FORM OF SUBADVISORY AGREEMENT BETWEEN LIBERTY STREET ADVISORS, INC. AND CENTER COAST CAPITAL ADVISORS, LP
BETWEEN
LIBERTY
STREET ADVISORS, INC.
AND
CENTER COAST CAPITAL ADVISORS, LP
AGREEMENT made as of December
____, 2010 by and among Liberty Street Advisors, Inc., a New York corporation
with its principal office and place of business at 000 Xxxxxx Xxxx, Xxxxx
0, Xxx Xxxx, XX 00000 (the "Adviser"), Center Coast Capital Advisors,
LP, a Delaware limited partnership with its principal office and place of
business at 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000 (the
"Subadviser"), and, with respect to Sections 8 and Section 12 only, Investment
Managers Series Trust, a Delaware statutory trust with its principal office and
place of business at 000 X. Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 (the "Trust"),
on behalf of its series Center Coast MLP Focus Fund (the "Fund").
WHEREAS, the Adviser has
entered into an Investment Advisory Agreement dated December ___, 2010
("Advisory Agreement") with the Trust with respect to the Fund;
WHEREAS, the Trust is
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), as an open-end, management investment company and may issue its shares of
beneficial interest, no par value, in separate series;
WHEREAS, pursuant to the
Advisory Agreement, and subject to the direction and control of the Board of
Trustees of the Trust (the "Board"), the Adviser acts as investment adviser for
the Fund;
WHEREAS, the Advisory
Agreement permits the Adviser, subject to the supervision of the Board, to
delegate certain of its duties under the Advisory Agreement to other registered
investment advisers subject to the requirements of the 1940 Act;
and
WHEREAS, the Adviser desires
to retain the Subadviser to furnish investment advisory services for the Fund
and the Subadviser is willing to provide those services on the terms and
conditions set forth in this Agreement;
NOW THEREFORE, for and in
consideration of the mutual covenants and agreements contained herein, the
Adviser and the Subadviser hereby agree as follows:
SECTION
1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The
Adviser hereby appoints and employs Subadviser, subject to the direction and
control of the Board, to manage the investment and reinvestment of the assets in
the Fund and, without limiting the generality of the foregoing, to provide other
services as specified herein.
The
Subadviser accepts this employment and agrees to render its services for the
compensation set forth herein.
(b) In
connection therewith, the Adviser has delivered to the Subadviser copies of (i)
the Trust's Agreement and Declaration of Trust and Bylaws (collectively, as
amended from time to time, "Charter Documents"), (ii) the Trust's current
Prospectuses and Statements of Additional Information for the Fund
(collectively, as currently in effect and as amended or supplemented, the
"Registration Statement") filed with the U.S. Securities and Exchange Commission
("SEC") pursuant to the Securities Act of 1933, as amended (the "Securities
Act"), and the 1940 Act, (iii) each plan of distribution or similar document
adopted by the Trust under Rule 12b-1 under the 1940 Act ("Plan") and each
current shareholder service plan or similar document adopted by the Trust for
the Fund ("Service Plan"); and (iv) all policies and procedures adopted by the
Trust with respect to the Fund, and shall promptly furnish the Subadviser with
all amendments of or supplements to the foregoing. The Adviser shall
deliver to the Subadviser: (x) a certified copy of the resolution of the Board
appointing the Subadviser and authorizing the execution and delivery of this
Agreement; (y) a copy of all proxy statements and related materials relating to
the Fund; and (z) any other documents, materials or information that the
Subadviser shall reasonably request to enable it to perform its duties pursuant
to this Agreement.
(c) The
Subadviser has delivered to the Adviser and the Trust (i) a copy of its Form ADV
as most recently filed with the SEC; (ii) a copy of its code of ethics complying
with the requirements of Rule 17j-1 under the 1940 Act (the "Code"); (iii) a
copy of its compliance manual pursuant to applicable regulations, and (iv) its
proxy voting policies and procedures, which will be included in the Trust's
registration statement. The Subadviser shall promptly furnish the
Adviser and Trust with all amendments of or supplements to the foregoing at
least annually.
