TRANSFER AGENCY AGREEMENT
This Agreement made as of the 31st day of December, 2001 between Gold Bank
Funds, a Delaware business trust (the "Trust"), on behalf of each of its
separate series as set forth in Appendix A to this Agreement (each of which is
referred to herein as a "Fund" and collectively the "Funds") as that Appendix
may be amended from time to time, and Xxxxx & Xxxxxx, Inc., a Missouri
corporation (the "Transfer Agent").
WITNESSETH
That in consideration of the mutual promises hereinafter set forth, the
parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have
the following meanings:
1. "Approved Institution" shall mean an entity so named in a Certificate,
as hereinafter defined. From time to time, the Trust may amend a previously
delivered Certificate by delivering to the Transfer Agent a Certificate naming
an additional entity or deleting any entity named in a previously delivered
Certificate.
2. The "Board of Trustees" shall mean the Board of Trustees of the Trust.
3. "Certificate" shall mean any notice, instruction or other instrument in
writing, authorized or required by this Agreement to be given to the Transfer
Agent by the Trust which is signed by any Officer, as hereinafter defined, and
actually received by the Transfer Agent.
4. "Custodian" shall mean the financial institution appointed as custodian
under the terms and conditions of the Custody Agreement between the financial
institution and the Trust, or its successor(s).
5. "Fund Business Day" shall be determined as set out in a Fund's
prospectuses as shall be effective from time to time.
6. "Officer" shall mean the Trust's President, any Vice President,
Secretary, Treasurer, Controller, any Assistant Controller, any Assistant
Treasurer and any Assistant Secretary, and any other person duly authorized by
the Board of Trustees of the Trust to execute any Certificate, instruction,
notice or other instrument on behalf of the Trust, and any person reasonably
believed by the Transfer Agent to be such a person.
7. "Out-of-Pocket Expenses" means amounts reasonably necessary and actually
incurred by Transfer Agent in the provision of Transfer Agent services pursuant
to this Agreement for the following purposes: postage (and first class mail
insurance in connection with mailing Share certificates), envelopes, check
forms, continuous forms, forms for reports and statements, stationery and other
similar items, telephone and telegraph charges incurred in answering inquiries
from dealers or shareholders, microfilm used to record transactions in
shareholder accounts and computer tapes used for permanent storage of records
and cost of insertion of materials in mailing envelopes by outside firms. Any
charges associated with special or exception processing shall also be considered
Out-of-Pocket Expenses.
8. "Prospectus" shall mean the most recent prospectus actually received
by the Transfer Agent from the Trust with respect to which the Trust has
registered its Funds' shares under the Securities Act of 1933, as amended (the
"1933 Act") and which has become effective. "Prospectus" shall include the
Statement of Additional Information, which is incorporated by reference therein.
9. "Shares" shall mean all or any part of each series or class of the
shares of beneficial interest of the Trust listed in the Certificate as to which
the Transfer Agent acts as transfer agent hereunder, as may be amended from time
to time, which are authorized and/or issued by the Trust.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
1. Effective as of the date of this Agreement, the Trust hereby constitutes
and appoints the Transfer Agent as transfer agent of all the Shares of the Trust
and as dividend disbursing agent during the period of this Agreement.
2. The Transfer Agent hereby accepts appointment as transfer agent and
dividend disbursing agent and agrees to perform duties thereof as hereinafter
set forth.
