BANK AGREEMENT
ALPS Distributors, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Gentlemen:
We are either (i) a "bank" (as such term is defined in Section 3(a)(6) of the
Securities Exchange Act of 1934, as amended) or (ii) a broker-dealer that is
registered with the Securities and Exchange Commission ("SEC") under said Act
and is affiliated with a "bank" as so defined. We desire to make available to
our customers shares of beneficial interest in the United Association S&P 500
Index Fund (the "Fund") a series of Financial Investors Trust (the "Trust")
that are now or hereafter available for sale to our customers. You are the
principal underwriter (as such term is defined in the Investment Company Act
of 1940, as amended) of the offering of shares of the Fund and the exclusive
agent for the continuous distribution of such shares pursuant to the terms of
a Distribution Agreement between you and the Trust. As used herein the term
"Prospectus" shall mean the prospectus and, unless the context otherwise
requires, related statement of additional information (the "Statement of
Additional Information") incorporated therein by reference, as the same are
amended and supplemented from time to time, of the Fund.
In consideration for the mutual covenants contained herein, it is hereby
agreed that our respective rights and obligations shall be as follows:
1. With respect to any and all transactions in the shares of the Fund
pursuant to this Agreement, it is understood and agreed that: (a) we shall
be acting solely as agent for the account of our customer; (b) each
transaction shall be initiated solely upon the order of our customer; (c)
each transaction shall be executed by the Trust only upon receipt of
instructions from us acting as agent for our customer; (d) as between us
and our customer, our customer will have full beneficial ownership of all
Fund shares; and (e) each transaction shall be for the account of our
customer and not for our account. Each transaction shall be without
recourse to us provided that we act in accordance with the terms of this
Agreement. We represent and warrant that we will have full right, power
and authority to effect transactions (including, without limitation, any
purchases and redemptions) in Fund shares on behalf of all customer
accounts provided by us to you or to any transfer agent as such term is
defined in the Fund's Prospectus (the "Transfer Agent"). Customers of ours
who purchase Fund shares are for all purposes our customers and not
customers of the Trust. We shall be responsible for opening, approving and
monitoring customer accounts and for the review and supervision of these
accounts, all in accordance with applicable law, including the rules of
the SEC and National Association of Securities Dealers, Inc. (the "NASD")
if applicable and/or the regulations of applicable federal and state bank
regulatory agencies or authorities. In no transaction involving Fund
shares shall we have any authority to act as agent for the Trust or for
you.
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2. All orders for the purchase of Fund shares shall be executed at the then
current public offering price per share (I.E., the net asset value per
share plus the applicable sales load, if any) and all orders for the
redemption of Fund shares shall be executed at the net asset value per
share, in each case as described in the Prospectus. The minimum initial
purchase order and minimum subsequent purchase order by any person shall
be as set forth in the Fund's Prospectus. All orders are subject to
acceptance or rejection by the Trust at its sole discretion. Unless
otherwise mutually agreed in writing, each transaction shall be promptly
confirmed in writing to the customer on a fully disclosed basis and a copy
of each confirmation shall be sent simultaneously to us. We agree that
upon receipt of duplicate confirmations we will examine the same and
promptly notify the Trust of any errors or discrepancies which we discover
and shall promptly bring to the attention of the Trust any errors in such
confirmations claimed by our customers. The Trust reserves the right, at
its discretion and without notice, to suspend the sale of shares or
withdraw entirely the sale of shares of the Fund.
3. We agree that we shall not make shares of the Fund available to our
customers except in compliance with all applicable federal and state laws
and the rules and regulations of applicable regulatory agencies or
authorities. We agree that we shall not purchase Fund shares, as agent for
any customer, unless we deliver or cause to be delivered to such customer,
at or prior to the time of delivery of the sale confirmation, a copy of
the Fund's Prospectus, or unless such customer has acknowledged receipt of
the Fund's Prospectus. We further agree that such sale confirmation,
accompanied by the Prospectus, shall be delivered by the Transfer Agent,
upon receipt of an order to purchase units from us. We further agree to
obtain from each customer for whom we act as agent for the purchase of
Fund shares any taxpayer identification number certification required
under Section 3406 of the Internal Revenue Code of 1986, as amended (the
"Code"), and the regulations promulgated thereunder, and to provide you or
your designee with timely written notice of any failure to obtain such
taxpayer identification number certification in order to enable the
implementation of any required backup with-holding in accordance with
Section 3406 of the Code and the regulations thereunder. Unless otherwise
mutually agreed in writing, you shall deliver or cause to be delivered to
each of the customers who purchases shares of the Fund through us copies
of all annual and interim reports, proxy solicitation materials and any
other information and materials relating to the Fund and prepared by or on
behalf of you, the Trust or its investment adviser, custodian, transfer
agent or dividend disbursing agent for distribution to such customer. You
agree to supply us with copies of the Prospectus, Statement of Additional
Information, annual and interim reports, proxy solicitation materials and
any such other information and materials relating to the Fund in
reasonable quantities upon request. We acknowledge that any material or
information that you furnish to us, other than the Prospectus, annual and
interim reports to shareholders and proxy solicitation materials prepared
by the Trust, are your sole responsibility and not the responsibility of
the Trust.
