EXHIBIT 9
FBR CUSTODIAN AGREEMENT
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FBR NATIONAL BANK & TRUST
CUSTODIAN AGREEMENT
This Agreement made this 26TH day of AUGUST, 2003 by and between NAVELLIER
PERFORMANCE FUNDS hereinafter referred to as the "Principal", and FBR National
Bank & Trust, hereinafter referred to as the "Custodian", a Nationally chartered
institution that has been granted certain Trust powers under the Office of the
Comptroller of Currency, whose place of business is located in Bethesda,
Maryland.
Whereas, the Principal desires that certain securities and other property and/or
cash as may be transferred to the Custodian from time to time shall be held and
administered by the Custodian pursuant to the terms of this Agreement,
Whereas, the Principal is desirous of appointing the FBR National Bank & Trust
as Custodian for the purposes hereinafter set forth,
NOW THEREFORE, THIS AGREEMENT WITNESSETH:
That in consideration of the premises and in the further consideration of the
performance by the Custodian of the obligations set forth, in regard to the
assets of the above referenced funds shall hold said securities and property,
together with any additions thereto in safe-keeping as hereinafter set forth:
1. COLLECTION/DISTRIBUTION OF FUNDS. The Custodian shall collect all
interest, dividends, proceeds of sales, and other moneys due and collectable
which derive from the securities held under this Agreement and pay all proper
expenses incident to the custody of said securities.
2. COMPENSATION. The Custodian shall be entitled to receive compensation for
its services hereunder in accordance with its schedule in effect when the
services are performed which compensation will be invoiced directly to the
Principal. The Custodian's current fee schedule is attached hereto on Schedule
"B".
3. INVESTMENTS. The Custodian shall invest, sell and reinvest only upon
written directions from the Principal. Notwithstanding the foregoing, the
Custodian may invest any cash awaiting permanent investment or distribution in
any short term money market investment utilized by the Custodian including
shares of any investment company affiliated with the Custodian or to whom the
Custodian provides services. The Principal may select from the short term money
market investment and other investments as set forth in the "Disclosure" form.
All investment instructions shall be in writing in accordance with Section 16 of
this agreement.
a. As the Principal, or a representative designated in writing by the
Principal, specifically directs in writing and/or orally; or
b. As are in accordance with a broker's xxxx or confirmation addressed
to the account of the Principal at the offices of the Custodian and
presented to the Custodian.
c. As the Principal authorizes designated investment manager per
Schedule D to execute transactions in writing and (or) orally; or
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d. The Custodian will hold, earmark and physically segregate for the
account all non-cash property, including all securities owned by the
Principal, other than securities maintained in a clearing agency
which acts as a securities depository or in an authorized book-entry
system authorized by the U.S. Department of the Treasury,
collectively referred to herein as a "Securities System."
e. The Custodian will deliver securities held by the Custodian or in a
Securities System account only upon receipt of proper instructions,
which may be continuing instructions, and only in the following
cases:
1.) Upon sale of such securities for the account of the
Principal and receipt of payment therefore;
2.) Upon receipt of payment in connection with any
repurchase agreement related to such securities entered into
by the Principal;
3.) In the case of a sale effected through a Securities
System;
4.) To the depository agent in connection with tenders or
other similar offers for securities of the Principal;
5.) 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;
6.) To the issuer thereof, or its agent, for registration or
re-registration pursuant to the provisions of Section 5
hereof; or for exchange for a different number of certificates
or other evidence representing the same aggregate face amount
or number of units; provided that, in any such case, the new
securities are to be delivered to the Custodian;
7.) For exchange or conversion pursuant to any plan of
merger, consolidation, recapitalization, reorganization or
readjustment of the securities of the issuer or pursuant to
provisions for conversion contained in such securities, or
pursuant to any deposit agreement; provided that, in any such
case, the new securities and cash, if any, are to be delivered
to the Custodian;
8.) In the case of warrants, rights or similar securities,
the surrender thereof in the exercise of such warrants, rights
or similar securities or the surrender of interim receipts or
temporary securities for definitive securities; provided that,
in any case, the new securities and cash, if any, are to be
delivered to the Custodian;
9.) For delivery in connection with any loans of securities
made by the Principal, but only against receipt of adequate
collateral as agreed upon from time to time by the Custodian
and the Principal, which may be in the form of cash or
obligations issued by the United States government, its
agencies or instrumentalities;
10.) For delivery as security in connection with any
borrowing by the Principal requiring a pledge of assets by the
Principal against receipt of amounts borrowed;
11.) For any other proper corporate purposes, but only upon
receipt of, in addition to Proper Instructions, a certified
copy of a resolution of the Board signed by an officer of the
Corporation and certified
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by the Secretary or an Assistant Secretary, or the Principal
or a designated representative of the Principal, specifying
the delivery instructions and declaring such purposes.
