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INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT
MAGNET TOTAL MARKET GROWTH FUND
(A SERIES OF FINANCIAL INVESTORS TRUST)
THIS INVESTMENT ADVISORY AGREEMENT (the "Agreement") is made this _____
day of June, 2000, between Revqual Index-Plus Investors, L.L.C, a Delaware
limited liability company ("Revqual") and Financial Investors Trust, a Delaware
business trust (the "Trust"), with respect to the Magnet Total Market Growth
Fund, a series of the Trust (the "Fund").
RECITALS
A. The Trust is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (the "1940 Act"), and has
registered its shares for public offering under the Securities Act of 1933, as
amended (the "1933 Act").
B. The Trust is authorized to create separate series of shares, each
with its own separate investment portfolio, one of such series created by the
Trust being the Fund.
C. The Trust and Revqual deem it mutually advantageous that Revqual
should assist the Trustees and officers of the Trust in the management of the
securities portfolio of the Fund.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. APPOINTMENT. The Trust hereby appoints Revqual as investment
adviser and manager with respect to the Fund for the period and on the terms set
forth in this Agreement. Revqual hereby accepts such appointment and agrees to
render the services herein set forth, for the compensation herein provided.
2. INVESTMENT ADVISORY FUNCTIONS. In its capacity as investment
adviser to the Fund, Revqual shall have the following duties and
responsibilities:
(a) To manage the investment operations of the Fund and the
composition of its investment portfolio, and to determine
without prior consultation with the Trust, what securities
and other assets of the Fund will be acquired, held,
disposed of or loaned, in conformity with the investment
objective, policies and restrictions and the other
statements concerning the Fund in the Trust's trust
instrument, as amended from time to time (the "Trust
Instrument"), bylaws, and currently effective registration
statements under the 1940 Act and the 1933 Act and any
amendments or supplements thereto (the "Registration
Statements"), the Investment Advisers Act of 1940, as
amended (the "Advisers Act"), the rules thereunder, and all
other applicable federal and state laws and regulations,
and the provisions of the Internal Revenue Code of 1986, as
amended, applicable to the Fund as a regulated investment
company;
(b) To cause its officers to attend meetings and furnish oral
or written reports, as the Trustees may reasonably require,
in order to keep the Trustees and appropriate
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officers of the Trust fully informed as to the condition of
the investment portfolio of the Fund, the investment
decisions of Revqual, and the investment considerations
which have given rise to those decisions;
(c) To place orders for the purchase and sale of securities for
investments of the Fund and for other related transactions;
to give instructions to the custodian (including any
subcustodian) of the Fund as to deliveries of securities
to and from such custodian and receipt and payments of cash
for the account of the Fund, and advise the Trust on the
same day such instructions are given; to submit such reports
relating to the valuation of the Fund's assets and to
otherwise assist in the calculation of the net asset value
of shares of the Fund as may reasonably be requested; on
behalf of the Fund, to exercise such voting rights,
subscription rights, rights to consent to corporate action
and any other rights pertaining to the Fund's assets that
may be exercised, in accordance with any policy pertaining
to the same that may be adopted or agreed to by the Trustees
of the Trust, or, in the event that the Trust retains the
right to exercise such voting and other rights, to furnish
the Trust with advice as to the manner in which such rights
should be exercised;
(d) To maintain all books and records required to be maintained
by Revqual pursuant to the 1940 Act and the rules and
regulations promulgated thereunder, as the same may be
amended from time to time, with respect to transactions on
behalf of the Fund, and shall furnish the Trustees with
such periodic and special reports as the Trustees reasonably
may request. Revqual agrees that all records which it
maintains for the Fund are the property of the Trust, agrees
to permit the reasonable inspection thereof by the Trust
or its designees and agrees to preserve for the periods
prescribed under the 1940 Act any records which it maintains
for the Fund and which are required to be maintained under
the 1940 Act, and further agrees to surrender promptly to
the Trust or its designees any records which it maintains
for the Trust upon request by the Trust; and
(e) At such times as shall be reasonably requested by the
Trustees, to provide the Trustees with economic,
operational and investment data and reports,
including without limitation all information and
materials reasonably requested by or requested to be
delivered to the Trustees of the Trust pursuant to
Section 15(c) of the 1940 Act, and make available to
the Trustees any economic, statistical and investment
services normally available to similar investment
company clients of Revqual.