3. In connection with such appointment, the Trust, upon the request of the
Transfer Agent, shall deliver the following documents to the Transfer Agent:
(i) A copy of the Agreement and Declaration of Trust of the Trust and
all amendments thereto certified by the Secretary of the Trust;
(ii) A copy of the By-laws of the Trust certified by the Secretary of
the Trust;
(iii) A copy of a resolution of the Board of Trustees of the Trust,
certified by the Secretary of the Trust, appointing the Transfer Agent and
authorizing the execution of this Transfer Agency Agreement;
(iv) A Certificate signed by the Secretary of the Trust specifying:
the number of authorized Shares, the number of such authorized Shares
issued, the number of such authorized Shares issued and currently
outstanding, the names and specimen signatures of the Officers of the
Trust, and the name and address of the legal counsel for the Trust;
(v) Specimen Share certificate for each series or class of Shares, in
the form approved by the Board of Trustees of the Trust (and in a format
compatible with the Transfer Agent's system), together with a Certificate
signed by the Secretary of the Trust as to such approval;
(vi) Copies of the Trust's registration statement, as amended to date,
and the most recently filed Post-Effective Amendment thereto, filed by the
Trust with the Securities and Exchange Commission under the 1933 Act, and
under the Investment Company Act of 1940, as amended (the "1940 Act")
together with any applications filed in connection therewith; and
(vii) Opinion of counsel for the Trust with respect to the validity of
the authorized and outstanding Shares, whether such Shares are fully paid
and nonassessable and the status of such Shares under the 1933 Act, and any
other applicable federal law or regulation (i.e., if subject to
registration, that they have been registered and that the registration
statement has become effective or, if exempt, the specific grounds
therefor).
ARTICLE III
AUTHORIZATION AND ISSUANCE OF SHARES
Prior to the issuance of any additional Shares pursuant to share dividends
or share splits, etc., and prior to any reduction in the number of Shares
outstanding, if requested by the Transfer Agent, the Trust shall deliver the
following documents to the Transfer Agent:
(a) A certified copy of the resolution(s) adopted by the Board of
Trustees of the Trust and/or the shareholders of the Trust authorizing such
issuance of additional Shares or such reduction, as the case may be; and
(b) An opinion of counsel for the Trust with respect to the validity
of the Shares and the status of such Shares under the Securities Act of
1933, as amended, and any other applicable federal law or regulation (i.e.,
if subject to registration, that they have been registered and that the
registration statement has become effective, or, if exempt, the specific
grounds therefor).
ARTICLE IV
RECAPITALIZATION OR CAPITAL ADJUSTMENT
1. In the case of any negative share split, recapitalization or other
capital adjustment requiring a change in the form of Share certificates, the
Transfer Agent will issue Share certificates in the new form in exchange for, or
upon transfer of, outstanding Share certificates in the old form, upon
receiving:
(a) A Certificate authorizing the issuance of the Share certificates
in the new form;
(b) A certified copy of any amendment to the Agreement and Declaration
of Trust with respect to the change;
(c) Specimen Share certificates for each class of Shares in the new
form approved by the Board of Trustees of the Trust, with a Certificate
signed by the Secretary of the Trust as to such approval; and
(d) An opinion of counsel for the Trust with respect to the validity
of the Shares in the new form and the status of such Shares under the 1933
Act and any other applicable federal law or regulation (i.e., if subject to
registration, that the Shares have been registered and that the
registration statement has become effective or, if exempt, the specific
grounds therefor).
2. The Trust at its expense shall furnish the Transfer Agent with a
sufficient supply of blank. Share certificates in the new form and from time to
time will replenish such supply upon the request of the Transfer Agent. Such
blank Share certificates shall be compatible with the Transfer Agent's system
and shall be properly signed by facsimile or otherwise by Officers of the Trust
authorized by law or by the By-laws to sign Share certificates and, if required,
shall bear the corporate seal or facsimile thereof. The Trust agrees to
indemnify and exonerate, save and hold the Transfer Agent harmless from and
against any and all claims or demands that may be asserted against the Transfer
Agent with respect to the genuineness of any Share certificate supplied to the
Transfer Agent pursuant to this Article.
ARTICLE V
ISSUANCE, REDEMPTION AND TRANSFER OF SHARES
1. (a) The Transfer Agent acknowledges that it has received a copy of each
Fund's Prospectus, which Prospectus describes how sales and redemption of Shares
of the Fund shall be made, and the Transfer Agent agrees to accept purchase
orders and redemption requests with respect to Shares on each Fund Business Day
in accordance with such Prospectus. The Trust agrees to provide the Transfer
Agent with sufficient advance notice to enable the Transfer Agent to effect any
changes in the procedures set forth in the Prospectus regarding such purchase
and redemption procedure; provided, however, that in no event will such advance
notice be less than thirty (30) days.
