CUSTODY AGREEMENT Dated: Between UMB BANK, N.A. and INVESTMENT MANAGERS SERIES TRUST
Dated:
Between
UMB
BANK, N.A.
and
TABLE
OF CONTENTS
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SECTION
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PAGE
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1.
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Appointment
of Custodian
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1
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2.
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Definitions
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1
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(a)
Securities
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1
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(b)
Assets
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1
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(c)
Instructions and Special Instructions
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1
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3.
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Delivery
of Corporate Documents
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2
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4.
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Powers
and Duties of Custodian and Domestic Subcustodian
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2
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(a)
Safekeeping
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3
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(b)
Manner of Holding Securities
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3
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(c)
Free Delivery of Assets
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4
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(d)
Exchange of Securities
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4
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(e)
Purchases of Assets
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4
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(f)
Sales of Assets
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5
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(g)
Options
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5
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(h)
Futures Contracts
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6
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(i)
Segregated Accounts
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6
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(j)
Depositary Receipts
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6
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(k)
Corporate Actions, Put Bonds, Called Bonds, Etc.
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6
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(l)
Interest Bearing Deposits
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7
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(m)
Foreign Exchange Transactions
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7
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(n)
Pledges or Loans of Securities
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8
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(o)
Stock Dividends, Rights, Etc.
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8
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(p)
Routine Dealings
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8
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(q)
Collections
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8
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(r)
Bank Accounts
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9
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(s)
Dividends, Distributions and Redemptions
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9
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(t)
Proceeds from Shares Sold
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9
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(u)
Proxies and Notices; Compliance with the Shareholders
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Communication Act of 1985
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9
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(v)
Books and Records
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9
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(w)
Opinion of Trust's Independent Certified Public
Accountants
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10
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(x)
Reports by Independent Certified Public Accountants
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10
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(y)
Bills and Others Disbursements
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10
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5.
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Subcustodians
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10
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(a)
Domestic Subcustodians
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10
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(b)
Foreign Subcustodians
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10
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(c)
Interim Subcustodians
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11
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(d)
Special Subcustodians
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11
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(e)
Termination of a Subcustodian
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11
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(f)
Certification Regarding Foreign Subcustodians
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11
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6.
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Standard
of Care
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12
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(a)
General Standard of Care
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12
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(b)
Actions Prohibited by Applicable Law, Events Beyond Custodian’s Control,
Armed
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12
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Conflict, Sovereign Risk, etc.
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(c)
Liability for Past Records
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12
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(d)
Advice of Counsel
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12
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(e)
Advice of the Trust and Others
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12
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(f)
Instructions Appearing to be Genuine
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13
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(g)
Exceptions from Liability
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13
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7.
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Liability
of the Custodian for Actions of Others
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13
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(a)
Domestic Subcustodians
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13
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(b)
Liability for Acts and Omissions of Foreign Subcustodians
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13
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(c)
Securities Systems, Interim Subcustodians, Special Subcustodians,
Securities
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13
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Depositories
and Clearing Agencies
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(d)
Defaults or Insolvencies of Brokers, Banks, Etc.
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14
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(e)
Reimbursement of Expenses
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14
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8.
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Indemnification
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14
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(a)
Indemnification by Trust
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14
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(b)
Indemnification by Custodian
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14
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9.
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Advances
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14
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10.
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Liens
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15
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11.
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Compensation
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15
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12.
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Powers
of Attorney
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15
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13.
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Termination
and Assignment
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15
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14.
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Additional
Funds
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16
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15.
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Notices
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16
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16.
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Miscellaneous
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16
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This
agreement made as of this 14th
day of
January, 2008, between UMB Bank, n.a., a national banking association with
its
principal place of business located in Kansas City, Missouri (hereinafter
"Custodian"), and Investment Managers Series Trust (the “Trust”), on behalf of
each of the Funds listed on Appendix B hereof, together with such additional
Funds which shall be made parties to this Agreement by the execution of an
amended Appendix B hereto (individually, a "Fund" and collectively, the
"Funds").
WITNESSETH:
WHEREAS,
the
Trust is registered as an open-end management investment company under the
Investment Company Act of 1940, as amended; and
WHEREAS,
the
Trust desires to appoint Custodian as its custodian for the custody of Assets
(as hereinafter defined) owned by each Fund which Assets are to be held in
such
accounts as the Trust may establish from time to time; and
WHEREAS,
Custodian is willing to accept such appointment on the terms and conditions
hereof.
NOW,
THEREFORE,
in
consideration of the mutual promises contained herein, the parties hereto,
intending to be legally bound, mutually covenant and agree as
follows:
| 1. |
APPOINTMENT
OF CUSTODIAN.
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The
Trust, on behalf of each Fund hereby constitutes and appoints the Custodian
as
custodian of Assets belonging to each Fund which have been or may be from
time
to time deposited with the Custodian. Custodian accepts such appointment
as a
custodian and agrees to perform the duties and responsibilities of Custodian
as
set forth herein on the conditions set forth herein.
| 2. |
DEFINITIONS.
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For
purposes of this Agreement, the following terms shall have the meanings so
indicated:
(a)
"Security" or "Securities" shall mean stocks, bonds, bills, rights, script,
warrants, interim certificates and all negotiable or nonnegotiable paper
commonly known as securities and other instruments or obligations.
(b)
"Assets" shall mean Securities, monies and other property held by the Custodian
for the benefit of a Fund.
(c)(1)
"Instructions", as used herein, shall mean: (i) a tested telex, a written
(including, without limitation, facsimile transmission) request, direction,
instruction or certification signed or initialed by or on behalf of a Fund
by an
Authorized Person; (ii) a telephonic or other oral communication from a person
the Custodian reasonably believes to be an Authorized Person; or (iii) a
communication effected directly between an electro-mechanical or electronic
device or system (including, without limitation, computers) on behalf of
a Fund.
Custodian recommends that any Instructions transmitted by the Trust via email
be
done so only through a secure system or process. Custodian can make available
to
the Trust a secure email system if the Trust so desires. Instructions in
the
form of oral communications shall be confirmed by the appropriate Fund by
tested
telex or in writing in the manner set forth in clause (i) above, but the
lack of
such confirmation shall in no way affect any action taken by the Custodian
in
reliance upon such oral Instructions prior to the Custodian's receipt of
such
confirmation. The Trust authorizes the Custodian to record any and all
telephonic or other oral Instructions communicated to the
Custodian.
(c)(2)
"Special Instructions", as used herein, shall mean Instructions countersigned
or
confirmed in writing by the Treasurer or any Assistant Treasurer of the Trust
or
any other person designated by the Treasurer of the Trust in writing, which
countersignature or confirmation shall be included on the same instrument
containing the Instructions or on a separate instrument relating
thereto.
1
(c)(3)
Instructions and Special Instructions shall be delivered to the Custodian
at the
address and/or telephone, facsimile transmission or telex number agreed upon
from time to time by the Custodian and the Trust.
(c)(4)
Where appropriate, Instructions and Special Instructions shall be continuing
instructions.
| 3. |
DELIVERY
OF CORPORATE DOCUMENTS.
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Each
of
the parties to this Agreement represents that its execution does not violate
any
of the provisions of its respective charter, articles of incorporation, articles
of association, declaration of trust, or bylaws and all required corporate
action to authorize the execution and delivery of this Agreement has been
taken.
The
Trust
has furnished the Custodian with copies, properly certified or authenticated,
with all amendments or supplements thereto, of the following
documents:
(a)
Declaration of Trust (or equivalent document) of the Trust as in effect on
the
date hereof;
(b)
By-Laws of the Trust as in effect on the date hereof;
(c)
Resolutions of the Board of Trustees of the Trust appointing the Custodian
and
approving the form of this Agreement; and
(d)
Each
Fund's current prospectus and statement of additional information.
The
Trust
shall promptly furnish the Custodian with copies of any updates, amendments
or
supplements to the foregoing documents.
