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EXHIBIT (g)(3)
CUSTODIAN SERVICES AGREEMENT
This Agreement is made as of _________________________ by and between
NATIONAL CITY BANK (the "Custodian") and FINANCIAL INVESTORS TRUST, a
Massachusetts business trust (the "Fund").
The Fund is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (the "1940 Act"). The Fund
wishes to retain the Custodian to provide custodian services to one its
investment portfolios, as listed on Exhibit A attached hereto and as such
Exhibit A may be amended from time to time (the "Portfolio"), and the Custodian
wishes to furnish custodian services, either directly or though an affiliate or
affiliates, as more fully described herein.
In consideration of the promises and mutual covenants herein contained,
the parties agree as follows:
1. Definitions.
(a) "Authorized Person" shall mean any officer of the Fund and any
other person, who is duly authorized by the Fund's Board of Trustees, to give
Oral and Written Instructions on behalf of the Fund. Such persons are listed in
the Certificate attached hereto as the Authorized Persons Appendix as such
appendix may be amended in writing by the Fund's Board of Trustees from time to
time.
(b) "Book-Entry System" shall mean Federal Reserve Treasury
book-entry system for United States and federal agency securities, its successor
or successors, and its nominee or nominees and any book-entry system maintained
by an exchange registered with the SEC under the 1934 Act.
(c) "CFTC" shall mean the Commodities Futures Trading Commission.
(d) "Oral Instructions" shall mean oral instructions received by the
Custodian from an Authorized Person or from a person reasonably believed by the
Custodian to be an Authorized Person.
(e) "Custodian" shall mean National City Bank or a subsidiary or
affiliate of National City Bank.
(f) "SEC" shall mean the Securities and Exchange Commission.
(g) "Securities and Commodities Laws" shall mean the Securities Act
of 1933, as amended (the "1933 Act"), the Securities Exchange Act of 1934, as
amended
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(the "1934 Act"), the 1940 Act, and the Commodities Exchange Act, as amended
(the "CEA").
(h) "Shares" shall mean the units of beneficial interest of the
Fund.
(i) "Property" shall mean:
(i) any and all securities and other investment items which
the Fund may from time to time deposit, or cause to be
deposited, with the Custodian or which the Custodian may
from time to time hold for any Portfolio;
(ii) all income in respect of any of such securities or other
investment items;
(iii) all proceeds of the sale of any of such securities or
investment items; and
(iv) all proceeds of the sale of securities issued by the
Fund, which are received by the Custodian from time to
time, from or on behalf of the Fund.
(j) "Written Instructions" shall mean written instructions signed by
one Authorized Person and received by the Custodian. The instructions may be
delivered by hand, mail, tested telegram, cable, telex or facsimile sending
device.
2. Appointment. The Fund hereby appoints the Custodian to provide
custodian services to the Portfolio and the Custodian accepts such appointment
and agrees to furnish such services.
3. Delivery of Documents. The Fund has provided or, where applicable,
will provide the Custodian with the following:
(a) certified or authenticated copies of the resolutions of the
Fund's Board of Trustees, approving the appointment of the
Custodian or its affiliates to provide services;
(b) a copy of the Fund's most recent effective registration
statement;
(c) a copy of the Portfolio's advisory agreement or agreements;
(d) a copy of the Portfolio's distribution agreement or
agreements;
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(e) a copy of the Portfolio's transfer agency agreement or
agreements;
(f) copies of any shareholder servicing agreements made in respect
of the Fund or the Portfolio; and
(g) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. Compliance with Government Rules and Regulations. The Custodian
undertakes to comply with all applicable requirements of the 1933 Act, the 1934
Act, the 1940 Act, and the CEA, and any laws, rules and regulations of
governmental authorities having jurisdiction with respect to all duties to be
performed by the Custodian hereunder. Except as specifically set forth herein,
the Custodian assumes no responsibility for such compliance by the Fund.
5. Instructions. Unless otherwise provided in this Agreement, the
Custodian shall act only upon Oral and Written Instructions. The Custodian shall
be entitled to rely upon any Oral and Written Instructions it receives from an
Authorized Person (or from a person reasonably believed by the Custodian to be
an Authorized Person) pursuant to this Agreement. The Custodian may assume that
any Oral or Written Instructions received hereunder are not in any way
inconsistent with the provisions of organizational documents of the Fund or of
any vote, resolution or proceeding of the Fund's Board of Trustees or of the
Fund's shareholders.
