ADMINISTRATIVE SERVICES AGREEMENT
This ADMINISTRATIVE SERVICES AGREEMENT ("Agreement") is hereby made by and
between Xxxxx & Xxxxxx, Inc. ("J&B"), a Missouri corporation, and Gold
Capital Management, Inc. ("GCM"), a Kansas corporation.
WHEREAS, GCM has entered into a management agreement with the Gold Bank mutual
funds (the "Gold Bank Funds," as described in Attachment A) to provide, in
addition to acting as the registered investment advisor, management and other
administrative services;
WHEREAS, J&B is in the business of providing a variety of investment company
administrative services; and,
WHEREAS, GCM desires J&B to provide GCM with certain administrative services
that are more fully described in this Agreement ("General Services").
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
herein contained, the parties do hereby agree as follows:
1. Term of Agreement.
a. The effective date of this Agreement is the ____ day of
______________, _______ ("Effective Date"), and this Agreement shall
continue for an initial term of one year immediately following the
Effective Date, subject to the termination rights provided in this
Agreement. After the initial term, this Agreement will continue for
consecutive one-year renewal terms unless GCM or J&B provide
notice of non-renewal ninety (90) days prior to the expiration of the
initial or a renewal term of the Agreement.
b. Either party may terminate this Agreement for cause due to a material
breach of or default upon its terms. The aggrieved party shall give
written notice specifying the nature of the breach or default to the
other party (the "defaulting party"). If such breach or default is not
remedied to the aggrieved party's satisfaction within sixty (60) days
after such written notice is given, then the aggrieved party may
terminate this Agreement by giving thirty (30) days written notice of
such termination to the defaulting party.
c. Either party may terminate this Agreement without cause by giving the
other party written notice one hundred eighty (180) days prior to the
effective date of the termination.
2. Duties of the Parties.
a. During the term of this Agreement, J&B, under the GCM's
supervision, shall furnish to GCM the General Services that are
specified in Attachment B, which the parties may agree in writing to
modify from time to time.
b. GCM shall provide J&B with all information, documentation, and
assistance that J&B reasonably requests in connection with the
services that J&B provides to GCM pursuant to this Agreement. GCM
will compensate J&B for the services provided as set forth in
Attachment C, which the parties may agree in writing to modify from
time to time.
c. GCM understands and agrees that all education and consultation, which
J&B provides to GCM concerning securities regulations and/or
operating the Funds, is not intended to be legal advice and that GCM
retains its obligation to determine how to best comply with all
applicable laws and regulations.
3. Standard of Care and Indemnification.
a. GCM hereby agrees to save, indemnify, hold harmless, and defend
J&B (as well as its parent, affiliates, officers, directors,
employees, agents, and independent contractors) from, against, and in
respect to any and all claims, losses, costs, damages, assessments,
expenses of every kind and character, and liabilities (including,
without limitation, interest, penalties, settlements, fines, attorney
fees, expert fees, accounting fees, and court costs) incurred in
connection with any action, demand, lawsuit, litigation, or proceeding
brought thereon, as a result of any accident, injury, loss, or damage
whatsoever caused to any person or entity, to the property of any
person or entity, or to any person's or entity's interest, arising out
of or in connection with this Agreement, caused, in whole or in part,
by a breach of this Agreement, the bad faith, the gross negligence,
and/or the willful misconduct (specifically including
misrepresentations) of GCM, GCM's servants, and/or GCM's employees.
b. J&B hereby agrees to save, indemnify, hold harmless, and defend
GCM (as well as its parent, affiliates, officers, directors,
employees, agents, and independent contractors) from, against, and in
respect to any and all claims, losses, costs, damages, assessments,
expenses of every kind and character, and liabilities (including,
without limitation, interest, penalties, settlements, fines, attorney
fees, expert fees, accounting fees, and court costs) incurred in
connection with any action, demand, lawsuit, litigation, or proceeding
brought thereon, as a result of any accident, injury, loss, or damage
whatsoever caused to any person or entity, to the property of any
person or entity, or to any person's or entity's interest, arising out
of or in connection with this Agreement, caused, in whole or in part,
by a breach of this Agreement, the bad faith, the gross negligence,
and/or the willful misconduct (specifically including
misrepresentations) of J&B, J&B's servants, and/or J&B's
employees.