4. We shall not make any representations concerning the Fund shares other
than those contained in the Fund's Prospectus or in any promotional
materials or sales literature furnished to us by you or the Trust. We
shall not furnish or cause to be furnished to any person or display or
publish any information or materials relating to the Fund (including,
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without limitation, promotional materials and sales literature,
advertisements, press releases, announcements, statements, posters, signs
or other similar material), except such information and materials as may
be furnished to us by you or the Trust, and such other information and
materials as may be approved in writing by you.
5. (a) In the case of the Fund or class thereof which has adopted a
Distribution and Service Plan pursuant to Rule 12b-1 under the Investment
Company Act of 1940 (a "Plan"), you may elect from time to time to make
payments to us as provided under such Plan. In the case of the Fund or
class thereof that has no currently effective Plan, you may, to the extent
permitted by applicable law, elect to make payments to us from your own
funds. Any such payments shall be made in the amount and manner set forth
in the applicable schedule of distribution and service payments issued by
you and then in effect or as set forth in the Prospectus. Such schedule of
distribution and service payments may be discontinued or changed by you
from time to time and shall be in effect with respect to the Fund which
has a Plan only so long as the Fund's Plan remains in effect.
(b) In the event that Rule 2830 of the NASD Conduct Rules preclude the
Fund or class thereof from imposing, or you from receiving, a sales charge
(as defined in that Rule) or any portion thereof, then we shall not be
entitled to any payments from you hereunder from the date that the Fund or
class thereof discontinues or is required to discontinue imposition of
some or all of its sales charges. If the Fund or class thereof resumes
imposition of some or all of its sales charge, we will be entitled to
payments hereunder on the same terms as the Fund extends to you.
6. The procedures relating to orders and the handling thereof will be subject
to the terms of the Fund's Prospectus and instructions received by us from
you or the Transfer Agent from time to time. No conditional orders will be
accepted. We agree that purchase orders placed by us will be made only for
the purpose of covering purchase orders already received from our
customers and that we will not make purchases for any securities dealer or
broker. Further, we shall not withhold the placement of such orders so as
to profit ourselves; provided, however, that the foregoing shall not
prevent the purchase of shares of the Fund by us for our own bona fide
investment.
7. We agree to pay for purchase orders of Fund shares from us as agent for
our customers in accordance with the terms of the Fund's Prospectus. On or
before the settlement date of each purchase order for shares of the Fund,
we shall either (i) remit to an account designated by you with the
Transfer Agent an amount equal to the then current public offering price
of the shares of the Fund being purchased less our agency commission, if
any, with respect to such purchase order as determined by you in
accordance with the terms of the Fund's Prospectus, or (ii) remit to an
account designated by you with the Transfer Agent an amount equal to the
then current public offering price of the shares of the Fund being
purchased without deduction for our agency commission, if any, with
respect to such purchase order as determined by you in accordance with the
terms of the Fund's Prospectus, in which case our agency commission, if
any, shall be payable to us by you on at least a monthly basis. If payment
for any purchase order is not received in accordance with the terms of the
Fund's
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Prospectus, you reserve the right, without notice, to cancel the sale and
to hold us responsible for any loss sustained as a result thereof.
8. (a) We hereby represent and warrant that: (i) we are a corporation,
partnership, national association or other entity duly organized and
validly existing in good standing under the laws of the jurisdiction in
which we are organized; (ii) the execution and delivery of this Agreement
and the performance of the transactions contemplated hereby have been duly
authorized by all necessary action and all other authorizations and
approvals (if any) required for our lawful execution and delivery of this
Agreement and our performance hereunder have been obtained; and (iii) upon
execution and delivery by us, and assuming due and valid execution and
delivery by you, this Agreement will constitute a valid and binding
agreement, enforceable against us in accordance with its terms.