SECTION
2. DUTIES OF THE ADVISER
In order
for the Subadviser to perform the services required by this Agreement, the
Adviser (i) shall cause all service providers to the Trust to furnish
information to the Subadviser and assist the Subadviser as may be required and
(ii) shall ensure that the Subadviser has reasonable access to all records and
documents maintained by the Trust, the Adviser or any service provider to the
Trust and (iii) shall deliver to the Subadviser all material it provides to the
Board in accordance with the Advisory Agreement.
SECTION
3. DUTIES OF THE SUBADVISER
(a) The
Subadviser will make decisions with respect to all purchases and sales of
securities and other investment assets in the Fund to the extent such authority
is delegated by the Adviser. To carry out such decisions, the
Subadviser is hereby authorized, as agent and attorney-in-fact for the Trust,
for the account of, at the risk of and in the name of the Trust, to place orders
and issue instructions with respect to those transactions of the
Fund. In all purchases, sales and other transactions in securities
and other investments for the Fund, the Subadviser is authorized to exercise
full discretion and act for the Trust in the same manner and with the same force
and effect as the Trust might or could do with respect to such purchases, sales
or other transactions, as well as with respect to all other things necessary or
incidental to the furtherance or conduct of such purchases, sales or other
transactions.
The
Adviser shall arrange for the Fund's custodian to forward to Subadviser or
Subadviser's designated proxy agent on a timely basis copies of all proxies and
shareholder communications relating to securities owned by the Fund. The
Sub-Adviser will vote all such proxies delivered to Subadviser or Subadviser's
designated proxy agent consistent with the Sub-Adviser's proxy voting
guidelines, as in effect from time to time and approved by the Board. The
Sub-Adviser will maintain appropriate records detailing its voting of proxies on
behalf of the Fund and upon reasonable request at least annually will provide a
report setting forth the proposals voted on and how the Fund's shares were
voted.
Consistent
with Section 28(e) of the Securities and Exchange Act of 1934, as amended, the
Subadviser may allocate brokerage on behalf of the Fund to broker-dealers who
provide brokerage or research services. It is understood that the
Subadviser will not be deemed to have acted unlawfully, or to have breached a
fiduciary duty to the Fund, or be in breach of any obligation owing to the Fund
under this Agreement, or otherwise, solely by reason of its having caused the
Fund to pay a member of a broker-dealer a commission for effecting a securities
transaction for the Fund in excess of the amount of commission another
broker-dealer would have charged if the Subadviser determined in good faith that
the commission paid was reasonable in relation to the brokerage or research
services provided by such broker-dealer, viewed in terms of that particular
transaction or the Subadviser's overall responsibilities with respect to its
accounts, including the Fund, as to which it exercises investment discretion. In
addition, if in the judgment of the Subadviser, the Fund would be benefited by
supplemental services, the Subadviser is authorized to pay spreads or
commissions to brokers or dealers furnishing such services in excess of spreads
or commissions that another broker or dealer may charge for the same
transaction, provided that the Subadviser determined in good faith that the
commission or spread paid was reasonable in relation to the services
provided.
The
Subadviser may aggregate sales and purchase orders of the assets of the Fund
with similar orders being made simultaneously for other accounts advised by the
Subadviser or its affiliates. Whenever the Subadviser simultaneously
places orders to purchase or sell the same asset on behalf of the Fund and one
or more other accounts advised by the Subadviser, the Subadviser will allocate
the order as to price and amount among all such accounts in a manner believed by
the Subadviser to be equitable over time to each account.
