EXHIBIT (l)(1)
CONVERSION OF FUNDS AGREEMENT
AGREEMENT dated as of September 30, 1998, among Westcore Trust, a
Massachusetts business trust on behalf of its Mid-Cap Opportunity Fund (the
"Trust"), and the participants (the "Participants") in the pooled fund
partnership (the "Pooled Fund Partnership") described below and the Pooled Fund
Partnership.
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended, consisting of
eight investment portfolios including the Mid-Cap Opportunity Fund (the
"Portfolio");
WHEREAS, the Pooled Fund Partnership is a partnership comprised of the
Participants whose names are listed below;
WHEREAS, the Participants have jointly invested certain contributions
in a pooled fund in the custody of The Bank of Cherry Creek pursuant to an
Agreement dated January 1, 1998 (the "Partnership Agreement");
WHEREAS, the individual Participants of the Pooled Fund Partnership
desire to transfer their interests in the Pooled Fund Partnership to the
Portfolio in exchange for shares of the Portfolio as hereinafter provided;
WHEREAS, the Partnership Agreement provides that the Partnership
Agreement may be terminated when at least 2/3 of the Participants vote for any
reason for such termination;
WHEREAS, the Participants and the Trust desire that the Pooled Fund
Partnership be terminated immediately upon the transfer described above;
WHEREAS, the Participants intend thereafter to be investors in the
Portfolio;
NOW, THEREFORE, the Participants, the Trust and the Pooled Fund
Partnership, intending to be legally bound, hereby agree as follows:
1. TRANSFER OF PORTFOLIO SHARES. On the date hereof, subject to the
terms and conditions of this Agreement and on the basis of and in reliance upon
the covenants, agreements, and representations and warranties set forth herein,
each Participant shall receive, and the Trust shall issue to each Participant,
shares of the Portfolio (as defined in the prospectus for the Portfolio) with
the aggregate net asset value equal to the aggregate market value of the
Partnership Interests (as hereinafter defined), determined in accordance with
Section 3 hereof.
2. CONSIDERATION. In exchange for the issuance of the shares of the
Portfolio pursuant to this Agreement, each Participant shall transfer the entire
Partnership Interest held by
it as set forth on Exhibit A hereto (collectively, the "Partnership Interests")
to the Portfolio. It is intended that the transaction will qualify for
nonrecognition treatment pursuant to Section 351 of the Internal Revenue Code of
1996, as amended. No brokerage commissions, fees (except for customary transfer
fees), or other remuneration will be paid by the Trust or the Participants in
connection with the transactions contemplated hereby. The number of shares of
the Portfolio to be issued to each Participant shall be determined by dividing
the aggregate market value (computed as set forth below) of the Partnership
Interest being transferred to the Portfolio by such Participant, determined as
of the close of business on the date hereof, by $10.00, the face value of the
shares of the Portfolio. The Trust believes that the foregoing procedure for
transferring the interest of each Participant to the Portfolio will be
beneficial to each Participant and the Portfolio, and will minimize brokerage
and other costs associated with the transfer of the Securities (as hereafter
defined).
3. DETERMINATION OF MARKET VALUE. The market value of each
Participant's Partnership Interest shall be that Participant's ratable share of
the aggregate market value of the securities and cash held by the Pooled Fund
Partnership as set forth in Exhibit B hereto (collectively, the "Securities").
The aggregate market value of the Securities shall be any cash plus the sum of
the value of each security being transferred, determined in accordance with the
methods for valuing portfolio securities of the Portfolio set forth in the
Prospectus and Statement of Additional Information for the Portfolio.
4. TERMINATION OF PARTNERSHIP AGREEMENT. By their signatures hereto,
the Participants and the Trust vote to terminate the Partnership Agreement as of
the date hereof immediately after the transfer described in Section 1.
Immediately upon termination of the Partnership Agreement, the Securities will
be distributed to the Trust as sole owner of the Partnership Interests in
liquidation of the Partnership, the Partnership will be dissolved and the Trust
will hold the Securities directly.
5. REPRESENTATIONS OF EACH PARTICIPANT. Each Participant hereby
represents and warrants as follows:
(a) The execution and delivery of this Agreement by it
constitutes its valid and binding obligation, enforceable in accordance with its
terms.
(b) At the time of the transfer of the Partnership Interests to
the Trust, it will have good title to its Partnership Interest, free and clear
of all mortgages, security interests, liens, charges, pledges, and encumbrances
whatsoever, and the Pooled Fund Partnership will have good title to the
Securities free and clear of all mortgages, security interests, liens, charges,
pledges, and encumbrances whatsoever. Upon transfer of such Partnership Interest
to the Trust, the Trust will acquire good title to the Partnership Interests
and, upon distribution of the Securities to the Trust, the Trust will acquire
good title to the Securities, in each case free and clear of all mortgages,
security interests, liens, charges, pledges, and encumbrances.