(b) If we are a Broker-Dealer, we further represent and warrant that we
are a member of the NASD and, with respect to any sales in the United
States, we agree to abide by all of the rules and regulations of the NASD,
including, without limitation, its Rules of Fair Practice. We agree to
comply with all applicable federal and state laws, rules and regulations.
We agree to notify you immediately in the event of our expulsion or
suspension from the NASD. Our expulsion from the NASD will automatically
terminate this Agreement immediately without notice. Our suspension from
the NASD will terminate this Agreement effective immediately upon your
written notice of termination to us.
9. If we are a bank as defined in the first paragraph of this Agreement, then
we agree to give written notice to you immediately in the event that we
cease to be a "bank" as so defined. In such event, this Agreement shall
automatically terminate upon such written notice.
10. You agree to inform us, upon our request, as to the states in which you
believe the shares of the Fund have been qualified for sale under, or are
exempt from the requirements of, the respective securities laws of such
states, but you shall have no obligation or responsibility to make shares
of the Fund available for sale to our customers in any jurisdiction.
11. The names and addresses and other information concerning our customers are
and shall remain our sole property, and neither you nor your affiliates
shall use such names, addresses or other information for any purpose
except in connection with the performance of your duties and
responsibilities hereunder and except for servicing and informational
mailings relating to the Fund. Notwithstanding the foregoing, this
Paragraph 13 shall not prohibit you or any of your affiliates from
utilizing for any purpose the names, addresses or other information
concerning any of our customers if such names, addresses or other
information are obtained in any manner other than from us pursuant to this
Agreement. The provisions of this Paragraph 13 shall survive the
termination of this Agreement.
12. (a) We will indemnify and hold you, the Trust, each transfer agent and
their respective officers, directors or trustees, agents, employees,
affiliates and controlling persons harmless against any and all losses,
claims, damages, liabilities, actions, costs or expenses (including any
legal expenses) insofar as such losses, claims, damages, liabilities,
actions, costs or
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expenses arise out of or are based upon (i) the execution of any
transactions in Fund shares registered in the name of, or beneficially
owned by, any customer in reliance upon any oral or written instructions
believed to be genuine and to have been given by or on behalf of us or
(ii) the negligent, reckless or intentional conduct of us or our
employees.
(b) You will indemnify and hold harmless us and our directors, officers,
employees, agents, controlling persons and affiliates against any and all
losses, claims, damages, liabilities, actions, costs or expenses insofar
as such losses, claims, damages, liabilities, actions, costs or expenses
arise out of or are based upon your or your employees negligent, reckless
or intentional conduct.
(c) A party seeking indemnification (an "Indemnified Party") hereunder
will (i) give prompt written notice to the other party hereto (the
"Indemnifying Party") of any claim with respect to which it seeks
indemnification, and (ii) permit such Indemnifying Party to assume the
defense of such claim with counsel reasonably satisfactory to the
Indemnified Party, PROVIDED, HOWEVER, that the Indemnified Party shall
have the right to employ separate counsel and to participate in the
defense of such claim, but the fees and expenses of such counsel shall be
at the expense of the Indemnified Party unless (a) the Indemnifying Party
has agreed in writing to pay such fees or expenses, or (b) the
Indemnifying Party shall have failed to assume the defense of such claim
or employ counsel reasonably satisfactory to the Indemnified Party, or (c)
the defendants in any such action include both the Indemnifying Party and
the Indemnified Party, and the Indemnified Party has reasonably concluded
that there may be legal defenses available to it which are different from
or additional to those available to the Indemnifying Party, or (d) there
exists or will exist a conflict of interest between the Indemnified Party
and Indemnifying Party which would make it inappropriate in the reasonable
judgement of the Indemnified Party for the same counsel to represent both
the Indemnified Party and the Indemnifying Party (in which case, if the
Indemnified Party notifies the Indemnifying Party in writing that the
Indemnified Party elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnified Party shall cooperate with the
Indemnifying Party in the contest or defense thereof. The Indemnifying
Party, in defense of any action assumed by it, shall not, without the
consent of the Indemnified Party, consent to entry of any judgment or
enter into any settlement of such action which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to the
Indemnified Party of a release from all liability in respect to such
action. If such defense is not assumed by the Indemnifying Party, the
Indemnifying Party will not be subject to any liability for any settlement
made without its consent (but such consent will not be unreasonably
withheld), and the Indemnifying Party will not be required to consent to
entry of any judgment or entry into any settlement which does not include
as an unconditional term thereof the giving by the claimant or plaintiff
to the Indemnified Party of a release from all liability in respect to
such action. If the Indemnifying Party is not entitled to, or elect not
to, assume the defense of a claim, the Indemnifying Party will not be
obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by the Indemnifying Party with respect to such claim,
unless in the reasonable judgment of the Indemnified Party a conflict of
interest may exist between any of the Indemnified parties with respect to
such claim, in which event the Indemnifying Party shall be obligated to
pay the fees and expenses of such additional counsel or counsels.