c. When a party to this Agreement (the "Indemnified Party") claims the
right to be saved, indemnified, held harmless, and/or defended (the
right to "Indemnification") under this Section 3, the Indemnified
Party must promptly notify the other party to this Agreement (the
"Indemnifying Party") in writing of the claim to which the Indemnified
Party requests Indemnification, and the Indemnified Party must
promptly deliver to the Indemnifying Party the original or a true copy
of any summons or other process, of all pleadings, and of any notices
issued or served in the suit or proceeding in order to claim the
contractual right to Indemnification. This notice must also include a
written description in reasonable detail of the facts giving rise to
the claim for Indemnification. The Indemnified Party shall provide
notice of the demand for Indemnification no later than thirty (30)
days after the Indemnified Party has received notice of the third
party claim. The Indemnifying Party will be relieved of this
Indemnification obligation to the extent that the Indemnified Party's
failure to provide the notice required by this Section 3.c. prejudices
defense of the claim and/or increases the Indemnifying Party's
liability. The Indemnified Party is not entitled to Indemnification
for claims that it has settled in whole or in part without prior
written authority from the Indemnifying Party.
d. The Indemnifying Party shall defend any such claim under its
direction, at its sole cost and expense, and with attorneys of its own
selection, but the Indemnified Party shall have the right, if it sees
fit, to participate in such defense at its own expense. The parties'
mutual Indemnification obligations shall survive termination of this
Agreement.
4. Representations.
Both GCM and J&B represent as follows.
a. Each is a duly organized legal entity, validly existing and in good
standing in its respective domiciliary state and such other states as
may be required to fulfill the purposes of this Agreement, and each
further has the appropriate power and authority to enter into this
Agreement and meet its obligations and responsibilities under this
Agreement.
b. Each has taken all actions necessary to enter into this Agreement and
once it is executed it will be a valid and binding agreement of the
parties, enforceable against each such party in accordance with the
Agreement's terms.
c. Each has determined that nothing in this Agreement conflicts with any
provision of its organizational documentation; contravenes any
statute, law, ordinance, rule, or other regulatory requirement; that
no further approval, authorization, notice or filing requirement is
applicable; and that no other restriction of any type exits that would
prevent this Agreement from being a valid, enforceable obligation of
each such party.
5. Miscellaneous.
a. This Agreement shall be deemed to be a contract made in Missouri and
governed by Missouri law. It may be executed in any number of
counterparts, each of which shall be deemed an original.
b. All the terms and provisions of this Agreement shall be binding upon,
shall inure only to the benefit of, and be enforceable by, the parties
hereto and their respective successors and assigns.
c. This Agreement represents the wording selected by both parties to
define the nature of this contractual relationship and no rule of
strict construction shall apply against either party. In addition, the
section and other headings are for convenience only and shall not be
used to effect, broaden, or limit the provisions of this Agreement.
d. If any part, term, or provision of this Agreement shall be held
illegal, void, or unenforceable, the validity of the remaining
portions or provisions shall not be affected thereby. Furthermore, in
lieu of such illegal, void, or unenforceable provision, there shall be
added automatically a provision as similar in terms to the illegal,
void, or unenforceable provision as may be legal, valid, or
enforceable.
e. This Agreement, including all Attachments, constitutes the entire
Agreement between the parties and supersedes any and all other
agreements, representations, and warranties, whether written or oral
as to the subject matter contained herein. The terms of this Agreement
may not be altered or amended by oral statements, a writing, course of
conduct, or otherwise unless both parties formally agree in writing to
amend its terms and to be bound by such written amendment.
f. The failure of either J&B or GCM to enforce any of the terms and
conditions of this Agreement will not constitute a waiver by such
party of its right to do so, nor will it be deemed to be an act of
ratification or consent. No waiver of any right will be binding unless
the waiver is reduced to writing and signed by the party charged with
the waiver. Any written waiver will operate only as to the specific
term or condition waived, will not constitute a continuing waiver of
such term or condition beyond the period described in the waiver, and
will not constitute a waiver as to any act other than that
specifically waived.
g. Both GCM and J&B may assign, in whole or in part, its rights, duties,
or obligations, under this Agreement with the other party's prior
written consent, which shall not be unreasonably withheld. Either
party may make an assignment of this Agreement without such consent in
connection with a merger, consolidation, any sale of all or
substantially all of such party's assets, or any other transaction in
which more than fifty percent (50%) of such party's voting securities
are transferred. Any attempt to assign the Agreement other than in
accordance with this provision will be null and void. To the extent
that a valid Assignment of this Agreement occurs, this Agreement shall
be binding on all successors and assigns.
h. Each person executing this Agreement, by his/her execution hereof,
represents that he/she is fully authorized to execute this Agreement
and that no further action or consent on the part of the party for
whom he/she is acting is required to make the Agreement effective
and/or to enforce its terms.
