Exhibit 99(h)(4)
BOOKKEEPING AND PRICING AGREEMENT
Between
FINANCIAL INVESTORS VARIABLE INSURANCE TRUST
and
ALPS MUTUAL FUNDS SERVICES, INC.
BOOKKEEPING AND PRICING AGREEMENT
AGREEMENT made this 10th day of August, 2001 between FINANCIAL
INVESTORS VARIABLE INSURANCE TRUST, a Delaware business trust having its
principal office at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000
(the "Trust") and ALPS MUTUAL FUNDS SERVICES, INC., a Colorado corporation
having its principal office at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000 (the "Agent").
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940 which presently offers
shares in separate series, as described in Appendix A to this Agreement, (herein
referred to individually as a "Portfolio" and collectively as the "Portfolios");
and
WHEREAS, the Trust and the Agent have entered into an Administration
Agreement, (the "Administration Agreement"), pursuant to which the Agent will
provide certain services; and
WHEREAS, the Trust desires to appoint the Agent as agent to perform
certain bookkeeping and pricing services for the Portfolios on behalf of the
Trust, and the Agent has indicated its willingness to so act, subject to the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. Agent Appointed Bookkeeping and Pricing Agent. The Trust hereby
appoints the Agent as bookkeeping and pricing agent for the Portfolios and the
Agent agrees to provide the services contemplated herein upon the terms and
conditions hereinafter set forth.
2. Definitions. In this Agreement the terms below have the following
meanings:
(a) Authorized Person. Authorized Person means any of the persons
duly authorized to give Proper Instructions or otherwise act
on behalf of the Trust by appropriate resolution of the Board
of Trustees of the Trust. The Trust will at all times maintain
on file with the Agent certification, in such form as may be
acceptable to the Agent, of (i) the names and signatures of
the Authorized Person(s) and (ii) the names of the members of
the Board of Trustees of the Trust, it being understood that
upon the occurrence of any change in the information set forth
in the most recent certification on file (including without
limitation any person named in the most recent certification
who is no longer an Authorized Person as designated therein),
the Trust will provide a new or amended certification setting
forth the change. The Agent will be entitled to rely upon any
Proper Instruction (defined below) which has been signed by
person(s) named in the most recent certification.
(b) Proper Instructions. Proper Instructions means any request,
instruction or certification signed by one or more Authorized
Persons. Oral instructions will be considered Proper
Instructions if the Agent reasonably believes them to have
been given by an Authorized Person and they are confirmed in
writing. Proper Instructions may include communication
effected directly between electromechanical or electronic
devices as agreed upon by the parties hereto.
3. Duties of the Agent. The Agent agrees to provide or to arrange to
provide at its expense the following services for the Trust:
(a) Maintain separate accounts for the Portfolios, all as
directed from time to time by Proper Instructions;
(b) Timely calculate and transmit to NASDAQ if eligible each
Portfolio's daily net asset value and public offering price
(such determinations to be made in accordance with the
provisions of the Declaration of Trust and the appropriate
prospectus and statement of additional information relating to
the Portfolios, and any applicable resolutions of the Board of
Trustees of the Trust) and promptly communicate such values
and prices to the Portfolios and the Portfolios' transfer
agent;
(c) Maintain and keep current all books and records of the Fund
as required by Section 31 of the 1940 Act and the rules
promulgated thereunder ("Section 31") in connection with the
Agent's duties hereunder. The Agent shall comply with all
laws, rules and regulations applicable to the performance of
its obligations hereunder. Without limiting the generality of
the foregoing, the Agent will prepare and maintain the
following records upon receipt of information in proper form
from Authorized Persons of the Trust:
(i) Cash receipts journal
(ii) Cash disbursements journal
(iii) Dividend records
(iv) Purchase and sales - portfolio securities journals
(v) Subscription and redemption journals
(vi) Security ledgers
(vii) Broker ledgers
(viii) General ledger
(ix) Daily expense accruals
(x) Daily income accruals
(xi) Securities and monies borrowed or loaned and
collateral therefore
(xii) Foreign currency journals
(xiii) Trial balances
(d) Provide the Trust and its investment adviser(s) with daily
portfolio values, net asset values and other statistical data
for each Portfolio as requested from time to time.