In
addition, the Trust has delivered or will promptly deliver to the Custodian,
copies of the Resolution(s) of its Board of Trustees and all amendments or
supplements thereto, properly certified or authenticated, designating certain
officers or employees of the Trust who will have continuing authority to
certify
to the Custodian: (a) the names, titles, signatures and scope of authority
of
all persons authorized to give Instructions or any other notice, request,
direction, instruction, certificate or instrument on behalf of each Fund,
and
(b) the names, titles and signatures of those persons authorized to countersign
or confirm Special Instructions on behalf of each Fund (in both cases
collectively, the "Authorized Persons" and individually, an "Authorized
Person"). Such Resolutions and certificates may be accepted and relied upon
by
the Custodian as conclusive evidence of the facts set forth therein and shall
be
considered to be in full force and effect until delivery to the Custodian
of a
similar Resolution or certificate to the contrary. Upon delivery of a
certificate which deletes or does not include the name(s) of a person previously
authorized to give Instructions or to countersign or confirm Special
Instructions, such persons shall no longer be considered an Authorized Person
authorized to give Instructions or to countersign or confirm Special
Instructions. Unless the certificate specifically requires that the approval
of
anyone else will first have been obtained, the Custodian will be under no
obligation to inquire into the right of the person giving such Instructions
or
Special Instructions to do so. Notwithstanding any of the foregoing, no
Instructions or Special Instructions received by the Custodian from the Trust
or
on behalf of a Fund will be deemed to authorize or permit any director, trustee,
officer, employee, or agent of the Trust to withdraw any of the Assets of
a Fund
upon the mere receipt of such authorization, Special Instructions or
Instructions from such director, trustee, officer, employee or
agent.
| 4. |
POWERS
AND DUTIES OF CUSTODIAN AND DOMESTIC SUBCUSTODIAN.
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Except
for Assets held by any Subcustodian appointed pursuant to Sections 5(b),
(c), or
(d) of this Agreement, the Custodian shall have and perform the powers and
duties hereinafter set forth in this Section 4. For purposes of this Section
4
all references to powers and duties of the "Custodian" shall also refer to
any
Domestic Subcustodian appointed pursuant to Section 5(a)..
2
(a)
Safekeeping.
The
Custodian will keep safely the Assets of each Fund which are delivered to
it
from time to time. The Custodian shall not be responsible for any property
of a
Fund held or received by such Fund and not delivered to the
Custodian.
(b)
Manner
of Holding Securities.
(1)
The
Custodian shall at all times hold Securities of each Fund either: (i) by
physical possession of the share certificates or other instruments representing
such Securities in registered or bearer form; or (ii) in book-entry form
by a
Securities System (as hereinafter defined) in accordance with the provisions
of
sub-paragraph (3) below.
(2)
The
Custodian may hold registrable portfolio Securities which have been delivered
to
it in physical form, by registering the same in the name of the appropriate
Fund
or its nominee, or in the name of the Custodian or its nominee, for whose
actions the Trust on behalf of such Fund and Custodian, respectively, shall
be
fully responsible. Upon the receipt of Instructions, the Custodian shall
hold
such Securities in street certificate form, so called, with or without any
indication of fiduciary capacity. However, unless it receives Instructions
to
the contrary, the Custodian will register all such portfolio Securities in
the
name of the Custodian's authorized nominee. All such Securities shall be
held in
an account of the Custodian containing only assets of the appropriate Fund
or
only assets held by the Custodian as a fiduciary, provided that the records
of
the Custodian shall indicate at all times the Fund or other customer for
which
such Securities are held in such accounts and the respective interests
therein.
(3)
The
Custodian may deposit and/or maintain domestic Securities owned by a Fund
in,
and each Fund hereby approves use of: (a) The Depository Trust Company; and
(b)
any book-entry system as provided in (i) Subpart O of Treasury Circular ▇▇.
▇▇▇,
▇▇ ▇▇▇ 306.115, (ii) Subpart B of Treasury Circular Public Debt Series ▇▇.
▇▇-▇▇, ▇▇ ▇▇▇ 350.2, or (iii) the book-entry regulations of federal agencies
substantially in the form of 31 CFR 306.115. Upon the receipt of Special
Instructions, the Custodian may deposit and/or maintain domestic Securities
owned by a Fund in any other domestic clearing agency registered with the
Securities and Exchange Commission ("SEC") under Section 17A of the Securities
Exchange Act of 1934 (or as may otherwise be authorized by the SEC to serve
in
the capacity of depository or clearing agent for the Securities or other
assets
of investment companies) which acts as a Securities depository. Each of the
foregoing shall be referred to in this Agreement as a "Securities System",
and
all such Securities Systems shall be listed on the attached Appendix A. Use
of a
Securities System shall be in accordance with applicable Federal Reserve
Board
and SEC rules and regulations, if any, and subject to the following
provisions:
(i)
The
Custodian may deposit the Securities directly or through one or more agents
or
Subcustodians which are also qualified to act as custodians for investment
companies.
(ii)
The
Custodian shall deposit and/or maintain the Securities in a Securities System,
provided that such Securities are represented in an account ("Account") of
the
Custodian in the Securities System that includes only assets held by the
Custodian as a fiduciary, custodian or otherwise for customers.
(iii)
The
books and records of the Custodian shall at all times identify those Securities
belonging to any one or more Funds which are maintained in a Securities
System.
(iv)
The
Custodian shall pay for Securities purchased for the account of a Fund only
upon
(a) receipt of advice from the Securities System that such Securities have
been
transferred to the Account of the Custodian in accordance with the rules
of the
Securities System, and (b) the making of an entry on the records of the
Custodian to reflect such payment and transfer for the account of such Fund.
The
Custodian shall transfer Securities sold for the account of a Fund only upon
(a)
receipt of advice from the Securities System that payment for such Securities
has been transferred to the Account of the Custodian in accordance with the
rules of the Securities System, and (b) the making of an entry on the records
of
the Custodian to reflect such transfer and payment for the account of such
Fund.
Copies of all advices from the Securities System relating to transfers of
Securities for the account of a Fund shall be maintained for such Fund by
the
Custodian. The Custodian shall deliver to a Fund on the next succeeding business
day daily transaction reports that shall include each day's transactions
in the
Securities System for the account of such Fund. Such transaction reports
shall
be delivered to such Fund or any agent designated by such Fund pursuant to
Instructions, by computer or in such other manner as such Fund and Custodian
may
agree.
3
(v)
The
Custodian shall, if requested by the Trust pursuant to Instructions, provide
the
Trust with reports obtained by the Custodian or any Subcustodian with respect
to
a Securities System's accounting system, internal accounting control and
procedures for safeguarding Securities deposited in the Securities
System.
(vi)
Upon
receipt of Special Instructions, the Custodian shall terminate the use of
any
Securities System on behalf of a Fund as promptly as practicable and shall
take
all actions reasonably practicable to safeguard the Securities of such Fund
maintained with such Securities System.
(c)
Free
Delivery of Assets.
Notwithstanding
any other provision of this Agreement and except as provided in Section 3
hereof, the Custodian, upon receipt of Special Instructions, will undertake
to
make free delivery of Assets, provided such Assets are on hand and available,
in
connection with a Fund's transactions and to transfer such Assets to such
broker, dealer, Subcustodian, bank, agent, Securities System or otherwise
as
specified in such Special Instructions.
(d)
Exchange
of Securities.
Upon
receipt of Instructions, the Custodian will exchange portfolio Securities
held
by it for a Fund for other Securities or cash paid in connection with any
reorganization, recapitalization, merger, consolidation, or conversion of
convertible Securities, and will deposit any such Securities in accordance
with
the terms of any reorganization or protective plan.
Without
Instructions, the Custodian is authorized to exchange Securities held by
it in
temporary form for Securities in definitive form, to surrender Securities
for
transfer into a name or nominee name as permitted in Section 4(b)(2), to
effect
an exchange of shares in a stock split or when the par value of the stock
is
changed, to sell any fractional shares, and, upon receiving payment therefor,
to
surrender bonds or other Securities held by it at maturity or call.