f. The Bank will notify Principal in a timely fashion of any call for
redemption, tender offer, subscription rights, merger,
reorganization, consolodation, recapitalization or other similar
proceedings affecting such securities that are received by the Bank
or published in a financial service described in the following
sentence. Financial services to which the Bank subscribes may change
from time to time, but the Bank will maintain subscriptions to those
financial services which are reasonably necessary to satisfy its
obligation hereunder, which are of general applicability to the type
of securities held by the Bank for Principal, and which are
generally used for that purpose in the securities custody industry.
Except with respect to any notices actually received by the Bank,
the Bank shall have no responsibility for any failure to give
notices if the relevent information is not published in a financial
service described in the preceeding sentence. Subject to the
foregoing, the Bank is under no obligation to ascertain which
financial services publish relevent information on a particular
security. Unless notified by Principal at the time that a particular
security is delivered to the Bank that the security is subject to
call or delivery outside the United States, or that any notice
concerning the security is to be published outside the United
States, the Bank will not be responsible for any loss realized by a
failure or delay in giving notice of any corporate action affecting
such security.
g. The Custodian may deposit and/or maintain securities owned by the
Principal in a clearing agency registered with the Securities and
Exchange Commission (the "SEC") under Section 17A of the Securities
Exchange Act of 1934, which acts as a securities depository, or in
the book-entry system authorized by the U.S. Department of the
Treasury and certain federal agencies (collectively referred to
herein as a "Securities System") in accordance with applicable
Federal Reserve Board and SEC rules and regulations, if any, and
subject to the following provisions:
1.) The Custodian may keep securities of the Principal in a
Securities System provided that such securities are
represented in an account ("Account") of the Custodian in the
Securities System which will not include any assets of the
Custodian other than assets held as a fiduciary, custodian, or
otherwise for customers;
2.) The records of the Custodian with respect to securities
of the Principal which are maintained in a Securities System
will identify by book-entry those securities belonging to the
Principal;
3.) The Custodian will pay for securities purchased for the
Principal upon receipt of advice from the Securities System
that such securities have been transferred to the Account, and
the making of an entry on the records of the Custodian to
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reflect such payment and transfer for the Principal. The
Custodian will transfer securities sold for the account of the
Principal upon receipt of advice from the Securities System
that payment for such securities has been transferred to the
Account, and the making of an entry on the records of the
Custodian to reflect such transfer and payment for the account
of the Principal. The Custodian will periodically furnish the
Principal an account statement showing confirmation of each
transfer to or from the account of the Principal and each
day's transactions in the Securities System for the account of
the Principal.;
4.) The book-entry system of the Federal Reserve System
authorized by the U.S. Department of the Treasury and the
Depository Trust Company, a clearing agency registered with
the SEC, each are hereby specifically approved as a Securities
System, provided that any changes in these arrangements shall
be subject to the approval of the Board; and
5.) The Custodian will be liable to the Principal for any
direct loss or damage to the Principal resulting from use of
the Securities System to the extent caused by the gross
negligence, misfeasance, or misconduct of the Custodian or any
of its agents or of any of its or their employees. In no event
will the Custodian be liable for any indirect, special,
consequential or punitive damages.