3. MANAGEMENT FUNCTIONS. In its capacity as manager of the Fund,
Revqual shall have the following duties and responsibilities, subject to the
direction and control of the Board of Trustees of the Trust: (a) assist in
maintaining office facilities (which shall be in such location as the Trust and
Revqual shall reasonably determine); (b) furnish clerical services and
stationery and office supplies; (c) compile data for and prepare with respect to
the Fund timeline Notices to the Securities and Exchange Commission required
pursuant to Rule 24f-2 under the 1940 Act and Semi-Annual Reports on Form N-SAR;
(d) coordinate execution and filing by the Fund of all federal and state tax
returns and required tax filings other than those required to be made by the
Fund's custodian or transfer agent; (e) prepare compliance filings pursuant to
state securities laws with the advice of the Trust's counsel; (f) prepare Annual
and Semi-Annual Financial Reports to the Fund's shareholders and updates to the
Registration Statements; (g) monitor the Fund's expense accruals and pay all
expenses on proper authorization from the Fund; (h) monitor the Fund's status as
a regulated investment company under Subchapter M of the
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Internal Revenue Code of 1986, as amended; (i) maintain the Trust's fidelity
bond as required by the 1940 Act; (j) on a monthly basis, monitor compliance
with the policies and limitations of the fund as set for the in the Prospectus,
Statement of Additional Information, Code of Regulations and declaration of
Trust; (k) generally assist in the Fund's operations.
With respect to its management function and in compliance with the
requirements of Rule 31a-3 under the 1940 Act, Revqual hereby agrees that all
records which it maintains for the Fund are the property of the Trust and
further agrees to surrender promptly to the Trust any of such records upon the
Trust's request. Revqual further agrees to preserve for the periods prescribed
by Rule 31a-2 under the 1940 Act the records required to be maintained by Rule
31a-1 under the 1940 Act.
4. FURTHER OBLIGATIONS. In all matters relating to the performance
of this Agreement, Revqual shall act in conformity with the Trust's Trust
Instrument, bylaws and Registration Statements and with the written policies,
procedures and guidelines of the Fund, and written instructions and directions
of the Trustees of the Trust and shall comply with the requirements of the 1940
Act, the Advisers Act, the rules thereunder, and all other applicable federal
and state laws and regulations. The Trust agrees to provide Revqual with copies
of the Trust's Trust Instrument, bylaws, Registration Statements, written
policies, procedures and guidelines, and written instructions and directions of
the Trustees, and any amendments or supplements to any of them at, or, if
practicable, before the time such materials become effective.
5. OBLIGATIONS OF TRUST. The Trust shall fulfill or cause its
agents to fulfill the following obligations under this Agreement:
(a) To keep Revqual continuously and fully informed as to
the composition of the investment portfolio of the
Fund and the nature of all of the Fund's assets and
liabilities from time to time;
(b) To furnish Revqual with a certified copy of any
financial statements or reports prepared for the Fund
by certified or independent public accountants and
with copies of any financial statements or reports
made to the Fund's shareholders or to any
governmental body or securities exchange;
(c) To furnish Revqual with any further materials or
information which Revqual may reasonably request to
enable it to perform its function under this
Agreement; and
(d) To compensate Revqual for its services in accordance
with the provisions of Section 6 hereof.
6. COMPENSATION. The Trust shall pay to Revqual for its services
under this Agreement a fee at an annual rate of 1.00% of the average daily net
asset value of the Fund, such fees to be calculated daily and payable monthly in
United States dollars.
