FUND ACCOUNTING AGREEMENT
THIS
AGREEMENT
is made
as of this 3rd day of December, 2007, by and between Investment Managers Series
Trust, a Delaware statutory trust (the “Trust”), and UMB Fund Services, Inc., a
Wisconsin corporation (“UMBFS”).
WHEREAS,
the
Trust is an open-end investment company registered under the Investment Company
Act of 1940, as amended (the “1940 Act”) and is authorized to issue shares of
beneficial interests (the “Shares”) in separate series with each such series
representing interests in a separate portfolio of securities and other assets;
and
WHEREAS,
the
Trust and UMBFS desire to enter into an agreement pursuant to which UMBFS shall
provide fund accounting services to such investment portfolios of the Trust
as
are listed on Schedule A hereto and any additional investment portfolios the
Trust and UMBFS may agree upon and include on Schedule A as such Schedule may
be
amended from time to time (such investment portfolios and any additional
investment portfolios are individually referred to as a “Fund” and collectively
the “Funds”).
NOW,
THEREFORE,
in
consideration of the mutual promises and agreements herein contained and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto, intending to be legally bound, do hereby agree as
follows:
1. Appointment
The
Trust
hereby appoints UMBFS as fund accountant of the Funds for the period and on
the
terms set forth in this Agreement. UMBFS accepts such appointment and agrees
to
render the services herein set forth, for the compensation herein
provided.
2. Services
as Fund Accountant
(a) Subject
to the direction and control of the Trust’s Board of Trustees and utilizing
information provided by the Trust and its current and prior agents and service
providers, UMBFS will: (1) calculate daily net asset values of the Funds (i)
in
accordance with the Trust’s operating documents as provided to UMBFS, (ii) based
on security valuations provided or directed by the Trust and pricing service(s)
as provided herein, and (iii) based on expense accrual amounts provided by
the
Trust or a representative or agent of the Trust; (2) maintain all general ledger
accounts and related sub-ledgers needed as a basis for the calculation of the
Funds’ net asset values; and (3) communicate at an agreed-upon time the net
asset values for the Funds to parties as agreed upon from time to time. As
used
in this Agreement, the term “investment adviser” shall mean a Fund’s investment
adviser(s), all sub-advisers or persons performing similar services. The duties
of UMBFS shall be confined to those expressly set forth herein, and no implied
duties are assumed by or may be asserted against UMBFS hereunder. In the event
UMBFS is asked to correct any action taken or inaction by any prior service
provider then UMBFS shall provide such services and be entitled to such
compensation as the parties may mutually agree.
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(b) The
Trust, under the supervision of its Board of Trustees, shall cause its officers,
investment adviser(s), legal counsel, independent accountants, administrator,
transfer agent, custodian and other service providers and agents to cooperate
with UMBFS and to provide UMBFS with such information, documents and
communications relating to the Funds and the Trust as necessary and/or
appropriate or as requested by UMBFS, in order to enable UMBFS to perform its
duties hereunder. The Trust shall use its best efforts to cause any of its
former officers, investment adviser(s) and sub-advisers, legal counsel,
independent accountants, custodian or other service providers to provide UMBFS
with such information, documents and communications as necessary and/or
appropriate in order to enable UMBFS to perform its duties hereunder. In
connection with its duties hereunder, UMBFS shall (without investigation or
verification) reasonably be entitled and is hereby instructed to, rely upon
any
and all instructions, communications, information or documents provided to
UMBFS
by an authorized officer, representative or agent of the Trust or by any of
the
aforementioned persons. UMBFS shall be entitled to rely on any document that
it
reasonably believes to be genuine and to have been signed or presented by the
proper party. Fees
charged by such persons shall be an expense of the Trust. UMBFS
shall not be held to have notice of any change of authority of any officer,
agent, representative or employee of the Trust, investment adviser(s) or service
provider until receipt of written notice thereof from the Trust.