(b) The Transfer Agent shall also accept with respect to each Fund Business
Day, at such times as are agreed upon from time to time by the Transfer Agent
and the Fund, a computer tape or electronic data transmission consistent in all
respects with the Transfer Agent's record format, as amended from time to time,
which is believed by the Transfer Agent to be furnished by or on behalf of any
Approved Institution. The Transfer Agent shall not be liable for any losses or
damages to the Trust or its shareholders in the event that a computer tape or
electronic data transmission from an Approved Institution is unable to be
processed for any reason beyond the control of the Transfer Agent, or if any of
the information on such tape or transmission is found to be incorrect.
2. On each Fund Business Day, the Transfer Agent shall, as of the time at
which the Trust computes the net asset value of each Fund, issue to and redeem
from the accounts specified in a purchase order, redemption request or computer
tape or electronic data transmission, which, in accordance with the Prospectus,
is effective on such Fund Business Day, the appropriate number of full and
fractional Shares based on the net asset value per Share of such Fund specified
in an advice received on such Fund Business Day from the Fund. Notwithstanding
the foregoing, if a redemption specified in a computer tape or electronic data
transmission is for a dollar value of Shares in excess of the dollar value of
uncertificated Shares in the specified account, the Transfer Agent shall not
effect such redemption in whole or in part and shall within twenty-four (24)
hours orally advise the Approved Institution that supplied such tape of the
discrepancy.
3. In connection with a reinvestment of a dividend or distribution of
Shares of a Fund, the Transfer Agent shall as of each Fund Business Day, as
specified in a Certificate or resolution described in paragraph 1 of succeeding
Article VI, issue Shares of the Fund based on the net asset value per Share of
such Fund specified in an advice received from the Fund on such Fund Business
Day.
4. On each Fund Business Day, the Transfer Agent shall supply the Trust
with a statement specifying with respect to the immediately preceding Fund
Business Day: the total number of Shares each Fund (including fractional Shares)
issued and outstanding at the opening of business on such day; the total number
of Shares of each Fund sold on such day, pursuant to the preceding paragraph 2
of this Article; the total number of Shares of each Fund redeemed from
shareholders by the Transfer Agent on such day; the total number of Shares of
each Fund, if any, sold on such day pursuant to the preceding paragraph 3 of
this Article, and the total number of Shares of each Fund issued and
outstanding.
5. In connection with each purchase and each redemption of Shares, the
Transfer Agent shall send such statements as are prescribed by the Federal
Securities laws applicable to transfer agents or as described in the Prospectus.
If the Prospectus indicates that certificates for Shares are available and if
specifically requested in writing by any shareholder, or if otherwise required
hereunder, the Transfer Agent will countersign (if necessary), issue and mail to
such shareholder at the address set forth in the records of the Transfer Agent a
Share certificate for any full Share requested.
6. As of each Fund Business Day, the Transfer Agent shall furnish the Trust
with an advice setting forth the number and dollar amount of Shares to be
redeemed on such Fund Business Day in accordance with paragraph 2 of this
Article.
7. Upon receipt of a proper redemption request and moneys paid to it by the
Custodian in connection with a redemption of Shares, the Transfer Agent shall
cancel the redeemed Shares and after making appropriate deduction for any
withholding of taxes required of it by applicable law: (a) in the case of a
redemption of Shares pursuant to a redemption described in the preceding
paragraph l(a) of this Article, make payment in accordance with each Fund's
redemption and payment procedures described in each Fund's Prospectus; and (b)
in the case of a redemption of Shares pursuant to a computer tape or electronic
data transmission described in the preceding paragraph l(b) of this Article,
make payment by directing a federal funds wire order to the account previously
designated by the Approved Institution specified in said computer tape or
electronic data transmission.