(e)
Purchases
of Assets.
(1)
Securities
Purchases.
In
accordance with Instructions, the Custodian shall, with respect to a purchase
of
Securities, pay for such Securities out of monies held for a Fund's account
for
which the purchase was made, but only insofar as monies are available therein
for such purpose, and receive the portfolio Securities so purchased. Unless
the
Custodian has received Special Instructions to the contrary, such payment
will
be made only upon receipt of Securities by the Custodian, a clearing corporation
of a national securities exchange of which the Custodian is a member, or
a
Securities System in accordance with the provisions of Section 4(b)(3) hereof.
Notwithstanding the foregoing, upon receipt of Instructions: (i) in connection
with a repurchase agreement, the Custodian may release funds to a Securities
System prior to the receipt of advice from the Securities System that the
Securities underlying such repurchase agreement have been transferred by
book-entry into the Account maintained with such Securities System by the
Custodian, provided that the Custodian's instructions to the Securities System
require that the Securities System may make payment of such funds to the
other
party to the repurchase agreement only upon transfer by book-entry of the
Securities underlying the repurchase agreement into such Account; (ii) in
the
case of Interest Bearing Deposits, currency deposits, and other deposits,
foreign exchange transactions, futures contracts or options, pursuant to
Sections 4(g), 4(h), 4(l), and 4(m) hereof, the Custodian may make payment
therefor before receipt of an advice of transaction; and (iii) in the case
of
Securities as to which payment for the Security and receipt of the instrument
evidencing the Security are under generally accepted trade practice or the
terms
of the instrument representing the Security expected to take place in different
locations or through separate parties, such as commercial paper which is
indexed
to foreign currency exchange rates, derivatives and similar Securities, the
Custodian may make payment for such Securities prior to delivery thereof
in
accordance with such generally accepted trade practice or the terms of the
instrument representing such Security.
4
(2)
Other
Assets Purchased.
Upon
receipt of Instructions and except as otherwise provided herein, the Custodian
shall pay for and receive other Assets for the account of a Fund as provided
in
Instructions.
(f)
Sales
of Assets.
(1)
Securities
Sold.
In
accordance with Instructions, the Custodian will, with respect to a sale,
deliver or cause to be delivered the Securities thus designated as sold to
the
broker or other person specified in the Instructions relating to such sale.
Unless the Custodian has received Special Instructions to the contrary, such
delivery shall be made only upon receipt of payment therefor in the form
of: (a)
cash, certified check, bank cashier's check, bank credit, or bank wire transfer;
(b) credit to the account of the Custodian with a clearing corporation of
a
national Securities exchange of which the Custodian is a member; or (c) credit
to the Account of the Custodian with a Securities System, in accordance with
the
provisions of Section 4(b)(3) hereof. Notwithstanding the foregoing, Securities
held in physical form may be delivered and paid for in accordance with "street
delivery custom" to a broker or its clearing agent, against delivery to the
Custodian of a receipt for such Securities, provided that the Custodian shall
have taken reasonable steps to ensure prompt collection of the payment for,
or
return of, such Securities by the broker or its clearing agent, and provided
further that the Custodian shall not be responsible for the selection of
or the
failure or inability to perform of such broker or its clearing agent or for
any
related loss arising from delivery or custody of such Securities prior to
receiving payment therefor.
(2)
Other
Assets Sold.
Upon
receipt of Instructions and except as otherwise provided herein, the Custodian
shall receive payment for and deliver other Assets for the account of a Fund
as
provided in Instructions.
(g)
Options.
(1)
Upon
receipt of Instructions relating to the purchase of an option or sale of
a
covered call option, the Custodian shall: (a) receive and retain confirmations
or other documents, if any, evidencing the purchase or writing of the option
by
a Fund; (b) if the transaction involves the sale of a covered call option,
deposit and maintain in a segregated account the Securities (either physically
or by book-entry in a Securities System) subject to the covered call option
written on behalf of such Fund; and (c) pay, release and/or transfer such
Securities, cash or other Assets in accordance with any notices or other
communications evidencing the expiration, termination or exercise of such
options which are furnished to the Custodian by the Options Clearing Corporation
(the "OCC"), the securities or options exchanges on which such options were
traded, or such other organization as may be responsible for handling such
option transactions.
(2)
Upon
receipt of Instructions relating to the sale of a naked option (including
stock
index and commodity options), the Custodian, the appropriate Fund and the
broker-dealer shall enter into an agreement to comply with the rules of the
OCC
or of any registered national securities exchange or similar organizations(s).
Pursuant to that agreement and such Fund's Instructions, the Custodian shall:
(a) receive and retain confirmations or other documents, if any, evidencing
the
writing of the option; (b) deposit and maintain in a segregated account,
Securities (either physically or by book-entry in a Securities System), cash
and/or other Assets; and (c) pay, release and/or transfer such Securities,
cash
or other Assets in accordance with any such agreement and with any notices
or
other communications evidencing the expiration, termination or exercise of
such
option which are furnished to the Custodian by the OCC, the securities or
options exchanges on which such options were traded, or such other organization
as may be responsible for handling such option transactions. The appropriate
Fund and the broker-dealer shall be responsible for determining the quality
and
quantity of assets held in any segregated account established in compliance
with
applicable margin maintenance requirements and the performance of other terms
of
any option contract.
5
(h)
Futures
Contracts.
Upon
receipt of Instructions, the Custodian shall enter into a futures margin
procedural agreement among the Trust on behalf of the appropriate Fund, the
Custodian and the designated futures commission merchant (a "Procedural
Agreement"). Under the Procedural Agreement the Custodian shall: (a) receive
and
retain confirmations, if any, evidencing the purchase or sale of a futures
contract or an option on a futures contract by such Fund; (b) deposit and
maintain in a segregated account cash, Securities and/or other Assets designated
as initial, maintenance or variation "margin" deposits intended to secure
such
Fund's performance of its obligations under any futures contracts purchased
or
sold, or any options on futures contracts written by such Fund, in accordance
with the provisions of any Procedural Agreement designed to comply with the
provisions of the Commodity Futures Trading Commission and/or any commodity
exchange or contract market (such as the Chicago Board of Trade), or any
similar
organization(s), regarding such margin deposits; and (c) release Assets from
and/or transfer Assets into such margin accounts only in accordance with
any
such Procedural Agreements. The Trust on behalf of the appropriate Fund and
such
futures commission merchant shall be responsible for determining the type
and
amount of Assets held in the segregated account or paid to the broker-dealer
in
compliance with applicable margin maintenance requirements and the performance
of any futures contract or option on a futures contract in accordance with
its
terms.
(i)
Segregated
Accounts.
Upon
receipt of Instructions, the Custodian shall establish and maintain on its
books
a segregated account or accounts for and on behalf of a Fund, into which
account
or accounts may be transferred Assets of such Fund, including Securities
maintained by the Custodian in a Securities System pursuant to Paragraph
(b)(3)
of this Section 4, said account or accounts to be maintained (i) for the
purposes set forth in Sections 4(g), 4(h) and 4(n), (ii) for the purpose
of
compliance by such Fund with the procedures required by the SEC Investment
Company Act Release Number 10666 or any subsequent release or releases relating
to the maintenance of segregated accounts by registered investment companies,
or
(iii) for such other purposes as may be set forth, from time to time, in
Special
Instructions. The Custodian shall not be responsible for the determination
of
the type or amount of Assets to be held in any segregated account referred
to in
this paragraph, or for compliance by the Fund with required procedures noted
in
(ii) above.
(j)
Depositary
Receipts.
Upon
receipt of Instructions, the Custodian shall surrender or cause to be
surrendered Securities to the depositary used for such Securities by an issuer
of American Depositary Receipts or International Depositary Receipts
(hereinafter referred to, collectively, as "ADRs"), against a written receipt
therefor adequately describing such Securities and written evidence satisfactory
to the organization surrendering the same that the depositary has acknowledged
receipt of instructions to issue ADRs with respect to such Securities in
the
name of the Custodian or a nominee of the Custodian, for delivery in accordance
with such instructions.