(c) To
the
extent required by Rule 31a-3 under the 1940 Act, UMBFS hereby agrees that
all
records which it maintains for the Trust pursuant to its duties hereunder are
the property of the Trust and further agrees to surrender promptly to the Trust
any of such records upon the Trust’s request. Subject to the terms of Section 6,
and where applicable, UMBFS further agrees to preserve for the periods
prescribed by Rule 31a-2 under the 1940 Act the records which are maintained
by
UMBFS for the Trust.
(d) It
is
understood that in determining security valuations, UMBFS employs one or more
pricing services, as directed by the Trust, to determine valuations of portfolio
securities for purposes of calculating net asset values of the Trust. UMBFS
shall price the securities and other holdings of the Trust
for
which market quotations or prices are available by the use of such services.
For
those
securities where (i) prices are not provided by the pricing service(s) utilized
by UMBFS,
(ii) the price provided by the pricing service is believed by the adviser to
be
unreliable, or (iii) a significant event has occurred that will affect the
value
of the securities (as determined by the adviser),
the
Trust, under the supervision of its Board of Trustees and acting through its
Valuation Committee, shall approve, in good faith, the method for determining
the fair value of the securities. The Trust, under the supervision of its Board
of Trustees and acting through its Valuation Committee, shall determine or
obtain the valuation of the securities in accordance with those procedures
and
shall deliver to UMBFS
the
resulting prices for use in its calculation of net asset values. UMBFS
is
authorized to rely on the prices provided by such service(s) or by the
authorized representative of the Trust without investigation or verification.
(e) It
is
understood that the Funds’ investment adviser(s) have and retain primary
responsibility for all compliance matters relating to the Funds under the 1940
Act, the Internal Revenue Code of 1986, as amended,
and the
policies and limitations of each Fund relating to the portfolio investments
as
set forth in the Prospectus and Statement of Additional Information. UMBFS’
monitoring and other functions hereunder shall not relieve the investment
adviser(s) of their primary day-to-day responsibility for assuring such
compliance.
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3. Fees;
Delegation; Expenses
(a) In
consideration of the services rendered pursuant to this Agreement, the Trust
will pay UMBFS a fee, computed daily and payable monthly based on monthly net
assets, plus out-of-pocket expenses, each as provided in Schedule B hereto.
In
addition, to the extent that UMBFS corrects, verifies or addresses any prior
actions or inactions by any Fund or by any prior service provider, UMBFS shall
be entitled to additional fees as provided in Schedule B. Fees shall be earned
and paid monthly in an amount equal to at least 1/12th
of the
applicable annual fee. Basis point fees and minimum annual fees apply separately
to each Fund, and average net assets are not aggregated in calculating the
applicable basis point fee per Fund or the applicable minimum. Fees shall be
adjusted in accordance with Schedule B or as otherwise agreed to by the parties
from time to time. The
parties may amend this Agreement to include fees for any additional services
requested by the Trust, enhancements to current services, or to add Funds for
which UMBFS has been retained.
(b) For
the
purpose of determining fees payable to UMBFS, net asset value shall be computed
in accordance with the Trust’s Prospectuses and resolutions of the Trust's Board
of Trustees. The fee for the period from the day of the month this Agreement
is
entered into until the end of that month shall be pro-rated according to the
proportion that such period bears to the full monthly period. Upon any
termination of this Agreement before the end of any month, the fee for such
part
of a month shall be pro-rated according to the proportion which such period
bears to the full monthly period and shall be payable upon the date of
termination of this Agreement. Should the Trust be liquidated, merged with
or
acquired by another fund or investment company, any accrued fees shall be
immediately payable.
(c) UMBFS
will bear all expenses incurred by it in connection with the performance of
its
services under Section 2, except as otherwise provided herein. UMBFS shall
not
be required to pay or finance any costs and expenses incurred in the operation
of the Funds, including, but not limited to: security pricing services; outside
auditing and legal expenses; expenses in connection with the electronic
transmission of documents and information; research and statistical data
services; fees and expenses associated with internet, e-mail and other related
activities; and extraordinary expenses.
(d) Except
as
otherwise specified, fees payable hereunder shall be calculated in arrears
and
billed on a monthly basis. The Trust agrees to pay all fees within thirty days
of receipt of each invoice.