(b) The
Subadviser will report to the Board at each meeting thereof as requested by the
Adviser or the Board all material changes in the Fund's investment portfolio
since the prior report, and will also keep the Board and the Adviser informed of
important developments affecting the Fund and the Subadviser as the Adviser or
the Board reasonably may request, including by furnishing the Board from time to
time with such information as the Subadviser may believe appropriate for this
purpose, whether concerning the individual companies whose securities are
included in the Fund's holdings, the industries in which they engage, the
economic, social or political conditions prevailing in each country in which the
Fund maintains investments, or otherwise. The Subadviser will also
furnish the Board and the Adviser with such statistical and analytical
information with respect to investments of the Fund as the Board or the Adviser
reasonably may request. In making purchases and sales of securities
and other investment assets for the Fund, the Subadviser will bear in mind the
policies and procedures set from time to time by the Board and communicated to
the Subadviser as well as the limitations imposed by the Charter Documents and
Registration Statement, the 1940 Act and the investment objectives, policies and
restrictions of the Fund.
(c) The
Subadviser may from time to time employ or associate with such persons as the
Subadviser believes to be fitted to assist in the execution of the Subadviser's
duties hereunder, the cost of performance of such duties to be borne and paid by
the Subadviser. No obligation may be incurred on the Trust's or
Adviser's behalf in any such respect.
(d) The
Subadviser will report to the Board and the Adviser all material matters related
to the Subadviser. On an annual basis, the Subadviser shall report to
the Board and the Adviser on its compliance with its Code and its compliance
policies and procedures and, upon the written request of the Adviser or the
Trust, the Subadviser shall permit the Adviser and the Trust, or their
respective representatives to examine the reports required to be made to the
Subadviser under the Code and its compliance policies and
procedures. The Subadviser will notify the Adviser and the Trust in
writing of any change of control of the Subadviser at least 60 days prior to
such change. The Subadviser will notify the Adviser and the Trust in
writing of and any changes in key personnel who are either the portfolio
manager(s) of the Fund or senior management of the Subadviser, as early as
practicable and no later than promptly after such change.
(e) The
Subadviser will maintain records relating to its portfolio transactions and
placing and allocation of brokerage orders as are required to be maintained by
the Trust under the 1940 Act. The Subadviser shall prepare and
maintain, or cause to be prepared and maintained, in such form, for such periods
and in such locations as may be required by applicable law, all documents and
records relating to the services provided by the Subadviser pursuant to this
Agreement required to be prepared and maintained by the Subadviser or the Trust
pursuant to applicable law. To the extent required by law, the books
and records of the Trust, which are in possession of the Subadviser, shall be
the property of the Trust. The Adviser and the Trust, or their
respective representatives, shall have access to the books and records of the
Trust at all times during the Subadviser's normal business
hours. Upon the reasonable request of the Adviser or the Trust,
copies of the books and records of the Trust, which are in possession of the
Subadviser, shall be provided promptly by the Subadviser to the Adviser or the
Trust, or their respective representatives.
(f) The
Subadviser will cooperate with the Fund's independent public accountants and
shall take reasonable action to make all necessary information available to the
accountants for the performance of the accountants' duties.
(g) The
Subadviser will provide the Fund's custodian and fund accountant on each
business day with such information relating to all transactions concerning the
Fund's assets under the Subadviser's control as the custodian and fund
accountant may reasonably require. In accordance with procedures
adopted by the Board, the Subadviser will assist in the fair valuation of all
Fund assets and, at the request of the Trust, will use its reasonable efforts to
arrange for the provision of prices from parties who are not affiliated persons
of the Subadviser for each asset for which the Fund's fund accountant does not
obtain prices in the ordinary course of business.
(h) The
Subadviser shall authorize and permit any of its directors, officers and
employees who may be elected as Trustees or officers of the Trust to serve in
the capacities in which they are elected.
(i)
The Subadviser shall
have no duties or obligations pursuant to this Agreement (other than the
continuation of its preexisting duties and obligations) during any period in
which the Fund invests all (or substantially all) of its investment assets in a
registered, open-end management investment company, or separate series thereof,
in accordance with Section 12(d)(1)(E) under the 1940 Act, pursuant to the
instruction of the Adviser and of the Board.