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6. REPRESENTATIONS OF THE POOLED FUND PARTNERSHIP. The Pooled Fund
Partnership hereby represents and warrants as follows:
(a) The execution and delivery of this Agreement by the Pooled
Fund Partnership has been duly authorized by all requisite partnership action
and constitutes the valid and binding obligation of such Pooled Fund
Partnership, enforceable in accordance with its terms.
(b) At the time of the transfer of the Partnership Interests to
the Trust, the Pooled Fund Partnership will have good title to the Securities,
free and clear of all mortgages, security interests, liens, charges, pledges,
and encumbrances whatsoever. Upon transfer of such Partnership Interests to the
Trust, the Trust will acquire good title to the Partnership Interests, and, upon
distribution of the Securities to the Trust, the Trust will acquire good title
to the Securities, in each case free and clear of all mortgages, security
interests, liens, charges, pledges, and encumbrances.
(c) The Securities constitute permissible investments under the
Portfolio's investment objective, policies, and limitations as set forth in the
Portfolio's registration statement.
7. REPRESENTATIONS OF THE TRUST. The Trust hereby represents and
warrants as follows:
(a) The Trust is entering into this Agreement on behalf of the
Portfolio. The execution and delivery of this Agreement by the Trust has been
duly authorized by all requisite Trust action and (assuming the due execution
and delivery hereof by each Participant) constitutes the valid and binding
obligation of the Trust, enforceable in accordance with its terms.
(b) The issuance and delivery of the shares of the Portfolio in
accordance with the terms of this Agreement have been duly authorized by all
requisite Trust action and such shares, when so issued and delivered against
consideration therefor in accordance with the provisions hereof, will be duly
and validly issued, fully paid, and nonassessable by the Trust.
(c) The shares of the Portfolio that are being issued
pursuant to Section 1 (and any shares which are issued simultaneously
therewith in exchange for cash or property) will constitute at least 80% of
the shares outstanding immediately after such issuance.
(d) There is no plan or intention by the Trust (or its
investment adviser) to dispose of the Securities other than on the normal
course of business operations.
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8. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9. 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 with the office of
the State Secretary of the Commonwealth of Massachusetts and at 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
enforcement of any claims against the Trust.
10. INVESTMENT REPRESENTATION OF EACH PARTICIPANT. Each Participant
hereby represents and warrants that it is acquiring the shares of the Portfolio
being issued to it hereunder (the "Shares") solely for investment, and not with
a view to distribution within the meaning of the Securities Act of 1933 and the
Rules and Regulations thereunder (the "Act"), that it understands that the
Shares are not registered under the Act, and that it will not sell the Shares
except in accordance with an exemption from such registration or unless the
Shares are subsequently registered under the Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers designated below as of the date
first above written.
WESTCORE TRUST, on behalf of
its Mid-Cap Opportunity Fund
/s/ Xxxx Xx XxXxxxxx By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------- -------------------------------------
(Attest) Title: Vice President
The Pooled Fund Partnership
by its partners named below.
Each of the following signs in his/her individual or company capacity (as the
case may be) and also as a partner in the Pooled Fund Partnership.