Upon
receipt of Instructions, the Custodian shall surrender or cause to be
surrendered ADRs to the issuer thereof, against a written receipt therefor
adequately describing the ADRs surrendered and written evidence satisfactory
to
the organization surrendering the same that the issuer of the ADRs has
acknowledged receipt of instructions to cause its depository to deliver the
Securities underlying such ADRs in accordance with such
instructions.
(k)
Corporate
Actions, Put Bonds, Called Bonds, Etc.
Upon
receipt of Instructions, the Custodian shall: (a) deliver warrants, puts,
calls,
rights or similar Securities to the issuer or trustee thereof (or to the
agent
of such issuer or trustee) for the purpose of exercise or sale, provided
that
the new Securities, cash or other Assets, if any, acquired as a result of
such
actions are to be delivered to the Custodian; and (b) deposit Securities
upon
invitations for tenders thereof, provided that the consideration for such
Securities is to be paid or delivered to the Custodian, or the tendered
Securities are to be returned to the Custodian.
Notwithstanding
any provision of this Agreement to the contrary, the Custodian shall take
all
necessary action, unless otherwise directed to the contrary in Instructions,
to
comply with the terms of all mandatory or compulsory exchanges, calls, tenders,
redemptions, or similar rights of security ownership of which the Custodian
receives notice through publications to which it normally subscribes, and
shall
notify the Trust for the appropriate Fund of such action in writing by facsimile
transmission or in such other manner as such Fund and Custodian may agree
in
writing.
6
The
Trust
agrees that if it gives an Instruction for the performance of an act on the
last
permissible date of a period established by any optional offer or on the
last
permissible date for the performance of such act, the Trust shall hold the
Custodian harmless from any adverse consequences in connection with acting
upon
or failing to act upon such Instructions.
(l)
Interest
Bearing Deposits.
Upon
receipt of Instructions directing the Custodian to purchase interest bearing
fixed term and call deposits (hereinafter referred to, collectively, as
"Interest Bearing Deposits") for the account of a Fund, the Custodian shall
purchase such Interest Bearing Deposits in the name of such Fund with such
banks
or trust companies, including the Custodian, any Subcustodian or any subsidiary
or affiliate of the Custodian (hereinafter referred to as "Banking
Institutions"), and in such amounts as such Fund may direct pursuant to
Instructions. Such Interest Bearing Deposits may be denominated in U.S. dollars
or other currencies, as the Trust on behalf of such Fund may determine and
direct pursuant to Instructions. The responsibilities of the Custodian to
a Fund
for Interest Bearing Deposits issued by the Custodian shall be that of a
U.S.
bank for a similar deposit. With respect to Interest Bearing Deposits other
than
those issued by the Custodian, (a) the Custodian shall be responsible for
the
collection of income and the transmission of cash to and from such accounts;
and
(b) the Custodian shall have no duty with respect to the selection of the
Banking Institution or for the failure of such Banking Institution to pay
upon
demand.
(m)
Foreign
Exchange Transactions.
(l)
The
Trust hereby appoints the Custodian as its agent in the execution of all
currency exchange transactions. The Custodian agrees to provide exchange
rate
and U.S. Dollar information, in writing, to the Trust. Such information shall
be
supplied by the Custodian at least by the business day prior to the value
date
of the foreign exchange transaction, provided that the Custodian receives
the
request for such information at least two business days prior to the value
date
of the transaction.
(2)
Upon
receipt of Instructions, the Custodian shall settle foreign exchange contracts
or options to purchase and sell foreign currencies for spot and future delivery
on behalf of and for the account of a Fund with such currency brokers or
Banking
Institutions as such Fund may determine and direct pursuant to Instructions.
If,
in its Instructions, a Fund does not direct the Custodian to utilize a
particular currency broker or Banking Institution, the Custodian is authorized
to select such currency broker or Banking Institution as it deems appropriate
to
execute the Fund's foreign currency transaction.
(3)
The
Trust accepts full responsibility for a Fund’s use of third party foreign
exchange brokers and for execution of said foreign exchange contracts and
understands that the Trust shall be responsible for any and all costs and
interest charges which may be incurred as a result of the failure or delay
of
its third party broker to deliver foreign exchange. The Custodian shall have
no
responsibility or liability with respect to the selection of the currency
brokers or Banking Institutions with which a Fund deals or the performance
of
such brokers or Banking Institutions.
(4)
Notwithstanding anything to the contrary contained herein, upon receipt of
Instructions the Custodian may, in connection with a foreign exchange contract,
make free outgoing payments of cash in the form of U.S. Dollars or foreign
currency prior to receipt of confirmation of such foreign exchange contract
or
confirmation that the countervalue currency completing such contract has
been
delivered or received.
(5)
The
Custodian shall not be obligated to enter into foreign exchange transactions
as
principal. However, if the Custodian has made available to a Fund its services
as a principal in foreign exchange transactions and subject to any separate
agreement between the parties relating to such transactions, the Custodian
shall
enter into foreign exchange contracts or options to purchase and sell foreign
currencies for spot and future delivery on behalf of and for the account
of the
Fund, with the Custodian as principal.
7
(n)
Pledges
or Loans of Securities.
(1)
Upon
receipt of Instructions from the Trust for a Fund, the Custodian will release
or
cause to be released Securities held in custody to the pledgees designated
in
such Instructions by way of pledge or hypothecation to secure loans incurred
by
such Fund with various lenders including but not limited to UMB Bank, n.a.;
provided, however, that the Securities shall be released only upon payment
to
the Custodian of the monies borrowed, except that in cases where additional
collateral is required to secure existing borrowings, further Securities
may be
released or delivered, or caused to be released or delivered for that purpose
upon receipt of Instructions. Upon receipt of Instructions, the Custodian
will
pay, but only from funds available for such purpose, any such loan upon
re-delivery to it of the Securities pledged or hypothecated therefor and
upon
surrender of the note or notes evidencing such loan. In lieu of delivering
collateral to a pledgee, the Custodian, on the receipt of Instructions, shall
transfer the pledged Securities to a segregated account for the benefit of
the
pledgee.
(2)
Upon
receipt of Special Instructions, and execution of a separate Securities Lending
Agreement, the Custodian will release Securities held in custody to the borrower
designated in such Instructions and may, except as otherwise provided below,
deliver such Securities prior to the receipt of collateral, if any, for such
borrowing, provided that, in case of loans of Securities held by a Securities
System that are secured by cash collateral, the Custodian's instructions
to the
Securities System shall require that the Securities System deliver the
Securities of the appropriate Fund to the borrower thereof only upon receipt
of
the collateral for such borrowing. The Custodian shall have no responsibility
or
liability for any loss arising from the delivery of Securities prior to the
receipt of collateral. Upon receipt of Instructions and the loaned Securities,
the Custodian will release the collateral to the borrower.
(o)
Stock
Dividends, Rights, Etc.
The
Custodian shall receive and collect all stock dividends, rights, and other
items
of like nature and, upon receipt of Instructions, take action with respect
to
the same as directed in such Instructions.
(p)
Routine
Dealings.
The
Custodian will, in general, attend to all routine and mechanical matters
in
accordance with industry standards in connection with the sale, exchange,
substitution, purchase, transfer, or other dealings with Securities or other
property of a Fund except as may be otherwise provided in this Agreement
or
directed from time to time by Instructions from the Trust for any particular
Fund. The Custodian may also make payments to itself or others from the Assets
for disbursements and out-of-pocket expenses incidental to handling Securities
or other similar items relating to its duties under this Agreement, provided
that all such payments shall be accounted for to the appropriate
Fund.
(q)
Collections.