(e) Compute the net income, exempt interest income and capital
gains of the Portfolio for dividend purposes in accordance
with relevant prospectus policies and resolutions of the Board
of Trustees of the Trust.
(f) Provide the Portfolio and its investment adviser(s) with
copies of the semi-annual and annual financial statements to
be furnished to shareholders of each Portfolio and all raw
financial data necessary for the timely preparation of tax
returns, Form N-SAR, prospectus updates, Rule 24f-2 filings
and proxy statements.
(g) Provide facilities to accommodate annual audits and any
audits or examinations conducted by the Securities and
Exchange Commission or other governmental entities.
(h) Provide audited financial statements regarding the Agent on
an annual basis, as requested. Such audits shall be conducted
by an independent accounting firm mutually agreed upon by the
Agent and the Trust.
(i) Furnish to the Trust at the end of every month, and at the
close of each quarter of the Trust's fiscal year, a list of
the portfolio securities and the aggregate amount of cash in
the Portfolios.
(j) Assist in the preparation of certain reports, audits of
accounts, and other matters of like nature, as reasonably
requested from time to time by the Trust.
The Agent shall for all purposes be deemed to be an independent
contractor and shall, unless otherwise expressly authorized, have no authority
to act for or represent the Fund in any way or otherwise be deemed an agent of
the Trust.
4. Subcontractors. It is understood that the Agent may from time to time
at its own expense delegate the performance of all or a portion of its
obligations under this Agreement to one or more persons (hereinafter
"subcontractor(s)") as the Agent may believe to be particularly fit to assist it
in the performance of this Agreement. The Agent shall provide oversight over any
subcontractor(s) who shall in turn provide services pursuant to an agreement
with the Agent approved by a resolution of the Board of Trustees of the Trust.
5. Instructions to the Agent. The Agent shall promptly take all
appropriate steps necessary to carry out or comply with any Proper Instructions
received from the Trust.
6. Agent Compensation. In consideration for the services to be performed
by the Agent, the Agent shall be entitled to receive from the Fund such
compensation as set forth in the Administration Agreement.
7. Liability of the Agent.
(a) The Agent may rely upon the written advice of counsel for the
Trust and the Trust's independent accountants, and upon oral
or written statements of brokers and other persons reasonably
believed by the Agent in good faith to be an expert in the
matters upon which they are consulted and, for any actions
reasonably taken in good faith reliance upon such advice or
statements and without gross negligence, the Agent shall not
be liable to anyone.
(b) Nothing herein contained shall be construed to protect the
Agent against any liability to the Trust or its security
holders to which the Agent would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence
in the performance of its duties.
(c) Except as may otherwise be provided by applicable law,
neither the Agent nor its shareholders, officers, directors,
employees or agents shall be subject to, and the Trust shall
indemnify and hold such persons harmless from and against, any
liability for and any damages, expenses or losses incurred by
reason of the inaccuracy of factual information furnished to
the Agent or any subcontractor(s) by an Authorized Person of
the Fund.
(d) The Agent shall ensure that it or any subcontractors have and
maintain Errors and Omissions Insurance for the services
rendered under this Agreement of at least $1 million (provided
the Board of Trustees of the Trust may by resolution approve
some lesser amount). The Agent shall provide to the Trust
annually a certificate from the appropriate errors and
omissions insurance carrier(s) certifying that such Errors and
Omissions Insurance is in full force and effect.
8. Reports. Whenever, in the course of performing its duties under this
Agreement, the Agent determines, on the basis of information supplied to the
Agent by the Trust or its authorized agents, that a violation of applicable law
has occurred or that, to its knowledge, a possible violation of applicable law
may have occurred or, with the passage of time, would occur, the Agent shall
promptly notify the Trust and its counsel.
9. Activities of the Agent. The services of the Agent under this Agreement
are not to be deemed exclusive, and the Agent shall be free to render similar
services to others so long as its services hereunder are not impaired thereby.