7. EXPENSES.
(a) EXPENSES PAID BY THE TRUST. The Trust assumes and shall pay all
expenses incidental to its operations and business not
specifically assumed or agreed to be paid by Revqual hereunder
or otherwise, including, but not limited to, any compensation,
fees or reimbursements which the Trust pays to its Trustees who
are not interested persons of Revqual; compensation of the
Fund's custodian, transfer agent, registrar and dividend
disbursing agent and other service providers; legal, accounting,
audit and printing
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expenses; clerical, record keeping and bookkeeping expenses;
brokerage commissions and all other expenses in connection with
execution of portfolio transactions; interest; all federal,
state and local taxes (including stamp, excise, income and
franchise taxes); expenses of local representation in Delaware;
expenses of shareholders' meetings and of preparing, printing
and distributing proxy statements, notices, and reports to
shareholders; expenses of preparing and filing reports and tax
returns with federal and state regulatory authorities; all
expenses incurred in complying with all federal and state laws
and the laws of any foreign country applicable to the issue,
offer or sale of shares of the Fund, including, but not limited
to, all costs involved in preparing, printing and mailing
prospectuses and statements of additional information to
shareholders of the Fund; and all fees, dues and other expenses
incurred by the Trust in connection with the membership of the
Trust in any trade association or other investment company
organization.
(b) EXPENSES PAID BY REVQUAL. Revqual shall pay all its own costs
and expenses incurred in rendering the services required under
this Agreement. In addition to such costs and expenses,
Revqual shall incur and pay reasonable compensation, fees and
related expenses of any of the Trust's officers or Trustees
who are interested persons of Revqual.
8. BROKERAGE COMMISSIONS. For purposes of this Agreement, brokerage
commissions paid by the Fund upon the purchase or sale of its portfolio
securities shall be considered a cost of securities of the Fund and shall be
paid by the Fund. Absent instructions from the Trust to the contrary, Revqual is
authorized and directed to place Fund portfolio transactions only with brokers
and dealers who render satisfactory service in the execution of orders at the
most favorable prices and at reasonable commission rates, provided, however,
that Revqual may pay a broker an amount of commission for effecting a securities
transaction in excess of the amount of commission another broker would have
charged for effecting that transaction if Revqual determines in good faith that
such amount of commission was reasonable in relation to the value of the
brokerage and research services provided by such broker viewed in terms of
either that particular transaction or the overall responsibilities of Revqual.
Revqual is also authorized to consider sales of Fund shares as a factor in
selecting broker-dealers to execute Fund portfolio transactions. In placing
portfolio business with such broker-dealers, Revqual shall seek the best
execution of each transaction. Notwithstanding the foregoing, the Trustees of
the Trust may establish policies or guidelines to be followed by Revqual in
placing portfolio transactions for the Trust pursuant to the foregoing
provisions. Revqual shall report on the placement of portfolio transactions in
the prior fiscal quarter at each quarterly meeting of such Trustees. To the
extent consistent with applicable law, purchase or sell orders for the Fund may
be aggregated with simultaneous purchase or sell orders for other clients of
Revqual. Whenever Revqual simultaneously places orders to purchase or sell the
same security on behalf of the Fund and one or more other clients of Revqual,
such orders will be allocated as to price and amount among all such clients in a
manner reasonably believed by Revqual to be fair and equitable to each client.
The Trust recognizes that in some cases, this procedure may adversely affect the
results obtained for the Fund.
9. TERMINATION. This Agreement may be terminated at any time,
without penalty, by the Trustees of the Trust, or by the shareholders of the
Fund acting by vote of at least a majority of its outstanding voting securities,
provided in either case that sixty (60) days' advance written notice of
termination be given to Revqual at its principal place of business. This
Agreement may be terminated by Revqual at any time, without penalty, by giving
sixty (60) days' advance written notice of termination to the Trust, addressed
to its principal place of business.
10. ASSIGNMENT. This Agreement shall terminate automatically in the
event of any assignment of this Agreement.