The
Custodian shall (a) collect amounts due and payable to each Fund with respect
to
portfolio Securities and other Assets; (b) promptly credit to the account
of
each Fund all income and other payments relating to portfolio Securities
and
other Assets held by the Custodian hereunder upon Custodian's receipt of
such
income or payments or as otherwise agreed in writing by the Custodian and
the
Trust for any particular Fund; (c) promptly endorse and deliver any instruments
required to effect such collection; and (d) promptly execute ownership and
other
certificates and affidavits for all federal, state, local and foreign tax
purposes in connection with receipt of income or other payments with respect
to
portfolio Securities and other Assets, or in connection with the transfer
of
such Securities or other Assets; provided, however, that with respect to
portfolio Securities registered in so-called street name, or physical Securities
with variable interest rates, the Custodian shall use its best efforts to
collect amounts due and payable to any such Fund. The Custodian shall notify
the
Trust for a Fund in writing by facsimile transmission or in such other manner
as
the Trust and Custodian may agree in writing if any amount payable with respect
to portfolio Securities or other Assets is not received by the Custodian
when
due. The Custodian shall not be responsible for the collection of amounts
due
and payable with respect to portfolio Securities or other Assets that are
in
default.
8
(r)
Bank
Accounts.
Upon
Instructions, the Custodian shall open and operate a bank account or accounts
on
the books of the Custodian; provided that such bank account(s) shall be in
the
name of the Custodian or a nominee thereof, for the account of one or more
Funds, and shall be subject only to draft or order of the Custodian. The
responsibilities of the Custodian to any one or more such Funds for deposits
accepted on the Custodian's books shall be that of a U.S. bank for a similar
deposit.
(s)
Dividends,
Distributions and Redemptions.
To
enable
each Fund to pay dividends or other distributions to shareholders of each
such
Fund and to make payment to shareholders who have requested repurchase or
redemption of their shares of each such Fund (collectively, the "Shares"),
the
Custodian shall release cash or Securities insofar as available. In the case
of
cash, the Custodian shall, upon the receipt of Instructions, transfer such
funds
by check or wire transfer to any account at any bank or trust company designated
by each the Trust in such Instructions. In the case of Securities, the Custodian
shall, upon the receipt of Special Instructions, make such transfer to any
entity or account designated by the Trust in such Special
Instructions.
(t)
Proceeds
from Shares Sold.
The
Custodian shall receive funds representing cash payments received for shares
issued or sold from time to time by each Fund, and shall credit such funds
to
the account of the appropriate Fund. The Custodian shall notify the appropriate
Fund of Custodian's receipt of cash in payment for shares issued by such
Fund by
facsimile transmission or in such other manner as the Trust on behalf of
such
Fund and the Custodian shall agree. Upon receipt of Instructions, the Custodian
shall: (a) deliver all federal funds received by the Custodian in payment
for
shares as may be set forth in such Instructions and at a time agreed upon
between the Custodian and the Trust for such Fund; and (b) make federal funds
available to a Fund as of specified times agreed upon from time to time by
the
Trust for such Fund and the Custodian, in the amount of checks received in
payment for shares which are deposited to the accounts of such
Fund.
(u)
Proxies
and Notices; Compliance with the Shareholders Communication Act of
1985.
The
Custodian shall deliver or cause to be delivered to the Trust for the
appropriate Fund all forms of proxies, all notices of meetings, and any other
notices or announcements affecting or relating to Securities owned by such
Fund
that are received by the Custodian, any Subcustodian, or any nominee of either
of them, and, upon receipt of Instructions, the Custodian shall execute and
deliver, or cause such Subcustodian or nominee to execute and deliver, such
proxies or other authorizations as may be required. Except as directed pursuant
to Instructions, neither the Custodian nor any Subcustodian or nominee shall
vote upon any such Securities, or execute any proxy to vote thereon, or give
any
consent or take any other action with respect thereto.
The
Custodian will not release the identity of any Fund to an issuer which requests
such information pursuant to the Shareholder Communications Act of 1985 for
the
specific purpose of direct communications between such issuer and any such
Fund
unless the Trust for a particular Fund directs the Custodian otherwise in
writing.
(v)
Books
and Records.
The
Custodian shall maintain such records relating to its activities under this
Agreement as are required to be maintained by the Trust and the Custodian
in
connection with the services provided by the Custodian in accordance with
applicable laws, rules and regulations, including Rule 31a-1 under the
Investment Company Act of 1940 ("▇▇▇ ▇▇▇▇ ▇▇▇") and to preserve them for
the
periods prescribed by applicable laws, rules and regulations, including,
as
applicable, Rule 31a-2 under the 1940 Act. These records shall be open for
inspection by duly authorized officers, employees or agents (including
independent public accountants) of the Trust during normal business hours
of the
Custodian. Upon the reasonable request of the Trust, copies of any such books
and records shall be provided by the Custodian to the Trust or its authorized
representative.
9
The
Custodian shall provide accountings relating to its activities under this
Agreement as shall be agreed upon by the Trust and the Custodian.
(w)
Opinion
of Trust’s Independent Certified Public Accountants.
The
Custodian shall take all reasonable action as the Trust may request to obtain
from year to year favorable opinions from the Trust’s independent certified
public accountants with respect to the Custodian's activities hereunder and
in
connection with the preparation of each such Fund's periodic reports to the
SEC
and with respect to any other requirements of the SEC.
(x)
Reports
by Independent Certified Public Accountants.
At
the
request of the Trust, the Custodian shall deliver to the Trust a written
report
prepared by the Custodian's independent certified public accountants with
respect to the services provided by the Custodian under this Agreement,
including, without limitation, the Custodian's accounting system, internal
accounting control and procedures for safeguarding cash, Securities and other
Assets, including cash, Securities and other Assets deposited and/or maintained
in a Securities System or with a Subcustodian. Such report shall be of
sufficient scope and in sufficient detail as may reasonably be required by
the
Trust and as may reasonably be obtained by the Custodian.
(y)
Bills
and Other Disbursements.
Upon
receipt of Instructions, the Custodian shall pay, or cause to be paid, all
bills, statements, or other obligations of a Fund.
| 5. |
SUBCUSTODIANS.
|
From
time
to time, in accordance with the relevant provisions of this Agreement, the
Custodian may appoint one or more Domestic Subcustodians, Foreign Subcustodians,
Special Subcustodians, or Interim Subcustodians (as each are hereinafter
defined) to act on behalf of any one or more Funds. A Domestic Subcustodian,
in
accordance with the provisions of this Agreement, may also appoint a Foreign
Subcustodian, Special Subcustodian, or Interim Subcustodian to act on behalf
of
any one or more Funds. For purposes of this Agreement, all Domestic
Subcustodians, Foreign Subcustodians, Special Subcustodians and Interim
Subcustodians shall be referred to collectively as "Subcustodians".
(a)
Domestic
Subcustodians.
The
Custodian may, at any time and from time to time, appoint any bank as defined
in
Section 2(a)(5) of the 1940 Act or any trust company or other entity, any
of
which meet the requirements of a custodian under Section 17(f) of the 1940
Act
and the rules and regulations thereunder, to act for the Custodian on behalf
of
any one or more Funds as a subcustodian for purposes of holding Assets of
such
Fund(s) and performing other functions of the Custodian within the United
States
(a "Domestic Subcustodian"), provided the Trust has approved in writing the
appointment of the proposed Domestic Subcustodian; and the Custodian's
appointment of any such Domestic Subcustodian shall not be effective without
such prior written approval of the Trust for the applicable Fund. Each such
duly
approved Domestic Subcustodian shall be listed on Appendix A attached hereto,
as
it may be amended, from time to time.
(b)
Foreign
Subcustodians.