The Fund agrees to forward to the Custodian Written Instructions
confirming Oral Instructions so that the Custodian receives the Written
Instructions by the close of business on the same day that such Oral
Instructions are received. The fact that such confirming Written Instructions
are not received by the Custodian shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral Instructions.
The Fund further agrees that the Custodian shall incur no liability to
the Fund or the Portfolio in acting upon Oral or Written Instructions provided
such instructions reasonably appear to have been received from an Authorized
Person.
6. Right to Receive Advice.
(a) Advice of the Fund. If the Custodian is in doubt as to any
action it should or should not take, the Custodian may request directions or
advice, including Oral or Written Instructions, from the Fund.
(b) Advice of Counsel. If the Custodian shall be in doubt as to any
questions of law pertaining to any action it should or should not take, the
Custodian may request advice at its own cost from such counsel of its own
choosing (who may be counsel for the Fund, the Fund's adviser or the Custodian,
at the option of the Custodian).
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(c) Conflicting Advice. In the event of a conflict between
directions, advice or Oral or Written Instructions the Custodian receives from
the Fund, and the advice it receives from counsel, the Custodian shall be
entitled to rely upon and follow the advice of counsel.
(d) Protection of the Custodian. The Custodian shall be protected in
any action it takes or does not take in reliance upon directions, advice or Oral
or Written Instructions it receives from the Fund or from counsel and which the
Custodian believes, in good faith, to be consistent with those directions,
advice or Oral or Written Instructions.
Nothing in this paragraph shall be construed so as to impose an
obligation upon the Custodian (i) to seek such directions, advice or Oral or
Written Instructions, or (ii) to act in accordance with such directions, advice
or Oral or Written Instructions unless, under the terms of other provisions of
this Agreement, the same is a condition of the Custodian's properly taking or
not taking such action.
7. Records. The books and records pertaining to the Fund and the
Portfolio, which are in the possession of the Custodian, shall be the property
of the Fund. Such books and records shall be prepared and maintained as required
by the 1940 Act and other applicable securities laws, rules and regulations. The
Fund, or the Fund's authorized representatives, shall have access to such books
and records at all times during the Custodian's normal business hours. Upon the
reasonable request of the Fund, copies of any such books and records shall be
provided by the Custodian to the Fund or to an authorized representative of the
Fund, at the Fund's expense.
8. Confidentiality. The Custodian agrees to keep confidential all
records of the Fund and the Portfolio and information relative to the Fund, the
Portfolio and the shareholders (past, present and potential), unless the release
of such records or information is otherwise consented to, in writing, by the
Fund. The Fund further agrees that, should the Custodian be required to provide
such information or records to duly constituted authorities (who may institute
civil or criminal contempt proceedings for failure to comply), the Custodian
shall not be required to seek the Fund's consent prior to disclosing such
information; provided that the Custodian gives the Fund prior written notice of
the provision of such information and records.
9. Cooperation with Accountants. The Custodian shall cooperate with the
fund's independent public accountants and shall take all reasonable action in
the performance of its obligations under this Agreement to ensure that the
necessary information is made available to such accountants for the expression
of their opinion, as required by the Fund.
10. Disaster Recovery. The Custodian shall enter into and shall
maintain in effect with appropriate parties one or more agreements making
reasonable provision for emergency use of electronic data processing equipment
to the extent appropriate equipment is available. In the event of equipment
failures, the Custodian shall, at no additional expense to
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the Fund, take reasonable steps to minimize service interruptions but shall have
no liability with respect thereto unless such failures result from the
Custodian's own willful misfeasance, bad faith, gross negligence, negligence or
reckless disregard of its duties and obligations under this Agreement.
11. Compensation. As compensation for custody services rendered by the
Custodian during the term of this Agreement, the Fund will pay to the Custodian
a fee or fees as may be agreed to in writing from time to time by the Fund and
the Custodian.