4. Proprietary
and Confidential Information
UMBFS
agrees on behalf of itself and its employees to treat confidentially and as
proprietary information of the Trust all records relative to the Funds’
shareholders, not to use such records and information for any purpose other
than
performance of its responsibilities and duties hereunder, and not to disclose
such information except where UMBFS may be exposed to civil or criminal
proceedings for failure to comply, when requested to divulge such information
by
duly constituted authorities or court process, when subject to governmental
or
regulatory audit or investigation, or when so requested by the Trust. In case
of
any requests or demands for inspection of the records of the Funds, UMBFS will
endeavor to notify the Trust promptly and to secure instructions from a
representative of the Trust as to such inspection. Records and information
which
have become known to the public through no wrongful act of UMBFS or any of
its
employees, agents or representatives, and information which was already in
the
possession of UMBFS prior to the date hereof, shall not be subject to this
paragraph.
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5. Limitation
of Liability
(a)
UMBFS
shall not be liable for any error of judgment or mistake of law or for any
loss
suffered by the Funds in connection with the matters to which this Agreement
relates, except for a loss resulting from UMBFS’ willful misfeasance, bad faith
or negligence in the performance of its duties or from reckless disregard by
it
of its obligations and duties under this Agreement. Furthermore, UMBFS shall
not
be liable for (i) any action taken or omitted to be taken in accordance with
or
in reasonable reliance upon written or oral instructions, communications, data,
documents or information (without investigation or verification) received by
UMBFS from an authorized officer, representative or agent of the Trust, (ii)
its
reliance on the security valuations without investigation or verification
provided by pricing service(s), or representatives of the Trust, or (iii) any
action taken or omission by the Trust, investment adviser(s) or any past or
current service provider.
(b)
UMBFS
assumes no responsibility hereunder, and shall not be liable, for any default,
damage, loss of data or documents, errors, delay or any other loss whatsoever
caused by events beyond its reasonable control. UMBFS will, however, take all
reasonable steps to minimize service interruptions for any period that such
interruption continues beyond its control.
(c) The
Trust
agrees to indemnify and hold harmless UMBFS, its employees, agents, officers,
directors, affiliates and nominees (collectively, the “Indemnified Parties”)
from and against any and all claims, demands, actions and suits, and from and
against any and all judgments, liabilities, losses, damages, costs, charges,
reasonable counsel fees and other expenses of every nature and character which
may be asserted against or incurred by any Indemnified Party or for which any
Indemnified Party may be held liable (a “Claim”) arising out of or in any way
relating to (i) UMBFS’ actions or omissions except to the extent a Claim
resulted from UMBFS’ willful misfeasance, bad faith, or negligence in the
performance of its duties hereunder or from reckless disregard by it of its
obligations and duties hereunder; (ii) UMBFS’ reasonable reliance on,
implementation of or use of (without investigation or verification)
communications, instructions, requests, directions, information, data, security
valuations, records and documents received by UMBFS from any other
representative or agent of the Trust, or (iii) any action taken by or omission
of the Trust, investment adviser(s) or any past or current service
provider.
(d) In
no
event and under no circumstances shall the Indemnified Parties be liable to
anyone, including, without limitation, the other party, under any theory of
tort, contract, strict liability or other legal or equitable theory for lost
profits, exemplary, punitive, special, indirect or consequential damages for
any
act or failure to act under any provision of this Agreement regardless of
whether such damages were foreseeable and even if advised of the possibility
thereof. The indemnity and defense provisions set forth in this Section 5 shall
indefinitely survive the termination and/or assignment of this
Agreement.
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6. Term
(a) This
Agreement shall become effective with respect to each Fund listed on Schedule
A
hereof as of the date this Agreement is executed and, with respect to each
Fund
not in existence on that date, on the date an amendment to Schedule A to this
Agreement relating to that Fund is executed. This Agreement shall continue
in
effect with respect to each Fund until terminated
as provided herein. Either party may terminate this Agreement at any time by
giving the other party a written notice not less than sixty (60)
days prior
to
the date the termination is to be effective.