The
Custodian may at any time appoint, or cause a Domestic Subcustodian to appoint,
any bank, trust company or other entity meeting the requirements of an "eligible
foreign custodian" under Section 17(f) of the 1940 Act and the rules and
regulations thereunder to act for the Custodian on behalf of the Trust for
any
one or more Funds as a subcustodian or sub-subcustodian (if appointed by
a
Domestic Subcustodian) for purposes of holding Assets of the Fund(s) and
performing other functions of the Custodian in countries other than the United
States of America (hereinafter referred to as a "Foreign Subcustodian" in
the
context of either a subcustodian or a sub-subcustodian); provided that the
Custodian shall have obtained written confirmation from the Trust of the
approval of the Board of Trustees (which approval may be withheld in the
sole
discretion of such Board of Trustees ) with respect to (i) the identity of
any
proposed Foreign Subcustodian (including branch designation), (ii) the country
or countries in which, and the securities depositories or clearing agencies
(hereinafter "Securities Depositories and Clearing Agencies"), if any, through
which, the Custodian or any proposed Foreign Subcustodian is authorized to
hold
Securities and other Assets of each such Fund, and (iii) the form and terms
of
the subcustodian agreement to be entered into with such proposed Foreign
Subcustodian. Each such duly approved Foreign Subcustodian and the countries
where and the Securities Depositories and Clearing Agencies through which
they
may hold Securities and other Assets of the Fund(s) shall be listed on Appendix
A attached hereto, as it may be amended, from time to time. The Trust shall
be
responsible for informing the Custodian sufficiently in advance of a proposed
investment which is to be held in a country in which no Foreign Subcustodian
is
authorized to act, in order that there shall be sufficient time for the
Custodian, or any Domestic Subcustodian, to effect the appropriate arrangements
with a proposed Foreign Subcustodian, including obtaining approval as provided
in this Section 5(b). In connection with the appointment of any Foreign
Subcustodian, the Custodian shall, or shall cause the Domestic Subcustodian
to,
enter into a subcustodian agreement with the Foreign Subcustodian in form
and
substance approved by the Trust. The Custodian shall not consent to the
amendment of, and shall cause any Domestic Subcustodian not to consent to
the
amendment of, any agreement entered into with a Foreign Subcustodian, which
materially affects any Fund's rights under such agreement, except upon prior
written approval of the Trust pursuant to Special Instructions.
10
(c)
Interim
Subcustodians.
Notwithstanding
the foregoing, in the event that a Fund shall invest in an Asset to be held
in a
country in which no Foreign Subcustodian is authorized to act, the Custodian
shall notify the Trust in writing by facsimile transmission or in such other
manner as the Trust and the Custodian shall agree in writing of the
unavailability of an approved Foreign Subcustodian in such country; and upon
the
receipt of Special Instructions from the Trust, the Custodian shall, or shall
cause its Domestic Subcustodian to, appoint or approve an entity (referred
to
herein as an "Interim Subcustodian") designated in such Special Instructions
to
hold such Security or other Asset.
(d)
Special
Subcustodians.
Upon
receipt of Special Instructions, the Custodian shall, on behalf of a Fund,
appoint one or more banks, trust companies or other entities designated in
such
Special Instructions to act for the Custodian on behalf of such Fund as a
subcustodian for purposes of: (i) effecting third-party repurchase transactions
with banks, brokers, dealers or other entities through the use of a common
custodian or subcustodian; (ii) providing depository and clearing agency
services with respect to certain variable rate demand note Securities, (iii)
providing depository and clearing agency services with respect to dollar
denominated Securities, and (iv) effecting any other transactions designated
by
the Trust in such Special Instructions. Each such designated subcustodian
(hereinafter referred to as a "Special Subcustodian") shall be listed on
Appendix A attached hereto, as it may be amended from time to time. In
connection with the appointment of any Special Subcustodian, the Custodian
shall
enter into a subcustodian agreement with the Special Subcustodian in form
and
substance approved by the Trust in Special Instructions. The Custodian shall
not
amend any subcustodian agreement entered into with a Special Subcustodian,
or
waive any rights under such agreement, except upon prior approval pursuant
to
Special Instructions.
(e)
Termination
of a Subcustodian.
The
Custodian may, at any time in its discretion upon notification to the
appropriate Fund(s), terminate any Subcustodian of such Fund(s) in accordance
with the termination provisions under the applicable subcustodian agreement,
and
upon the receipt of Special Instructions, the Custodian will terminate any
Subcustodian in accordance with the termination provisions under the applicable
subcustodian agreement.
(f)
Certification
Regarding Foreign Subcustodians.
Upon
request of the Trust, the Custodian shall deliver to the Trust a certificate
stating: (i) the identity of each Foreign Subcustodian then acting on behalf
of
the Custodian; (ii) the countries in which and the Securities Depositories
and
Clearing Agencies through which each such Foreign Subcustodian is then holding
cash, Securities and other Assets of such Fund; and (iii) such other information
as may be requested by the Trust, and as the Custodian shall be reasonably
able
to obtain, to evidence compliance with rules and regulations under the 1940
Act.
11
| 6. |
STANDARD
OF CARE.
|
(a)
General
Standard of Care.
The
Custodian shall be liable to the Trust on behalf of a Fund for all losses,
damages and reasonable costs and expenses suffered or incurred by such Fund
resulting from the negligence or willful misfeasance of the Custodian; provided,
however, in no event shall the Custodian be liable for special, indirect
or
consequential damages arising under or in connection with this
Agreement.
(b)
Actions
Prohibited by Applicable Law, Events Beyond Custodian's Control,
Sovereign Risk, Etc.
In
no
event shall the Custodian or any Domestic Subcustodian incur liability hereunder
(i) if the Custodian or any Subcustodian or Securities System, or any
subcustodian, Securities System, Securities Depository or Clearing Agency
utilized by the Custodian or any such Subcustodian, or any nominee of the
Custodian or any Subcustodian (individually, a "Person") is prevented, forbidden
or delayed from performing, or omits to perform, any act or thing which this
Agreement provides shall be performed or omitted to be performed, by reason
of:
(a) any provision of any present or future law or regulation or order of
the
United States of America, or any state thereof, or of any foreign country,
or
political subdivision thereof or of any court of competent jurisdiction (and
neither the Custodian nor any other Person shall be obligated to take any
action
contrary thereto); or (b) any event beyond the control of the Custodian or
other
Person such as armed conflict, riots, strikes, lockouts, labor disputes,
equipment or transmission failures, natural disasters, or failure of the
mails,
transportation, communications or power supply; or (ii) for any loss, damage,
cost or expense resulting from "Sovereign Risk." A "Sovereign Risk" shall
mean
nationalization, expropriation, currency devaluation, revaluation or
fluctuation, confiscation, seizure, cancellation, destruction or similar
action
by any governmental authority, de facto or de jure; or enactment, promulgation,
imposition or enforcement by any such governmental authority of currency
restrictions, exchange controls, taxes, levies or other charges affecting
a
Fund's Assets; or acts of armed conflict, terrorism, insurrection or revolution;
or any other act or event beyond the Custodian's or such other Person's
control.
(c)
Liability
for Past Records.
Neither
the Custodian nor any Domestic Subcustodian shall have any liability in respect
of any loss, damage or expense suffered by a Fund, insofar as such loss,
damage
or expense arises from the performance of the Custodian or any Domestic
Subcustodian in reliance upon records that were maintained for such Fund
by
entities other than the Custodian or any Domestic Subcustodian prior to the
Custodian's employment hereunder.
(d)
Advice
of Counsel.
The
Custodian and all Domestic Subcustodians shall be entitled to receive and
act
upon advice of counsel of its own choosing on all matters. The Custodian
and all
Domestic Subcustodians shall be without liability for any actions taken or
omitted in good faith pursuant to the advice of counsel.
(e)
Advice
of the Trust and Others.
The
Custodian and any Domestic Subcustodian may rely upon the advice of the Trust
and upon statements of the Trust’s accountants and other persons believed by it
in good faith to be expert in matters upon which they are consulted, and
neither
the Custodian nor any Domestic Subcustodian shall be liable for any actions
taken or omitted, in good faith, pursuant to such advice or
statements.
12
(f)
Instructions
Appearing to be Genuine.
The
Custodian and all Domestic Subcustodians shall be fully protected and
indemnified in acting as a custodian hereunder upon any Resolutions of the
Board
of Trustees, Instructions, Special Instructions, advice, notice, request,
consent, certificate, instrument or paper appearing to it to be genuine and
to
have been properly executed and shall, unless otherwise specifically provided
herein, be entitled to receive as conclusive proof of any fact or matter
required to be ascertained from the Trust hereunder a certificate signed
by any
officer of the Trust authorized to countersign or confirm Special Instructions.