4. STATEMENTS. The Custodian shall provide the Principal with a statement of
assets and transactions monthly.
The Custodian will make a good faith effort to obtain and maintain accurate
market prices on securities it holds for the Principal. The Custodian will
reprice securities at such frequency as it, in its sole discretion deems
appropriate. Such repricing will be performed at least monthly, Limited
Partnerships, that are not publicly traded will be repriced at least annually.
The Custodian, however, makes no warranties or guarantees as to the accuracy of
such pricing or repricing, and will not be liable to the Principal in any way as
a result of the Principal's actions which are taken as a result of relying on
market price information provided by the Custodian.
5. APPOINTMENT OF AGENTS. The Custodian may at any time in its discretion
appoint, but only in accordance with an applicable vote by the Board, any bank
or trust company, which is qualified under the 1940 Act to act as a custodian,
as its agent or sub-custodian to carry out such of the provisions as the
Custodian may from time to time direct; provided that the appointment of any
such agent of sub-custodian will not relieve the Custodian of any of its
responsibilities or liabilities hereunder. The Custodian is hereby authorized to
deposit, arrange for deposit and/or maintain foreign securities owned by the
Principal with the Custodian or with the sub-custodians or agents of the
Custodian's agent.
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6. LIABILITY FOR INVESTMENTS. The Custodian shall not be liable or held
responsible for any loss or depreciation in the value of the account resulting
from any investments or changes in investments made as aforesaid. The Custodian
is not at any time under any duty to supervise the investment of, or to advise
or make any recommendation for the purchase, sale, retention or disposition of
securities. The Custodian shall not be responsible for delays or failures in
performance resulting from acts beyond its control. Such acts shall include, but
not be limited to acts of God, strikes, riots, acts of war, epidemics,
governmental regulations superimposed after the fact, fire, communication line
failures, power failures, earthquakes or other disasters.
7. REGISTRATION. The Custodian may hold assets in its sole discretion, in the
name of a nominee, in bearer form, in book-entry form or in a clearing
corporation or depository, so long as its records clearly indicate that the
assets are held in this account. As long as the rights of the Principal to
receive income and other rights normally given a registered holder of securities
are not affected in any way.
8. TRADE ORDERS. All trades shall be made through broker/dealers selected by
the Custodian, except to the extent that the Principal provides otherwise as set
forth in Schedule "D". The compensation for providing this service is, the
commission charged by the broker and any transaction fees set forth in Schedule
"B".
9. TRANSACTION ADVICE/AUTHORIZATIONS. The Principal (please initial indicating
selection, acknowledgment and acceptance)
Shall receive _________________________
Shall not receive _________________________
transaction advices for all security purchases and sales (other than daily cash
investments). An election not to receive such transaction advices may be revoked
by the Principal in writing.
10. DISBURSEMENTS/OVERDRAFTS. All disbursements and purchases are made from
the account's collected, available funds and it is the policy of the Custodian
to not have overdrafts. However, from time to time due to any number of reasons,
such as, a miscalculation of activity, an overdraft will occur. The overdraft
must be cleared in a timely manner and the Custodian reserves the right to claim
compensation at the prevailing prime interest rate.
Principal has signed agreements to use a third party, CTC ("Bank") for loans of
overdrafts. Subject to the terms and conditions of the loan agreement, Bank may,
in its sole and absolute discretion, make loans to Borrower acting for a
Portfolio (each, a "Loan", and, collectively the "Loans") at such times and in
such amounts as Borrower may request, which amounts may be borrowed, repaid and
reborrowed, provided that the Loans shall not exceed in aggregate principal
amount at any one time outstanding, the maximum amount Borrower is then
permitted under the 1940 Act to borrow for such Portfolio.