(j)
The Subadviser shall not consult with
any other sub-adviser of any other series of the Trust concerning transactions
of the Fund or any other series of the Trust in which (a) the Subadviser of any
of its affiliated persons serves as principal underwriter, or (b) such other
sub-adviser or any of its affiliated persons serves as principal
underwriter.
SECTION
4. COMPENSATION; EXPENSES
(a) In
consideration of the foregoing, the Adviser shall pay the Subadviser, with
respect to the Fund, a fee as specified in Appendix A hereto. Such
fees shall be accrued by the Adviser daily and shall be payable
quarterly in arrears on or before the fifteenth day of the
month following each calendar quarter for services performed
hereunder during the prior calendar quarter. If fees begin to accrue
in the middle of a quarter or if this Agreement terminates before the end of any
quarter, all fees for the period from that date to the end of that quarter or
from the beginning of that quarter to the date of termination, as the case may
be, shall be prorated according to the proportion that the period bears to the
full quarter in which the effectiveness or termination occurs. Upon
the termination of this Agreement with respect to the Fund, the Adviser shall
pay to the Subadviser such compensation as shall be payable prior to the
effective date of termination.
(b) During
the term of this Agreement, the Subadviser will pay all expenses incurred by it
in connection with its activities under this Agreement other than the cost of
securities and other investments (including brokerage commissions and other
transaction charges, if any) purchased for a Fund. Except
as set forth in Appendix A, the Subadviser shall not be responsible for the
Trust's or the Fund's expenses, including any extraordinary and non-recurring
expenses.
(c) No
fee shall be payable hereunder with respect to the Fund during any period in
which the Fund invests all (or substantially all) of its investment assets in a
registered, open-end, management investment company, or separate series thereof,
in accordance with Section 12(d)(1)(E) under the 1940 Act, pursuant to the
instruction of the Adviser and of the Trust's Board of Trustees.
SECTION
5. STANDARD OF CARE
(a) The
Adviser shall expect of the Subadviser, and the Subadviser will give the Adviser
and the Fund the benefit of, the Subadviser's best judgment and commercially
reasonable efforts in rendering its services hereunder. The
Subadviser shall not be liable to the Adviser, the Trust or the Fund hereunder
for any mistake of judgment or mistake of law or for any loss suffered by the
Adviser, the Trust or the Fund whatsoever (including, without limitation, by
reason of the purchase, sale or retention of any security) in connection with
the performance of the Sub-Adviser's duties under this Agreement, except for
losses resulting from willful misfeasance, bad faith or gross negligence in the
performance of the Subadviser's duties hereunder, or by reason of the
Subadviser's reckless disregard of its obligations and duties
hereunder.
(b) The
Subadviser shall not be liable to the Adviser, the Trust or the Fund for any
action taken or failure to act in good faith reliance upon: (i) information,
instructions or requests, whether oral or written, with respect to the Fund made
to the Subadviser by a duly authorized officer or agent of the Adviser, the
Trust or the Fund; (ii) the advice of counsel to the Trust; and (iii)
any written instruction or resolution of the Board.
(c) The
Subadviser shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties (other than those related to the Subadviser's
employees), fire, mechanical breakdowns, flood or catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation, communication
or power supply.
SECTION
6. EFFECTIVENESS, DURATION AND TERMINATION
(a) This
Agreement shall become effective with respect to the Fund immediately upon the
later of approval by a majority of the Trust's Trustees, including a majority of
the Trustees who are not parties to this Agreement or interested persons of any
such party (other than as trustees of the Trust), and, if required by applicable
law, by a vote of a majority of the outstanding voting securities of the
Fund.
(b) This
Agreement shall remain in effect with respect to the Fund for a period of two
years from the date of its effectiveness and shall continue in effect for
successive annual periods with respect to the Fund; provided that such
continuance is specifically approved at least annually (i) by the Board or by
the vote of a majority of the outstanding voting securities of the Fund, and, in
either case, (ii) by a majority of the Trust's Trustees who are not parties to
this Agreement or interested persons of any such party (other than as trustees
of the Trust); provided further, however, that if the continuation of this
Agreement is not approved as to the Fund, the Subadviser may continue to render
to that Fund the services described herein in the manner and to the extent
permitted by the 1940 Act and the rules and regulations thereunder.