12. Indemnification. The Fund, on behalf of the Portfolio, agrees to
indemnify and hold harmless the Custodian and its nominees from all taxes,
charges, expenses, assessments, claims and liabilities (including, without
limitation, liabilities arising under the 1933 Act, the 1934 Act, the 1940 Act,
the CEA, and any state and foreign securities and blue sky laws, and amendments
thereto), and expenses, including (without limitation) reasonable attorneys'
fees and disbursements, arising directly or indirectly from any action which the
Custodian takes or does not take (i) at the request or on the direction of or in
reliance on the advice of the Fund or (ii) upon oral or Written Instructions.
Neither the Custodian, nor any of its nominees, shall be indemnified against any
liability to the Fund or to its shareholders (or any expenses incident to such
liability) arising out of the Custodian's or its nominees' own willful
misfeasance, bad faith, negligence or reckless disregard of its duties and
obligations under this Agreement.
In the event of any advance of cash for any purpose made by the
Custodian resulting from Oral or Written Instructions of the Fund, or in the
event that the Custodian or its nominee shall incur or be assessed any taxes,
charges, expenses, assessments, claims or liabilities in respect of the Fund or
the Portfolio in connection with the performance of this Agreement, except such
as may arise from its or its nominee's own negligent action, negligent failure
to act or willful misconduct, any Property at any time held for the account of
the Portfolio or the Fund shall be security therefor.
13. Responsibility of the Custodian. The Custodian shall be under no
duty to take any action on behalf of the Fund except as specifically set forth
herein or as may be specifically agreed to by the Custodian, in writing. The
Custodian shall be obligated to exercise care and diligence in the performance
of its duties hereunder, to act in good faith and to use its best efforts,
within reasonable limits, in performing Services provided for under this
Agreement. The Custodian shall be responsible for its own or its nominees'
(including without limitation foreign sub-custodians approved by the Fund) own
willful misfeasance, bad faith, negligence or reckless disregard of its duties
and obligations under this Agreement or the Custodian's own negligent failure to
perform its duties under this Agreement. Notwithstanding the foregoing, the
Custodian shall not be responsible for losses beyond its control, provided that
the Custodian has acted in accordance with the standard of care set forth above;
and provided further that the Custodian shall only be responsible for that
portion of losses or damages suffered by the Fund or the Portfolio attributable
to the negligence of the Custodian.
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Without limiting the generality of the foregoing or of any other
provision of this Agreement, the Custodian, in connection with its duties under
this Agreement, shall not be under any duty or obligation to inquire into and
shall not be liable for (a) the validity or invalidity or authority or lack
thereof of any Oral or Written Instruction, notice or other instrument which
conforms to the applicable requirements of this Agreement, and which the
Custodian reasonably believes to be genuine; or (b) delays or errors or loss of
data occurring by reason of circumstances beyond the Custodian's control,
including acts of civil or military authority, national emergencies, fire, flood
or catastrophe, acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply, nor shall the Custodian be under
any duty or obligation to ascertain whether any Property at any time delivered
to or held by the Custodian may properly be held by or for the Fund or the
Portfolio. Notwithstanding the foregoing, the Custodian shall use its best
efforts to mitigate the effects of the events in clause (b) above, although such
efforts shall not impute any liability thereto.
14. Description of Services.
(a) Delivery of the Property. The Fund will deliver or arrange for
delivery to the Custodian, all the property it owns, including cash received as
a result of the distribution of its Shares, during the period that is set forth
in this Agreement. The Custodian will not be responsible for such property until
actual receipt.
(b) Receipt and Disbursement of Money. The Custodian, acting upon
Written Instructions, shall open and maintain a separate account in the name of
the Fund on behalf of the Portfolio using all cash received from or for the
account of the Portfolio, subject to the terms of this Agreement.