Borrower shall pay Bank interest, in arrears, on the principal amount of each
Loan from the date on which such Loan is made pursuant to the statement above
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until such Loan is due under the Agreement, at a rate per annum during each
Interest Period equal to 30-day LIBOR on the Interest Commencement Date of such
Interest Period plus one percent (100 basis points).
When requesting a disbursement for payment of expenses, the Principal will
furnish the Bank (a) proof of payment to the third party from whom the goods or
services were purchased, and (b) information sufficient to permit the Bank to
determine that the reimbursement is authorized by the Principal.
When requesting a distribution of assets from the capital account, the Principal
will furnish the Bank a request Stating (a) the amount of the distribution to be
made and (b) the manner in which the distribution was calculated.
11. AMENDMENT/TERMINATION. The Principal and the Custodian expressly reserve
the right at any time and from time to time, by mutual agreement in writing, to
alter, amend, modify this Agreement, either in whole or in part. Either party
may terminate this Agreement at any time upon written notice to the other. Such
resignation would be effective 60 days from the notification date, or such date
as may be mutually agreed upon. Fees will be prorated to the date of
termination. No assignment of this Agreement by the Custodian shall be effective
without the prior written consent of the Principal.
12. NOTICE. Any notice, report or other written communication provided for
herein shall be mailed or otherwise delivered to FBR National Bank and Trust,
Trust Custody Department, 0000 Xxxxxxxx Xxx., Xxxxxxxx, XX 00000, or to the
Principal at the address listed in account information schedule, unless either
party has notified the other in writing of a different address. Any written
communication shall be sufficient if received by facsimile transmission.
13. INDEMNIFICATION. The Principal shall indemnify and hold the Custodian, its
officers, agents, employees, representatives, parent, affiliates or subsidiaries
harmless from any and all claims, losses, costs, expenses, fees, legal fee
charges, damages, liabilities, actions, causes of actions, or any other sums
whatsoever, charged to, incurred or paid by the Custodian in connection with,
related to, or arising from, directly or indirectly, this Agreement, or by
reason of any other contracts or agreements entered into by the Custodian in
compliance herewith; save and except this indemnification shall not apply to
claims, losses, costs, expenses, fees, charges, damages, liabilities, actions,
or causes by action or conduct of the Custodian, its officers, agents,
employees, or representatives, which under the particular and given
circumstances involved departs from normal, customary or acceptable practice in
the industry or trade, or which involves gross negligence or willful misconduct
of the Custodian, its officers, agents, employees, or representatives, for all
of which the Custodian shall be liable to the Principal under this agreement.
The Principal shall indemnify and hold the Custodian harmless for following
Principal's instructions.
14. PROXIES. The Custodian shall take all reasonable actions to obtain
information with regard to redemptions, maturities, subscription rights,
conversion privileges and matters of a like nature and transmit such information
to the Principal promptly. If any situation comes to the attention
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of the Custodian which will or may require the enforcement or exercise of any of
the rights or privileges pertaining to any fixed obligation or debt security
held hereunder, the Custodian shall give prompt notice thereof to the Principal
and shall take only such action as the Principal directs in writing. The
Custodian shall forward to the Principal, any and all information relative to
the voting of proxies on stock held in the account. The Principal may then
forward the completed proxy information to the respective company involved.
Please refer to Schedule "C" for important information concerning the
Shareholder Communications Act.
15. TAXES. The Principal shall be responsible for the filing of all tax
returns and for the payment of all taxes including income taxes, capital gains
taxes, personal property taxes and any other taxes applicable to this account.
The Custodian shall not pay any taxes of any kind except those which may be
incidental to the transfer of securities.