8. The Transfer Agent shall not be required to issue any Shares after it
has received from an Officer of the Trust or from an appropriate federal or
state authority written notification that the sale of Shares has been suspended
or discontinued, and the Transfer Agent shall be entitled to rely upon such
written notification.
9. Upon the issuance of any Shares in accordance with this Agreement, the
Transfer Agent shall not be responsible for the payment of any original issue or
other taxes required to be paid by the Trust in connection with such issuance of
any Shares.
10. The Transfer Agent shall accept a computer tape or electronic data
transmission consistent with the Transfer Agent's record format, as amended from
time to time, which is reasonably believed by the Transfer Agent to be furnished
by or on behalf of any Approved Institution and is represented to be
instructions with respect to the transfer of Shares from one account of such
Approved Institution to another such account, and shall effect the transfers
specified in said computer tape or electronic data transmission. The Transfer
Agent shall not be liable for any losses to the Trust or its shareholders in the
event that a computer tape or electronic data transmission from an Approved
Institution is unable to be processed for any reason beyond the control of the
Transfer Agent, or if any of the information on such tape or transmission is
found to be incorrect.
11. (a) Except as otherwise provided in subparagraph (b) of this paragraph
and in paragraph 13 of this Article, Shares will be transferred or redeemed upon
presentation to the Transfer Agent of Share certificates or instructions
properly endorsed for transfer or redemption, accompanied by such documents as
the Transfer Agent deems necessary to evidence the authority of the person
making such transfer or redemption, and bearing satisfactory evidence of the
payment of stock transfer taxes. In the case of small estates where no
administration is contemplated, the Transfer Agent may, when furnished with an
appropriate surety bond, and without further approval of the Trust, transfer or
redeem Shares registered in the name of a decedent where the current market
value of the Shares being transferred does not exceed such amount as may from
time to time be prescribed by various states. The Transfer Agent reserves the
right to refuse to transfer or redeem Shares until it is satisfied that the
endorsement on the stock certificate or instructions is valid and genuine, and
for that purpose it will require, unless otherwise instructed by an authorized
Officer of the Trust, a guarantee of signature by an "Eligible Guarantor
Institution" as that term is defined by SEC Rule 17Ad-15. The Transfer Agent
also reserves the right to refuse to transfer or redeem Shares until it is
satisfied that the requested transfer or redemption is legally authorized, and
it shall incur no liability for the refusal, in good faith, to make transfers or
redemptions that the Transfer Agent, in its judgment, deems improper or
unauthorized, or until it is satisfied that there is no basis to any claims
adverse to such transfer or redemption. The Transfer Agent may, in effecting
transfers and redemptions of Shares, rely upon those provisions of the Uniform
Act for the Simplification of Fiduciary Security Transfers or the Uniform
Commercial Code, as the same may be amended from time to time, applicable to the
transfer of securities, and the Trust shall indemnify the Transfer Agent for any
act done or omitted by it in good faith in reliance upon such laws. In no event
will the Trust indemnify the Transfer Agent for any act done by it as a result
of willful misfeasance, bad faith, gross negligence or reckless disregard of its
duties. The Transfer Agent shall be entitled to accept, and shall be fully
protected by the Trust in accepting, any request from any entity to carry out
any transaction in Shares received by the Transfer Agent through any of the
various programs offered through the National Securities Clearing Corporation
("NSCC") (including, but not limited to, Networking and FundServ). Any such
entity shall constitute an Approved Institution as defined herein.
(b) Notwithstanding the foregoing or any other provision contained in this
Agreement to the contrary, the Transfer Agent shall be fully protected by the
Trust in not requiring any instruments, documents, assurances, endorsements or
guarantees, including, without limitation, any signature guarantees, in
connection with a redemption or transfer of Shares whenever the Transfer Agent
reasonably believes that requiring the same would be inconsistent with the
transfer and redemption procedures as described in the Prospectus.