The Custodian shall make cash payments to or from the account of the
Portfolio only for:
(i) purchases of securities in the name of the Portfolio or
the Custodian or the Custodian's nominee as provided in
sub-paragraph j and for which the Custodian has received
a copy of the broker's or dealer's confirmation or
payee's invoice, as appropriate;
(ii) purchase or redemption of Shares of the Fund delivered
to the Custodian;
(iii) payment of, subject to Written Instructions, interest,
dividends, taxes, administration, accounting,
distribution, advisory, management fees or similar
expenses which are to be borne by the Fund or the
Portfolio;
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(iv) payment to, subject to receipt of Written Instructions,
the Fund's transfer agent, as agent for the
shareholders, an amount equal to the amount of dividends
and distributions stated in the Written Instructions to
be distributed in cash by the transfer agent to
shareholders, or, in lieu of paying the Fund's transfer
agent, the Custodian may arrange for the direct payment
of cash dividends and distributions to shareholders in
accordance with procedures mutually agreed upon from
time to time by and among the Fund, the Custodian and
the Fund's transfer agent;
(v) payments, upon receipt of Written Instructions, in
connection with the conversion, exchange or surrender of
securities owned or subscribed to by the Portfolio and
held by or delivered to the Custodian;
(vi) payments of the amounts of dividends received with
respect to securities sold short;
(vii) payments made to a sub-custodian pursuant to provisions
in subparagraph c of this Paragraph 14; and
(viii) payments, upon Written Instructions made for other
proper Fund purposes.
The Custodian is hereby authorized to endorse and collect all checks,
drafts or other orders for the payment of money received as custodian for the
account of the Fund or the Portfolio.
(c) Receipt of Securities.
(i) The Custodian shall hold all securities and non cash
property received by it for the account of the Portfolio
in a separate account that physically segregates such
securities from those of any other portfolios, persons,
firms or corporations. All such securities and property
shall be held or disposed of only upon Written
Instructions of the Fund pursuant to the terms of this
Agreement. The Custodian shall have no power or
authority to withdraw, deliver, assign, hypothecate,
pledge or
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otherwise dispose of any such securities or investment,
except upon the express terms of this Agreement and upon
Written Instructions, accompanied by a certified
resolution of the Fund's Board of Trustees, authorizing
the transaction. In no case may any member of the Fund's
Board of Trustees, or any officer, employee or agent of
the Fund withdraw any securities.
(ii) At the Custodian's own expense and for its own
convenience, the Custodian may enter into sub-custodian
agreements with other United States banks or trust
companies to perform duties described in this
sub-paragraph c. Such bank or trust company shall have
an aggregate capital, surplus and undivided profits,
according to its last published report, of at least one
million dollars ($1,000,000), if it is a subsidiary or
affiliate of the Custodian, or at least twenty million
dollars ($20,000,000) if such bank or trust company is
not a subsidiary or affiliate of the Custodian. In
addition, the Fund may authorize the Custodian to employ
one or more sub-custodians for the Fund's securities and
other assets maintained outside the United States. Any
such domestic or foreign sub-custodian must be qualified
to act as custodian and agree to comply with the
relevant provisions of the 1940 Act and applicable rules
and regulations. No such arrangement will be entered
into without prior written approval of the Fund.
(iii) The Custodian shall remain responsible for the
performance of all of its duties as described in this
Agreement and shall be liable to the Fund for, and shall
indemnify and hold the Fund and the Portfolio harmless
from, its own acts or omissions and those of any
domestic or foreign sub-custodian, under the standards
of care provided for herein.
(iv) The Fund may appoint or request the Custodian to appoint
certain sub-custodians with respect to (including but
not limited to) the facilitation of three party
repurchase agreements. In such an event, the Custodian
shall not be responsible for
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the performance or actions and omissions of any such
sub-custodian.