(c) This
Agreement may be terminated at any time, without the payment of any penalty, (i)
by the Board, or (ii) by a vote of a majority of the outstanding voting
securities of the Fund, in each case on 60 days' written notice to the
Subadviser. This Agreement shall terminate immediately (x) upon its assignment
or (y) upon termination of the Advisory Agreement.
(d) This
Agreement may be terminated, without the payment of any penalty, by the Adviser
or the Subadviser upon 60 days' written notice to the Fund and the Adviser or
Subadviser, as applicable, upon the occurrence of any of the following
events:
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(i)
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the
Adviser or Subadviser shall go into liquidation or if a receiver of any of
its assets is appointed;
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(ii)
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the
Adviser, the Subadviser or the Fund shall commit any material breach of
the terms or conditions of this Agreement, which is not cured within 10
days of written notice of the nature of the
breach;
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(iii)
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material
damage is occurring to the reputation or goodwill of the Subadviser by
reason of its continued performance
hereunder;
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(iv)
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the
Adviser, the Subadviser or the Trust is subject to an action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign which would, in the
reasonable belief of the Adviser or the Subadviser, materially impair the
ability of the Adviser or the Subadviser to act as investment adviser or
investment subadviser to the Fund or the ability of the Adviser or the
Subadviser to perform under this
Agreement;
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(v)
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the
occurrence of any event that would disqualify the Adviser or the
Subadviser from serving as an investment adviser of an investment company
pursuant to Section 9(a) of the 1940 Act or otherwise;
or
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(v)
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the
Adviser or the Subadviser is unable to perform under this Agreement in
accordance with its fiduciary duties under the 1940 Act and/or the
Investment Advisers Act of 1940, as amended (the "Advisers
Act").
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SECTION
7. ACTIVITIES OF THE SUBADVISER
(a) For
so long as all of the criteria set forth in Section 7(b) below (collectively the
"B/D Benchmarks") and in Section 7(c) below (collectively the "Asset Raising
Benchmarks," and together with the B/D Benchmarks, the "Approval Benchmarks")
are met, the Subadviser agrees to continue to sub-advise the Fund until the
termination or expiration of this Agreement pursuant to Section 6(c) or 6(d) of
this Agreement (the "Termination Rights").
At any time that either or both of the
Approval Benchmarks is not met, the Subadviser agrees to continue to serve as
investment subadviser to the Fund subject to the Termination Rights unless: (i)
for a consecutive period of 30 days the Fund's total assets fall below $50
million; or (ii) the Subadviser accepts an offer to act as exclusive subadviser
to an other publicly offered open-end management investment company registered
under the 1940 Act with a strategy substantially similar to that of the Fund
advised by an investment adviser unaffiliated with the Subadviser; provided,
however, that in either case the Subadviser may resign as investment subadviser
to the Fund upon written notice to the Adviser and the Trust, but agrees to
continue to subadvise the Fund until the earlier of the termination of this
Agreement by the Trust or the Adviser or a suitable replacement subadviser is
hired and commences management of the Fund.
(b) The
Fund shall be deemed to have met its B/D Benchmarks if for the then current Time
Period specified the Fund has achieved the Benchmark Status applicable to such
Time Period, as follows:
Time Period
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Benchmark Status to be
Achieved
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By
the end of the first 120 days after the Fund commences
operations
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The
Fund has been approved to be included on at least one Major Broker Dealer
Platform (as defined below).
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By
the end of the first 12 months after the Fund commences
operations
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The
Fund has been approved to be included on at least two Major Broker Dealer
Platforms.
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By
the end of the first 2 years after the Fund commences
operations
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The
Fund has been approved to be included on at least three Major Broker
Dealer
Platforms.