10. Accounts and Records. The accounts and records maintained by the Agent
shall be the property of the Trust, and shall be surrendered to the Trust
promptly upon receipt of Proper Instructions from the Trust in the form in which
such accounts and records have been maintained or preserved. The Agent agrees to
maintain a back-up set of accounts and records of the Trust (which back-up set
shall be updated on at least a weekly basis) at a location other than that where
the original accounts and records are stored. The Agent shall assist the Trust,
the Trust's independent auditors, or, upon approval of the Trust, any regulatory
body, in any requested review of the Trust by the Agent or its independent
accountants concerning its accounting system and internal auditing controls will
be open to such entities for audit or inspection upon reasonable request. There
shall be no additional fee for these services. The Agent shall preserve the
accounts and records, as they are required to be maintained and preserved by
Section 31 of the Investment Company Act of 1940.
11. Confidentiality. The Agent agrees that it will, on behalf of itself and
its officers and employees, treat all transactions contemplated by this
Agreement, and all other
information germane thereto, as confidential and not to be disclosed to any
person except as may be authorized by the Trust in Proper Instructions.
12. Duration and Termination of this Agreement. This Agreement shall become
effective as of the date hereof. Notwithstanding anything to the contrary in
this Agreement, the Agent may not terminate this Agreement prior to the later
of: (i) the expiration of the initial or any renewal term of the Administration
Agreement; or (ii) the effectiveness of any termination notice pursuant to the
Administration Agreement.
Upon termination of this Agreement, the Agent shall deliver to the Trust or as
otherwise directed in Proper Instructions (at the expense of the Fund, unless
such termination is for breach of this Agreement by the Agent) all records and
other documents made or accumulated in the performance of its duties or the
duties of any subcontractor(s) for the Trust hereunder.
13. Assignment. This Agreement shall extend to and shall be binding upon
the parties hereto and their respective successors and assigns; provided,
however, that this Agreement shall not be assigned by the Trust without the
prior written consent of the Agent, or by the Agent without the prior written
consent of the Trust.
14. Governing Law. The provisions of this Agreement shall be construed and
interpreted in accordance with the laws of the state of Colorado and the 1940
Act and the rules and regulations thereunder. To the extent that the laws of
Colorado conflict with the 1940 Act or such rules, the latter shall control.
15. Names. The names "Financial Investors Variable Insurance Trust" and
"Trustees of Financial Investors Variable Insurance Trust" refer respectively to
the Trust created and the Trustees as trustees but not individually or
personally, acting from time to time under the Declaration of Trust dated July
26, 2000 and as may be amended from time to time which is hereby referred to and
a copy of which is on file at the office of the Secretary of the State of
Delaware and the principal office of the Trust. The obligations of "Financial
Investors Variable Insurance Trust" entered into in the name or on behalf
thereof by any of the Trustees, representatives or agents are made not
individually, but in such capacities, and are not binding upon any of the
Trustees, shareholders, or representatives of the Trust personally, but bind
only the Trust Property, and all persons dealing with any class of shares of the
Trust must look solely to the Trust Property belonging to such class for the
enforcement of any claims against the Trust.
16. Amendments to this Agreement. No change, amendment, modification or
waiver of any term of this Agreement shall be valid unless it is in writing and
signed by both parties.
17. Notices. All notices and other communications hereunder shall be in
writing, shall be deemed to have been given when received or when sent by telex
or facsimile, and shall be given to the following addresses (or such other
addresses as to which notice is given):
TO THE AGENT:
ALPS Mutual Funds Services, Inc.
000 Xxxxxxxxxxx Xxxxxx - Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx
TO THE FUND:
Financial Investors Variable Insurance Trust
000 Xxxxxxxxxxx Xxxxxx - Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
18. Counterparts. This Agreement may be executed by the parties hereto on
any number of counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
19. Waiver. The waiver by either party of a breach of any provision of this
Agreement shall not operate, or be construed, as a waiver of any subsequent
breach.
20. Headings. The headings have been inserted for convenience only and are
not to be considered when interpreting the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
FINANCIAL INVESTORS VARIABLE INSURANCE TRUST
By:/s/ Xxxxxx X. May
-----------------------------
Title: Treasurer
ALPS MUTUAL FUNDS SERVICES, INC.
By:/s/ Xxxxxx X Xxxxxx
-----------------------------
Title: CFO
APPENDIX A
Series Offered Under Financial Investors Variable Insurance Trust:
First Horizon Growth & Income Portfolio
First Horizon Capital Appreciation Portfolio