(d) Transactions Requiring Instructions. Upon receipt of Oral or
Written Instructions and not otherwise, the Custodian, directly or through the
use of the Book-Entry System, shall:
(i) deliver any securities held for the Portfolio against
the receipt of payment for the sale of such securities;
(ii) execute and deliver to such persons as may be designated
in such Oral or Written Instructions, proxies, consents,
authorizations, and any other instruments whereby the
authority of the Portfolio as owner of any securities
may be exercised;
(iii) deliver any securities to the issuer thereof, or its
agent, when such securities are called, redeemed,
retired or otherwise become payable; provided that, in
any such case, the cash or other consideration is to be
delivered to the Custodian;
(iv) deliver any securities held for the Portfolio against
receipt of other securities or cash issued or paid in
connection with the liquidation, reorganization,
refinancing, tender offer, merger, consolidation or
recapitalization of any corporation, or the exercise of
any conversion privilege;
(v) deliver any securities held for the Portfolio to any
protective committee, reorganization committee or other
person in connection with the reorganization,
refinancing, merger, consolidation, recapitalization or
sale of assets of any corporation, and receive and hold
under the terms of this Agreement such certificates of
deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such
delivery;
(vi) make such transfer or exchanges of the assets of the
Fund and take such other steps as shall be stated in
said Oral or Written Instructions to be for the purpose
of effectuating a duly authorized plan of liquidation,
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reorganization, merger, consolidation or
recapitalization of the Fund;
(vii) release securities belonging to the Portfolio to any
bank or trust company for the purpose of a pledge or
hypothecation to secure any loan incurred by the
Portfolio; provided, however, that securities shall be
released only upon payment to the Custodian of the
monies borrowed, except that in cases where additional
collateral is required to secure a borrowing already
made subject to proper prior authorization, further
securities may be released for that purpose; and repay
such loan upon redelivery to it of the securities
pledged or hypothecated therefor and upon surrender of
the note or notes evidencing the loan;
(viii) release and deliver securities owned by the Portfolio in
connection with any repurchase agreement entered into on
behalf of the Fund, but only on receipt of payment
therefor; and pay out moneys of the Portfolio in
connection with such repurchase agreements, but only
upon the delivery of the securities;
(ix) release and deliver or exchange securities owned by the
Portfolio in connection with any conversion of such
securities, pursuant to their terms, into other
securities;
(x) release and deliver securities owned by the Portfolio
for the purpose of redeeming in kind shares of the Fund
upon delivery thereof to the Custodian; and
(xi) release and deliver or exchange securities owned by the
Portfolio for other corporate purposes.
The Custodian must also receive a certified resolution
describing the nature of the corporate purpose and the
name and address of the person(s) to whom delivery shall
be made when such action is pursuant to sub-paragraph d.
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(e) Use of Book-Entry System. The Fund shall deliver to the
Custodian certified resolutions of the Fund's Board of Trustees approving,
authorizing and instructing the Custodian on a continuous and on-going basis, to
deposit in the Book-Entry System all securities belonging to the Portfolio
eligible for deposit therein and to utilize the Book-Entry System to the extent
possible in connection with settlements of purchases and sales of securities by
the Portfolio, and deliveries and returns of securities loaned, subject to
repurchase agreements or used as collateral in connection with borrowings. The
Custodian shall continue to perform such duties until it receives Written or
Oral Instructions authorizing contrary actions(s).
To administer the Book-Entry System properly, the following provisions
shall apply:
(i) With respect to securities of the Fund which are
maintained in the Book-Entry system, established
pursuant to this sub-paragraph e hereof, the records of
the Custodian shall identify by Book-Entry or otherwise
those securities belonging to the Portfolio. The
Custodian shall furnish the Fund a detailed statement of
the Property held for the Portfolio under this Agreement
at least monthly and from time to time and upon written
request.
(ii) Securities and any cash of the Portfolio deposited in
the Book-Entry System will at all times be segregated
from any assets and cash controlled by the Custodian in
other than a fiduciary or custodian capacity but may be
commingled with other assets held in such capacities.
The Custodian and its sub-custodian, if any, will pay
out money only upon receipt of securities and will
deliver securities only upon the receipt of money.
(iii) All books and records maintained by the Custodian which
relate to the Fund's participation in the Book-Entry
System will at all times during the Custodian's regular
business hours be open to the inspection of the Fund's
duly authorized employees or agents, and the Fund will
be furnished with all information in respect of the
services rendered to it as it may require.
(iv) The Custodian will provide the Fund with copies of any
report obtained by the Custodian on
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the system of internal accounting control of the
Book-Entry System promptly after receipt of such a
report by the Custodian.
The Custodian will also provide the Fund with such reports on its own
system of internal control as the Fund may reasonably request from time to time.