12. Notwithstanding any provision contained in this Agreement to the
contrary, the Transfer Agent shall not be required or expected to require, as a
condition to any transfer of any Shares pursuant to paragraph 11 of this Article
or any redemption of any Shares pursuant to a computer tape or electronic data
transmission described in this Agreement, any documents, including, without
limitation, any documents of the kind described in subparagraph (a) of paragraph
11 of this Article, to evidence the authority of the person requesting the
transfer or redemption and/or the payment of any stock transfer taxes, and shall
be fully protected in acting in accordance with the applicable provisions of
this Article.
13. (a) As used in this Agreement, the terms "computer tape or electronic
data transmission" and "computer tape believed by the Transfer Agent to be
furnished by an Approved Institution," shall include any tapes generated by the
Transfer Agent to reflect information believed by the Transfer Agent to have
been input by an Approved Institution, via a remote terminal or other similar
link, into a data processing, storage or collection system, or similar system
(the "System"), located on the Transfer Agent's premises. For purposes of
paragraph 1 of this Article, such a computer tape or electronic data
transmission shall be deemed to have been furnished at such times as are agreed
upon from time to time by the Transfer Agent and Trust only if the information
reflected thereon was input to the System at such times as are agreed upon from
time to time by the Transfer Agent and the Trust.
(b) Nothing contained in this Agreement shall constitute any agreement or
representation by the Transfer Agent to permit, or to agree to permit, any
Approved Institution to input information into a System.
(c) The Transfer Agent reserves the right to approve, in advance, any
Approved Institution; such approval not to be unreasonably withheld. The
Transfer Agent also reserves the right to terminate any and all automated data
communications, at its discretion, upon a reasonable attempt to notify the Trust
when in the opinion of the Transfer Agent continuation of such communications
would jeopardize the accuracy and/or integrity of the Fund's records on the
System.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
1. The Trust shall furnish to the Transfer Agent a copy of a resolution of
its Board of Trustees, certified by the Secretary or any Assistant Secretary,
either: (i) setting forth the date of the declaration of a dividend or
distribution, or the date of accrual or payment, as the case may be, thereof;
the record date as of which shareholders entitled to payment, or accrual, as the
case may be, shall be determined; the amount per Share of such dividend or
distribution; the payment date on which all previously accrued and unpaid
dividends are to be paid; and the total amount, if any, payable to the Transfer
Agent on such payment date; or (ii) authorizing the declaration of dividends and
distributions on a daily or other periodic basis and authorizing the Transfer
Agent to rely on a Certificate setting forth the information described in
subsection (i) of this paragraph.
2. Upon the mail date specified in such Certificate or resolution, as the
case may be, the Trust shall, in the case of a cash dividend or distribution,
cause the Custodian to deposit in an account in the name of the Transfer Agent
on behalf of the Trust an amount of cash, if any, sufficient for the Transfer
Agent to make the payment, as of the mail date, specified in such Certificate or
resolution, as the case may be, to the shareholders who were of record on the
record date. The Transfer Agent will, upon receipt of any such cash, make
payment of such cash dividends or distributions to the shareholders of record as
of the record date by: (i) mailing a check, payable to the registered
shareholder, to the address of record or dividend mailing address; or (ii)
wiring such amounts to the accounts previously designated by an Approved
Institution, as the case may be. The Transfer Agent shall not be liable for any
improper payments made in good faith and without negligence, in accordance with
a Certificate or resolution described in the preceding paragraph. If the
Transfer Agent shall not receive from the Custodian sufficient cash to make
payments of any cash dividend or distribution to all shareholders of the Trust
as of the record date, the Transfer Agent shall, upon notifying the Fund,
withhold payment to all shareholders of record as of the record date until
sufficient cash is provided to the Transfer Agent.
3. It is understood that the Transfer Agent shall in no way be responsible
for the determination of the rate or form of dividends or capital gain
distributions due to the shareholders. It is expressly agreed and understood
that the Transfer Agent is not liable for any loss as a result of processing a
distribution based on information provided in the Certificate that is incorrect.
The Trust agrees to pay the Transfer Agent for any and all costs, both direct
and Out-of-Pocket Expenses, incurred in such corrective work as necessary to
remedy such error.