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(d) The indemnification agreement contained in this paragraph shall
survive the termination of this Agreement.
13. Neither this Agreement nor the performance of the services of the
respective parties hereunder shall be considered to constitute an
exclusive arrangement, or to create a partnership, association or joint
venture between you and us. Neither party hereto shall be, act as, or
represent itself as, the agent or representative of the other, nor shall
either party have the right or authority to assume, create or incur any
liability or any obligation of any kind, express or implied, against or in
the name of, or on behalf of, the other party. This Agreement is not
intended to, and shall not, create any rights against either party hereto
by any third party solely on account of this Agreement. Neither party
hereto shall use the name of the other party in any manner without the
other party's prior written consent, except as required by any applicable
federal or state law, rule or regulation, and except pursuant to any
promotional programs mutually agreed upon in writing by the parties
hereto.
14. Except as otherwise specifically provided herein, all notices required or
permitted to be given pursuant to this Agreement shall be given in writing
and delivered by personal delivery or by postage prepaid, registered or
certified United States first class mail, return receipt requested, or by
telex, telegram or similar means of same day delivery (with a confirming
copy by mail as provided herein). Unless otherwise notified in writing,
all notices to you shall be given or sent to you at your offices located
at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, and all
notices to us shall be given or sent to us at our address shown below.
15. This Agreement shall become effective only when accepted and signed by
you, and may be terminated at any time by either party hereto upon fifteen
(15) days' prior written notice to the other party. This Agreement may be
amended only be a written instrument signed by both of the parties hereto
and may not be assigned by either party without the prior written consent
of the other party. This Agreement constitutes the entire agreement and
understanding between the parties hereto relating to the subject matter
hereof and supersedes any and all prior agreements between the parties
relating to said subject matter.
16. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Colorado, without giving effect to
principles of conflicts of laws.
17. 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
of the same or any other provision.
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Very truly yours,
---------------------------
Name of Bank or Bank-Affiliated
Broker-Dealer
(Please Print or Type)
----------------------------
----------------------------
Address
Date: By:
--------------------------- ----------------------------
Authorized Officer
NSCC Dealer # Fax Number:
------------------ -----------------
NSCC Dealer Alpha Code Date:
--------- -----------------
NSCC Clearing # Mutual Fund
---------------- Coordinator/Primary
Contact:
--------------------
Phone Number:
------------------ -------------------------------------
NOTE: Please sign and return both copies of this Agreement to ALPS
Distributors, Inc. Upon acceptance one countersigned copy will be
returned to you for your files.
Accepted:
ALPS DISTRIBUTORS, INC.
Date: By:
---------------------------- -----------------------
Authorized Officer
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SCHEDULE OF DISTRIBUTION AND SERVICE PAYMENTS
FOR SALES OF CLASS II SHARES
PURSUANT TO PARAGRAPH 5(a) OF THE BANK AGREEMENT
In consideration of sales of Class II shares of the United Association S&P 500
Index Fund (the "Fund"), under the terms and conditions of Paragraph 5(a) of the
Bank Agreement, the following schedule for the payment of fees shall apply:
BANK AND/OR BROKER-DEALER
COMPENSATION
ANNUAL ANNUAL
NAME OF FUND CONTRACTUAL RATE CURRENT PAYMENT
----------------------------------------------------------------------
UNITED ASSOCIATION S&P 500 FUND .10% .10%
ALPS Distributors, Inc. shall pay you a fee based on the average daily net
assets throughout the quarter of Class II shares of the Fund. Such fee shall be
computed daily and paid quarterly. The determination of daily net assets shall
be made at the close of each business day throughout the quarter and computed in
the manner specified in the Fund's then-current Prospectus for the determination
of the net asset value of shares of Class II, but shall exclude assets
attributable to any other Class of the Fund.
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