(f) Registration of Securities. All Securities held for the
Portfolio which are issued or issuable only in bearer form, except such
securities held in the Book-Entry System, shall be held by the Custodian in
bearer form; all other securities held for the Portfolio may be registered in
the name of the Fund on behalf of the Portfolio, the Custodian, the Book-Entry
System, a sub-custodian, or any duly appointed nominees of the Portfolio, the
Custodian, Book-Entry system or sub-custodian. The Fund reserves the right to
instruct the Custodian as to the method of registration and safekeeping of the
securities of the Portfolio. The Fund agrees to furnish to the Custodian
appropriate instruments to enable the Custodian to hold or deliver in proper
form for transfer, or to register its registered nominee or in the name of the
Book-Entry System, any securities which it may hold for the account of the
Portfolio and which may from time to time be registered in the name of the Fund
on behalf of the Portfolio. The Custodian shall hold all such securities which
are not held in the Book-Entry System in a separate account for the Portfolio in
the name of the Fund on behalf of the Portfolio physically segregated at all
times from those of any other person or persons.
(g) Voting and Other Action. Neither the Custodian nor its nominee
shall vote any of the securities held pursuant to this Agreement by or for the
account of the Portfolio, except in accordance with Written Instructions. The
Custodian, directly or through the use of the Book-Entry System, shall execute
in blank and promptly deliver all notice, proxies, and proxy soliciting
materials to the registered holder of such securities. If the registered holder
is not the Fund on behalf of the Portfolio, then Written or Oral Instructions
must designate the person who owns such securities.
(h) Transactions Not Requiring Instructions. In the absence of
contrary Written Instructions, the Custodian is authorized to take the following
actions:
(i) Collection of Income and Other Payments.
(A) collect and receive for the account of the
Portfolio, all income, dividends, distributions,
coupons, option premiums, other payments and
similar items, included or to be included in the
Property, and, in addition, promptly advise the
Fund of such receipt and credit such income, as
collected, to the Portfolio's custodian account;
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(B) endorse and deposit for collection, in the name
of the Portfolio, checks, drafts, or other
orders for the payment of money;
(C) receive and hold for the accounts of the
Portfolio all securities received as a
distribution on the Portfolio's portfolio
securities as a result of a stock dividend,
share split-up or reorganization,
recapitalization, readjustment or other
rearrangement or distribution of rights or
similar securities issued with respect to any
portfolio securities belonging to the Portfolio
held by the Custodian hereunder;
(D) present for payment and collect the amount
payable upon all securities which may mature or
be called redeemed or retired, or otherwise
become payable on the date such securities
become payable; and
(E) take any action which may be necessary and
proper in connection with the collection and
receipt of such income and other payments and
the endorsement for collection of checks,
drafts, and other negotiable instruments.
(ii) Miscellaneous Transactions.
(A) The Custodian is authorized to deliver or cause
to be delivered Property against payment or
other consideration or written receipt therefor,
in the following cases:
(1) for examination by a broker or dealer
selling for the account of the Portfolio
in accordance with street delivery
custom;
(2) for the exchange of interim receipts or
temporary securities for definitive
securities; and
(3) For transfer of securities into name of
the Fund on behalf of the Portfolio or
the Custodian or nominee of either, or
for exchange of securities for a
different
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number of bonds, certificates or other
evidence, representing the same
aggregate face amount or number of units
bearing the same interest rate, maturity
date and call provisions, if any,
provided that, in any such case, the new
securities are to be delivered to the
Custodian.
(B) Unless and until the Custodian receives Oral or
Written instructions to the contrary, the
Custodian shall:
(1) pay all income items held by it which
call for payment upon presentation and
hold the cash received by it upon such
payment for the account of the
Portfolio;
(2) collect interest and cash dividends
received, with notice to the Fund, to
the account of the Portfolio;
(3) hold for the account of the Portfolio
all stock dividends, rights and similar
securities issued with respect to any
securities held by the Custodian; and
(4) execute as agent on behalf of the Fund
all necessary ownership certificates
required by the Internal Revenue Code or
the Income Tax Regulations of the United
States Treasury Department or under the
laws of any State now or hereafter in
effect, inserting the Fund's name on
behalf of the Portfolio on such
certificate as the owner of the
securities covered thereby, to the
extent it may lawfully do so.
(i) Segregated Accounts.