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For
purposes of the above criteria, a "Major Broker Dealer Platform" shall mean (i)
any one mutual fund sales platform managed by any of UBS, Xxxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxx Fargo, Credit Suisse, Barclays, LPL, Investnet,
Xxxxxxx Xxxxx, Ameriprise or any other similar sized individual broker dealer,
or (ii) any two mutual fund sales platforms managed by any of Deutsche Bank, RBC
Wealth Management, Xxxxx and Stringfellow, Oppenheimer, Xxxxxx Xxxxxxxxxx,
Xxxxxx Xxxxxx, Xxxxx Xxxx, XX Xxxxx, Xxxxxx Xxxxxxxx, Xxxxxxxxx or any other
similar sized individual broker dealers.
(c) The
Fund shall be deemed to have met its Asset Raising Benchmarks if for the then
current Time Period specified the Fund has achieved the Benchmark Status
applicable to such Time Period, as follows:
Time Period
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Bemchmark Status to be
Achieved
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By
the end of the first 12 months after the Fund commences
operations
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The
Fund has total assets of at least $25 million.
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By
the end of the first 24 months after the Fund commences
operations
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The
Fund has total assets of at least $50 million.
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By
the end of the first 36 months after the Fund commences
operations
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The
Fund has total assets of at least $100 million.
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By
the end of the first 48 months after the Fund commences
operations
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The
Fund has total assets of at least $200 million.
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By
the end of the first 60 months after the Fund commences
operations
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The
Fund has total assets of at least $350 million.
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By
the end of the first 72 months after the Fund commences
operations
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The
Fund has total assets of at least $500 million.
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After
the first 72 months of the Fund's operations
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The
Fund has total assets of at least $500 million, and such assets shall not
drop below $500 million for periods of more than 90 consecutive
days.
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(e) Except
to the extent necessary to perform its obligations hereunder, nothing herein
shall be deemed to limit or restrict the Subadviser's right, or the right of any
of the Subadviser's directors, officers or employees to engage in any other
business or to devote time and attention to the management or other aspects of
any other business.
SECTION
8. REPRESENTATIONS OF THE TRUST
The Trust
represents and warrants to the Sub-Adviser that:
(a) The
Trust's Registration Statement on Form N-1A has become effective under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and no
proceedings for any such purpose have been instituted or are pending or are
contemplated by the SEC;
(b) The
Fund's Prospectus and Statement of Additional Information complied and will
comply in all material respects with the requirements of the Securities Act, the
1940 Act and the rules and regulations thereunder and did not and will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading;
(c) The
Trust is registered as an open-end management investment company, and no order
of suspension or revocation of such registration has been issued or proceedings
therefor initiated or threatened by the SEC; and
(d) There
is no action, suit, proceeding, inquiry or investigation before or brought by
any court or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Fund, threatened, against or affecting the Fund which
would (if determined in a manner adverse to the Fund) reasonably be expected to
have a material adverse effect on the Fund.
SECTION
9. REPRESENTATIONS OF THE ADVISER
The
Adviser represents and warrants to the Subadviser that:
(a) It
is registered as an investment adviser under the Advisers Act (and will continue
to be so registered for so long as this Agreement remains in
effect);
(b) It
is not prohibited by the 1940 Act or the Advisers Act from performing the
services contemplated by the Advisory Agreement;
(c) It
has met, and will seek to continue to meet for so long as this Agreement remains
in effect, any other applicable federal or state requirements, or the applicable
requirements of any self-regulatory agency, necessary to be met in order to
perform investment advisory services for the Fund;
(d) There
is no action, suit, proceeding, inquiry or investigation before or brought by
any court or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Adviser, threatened, against or affecting the Adviser
which would (if determined in a manner adverse to the Adviser) reasonably be
expected to have a material adverse effect on the Adviser; and
(e) It
will promptly notify the Subadviser and the Trust of the occurrence of any event
that would disqualify the Adviser from serving as an investment adviser of an
investment company pursuant to Section 9(a) of the 1940 Act or
otherwise.