________________________________________________________________________________
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below on the day and year written above.
XXXXX & XXXXXX, INC. GOLD CAPITAL MANAGEMENT, INC.
By: ______________________________ By: ____________________________________
Title: ___________________________ Title: __________________________________
ATTACHMENT A
Funds
As used in this Agreement, "Gold Bank Funds," "Funds," and "Fund" mean the
following SEC registered mutual funds:
GOLD BANK FUNDS, (a series fund):
o GOLD BANK EQUITY FUND; and
o GOLD BANK MONEY MARKET FUND.
ATTACHMENT B
General Services
J&B shall provide GCM with General Services to assist GCM with the start-up,
organization, and continuing administration of the Funds.
1. In commencing the Funds' operations, J&B agrees to provide GCM with the
following start-up and organizational services and support:
a. J&B will assist GCM in locating legal counsel and independent
auditors for the Funds.
b. J&B will develop proposed initial federal registration filings for
the Gold Bank Funds and provide them to GCM for its review, approval,
and submission to the Funds' legal counsel for review and filing with
the Securities and Exchange Commission ("SEC").
i. J&B will also, within the scope of its responsibilities,
interact with SEC in terms of answering questions, providing
additional information concerning the registration as it may
have, and generally facilitating SEC review of the registration.
ii. In interacting with the SEC, J&B will coordinate its actions
with and act as directed by GCM and the Funds' legal counsel.
c. GCM acknowledges and agrees that it will determine in which states to
register the Funds pursuant to the applicable statutory provisions
(e.g., "Blue Sky" laws). As GCM directs, J&B will effect the
necessary state registrations either by internal means or by obtaining
services from an appropriate third party. GCM and J&B acknowledge
and agree that the Funds will pay all costs associated with state
registrations that the Funds' Prospectus and/or Statement of
Additional Information ("SAI") discloses as Fund expenses. J&B
will cover all costs associated with state registrations that are not
Fund expenses.
d. J&B will draft for submission to and final approval by GCM, the
Funds' legal counsel, and the Funds, procedures that the Funds' Board
of Trustees will apply in executing the duties required of them by the
Investment Company Act of 1940, as amended, and applicable regulations
("40 Act Requirements"). These procedures will include:
i. "best execution" procedures for trading the Funds' securities,
ii. guidelines concerning soft dollar arrangements,
iii. audit committee procedures (including the charter),
iv. procedures regarding affiliated party transactions
(cross-trades),
v. codes of ethics for Fund service providers,
vi. monitoring procedures for access personnel's securities
transactions,
vii. procedures that enable testing of portfolio compliance with the
investment guidelines described the Funds' Prospectus and SAI,
viii.Rule 2a-7 monitoring procedures for the Gold Bank Money Market
Fund, and
ix. procedures for determining how and when to make fair market value
determinations.
e. J&B will provide general planning, preparation, and on-site
support for the Board of Trustees' organizational meetings, which
shall include Funds' initial shareholder meeting.
f. J&B will provide general education to GCM compliance personnel
regarding preparation and submission of the Funds' marketing and
advertising materials for National Association of Securities Dealers
("NASD") review.
g. J&B will provide instruction and continuing consultation to GCM
compliance personnel regarding developing administrative processes
that comply with 40 Act Requirements.
2. In the continuing operations of the Funds, J&B agrees to provide GCM
with the following services:
a. Based upon the timetables established by the parties in writing,
J&B will annually develop proposed amendments to the Funds'
existing federal registration filings and will provide them to GCM for
its review, approval and submission to the Funds' legal counsel for
final review and filing. These filings include N-SAR, 24f-2, N-30D,
and amendments to the Funds' N1-A.
b. J&B, either by internal means or by obtaining services from an
appropriate third party, will obtain information concerning the states
in which the Funds' shares are purchased. Based upon this information
J&B will develop proposed amendments to existing state
registration filings. Further, based upon instructions from GCM,
J&B will develop new state registration filings for the Funds.