(i) The Custodian shall upon receipt of
Written or Oral Instructions establish
and maintain segregated accounts on its
records for and on behalf of the
Portfolio. Such accounts may be used to
transfer cash and
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securities, including securities in the
Book-Entry System:
(A) for the purposes of compliance by the
Fund with the procedures required by a
securities or option exchange, providing
such procedures comply with the 1940 Act
and any releases of the SEC relating to
the maintenance of segregated accounts
by registered investment companies; and
(B) Upon receipt of Written Instructions,
for other proper corporate purposes.
(ii) The Custodian may enter into separate
custodial agreements with various
futures commission merchants ("FCMs")
that the Fund uses (each an "FCM
Agreement"), pursuant to which the
Fund's margin deposits in any
transactions involving futures contracts
and options on futures contracts will be
held by the Custodian in accounts (each
an "FCM Account") subject to the
disposition by the FCM involved in such
contracts in accordance with the
customer contract between FCM and the
Fund ("FCM Contract"), SEC rules
governing such segregated accounts, CFTC
rules and the rules of the applicable
commodities exchange. Such FCM
Agreements shall only be entered into
upon receipt of Written Instructions
from the Fund which state that (i) a
customer agreement between the FCM and
the Fund has been entered into; and (ii)
the Fund is in compliance with all the
rules and regulations of the CFTC.
Transfers of initial margin shall be
made into an FCM Account only upon
Written Instructions; transfers of
premium and variation margin may be made
into an FCM Account pursuant to Oral
Instructions. Transfers of funds from an
FCM Account to the FCM for which the
Custodian holds such an account may only
occur upon certification
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by the FCM to the Custodian that
pursuant to the FCM Agreement and the
FCM Contract, all conditions precedent
to its right to give the Custodian such
instruction have been satisfied.
(j) Purchases of Securities. The Custodian shall settle purchased
securities upon receipt of Oral or Written Instructions from the Fund or its
investment adviser(s) that specify:
(i) the name of the issuer and the title of
the securities including CUSIP number if
applicable;
(ii) the number of shares or the principal
amount purchased and accrued interest,
if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such
purchase;
(vi) the name of the person from whom or the
broker through whom the purchase was
made. The Custodian shall upon receipt
of securities purchased by or for the
Portfolio pay out of the moneys held for
the account of the Portfolio the total
amount payable to the person from whom
or the broker through whom the purchase
was made, provided that the same
conforms to the total amount payable as
set forth in such Oral or Written
Instructions; and
(vii) the name of the Portfolio.
(k) Sales of Securities. The Custodian shall settle sold securities
upon receipt of Oral or Written Instructions from the Fund that specify:
(i) the name of the issuer and the title of
the security, including CUSIP number if
applicable;
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(ii) the number of shares or principal amount
sold, and accrued interest, if any;
(iii) the date-of trade and settlement and
sale;
(iv) the sale price per unit;
(v) the total amount payable to the
Portfolio upon such sale;
(vi) the name of the broker through whom or
the person to whom the sale was made;
(vii) the location to which the security must
be delivered and delivery deadline, if
any; and
(viii) the name of the Portfolio involved.
The Custodian shall deliver the securities upon receipt of the
total amount payable to the Portfolio upon such sale, provided that the total
amount payable is the same as was set forth in the Oral or Written Instructions.
Subject to the foregoing, the Custodian may accept payment in such form as shall
be satisfactory to it, and may deliver securities and arrange for payment in
accordance with the customs prevailing among dealers in securities.
(1) Reports.
(i) The Custodian shall furnish the Fund the
following reports:
(A) such periodic and special reports as the
Fund may reasonably request;
(B) a monthly statement summarizing all
transactions and entries for the account
of the Portfolio, listing the portfolio
securities belonging to the Portfolio
with the adjusted average cost of each
issue and stating the cash account of
the Portfolio including disbursements;
(C) the reports to be furnished to the Fund
pursuant to Rule 17f-4; and
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(D) such other information as may be agreed
upon from time to time between the Fund
and the Custodian.
(ii) The Custodian shall transmit promptly to
the Fund any proxy statement, proxy
material, notice of a call or conversion
or similar communication received by it
as custodian of the Property. The
Custodian shall be under no other
obligation to inform the Fund as to such
actions or events.
