Amended and Restated FUND ACCOUNTING AGREEMENT
Amended
and Restated
THIS AGREEMENT is made as of
this 25th day of March, 2009, 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 ninety (90) 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 Xxxxxxx Xxxxxx, Paul, Hastings, Xxxxxxxx & Xxxxxx, 000 Xxxxx
Xxxxxx Xxxxxx, Xxx 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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Third
Amended and Restated
Schedule
A
to
the
by
and between
and
UMB
Fund Services, Inc.
Name of
Funds
Zacks
Multi-Cap Opportunities Fund
Zacks
Market Neutral Fund
Victoria
1522 Fund
RNC
Xxxxxx Dividend Income Fund
8
Schedule
B
to
the
by
and between
and
UMB
Fund Services, Inc.
Zacks
Funds
Annual
Net Asset-Based Fees (per portfolio)
|
n
|
Up
to $50 million
|
3.00
basis points, plus
|
|
n
|
Next
$150 million
|
2.00
basis points, plus
|
|
n
|
Next
$150 million
|
1.50
basis points, plus
|
|
n
|
Thereafter
|
1.00
basis point
|
Annual
Base Fee **
|
n
|
Per
equity fund
|
$20,000
|
|
n
|
Per
fixed income fund
|
$24,000
|
|
n
|
Per
complex fund (international, long-short, swap, etc.)
|
$28,000
|
Minimum
fees are aggregated and applied pro-rata across all funds.
Annual
Multi-Class
|
Per
additional class
|
$5,000
|
|
Pricing
|
|
|
Equity
|
$0.15
per security
|
|
International
|
$0.60
per security
|
|
Option
|
$0.15
per security
|
|
Bond
|
$0.60
per security
|
|
CMO
|
$1.15
per security
|
|
Municipal
|
$0.60
per security
|
|
Domestic
Corporate Action
|
$1.50
per security, per month
|
|
International
Corporate Action
|
$4.00
per security, per month
|
|
MBS
Factors
|
$0.60
per security, per month
|
|
CMO
Factors
|
$1.75
per security, per month
|
|
Variable
Rate Changes
|
$1.25
per rate change
|
|
Fx
Rates
|
$42.50
per month
|
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Out-of-Pocket
Expenses and Other Related Expenses
Out-of-pocket
expenses include but are not limited to security transfer fees, certificate
fees, shipping/courier fees or charges, FDIC insurance premiums, specialized
programming charges, legal review/processing of restricted and private placement
securities, proxy fees and charges, system access/connect charges,
and expenses, including but not limited to attorney’s fees, incurred in
connection with responding to and complying with SEC or other regulatory
investigations, inquiries or subpoenas, excluding routine examinations of UMB in
its capacity as a service provider to the funds.
*Fund
Accounting fees will be discounted by 60% for the first 9 months after
conversion to the Investment Managers Series Trust.
**The
minimum annual fee is subject to an annual escalation equal to the increase in
the Consumer Price Index –Urban Wage Earners (CPI) (but not to exceed five
percent (5.0%) per year). This escalation will be effective beginning one year
from the date of this Agreement (the “Anniversary Date”) and on the
corresponding Anniversary Date each year thereafter. CPI will be determined by
reference to the Consumer Price Index News Release issued by the Bureau of Labor
Statistics, U.S. Department of Labor.
Fees for
services not contemplated by this schedule will be negotiated on a case-by-case
basis.
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