The Custodian shall have no liability for any losses, damages, or expenses
incurred by a Fund arising from the use of a non-secure form of email or
other
non-secure electronic system or process.
(g)
Exceptions
from Liability.
Without
limiting the generality of any other provisions hereof, neither the Custodian
nor any Domestic Subcustodian shall be under any duty or obligation to inquire
into, nor be liable for:
(i)
the
validity of the issue of any Securities purchased by or for any Fund, the
legality of the purchase thereof or evidence of ownership required to be
received by any such Fund, or the propriety of the decision to purchase or
amount paid therefor;
(ii)
the
legality of the sale of any Securities by or for any Fund, or the propriety
of
the amount for which the same were sold; or
(iii)
any
other expenditures, encumbrances of Securities, borrowings or similar actions
with respect to any Fund's Assets;
and
may,
until notified to the contrary, presume that all Instructions or Special
Instructions received by it are not in conflict with or in any way contrary
to
any provisions of the Trust’s Declaration of Trust or By-Laws or votes or
proceedings of the shareholders, trustees, partners or directors of any such
Fund, or any such Fund's currently effective Registration Statement on file
with
the SEC.
| 7. |
LIABILITY
OF THE CUSTODIAN FOR ACTIONS OF OTHERS.
|
(a)
Domestic
Subcustodians
The
Custodian shall be liable for the acts or omissions of any Domestic Subcustodian
to the same extent as if such actions or omissions were performed by the
Custodian itself.
(b)
Liability
for Acts and Omissions of Foreign Subcustodians.
The
Custodian shall be liable to a Fund for any loss or damage to such Fund caused
by or resulting from the acts or omissions of any Foreign Subcustodian to
the
extent that, under the terms set forth in the subcustodian agreement between
the
Custodian or a Domestic Subcustodian and such Foreign Subcustodian, the Foreign
Subcustodian has failed to perform in accordance with the standard of conduct
imposed under such subcustodian agreement and the Custodian or Domestic
Subcustodian recovers from the Foreign Subcustodian under the applicable
subcustodian agreement.
(c)
Securities
Systems, Interim Subcustodians, Special Subcustodians, Securities Depositories
and Clearing Agencies.
The
Custodian shall not be liable to any Fund for any loss, damage or expense
suffered or incurred by such Fund resulting from or occasioned by the actions
or
omissions of a Securities System, Interim Subcustodian, Special Subcustodian,
or
Securities Depository and Clearing Agency unless such loss, damage or expense
is
caused by, or results from, the negligence or willful misfeasance of the
Custodian.
13
(d)
Defaults
or Insolvencies of Brokers, Banks, Etc.
The
Custodian shall not be liable for any loss, damage or expense suffered or
incurred by any Fund resulting from or occasioned by the actions, omissions,
neglects, defaults or insolvency of any broker, bank, trust company
or
any
other person with whom the Custodian may deal (other than any of such entities
acting as a Subcustodian, Securities System or Securities Depository and
Clearing Agency, for whose actions the liability of the Custodian is set
out
elsewhere in this Agreement) unless such loss, damage or expense is caused
by,
or results from, the negligence or willful misfeasance of the
Custodian.
(e)
Reimbursement
of Expenses.
The
Trust
on behalf of each Fund agrees to reimburse the Custodian for all out-of-pocket
expenses incurred by the Custodian in connection with this Agreement, but
excluding salaries and usual overhead expenses.
| 8. |
INDEMNIFICATION.
|
(a)
Indemnification
by the Trust.
Subject
to the limitations set forth in this Agreement, the Trust agrees to indemnify
and hold harmless the Custodian and its nominees from all losses, damages
and
expenses (including attorneys' fees) suffered or incurred by the Custodian
or
its nominee caused by or arising from actions taken by the Custodian, its
employees or agents in the performance of its duties and obligations under
this
Agreement, including, but not limited to, any indemnification obligations
undertaken by the Custodian under any relevant subcustodian agreement; provided,
however, that such indemnity shall not apply to the extent the Custodian
is
liable under Sections 6 or 7 hereof.
If
the
Trust requires the Custodian to take any action with respect to Securities,
which action involves the payment of money or which may, in the opinion of
the
Custodian, result in the Custodian or its nominee assigned to the Trust being
liable for the payment of money or incurring liability of some other form,
the
Trust, as a prerequisite to requiring the Custodian to take such action,
shall
provide indemnity to the Custodian in an amount and form satisfactory to
it.
(b)
Indemnification
by Custodian.
Subject
to the limitations set forth in this Agreement and in addition to the
obligations provided in Sections 6 and 7, the Custodian agrees to indemnify
and
hold harmless the Trust on behalf of each Fund from all losses, damages and
expenses suffered or incurred by each such Fund caused by the negligence
or
willful misfeasance of the Custodian.
| 9. |
ADVANCES.
|
In
the
event that, pursuant to Instructions, the Custodian or any Subcustodian,
Securities System, or Securities Depository or Clearing Agency acting either
directly or indirectly under agreement with the Custodian (each of which
for
purposes of this Section 9 shall be referred to as "Custodian"), makes any
payment or transfer of funds on behalf of any Fund as to which there would
be,
at the close of business on the date of such payment or transfer, insufficient
funds held by the Custodian on behalf of any such Fund, the Custodian may,
in
its discretion without further Instructions, provide an advance ("Advance")
to
any such Fund in an amount sufficient to allow the completion of the transaction
by reason of which such payment or transfer of funds is to be made. In addition,
in the event the Custodian is directed by Instructions to make any payment
or
transfer of funds on behalf of any Fund as to which it is subsequently
determined that such Fund has overdrawn its cash account with the Custodian
as
of the close of business on the date of such payment or transfer, said overdraft
shall constitute an Advance. Any Advance shall be payable by the Fund on
behalf
of which the Advance was made on demand by Custodian, unless otherwise agreed
by
the Trust on behalf of such Fund and the Custodian, and shall accrue interest
from the date of the Advance to the date of payment by such Fund to the
Custodian at a rate agreed upon in writing from time to time by the Custodian
and the Trust on behalf of such Fund. It is understood that any transaction
in
respect of which the Custodian shall have made an Advance, including but
not
limited to a foreign exchange contract or transaction in respect of which
the
Custodian is not acting as a principal, is for the account of and at the
risk of
the Fund on behalf of which the Advance was made, and not, by reason of such
Advance, deemed to be a transaction undertaken by the Custodian for its own
account and risk. The Custodian and the Trust acknowledge that the purpose
of
Advances is to finance temporarily the purchase or sale of Securities for
prompt
delivery in accordance with the settlement terms of such transactions or
to meet
emergency expenses not reasonably foreseeable by a Fund. The Custodian shall
promptly notify the Trust of any Advance. Such notification shall be sent
by
facsimile transmission or in such other manner as the Trust and the Custodian
may agree.
14
| 10. |
LIENS.
|
The
Custodian shall have a lien on the Property in the Custody Account to secure
payment of fees and expenses for the services rendered under this Agreement.