4. It is understood that the Transfer Agent shall file such appropriate
information returns concerning the payment of dividend and capital gain
distributions with the proper federal, state and local authorities as are
required by law to be filed by the Trust, but shall in no way be responsible for
the collection or withholding of taxes due on such dividends or distributions
due to shareholders, except and only to the extent required by applicable law.
Anything in this Agreement to the contrary notwithstanding, the Fund shall be
solely responsible for the accurate, complete and timely filing with the proper
federal, state and local authorities of all tax information with respect to any
Fund account maintained under Matrix Level 3 through any of the various programs
offered through the NSCC (including, but not limited to, Networking and
FundServ).
ARTICLE VII
CONCERNING THE TRUST
1. The Trust represents to the Transfer Agent that:
(a) It is a business trust duly organized and existing under the laws
of the State of Delaware.
(b) It is empowered under applicable laws and by its Agreement and
Declaration of Trust and By-laws to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
(d) It is an investment company registered under the Investment
Company Act of 1940, as amended.
(e) A registration statement under the 1933 Act with respect to the
Shares is effective. The Trust shall notify the Transfer Agent if such
registration statement or any state securities registrations have been
terminated or a stop order has been entered with respect to the Shares.
2. Each copy of the Agreement and Declaration of Trust of the Trust and
copies of all amendments thereto shall be certified by the Secretary of State
(or other appropriate official) of the state of organization, and if such
Agreement and Declaration of Trust and/or amendments are required by law also to
be filed with a county or other officer or official body, a certificate of such
filing shall be filed with a certified copy submitted to the Transfer Agent.
Each copy of the By-laws and copies of all amendments thereto, and copies of
resolutions of the Board of Trustees of the Trust shall be certified by the
Secretary of the Trust under seal.
3. The Trust shall promptly deliver to the Transfer Agent written notice of
any change in the Officers authorized to sign Share certificates, notifications
or requests, together with a specimen signature of each new Officer. In the
event any Officer who shall have signed manually or whose facsimile signature
shall have been affixed to blank Share certificates shall die, resign or be
removed prior to issuance of such Share certificates, the Transfer Agent may
issue such Share certificates of the Trust notwithstanding such death,
resignation or removal, and the Trust shall promptly deliver to the Transfer
Agent such approval, adoption or ratification as may be required by law.
4. It shall be the sole responsibility of the Trust to deliver to the
Transfer Agent each Fund's currently effective Prospectus and, for purposes of
this Agreement, the Transfer Agent shall not be deemed to have notice of any
information contained in each such Prospectus until a reasonable time after it
is actually received by the Transfer Agent.
ARTICLE VIII
CONCERNING THE TRANSFER AGENT
1. The Transfer Agent represents and warrants to the Trust that:
(a) It is a corporation duly organized and existing under the laws of
the State of Missouri.
(b) It is empowered under applicable law and by its charter and
By-laws to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
(d) It is duly registered as a transfer agent under Section 17A of the
Securities Exchange Act of 1934, as amended.
2. The Transfer Agent shall not be liable and shall be indemnified in
acting upon any computer tape or electronic data transmission, writing or
document reasonably believed by it to be genuine and to have been signed or made
by an Officer of the Trust or person designated by the Trust and shall not be
held to have any notice of any change of authority of any person until receipt
of written notice thereof from the Trust or such person. It shall also be
protected in processing Share certificates that bear the proper countersignature
of the Transfer Agent and that it reasonably believes to bear the proper manual
or facsimile signature of the Officers of the Fund.
3. The Transfer Agent upon notice to the Trust may establish such
additional procedures, rules and regulations governing the transfer or
registration of Share certificates as it may deem advisable and consistent with
such rules and regulations generally adopted by mutual fund transfer agents.