(m) Collections. All collections of monies or other property in
respect, or which are to become part, of the Property (but not the safekeeping
thereof upon receipt by the Custodian) shall be at the sole risk of the Fund. If
payment is not received by the Custodian within a reasonable time after proper
demands have been made, the Custodian shall notify the Fund in writing,
including copies of all demand letters, any written responses, memoranda of all
oral responses and telephonic demands thereto, and await instructions from the
Fund. The Custodian shall not be obliged to take legal action for collection
unless and until reasonably indemnified to its satisfaction. The Custodian shall
also notify the Fund as soon as reasonably practicable whenever income due on
securities is not collected in due course and shall provide the Fund with
periodic status reports of such income uncollected after a reasonable time.
15. Duration and Termination. This Agreement shall continue until
terminated by the Fund or by the Custodian on sixty (60) days, prior written
notice to the other party. In the event this Agreement is terminated (pending
appointment of a successor to the Custodian or vote of the shareholders of the
Fund to dissolve or to function without a custodian of its cash, securities or
other property), the Custodian shall not deliver cash, securities or other
property of the Portfolios to the Fund. It may deliver them to a bank or trust
company of the Custodian's choice, having an aggregate capital, surplus and
undivided profits, as shown by its last published report, of not less than
twenty million dollars ($20,000,000), as a custodian for the Fund to be held
under terms similar to those of this Agreement. The Custodian shall not be
required to make any such delivery or payment until full payment shall have been
made to the Custodian of all of its fees, compensation, costs and expenses. The
Custodian shall have a security interest in and shall have a right of setoff
against property in the Fund's possession as security for the payment of such
fees, compensation, costs and expenses.
16. Notices. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable, telex or
facsimile sending device. Notice shall be addressed (a) if to the Custodian, at
the Custodian's address, 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, marked
for the attention of the Institutional Trust Custodian Services Department (or
its successor); (b) if to the Fund, at the address of the Fund; or (c) if to
neither of the foregoing, at such other address as shall have been notified to
the
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sender of any such Notice or other communication. If notice is sent by
confirming telegram, cable, telex or facsimile sending device, it shall be
deemed to have been given immediately. If notice is sent by first-class mail, it
shall be deemed to have been given five days after it has been mailed. If notice
is sent by messenger, it shall be deemed to have been given on the day it is
delivered.
17. Amendments. This Agreement, or any term hereof, may be changed or
waived only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
18. Delegation. The Custodian may assign its rights and delegate its
duties hereunder to any wholly-owned direct or indirect subsidiary of National
City Bank, or National City Corporation, provided that (i) the Custodian gives
the Fund thirty (30) days prior written notice; (ii) the delegate agrees with
the Custodian to comply with all relevant provisions of the 1940 Act and this
Agreement; and (iii) the Custodian and such delegate promptly provide such
information as the Fund may request, and respond to such questions as the Fund
may ask, relative to the delegation, including (without limitation) the
capabilities of the delegate.
19. 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.
20. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
21. Miscellaneous. The Custodian acknowledges that the Fund is a
Massachusetts business trust, and that it is required by the Declaration to
limit its liability in all agreements to the assets of the Fund. Consequently,
the Custodian agrees that any claims by it against the Fund may be satisfied
only from the assets of the Fund, and no shareholders, trustees or officers of
the Fund may be held personally liable or responsible for any obligations
arising out of this Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided that the parties
may embody in one more separate documents their agreement, if any, with respect
to delegated and/or Oral Instructions.
The captions in this Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or otherwise
affect their construction or effect.
This Agreement shall be deemed to be a contract made in Ohio and governed
by Ohio law. If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby. This Agreement shall be binding and shall inure
to the benefit of the parties hereto and their respective successors.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below on the day and year first above
written.
NATIONAL CITY BANK
By:
Title:
FINANCIAL INVESTORS TRUST
By:
Title:
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Portfolios
This EXHIBIT A, dated is that certain Exhibit A to a Custodian
Services Agreement dated as of between the undersigned
parties. This Exhibit A supersedes all previously dated Exhibits A.
NATIONAL CITY BANK
By:
Title:
FINANCIAL INVESTORS TRUST
By:
Title:
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AUTHORIZED PERSONS
APPENDIX
This Appendix, dated is that certain Appendix to a Custodian
Services Agreement dated as of between Financial Investors Trust
and National City Bank.
Names Signatures
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