If
the Custodian advances cash or securities to a Fund for any purpose or in
the
event that the Custodian or its nominee shall incur or be assessed any taxes,
charges, expenses, assessments, claims or liabilities in connection with
the
performance of its duties hereunder, except such as may arise from its or
its
nominee's negligent action, negligent failure to act or willful misconduct,
any
Property at any time held for the Custody Account shall be security therefor
and
the Trust on behalf of the Fund hereby grants a security interest therein
to the
Custodian. The Fund shall promptly reimburse the Custodian for any such advance
of cash or securities or any such taxes, charges, expenses, assessments,
claims
or liabilities upon request for payment, but should the Fund fail to so
reimburse the Custodian, the Custodian shall be entitled to dispose of such
Property to the extent necessary to obtain reimbursement. The Custodian shall
be
entitled to debit any account of the Fund with the Custodian including, without
limitation, the Custody Account, in connection with any such advance and
any
interest on such advance as the Custodian deems reasonable.
| 11. |
COMPENSATION.
|
Each
Fund
will pay to the Custodian such compensation as is agreed to in writing by
the
Custodian and the Trust on behalf of each such Fund from time to time. Such
compensation, together with all amounts for which the Custodian is to be
reimbursed in accordance with Section 7(e), shall be billed to each such
Fund
and paid in cash to the Custodian.
| 12. |
POWERS
OF ATTORNEY.
|
Upon
request, the Trust on behalf of each Fund shall deliver to the Custodian
such
proxies, powers of attorney or other instruments as may be reasonable and
necessary or desirable in connection with the performance by the Custodian
or
any Subcustodian of their respective obligations under this Agreement or
any
applicable subcustodian agreement.
| 13. |
TERMINATION
AND ASSIGNMENT.
|
The
Trust
on behalf of a Fund or the Custodian may terminate this Agreement as to such
Fund by notice in writing, delivered or mailed, postage prepaid (certified
mail,
return receipt requested) to the other not less than 90 days prior to the
date
upon which such termination shall take effect. Upon termination of this
Agreement, the appropriate Fund shall pay to the Custodian such fees as may
be
due the Custodian hereunder as well as its reimbursable disbursements, costs
and
expenses paid or incurred. Upon termination of this Agreement, the Custodian
shall deliver, at the terminating party's expense, all Assets held by it
hereunder to the appropriate Fund or as otherwise designated by such Fund
by
Special Instructions. Upon such delivery, the Custodian shall have no further
obligations or liabilities under this Agreement except as to the final
resolution of matters relating to activity occurring prior to the effective
date
of termination.
This
Agreement may not be assigned by the Custodian or the Trust without the
respective consent of the other, duly authorized by a resolution by its Board
of
Trustees.
15
| 14. |
ADDITIONAL
FUNDS.
|
An
additional Fund or Funds may become a party to this Agreement after the date
hereof by an instrument in writing to such effect signed by the Trust on
behalf
of such Fund or Funds and the Custodian. If this Agreement is terminated
as to
one or more of the Funds (but less than all of the Funds) or if an additional
Fund or Funds shall become a party to this Agreement, there shall be delivered
to each party an Appendix B or an amended Appendix B, signed by the Trust
on
behalf of each of the additional Funds (if any) and each of the remaining
Funds
as well as the Custodian, deleting or adding such Fund or Funds, as the case
may
be. The termination of this Agreement as to less than all of the Funds shall
not
affect the obligations of the Custodian and the Trust on behalf of the remaining
Funds hereunder as set forth in Appendix B as revised from time to
time.
| 15. |
NOTICES.
|
As
to the
Trust, notices, requests, instructions and other writings delivered to
Investment Managers Series Trust, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇,
Attention: President, with a copy to ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ Price P.C.,
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ postage prepaid, or to such other
address as the Trust on behalf of any particular Fund may have designated
to the
Custodian in writing, shall be deemed to have been properly delivered or
given
to the Trust on behalf of a Fund.
Notices,
requests, instructions and other writings delivered to the Securities
Administration department of the Custodian at its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇.,
▇▇▇
▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, postage prepaid,
or to
such other addresses as the Custodian may have designated to the Trust on
behalf
of each Fund in writing, shall be deemed to have been properly delivered
or
given to the Custodian hereunder; provided, however, that procedures for
the
delivery of Instructions and Special Instructions shall be governed by Section
2(c) hereof.
| 16. |
MISCELLANEOUS.
|
(a)
This
Agreement is executed and delivered in the State of Missouri and shall be
governed by the laws of such state.
(b)
All
of the terms and provisions of this Agreement shall be binding upon, and
inure
to the benefit of, and be enforceable by the respective successors and assigns
of the parties hereto.
(c)
No
provisions of this Agreement may be amended, modified or waived, in any manner
except in writing, properly executed by both parties hereto; provided, however,
Appendix A may be amended from time to time as Domestic Subcustodians, Foreign
Subcustodians, Special Subcustodians, and Securities Depositories and Clearing
Agencies are approved or terminated according to the terms of this
Agreement.
(d)
The
captions in this Agreement are included for convenience of reference only,
and
in no way define or delimit any of the provisions hereof or otherwise affect
their construction or effect.
(e)
This
Agreement shall be effective as of the date of execution hereof.
(f)
This
Agreement may be executed simultaneously in two or more counterparts, each
of
which will be deemed an original, but all of which together will constitute
one
and the same instrument.
(g)
The
following terms are defined terms within the meaning of this Agreement, and
the
definitions thereof are found in the following sections of the
Agreement:
|
Term
|
Section
|
|
Account
|
4(b)(3)(ii)
|
|
ADR'S
|
4(j)
|
|
Advance
|
9
|
|
Assets
|
2(b)
|
|
Authorized
Person
|
3
|
16
|
Term
|
Section
|
|
Banking
Institution
|
4(1)
|
|
Domestic
Subcustodian
|
5(a)
|
|
Foreign
Subcustodian
|
5(b)
|
|
Instruction
|
2(c)(1)
|
|
Interim
Subcustodian
|
5(c)
|
|
Interest
Bearing Deposit
|
4(1)
|
|
Liens
|
10
|
|
OCC
|
4(g)(1)
|
|
Person
|
6(b)
|
|
Procedural
Agreement
|
4(h)
|
|
SEC
|
4(b)(3)
|
|
Securities
|
2(a)
|
|
Securities
Depositories and Clearing Agencies
|
5(b)(ii)
|
|
Securities
System
|
4(b)(3)
|
|
Shares
|
4(s)
|
|
Sovereign
Risk
|
6(b)
|
|
Special
Instruction
|
2(c)(2)
|
|
Special
Subcustodian
|
5(d)
|
|
Subcustodian
|
5
|
|
1940
Act
|
4(v)
|
(h)
If
any part, term or provision of this Agreement is held to be illegal, in conflict
with any law or otherwise invalid by any court of competent jurisdiction,
the
remaining portion or portions shall be considered severable and shall not
be
affected, and the rights and obligations of the parties shall be construed
and
enforced as if this Agreement did not contain the particular part, term or
provision held to be illegal or invalid.
(i)
This
Agreement constitutes the entire understanding and agreement of the parties
hereto with respect to the subject matter hereof, and accordingly supersedes,
as
of the effective date of this Agreement, any custodian agreement heretofore
in
effect between the Trust and the Custodian.
|
IN
WITNESS WHEREOF,
the parties hereto have caused this Custody Agreement to be executed
by
their respective duly authorized officers.
|
||
|
Attest:
|
By:
|
|
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
|
UMB
BANK, N.A.
|
||
|
Attest:
|
By:
|
|
|
Name:
|
||
|
Title:
|
||
|
Date:
|
17
APPENDIX
A
DOMESTIC
SUBCUSTODIANS:
Citibank
(Foreign Securities Only)
SECURITIES
SYSTEMS:
Federal
Book Entry
Depository
Trust Company
SPECIAL
SUBCUSTODIANS:
SECURITIES
DEPOSITORIES
| COUNTRIES |
FOREIGN
SUBCUSTODIANS
|
CLEARING
AGENCIES
|
||
|
Euroclear
|
|
UMB
BANK, N.A.
|
||
|
By:
|
By:
|
|
|
Name:
|
Name:
|
|
|
Title:
|
Title:
|
|
|
Date:
|
Date:
|
|
▇▇
▇▇▇▇▇▇▇▇
▇
The
following series of Investment Managers Series Trust, a registered open-end
management investment company ("Funds") are hereby made parties to the Custody
Agreement dated January 14, 2008, with UMB Bank, n.a. ("Custodian") and
Investment Managers Series Trust, and agree to be bound by all the terms
and
conditions contained in said Agreement:
Zack
Multi-Cap Opportunities Fund
|
Attest:
|
By:
|
|
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
|
UMB
BANK, N.A.
|
||
|
Attest:
|
By:
|
|
|
Name:
|
||
|
Title:
|
||
|
Date:
|
19