/s/ Alex Lock /s/ Xxxxxxx Xxxxxxx
----------------------------------- ----------------------------------------
Name: Alex Lock Name: Xxxxxxx Xxxxxxx
On his own behalf and as a Partner On her own behalf and as a Partner
in the Pooled Fund Partnership in the Pooled Fund Partnership
/s/ Xxxxxx X. Xxxxxx /s/ Xxxx Xxxxxx
----------------------------------- ----------------------------------------
Name: Xxxxxx Xxxxxx Name: Xxxx Xxxxxx
On his own behalf and as a Partner On his own behalf and as a Partner
in the Pooled Fund Partnership in the Pooled Fund Partnership
/s/ Xxxxx Xxxxx /s/ Xxxxxx Xxxxxx
----------------------------------- ----------------------------------------
Name: Xxxxx Xxxxx Name: Xxxxxx Xxxxxx
On his own behalf and as a Partner On his own behalf and as a Partner
in the Pooled Fund Partnership in the Pooled Fund Partnership
/s/ Xxxxxxxxx Xxxxxxxx /s/ Xxxx Xxxxxx
----------------------------------- ----------------------------------------
Name: Xxxxxxxxx Xxxxxxxx Name: Xxxx Xxxxxx
On her own behalf and as a Partner On his own behalf and as a Partner
in the Pooled Fund Partnership in the Pooled Fund Partnership
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/s/ Xxxxxxxxxxx Xxxx /s/ Xxxxx Xxxxxxxx
----------------------------------- ----------------------------------------
Name: Xxxxxxxxxxx Xxxx Trust Name: Xxxxx Xxxxxxxx
On her own behalf and as a Partner On her own behalf and as a Partner
in the Pooled Fund Partnership in the Pooled Fund Partnership
/s/ Xxxxxx X. Xxxxxx /s/ Xxx Xxxxxxx
----------------------------------- ----------------------------------------
Name: Xxxxxx Xxxxxx Name: Xxx Xxxxxxx
On his own behalf and as a Partner On his own behalf and as a Partner
in the Pooled Fund Partnership in the Pooled Fund Partnership
/s/ Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxxxxx
----------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxx Name: Xxxxxxx Xxxxxxxx
On his own behalf and as a Partner On her own behalf and as a Partner
in the Pooled Fund Partnership in the Pooled Fund Partnership
/s/ Xxx Xxxxx /s/ Xxxx Xxxxx Xxx
----------------------------------- ----------------------------------------
Name: Xxx Xxxxx Name: Xxxx Xxxxx Xxx
On her own behalf and as a Partner On her own behalf and as a Partner
in the Pooled Fund Partnership in the Pooled Fund Partnership
/s/ Xxxxxx Xxxxxx /s/ Mil Xxxxxxxx
----------------------------------- ----------------------------------------
Name: Xxxxxx Xxxxxx Name: Mil Xxxxxxxx
On his own behalf and as a Partner On his own behalf and as a Partner
in the Pooled Fund Partnership in the Pooled Fund Partnership
/s/ XxXxx Xxxxxxxx /s/ Xxx Xxxxx
----------------------------------- ----------------------------------------
Name: XxXxx Xxxxxxxx Name: Xxx Xxxxx
On her own behalf and as a Partner On his own behalf and as a Partner
in the Pooled Fund Partnership in the Pooled Fund Partnership
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx
----------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxx Xxxxxxx
On his own behalf and as a Partner On her own behalf and as a Partner
in the Pooled Fund Partnership in the Pooled Fund Partnership
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/s/ Xxx Xxxxxxx /s/ Xxxxx Wine
----------------------------------- ----------------------------------------
Name: Xxx Xxxxxxx Name: Xxxxx Wine
On his own behalf and as a Partner On his own behalf and as a Partner
in the Pooled Fund Partnership in the Pooled Fund Partnership
/s/ Xxxxxx Xxxxxxxx /s/ Xxxxxxx Xxxx
----------------------------------- ----------------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxxx Xxxx
On his own behalf and as a Partner On her own behalf and as a Partner
in the Pooled Fund Partnership in the Pooled Fund Partnership
/s/ Xxxxx Xxxxxxx /s/ Todger Xxxxxxxx
----------------------------------- ----------------------------------------
Name: Xxxxx Xxxxxxx Name: Todger Xxxxxxxx
On her own behalf and as a Partner On his own behalf and as a Partner
in the Pooled Fund Partnership in the Pooled Fund Partnership
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxx
----------------------------------- ----------------------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxx
On his own behalf and as a Partner On her own behalf and as a Partner
in the Pooled Fund Partnership in the Pooled Fund Partnership
/s/ Xxxxxxx Xxxxxxx
----------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxx Xxxxxx
On his own behalf and as a Partner On her own behalf and as a Partner
in the Pooled Fund Partnership in the Pooled Fund Partnership
/s/ Xxxxxxxx Xxxxxx
----------------------------------- ----------------------------------------
Name: Xxxxxxxx Xxxxxx Name: Xxxxxxxx Xxxxx
On her own behalf and as a Partner On her own behalf and as a Partner
in the Pooled Fund Partnership in the Pooled Fund Partnership
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/s/ Xxxxx Xxxxxxxx /s/ Xxxx Xxxxxxx
----------------------------------- ----------------------------------------
Name: Xxxxx Xxxxxxxx Name: Xxxx Xxxxxxx
On his own behalf and as a Partner On her own behalf and as a Partner
in the Pooled Fund Partnership in the Pooled Fund Partnership
DENVER INVESTMENT ADVISORS LLC
On its own behalf and as a Partner
in the Pooled Fund Partnership
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx,
Its: Chairman
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EXHIBIT A
PARTNERSHIP INTERESTS
Percentage Interest in
Name Pooled Fund Partnership
---- -----------------------
---------
Total: 100%
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EXHIBIT B
Securities and cash held in the Pooled Fund Partnership
AMOUNT CUSIP DESCRIPTION
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STOCKS & RELATED ISSUES:
Cash...............$116,054.99
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