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11. TERM. This Agreement shall continue in effect until , 2002,
unless sooner terminated in accordance with its terms, and shall continue in
effect from year to year thereafter only so long as such continuance is
specifically approved at least annually by the vote of a majority of the
Trustees of the Trust who are not parties hereto or interested persons of any
such party, cast in person at a meeting called for the purpose of voting on the
approval of the terms of such renewal, and by either the Trustees of the Trust
or the affirmative vote of a majority of the outstanding voting securities of
the Fund.
12. AMENDMENTS. This Agreement may be amended by the parties only if
such amendment is specifically approved (i) by a majority of the Trustees,
including a majority of the Trustees who are not interested persons of the Fund
or Revqual and, (ii) if required by applicable law, by the affirmative vote of a
majority of the outstanding voting securities of the Fund.
13. ALLOCATION OF EXPENSES. The Trustees shall determine the basis
for making an appropriate allocation of the Trust's expenses (other than those
directly attributable to the Fund) between the Fund and any other series of the
Trust.
14. LIMITATION ON PERSONAL LIABILITY. NOTICE IS HEREBY GIVEN that
the Trust is a business trust organized under the Delaware Business Trust Act
pursuant to a Certificate of Trust filed in the office of the Secretary of State
of the State of Delaware. All parties to this Agreement acknowledge and agree
that the Trust is a series trust and all debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to a
particular series shall be enforceable against the assets held with respect to
such series only, and not against the assets of the Trust generally or against
the assets held with respect to any other series and further that no trustee,
officer or holder of shares of beneficial interest of the Trust shall be
personally liable for any of the foregoing.
15. LIMITATION OF LIABILITY OF REVQUAL. Revqual shall not be liable
for any error of judgment or mistake of law or for any loss arising out of any
investment or for any act or omission taken with respect to the Fund, except for
willful misfeasance, bad faith or negligence in the performance of its duties,
or by reason of reckless disregard of its obligations and duties hereunder and
except to the extent otherwise provided by law.
16. ACTIVITIES OF REVQUAL. The services of Revqual to the Trust
hereunder are not intended to be exclusive, and Revqual and its affiliates are
free to render services to other parties, so long as its services under this
Agreement are not materially or adversely affected or otherwise impaired
thereby. Nothing in this Agreement shall limit or restrict the right of any
director, officer or employee of Revqual to engage in any other business or to
devote his or her time and attention in part to the management or other aspects
of any other business, whether of a similar nature or a dissimilar nature. It is
understood that trustees, officers and shareholders of the Trust are or may
become interested in Revqual as directors, officers and shareholders of Revqual,
that directors, officers, employees and shareholders of Revqual are or may
become similarly interested in the Trust, and that Revqual may become interested
in the Trust as a shareholder or otherwise.
17. CERTAIN DEFINITIONS. The terms "vote of a majority of the
outstanding voting securities", "assignment", "approved at least annually" and
"interested persons" when used herein, shall have the respective meanings
specified in the 1940 Act, as now in effect or hereafter amended, and the rules
and regulations thereunder, subject to such orders, exemptions and
interpretations as may be issued by the Securities and Exchange Commission under
said Act and as may be then in effect. Where the effect of a requirement of the
federal securities laws reflected in any provision of this Agreement is made
less restrictive by a rule, regulation, order, interpretation or other authority
of the Securities and Exchange
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Commission, whether of special or general application, such provision shall be
deemed to incorporate the effect of such rule, regulation, order, interpretation
or other authority.
18. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Colorado (without giving effect to the conflicts
of laws principles thereof) and the 1940 Act. To the extent that the applicable
laws of the State of Colorado conflict with the applicable provisions of the
1940 Act, the latter shall control.
19. MISCELLANEOUS. The headings in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions thereof or otherwise affect their construction or effect. 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 upon and shall inure to the
benefit of the parties hereto and their respective successors.
IN WITNESS WHEREOF, the parties have caused their duly authorized
officers to execute this Investment Advisory and Management Agreement as of the
date and year first above written.
REVQUAL INDEX-PLUS INVESTORS, L.L.C
By:_________________________
FINANCIAL INVESTORS TRUST, with respect to
the Magnet Total Market Growth Fund
By:_________________________
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