J&B will provide both types of filings to GCM for its review,
approval, and submission to the Funds' legal counsel for final review
and filing. In rendering these services J&B will perform only
ministerial duties, leaving all decisions concerning the accuracy of
information concerning purchases of shares of the Funds, the states in
which to register the Funds, and the adequacy of all state
registrations with GCM and/or the Funds' legal counsel.
c. As GCM reasonably requests, J&B will provide suggestions to GCM
concerning practical operational issues arising from implementation of
the procedures to comply with 40 Act Requirements. As reasonably
requested or upon its own initiative, J&B will provide suggestions
to GCM about the necessity of implementing new procedures.
d. J&B will provide reasonable planning, preparation, and on-site
support for the Funds' regular Board of Trustees meetings.
e. J&B will provide reasonable planning, preparation, and on-site
support for necessary Fund shareholder meetings including assistance
in the solicitation and tabulation of shareholder voting. J&B will
not provide actual solicitation and tabulation services, unless it
previously agrees to do so in writing. J&B will not be responsible
for payment of any expenses associated with shareholder voting.
f. As GCM reasonably requests, J&B will provide suggestions to GCM
concerning the preparation and submission of the Funds' advertising
and marketing materials to the NASD.
g. J&B will provide GCM with Fund Accounting Services as follows:
i. Daily computation of each Fund's net asset value ("NAV");
ii. Daily posting of each Fund portfolio's equity purchases and
sales;
iii. Daily posting of purchases and redemptions of each Fund
portfolio's shares;
iv. Daily reconciliation of bank statements;
v. Preparation of trial balances;
vi. Daily reporting of each Fund's NAV to NASDAQ when applicable;
vii. Monthly reconciliation of asset ledgers;
viii. Monthly preparation of financial statements;
ix. Performance calculation and reporting;
x. Calculation of dividends and distributions;
xi. Preparation and coordination of annual fund audits;
xii. Preparation of semi-annual and annual reports;
xiii. Coordination of printing semi-annual and annual reports; and,
xiv. Coordination of state and federal tax filings associated with
Fund Accounting Services.
h. With regard to Fund securities for which market quotations are not
readily available, J&B, as part of its provision of Fund
Accounting Services, will prepare a preliminary value determination by
examining available data concerning the security. It will forward all
requested information and the preliminary value determination to the
person(s) authorized by the Funds' Board of Trustees to make "Fair
Market Value" determinations. Based upon the Fair Market Value
determination made by the designated person(s), J&B will calculate
the affected Fund's NAV, as required by the Funds' Prospectus. The
person(s) authorized by the Fund to make "Fair Market Value"
determinations will be responsible for complying with all Fair Market
Value procedures implemented by the Funds' Board of Trustees.
i. J&B will maintain the accounting records it produces in a manner
in all material respects consistent with 40 Act Requirements and any
other applicable laws and regulations.
j. J&B will also provide 12b-1 fee calculations for the Funds
ATTACHMENT C
Compensation
J&B and GCM have agreed to compensation arrangements as follows:
1. As compensation for its services provided pursuant to this Agreement, GCM
will pay J&B a fee at the annual rate of 0.33% of average daily net
assets of the Gold Bank Equity Fund and 0.23% of average daily net assets
of the Gold Bank Money Market Fund. Such fee shall be payable monthly and
be based on total average net assets of each respective Fund computed daily
in accordance with each Fund's respective Certificates of Incorporation,
Bylaws, and Prospectus.
2. J&B will only pay for ordinary Out-of-Pocket Expenses associated with
furnishing the services that this Agreement requires. J&B will from
time to time request that GCM pay for and/or advance estimated expenditures
of an unusual nature subject to reconciliation of actual expenses as soon
as practicable thereafter.
3. All Compensation shall be paid to J&B in immediately available funds at
UMB Bank, n.a. in Kansas City, Missouri, or such other financial
institution as J&B may designate in writing, within thirty (30) days of
the date of the xxxx. Any amounts due under this Agreement which are not
paid within said thirty (30) day period shall bear interest at the rate of
one and one-half percent (l 1/2%) per month from the due date until paid in
full.