(b)
The
terms of this Agreement shall not be waived, altered, modified, amended or
supplemented in any manner whatsoever except by a written instrument signed
by
UMBFS and the Trust.
(c)
Notwithstanding anything herein to the contrary, upon the termination of this
Agreement or the liquidation of a Fund or the Trust, UMBFS shall deliver the
records of the Fund(s) and/or Trust as the case may be, in the form maintained
by UMBFS (to the extent permitted by applicable license agreements) to the
Trust
or person(s) designated by the Trust at the Trust’s cost and expense, and
thereafter the Trust or its designee shall be solely responsible for preserving
the records for the periods required by all applicable laws, rules and
regulations. The Trust shall be responsible for all expenses associated with
the
movement (or duplication) of records and materials and conversion thereof to
a
successor fund accounting agent, including all reasonable trailing expenses
incurred by UMBFS. In addition, in the event of termination of this Agreement,
or the proposed liquidation or merger of the Trust or a Fund(s), and the Trust
requests UMBFS to provide additional services in connection therewith, UMBFS
shall provide such services and be entitled to such compensation as the parties
may mutually agree. UMBFS shall not reduce the level of service provided to
the
Trust prior to termination following notice of termination by the
Trust.
7. Non-Exclusivity
The
services of UMBFS rendered to the Trust are not deemed to be exclusive. UMBFS
may render such services and any other services to others, including other
investment companies. The Trust recognizes that from time to time directors,
officers and employees of UMBFS and its affiliates may serve as trustees,
directors, officers and employees of other entities (including other investment
companies), and that UMBFS or its affiliates may enter into other agreements
with such other entities.
8. Governing
Law; Invalidity
This
Agreement shall be governed by Wisconsin law, excluding the laws on conflicts
of
laws. To the extent that the applicable laws of the State of Wisconsin, or
any
of the provisions herein, conflict with the applicable provisions of the 1940
Act, the latter shall control, and nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or order of the Commission
thereunder. Any provision of this Agreement which may be determined by competent
authority to be prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or
render unenforceable such provision in any other jurisdiction. In such case,
the
parties shall in good faith modify or substitute such provision consistent
with
the original intent of the parties.
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9. Notices
Any
notice required or permitted to be given by either party to the other shall
be
in writing and shall be deemed to have been given when sent by registered or
certified mail, postage prepaid, return receipt requested, as follows: Notice
to
UMBFS shall be sent to UMB Fund Services, Inc., 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx
X, Xxxxxxxxx, XX 00000, Attention: Xxxxx X. Xxxxxxx, with a copy to General
Counsel, and notice to the Trust shall be sent to Investment Managers Series
Trust, 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X, Xxxxxxxxx, XX 00000, Attention:
President with a copy to Xxxxx Xxxxx Xxxxx, Esq., Xxxxxx Price PC, 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, XX 00000.
10. Entire
Agreement
This
Agreement, together with the Schedules attached hereto, constitutes the entire
Agreement of the parties hereto.
11. Trust
Limitations
This
Agreement is executed by the Trust with respect to each of the Funds and the
obligations hereunder are not binding upon any of the Trustees, officers or
shareholders of the Trust individually but are binding only upon the Fund to
which such obligations pertain and the assets and property of such Fund. All
obligations of the Trust under this Agreement shall apply only on a Fund-by-Fund
basis, and the assets of one Fund shall not be liable for the obligations of
another Fund.
[SIGNATURE
PAGE FOLLOWS]
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12. Miscellaneous
This
Agreement may be executed in counterparts, each of which shall be deemed to
be
an original agreement but such counterparts shall together constitute but one
and the same instrument. The facsimile signature of any party to this Agreement
shall constitute the valid and binding execution hereof by such
party.
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be executed by a duly authorized
officer as of the day and year first above written.
(the
“Trust”)
By:_______________________________________
President
UMB
FUND SERVICES, INC.
(“UMBFS”)
By:_______________________________________
Executive
Vice President
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Schedule
A
to
the
by
and between
and
UMB
Fund Services, Inc.
Name
of Funds
Zacks
Multi-Cap Opportunities Fund
8