SECTION
10. REPRESENTATIONS OF THE SUBADVISER.
The
Subadviser represents and warrants to the Adviser and the Trust
that:
(a) It
is registered as an investment adviser under the Advisers Act (and will continue
to be so registered for so long as this Agreement remains in
effect);
(b) It
is not prohibited by the 1940 Act or the Advisers Act from performing the
services contemplated by this Agreement;
(c) It
has met, and will seek to continue to meet for so long as this Agreement remains
in effect, any other applicable federal or state requirements, or the applicable
requirements of any self-regulatory agency, necessary to be met in order to
perform the services contemplated by this Agreement;
(d) There
is no action, suit, proceeding, inquiry or investigation before or brought by
any court or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Subadviser, threatened, against or affecting the
Subadviser which would (if determined in a manner adverse to the Subadviser)
reasonably be expected to have a material adverse effect on the Subadviser;
and
(e) It
will promptly notify the Adviser and the Trust of the occurrence of any event
that would disqualify the Subadviser from serving as an investment adviser of an
investment company pursuant to Section 9(a) of the 1940 Act or
otherwise.
SECTION
11. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The
Trustees of the Trust and the shareholders of the Fund shall not be liable for
any obligations of the Trust or of the Fund under this Agreement, and the
Subadviser agrees that, in asserting any rights or claims under this Agreement,
it shall look only to the assets and property of the Trust or the Fund to which
the Subadviser's rights or claims relate in settlement of such rights or claims,
and not to the Trustees of the Trust or the shareholders of the
Fund.
SECTION
12. USE OF NAME
The
Subadviser hereby grants the Fund a limited, non-exclusive, revocable license to
use the name or identifying words "Center Coast" in the name of the
Fund. Such license is conditioned upon the employment of the
Subadviser, or a successor thereto or affiliate thereof, as the investment
subadviser to the Fund, and may not be revoked by the Subadviser for so long as
the Subadviser serves as investment subadviser to the Fund. The names or
identifying words "Center Coast" are the property of the Subadviser and may be
used from time to time in other connections and for other purposes by the
Subadviser and any of its affiliates. The Subadviser may require the Fund to
cease, and the Adviser to cause the Fund to cease, using "Center Coast" in the
name of the Fund if the Subadviser, any successor thereto or any affiliate
thereof, ceases to be employed, for any reason, as investment sub-adviser of the
Fund. The Fund or the Adviser shall furnish to Subadviser all
prospectuses, proxy statements, reports to shareholders, sales literature or
other material prepared for distribution to shareholders or the public which
uses the name or identifying words "Center Coast" or otherwise refers to the
Subadviser by name (other than routine regulatory filings) prior to the use
thereof. The Fund and the Adviser shall not use any such materials if the
Subadviser reasonably objects to such use. The Fund shall not, and
the Adviser shall not and shall cause the Fund to not, (i) take any action that
would jeopardize or impair Subadviser's and its affiliates ownership of the
"Center Coast" name and xxxx, (ii) directly or indirectly apply for registration
of such name or xxxx or any confusingly similar name or xxxx, or (iii) take or
omit to take any act that would impair the validity of or tarnish or otherwise
reflect negatively upon such name and xxxx. In the event of
termination of the license herein, the Fund shall, and the Adviser shall and
shall cause the Fund to, promptly cease any and all use of the "Center Coast"
name and any name, xxxx, or domain name confusingly similar
thereto. This paragraph with respect to the rights of Subadviser and
the obligations of the Trust and the Adviser shall survive the termination of
this Agreement.
SECTION
13. MISCELLANEOUS
(a) No
provisions of this Agreement may be amended or modified in any manner except by
a written agreement properly authorized and executed by both parties hereto and
approved by the Trust.
(b) Neither
party to this Agreement shall be liable to the other party for consequential
damages under any provision of this Agreement.
(c) This
Agreement shall be governed by, and the provisions of this Agreement shall be
construed and interpreted under and in accordance with, the laws of the State of
Delaware.