16. AUTHORIZED PERSONS. The Principal agrees to provide a list of authorized
persons from whom the Custodian may take instruction. The Principal further
agrees to furnish a new list if those persons authorized should change. Until
such new list is received, the Custodian shall be protected in acting on the
instruction of the then current list of authorized persons. The Custodian shall
be entitled to rely upon any written or oral instruction actually received by
the Custodian and reasonably believed by the Custodian to be duly authorized by
the Principal or his designee. In the case of oral instructions the Principal
agrees to forward to the Custodian written instructions confirming the oral
instructions.
17. MULTIPLE ACCOUNTS. From time to time, the Principal may instruct the
Custodian to open and maintain more than one custody account. Unless the
Principal and Custodian otherwise expressly agree, such accounts will be
governed by the provisions of this Agreement.
18. ON-LINE ACCESS. If the Custodian provides on-line access by means of a
computer terminal to the Principal, or a representative designated by the
Principal, for the retrieval of account information, the following terms and
conditions shall be applicable:
A. Access may be restricted, at the sole option of the Custodian, to
such data, reports and time of day as may, in the opinion of the
Custodian, be necessary to ensure the proper and efficient performance of
the Custodian's computer system; and
B. Users of the on-line access agree to establish appropriate internal
procedures to control access to account information and in no case will
the Custodian be liable to the Principal for any losses which the
Principal may experience as a result of having information available via a
computer terminal.
C. Users understand and agree that they will provide any terminal
equipment (e.g., computers, including communications software, modems or
other hardware devices) at their site necessary to use On-Line Access, and
shall bear any and all costs and expenses with respect thereto as well as
for the use of any third party telecommunications networks or direct-dial
telephone lines used in connection therewith.
19. GOVERNING LAW. Maryland Law shall govern the construction and
interpretation of this Agreement.
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20. SEVERABILITY. Any term or provision of this Agreement held to be illegal
or unenforceable shall, if possible be interpreted so as to be construed as
valid, but in any event the validity or enforceability of the remainder hereof
shall not be affected.
21. THIRD PARTIES. This agreement shall be binding upon and the benefits
hereof shall insure to the parties hereto and their respective successors and
assigns. However, nothing in this Agreement shall give or be construed to give
or confer upon any third party any rights hereunder.
22. ENTIRE AGREEMENT. This Agreement sets forth the entire Agreement between
the parties and supersedes any and all prior proposals, agreements, and
representations between them, whether written or oral.
In witness whereof, the parties hereto have caused this Agreement to be executed
in duplicate as of the day and year first above written.
Navellier Performance Funds
_____________________
Date
By: _______________________________
Name
Signature /s/
____________________
FBR National Bank and Trust
______________________
Date By: _______________________________
Name
Signature /s/
_____________________
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SCHEDULE A
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AMENDMENT TO
AGREEMENT FOR FUND ACCOUNTING SERVICES,
TRANSFER AGENT SERVICES AND CUSTODY SERVICES
BETWEEN
THE PERFORMANCE FUNDS
AND
FBR NATIONAL BANK & TRUST
Effective April 1, 2001, the following amendments are hereby made to the
Agreement for Fund Accounting Services, Transfer Agent Services and Custody
Services dated July 31, 1998 by and between The Navellier Performance Funds and
Rushmore Trust and Savings, FSB.
1. Whereas on March 31, 2001 Rushmore Trust and Savings, FSB converted from a
federal savings bank to a national bank charter to be known as FBR National Bank
& Trust and was immediately acquired by Friedman, Billings, Xxxxxx Group, Inc.,
the name Rushmore Trust and Savings, FSB shall be replaced throughout the
Agreement with FBR National Bank & Trust (the "Company").
2. The following section shall be added to the Agreement:
ARTICLE 30: PRIVACY
The Company agrees that it will only use and disclose nonpublic personal
information of Investment Company shareholders in the ordinary course of
providing contracted services to the Investment Company and as permitted by law.
FBR National Bank & Trust Investment Companies
(Listed on Exhibit 1)
/s/ /s/
__________________________ ______________________________
Xxxxx X. Xxxxxxx Xxxxx Xxxxxx
President and CEO Treasurer
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