.4 This agreement shall be governed by Colorado law.
Please confirm that the foregoing is in accordance with your
understanding by indicating your acceptance hereof at the place below indicated,
whereupon it shall become a binding agreement between us.
Very truly yours,
WESTCORE TRUST
By:
----------------------------
Name:
Title:
Accepted:
ALPS MUTUAL FUNDS SERVICES, INC.
By:
---------------------------------
Name:
Title: Authorized Representative
-7-