(d) This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes any prior agreement with
respect to the subject matter hereof, whether oral or written.
(e) This
Agreement may be executed by the parties hereto on any number of counterparts,
and all of the counterparts taken together shall be deemed to constitute one and
the same instrument.
(f) If
any part, term or provision of this Agreement is held to be illegal, in conflict
with any law or otherwise invalid, the remaining portion or portions shall be
considered severable and not be affected, and the rights and obligations of the
parties shall be construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or invalid. This Agreement
shall be construed as if drafted jointly by both the Adviser and Subadviser and
no presumptions shall arise favoring any party by virtue of authorship of any
provision of this Agreement.
(g) Section
headings in this Agreement are included for convenience only and are not to be
used to construe or interpret this Agreement.
(h) Notices,
requests, instructions and communications received by the parties at their
respective principal places of business, or at such other address as a party may
have designated in writing, shall be deemed to have been properly
given.
(i) No
affiliated person, employee, agent, director, officer, manager or partner of the
Subadviser shall be liable at law or in equity for the Subadviser's obligations
under this Agreement.
(j) The
terms "vote of a majority of the outstanding voting securities", "interested
person", "affiliated person," "control" and "assignment" shall have the meanings
ascribed thereto in the 1940 Act.
(k) Each
of the undersigned warrants and represents that he or she has full power and
authority to sign this Agreement on behalf of the party indicated and that his
or her signature will bind the party indicated to the terms hereof and each
party hereto warrants and represents that this Agreement, when executed and
delivered, will constitute a legal, valid and binding obligation of the party,
enforceable against the party in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured
parties.
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed all as of the day
and year first above written.
LIBERTY
STREET ADVISORS, INC.
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Name:
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Title:
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CENTER
COAST CAPITAL ADVISORS, LP
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Name:
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Title:
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on
behalf of its series
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CENTER
COAST MLP FOCUS FUND
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(with
respect only to Section 8 and Section 12)
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Name: Xxxx
Dam
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Title:
Treasurer
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Appendix
A
Sub-Advisory
Fees:
50% of
the Net Advisory Fees received by the Adviser from the Fund. "Net
Advisory Fees" shall mean (i) the investment advisory fee due to the Adviser
pursuant to the Advisory Agreement reduced by (ii) the sum of (a) any portion of
such advisory fee waived by the Adviser, and any Fund expenses paid by the
Adviser, to enable the Fund to meet its annual expense cap as stated in the
Fund's prospectus, (b) any legal, administrative and organizational expenses of
the Fund incurred by the Adviser in connection with the commencement of the
Fund, (c) any networking, shareholder servicing, revenue sharing or other
charges levied by any distribution platforms in connection with the Fund and
paid by the Adviser, (d) any distribution service charges paid by the Adviser in
connection with the Fund, (e) any charges for printing of Fund marketing
materials paid by the Adviser, and (f) as agreed to in advance by the Adviser
and the Subadviser, any cost of public relations services for the Fund paid by
the Adviser. The Adviser agrees to inform and obtain the Subadviser's
approval before agreeing to incur expenses that were not contemplated in the
budget for the Fund including but not limited to costs associated with the
creation and maintenance of a website for the Fund, public relations and media
services, or other extraordinary charges.
In the
event the Net Advisory Fees for any quarter is negative (i.e., results in a net
loss), the Subadviser shall pay the Adviser an amount equal to 50% of the Net
Advisory Fees (i.e., the net loss) for such quarter.
Within
fifteen day of the end of each quarter, the Adviser shall provide to
the Subadviser a detailed invoice of Net Advisory Fees, which shall set forth
the investment advisory fee due to the Adviser pursuant to the Advisory
Agreement and an itemized schedule of all expenses incurred by the Adviser which
shall be deducted from such advisory fee pursuant to this Appendix A. The
Adviser shall give the Subadviser reasonable access to its books and records to
permit the Subadviser to verify such expenses.