4. The Transfer Agent shall keep such records as it may deem advisable and
is agreeable to the Fund, but not inconsistent with the rules and regulations of
appropriate government authorities, in particular Rules 31a-2 and 31a-3 under
the 1940 Act. The Transfer Agent acknowledges that such records are the property
of the Trust. The Transfer Agent may deliver to the Trust from time to time at
its discretion, for safekeeping or disposition by the Trust in accordance with
law, such records, papers, documents accumulated in the execution of its duties
as such Transfer Agent, as the Transfer Agent may deem expedient, other than
those which the Transfer Agent is itself required to maintain pursuant to
applicable laws and regulations. The Trust shall assume all responsibility for
any failure thereafter to produce any record, paper, cancelled Share certificate
or other document so returned, if and when required. Such records maintained by
the Transfer Agent pursuant to this paragraph 4, which have not been previously
delivered to the Trust pursuant to the foregoing provisions of this paragraph 4,
shall be considered to be the property of the Trust, shall be made available
upon request for inspection by the Officers, employees and auditors of the
Trust, and records shall be delivered to the Trust upon request and in any event
upon the date of termination of this Agreement, as specified in Article IX of
this Agreement, in the form and manner kept by the Transfer Agent on such date
of termination or such earlier date as may be requested by the Trust.
5. The Transfer Agent shall not be liable for any loss or damage, including
counsel fees, resulting from its actions or omissions to act or otherwise,
except for any loss or damage arising out of its bad faith, willful misfeasance,
gross negligence or reckless disregard of its duties under this Agreement.
6. (a) The Trust shall indemnify and exonerate, save and hold harmless the
Transfer Agent from and against any and all claims (whether with or without
basis in fact or law), demands, expenses (including reasonable attorneys' fees)
and liabilities of any and every nature that the Transfer Agent may sustain or
incur or that may be asserted against the Transfer Agent by any person by reason
of or as a result of any action taken or omitted to be taken by any prior
transfer agent of the Trust or as a result of any action taken or omitted to be
taken by the Transfer Agent in good faith and without gross negligence or
willful misfeasance or in reliance upon: (i) any provision of this Agreement;
(ii) the Prospectus; (iii) any instruction or order including, without
limitation, any computer tape or electronic data transmission reasonably
believed by the Transfer Agent to have been received from an Approved
Institution; (iv) any instrument, order or Share certificate reasonably believed
by it to be genuine and to be signed, countersigned or executed by any duly
authorized Officer of the Trust; (v) any Certificate or other instructions of an
Officer; (vi) any opinion of legal counsel for the Trust or the Transfer Agent;
or (vii) any request by any entity to carry out any transaction in Shares
received by the Transfer Agent through any of the various programs offered
through the NSCC (including, but not limited to, Networking and FundServ). The
Trust shall indemnify and exonerate, save and hold the Transfer Agent harmless
from and against any and all claims (whether with or without basis in fact or
law), demands, expenses (including reasonable attorneys' fees) and liabilities
of any and every nature which the Transfer Agent may sustain or incur or that
may be asserted against the Transfer Agent by any person by reason of or as a
result of any action taken or omitted to be taken by the Transfer Agent in good
faith in connection with its appointment or in reliance upon any law, act,
regulation or any interpretation of the same even though such law, act or
regulation may thereafter have been altered, changed, amended or repealed.
(b) The Transfer Agent shall not settle any claim, demand, expense or
liability to which it may seek indemnity pursuant to paragraph 6(a) above (each,
an "Indemnifiable Claim") without the express written consent of an Officer of
the Trust. The Transfer Agent shall notify the Trust within fifteen (15) days of
receipt of notification of an Indemnifiable Claim, provided that the failure by
the Transfer Agent to furnish such notification shall not impair its right to
seek indemnification from the Trust unless the Trust is unable to defend
adequately the Indemnifiable Claim as a result of such failure, and further
provided that, if as a result of the Transfer Agent's failure to provide the
Trust with timely notice of the institution of litigation, a judgment by default
is entered, but, prior to seeking indemnification from the Trust, the Transfer
Agent, at its own cost and expense, shall open such judgment. The Trust shall
have the right to defend any Indemnifiable Claim at its own expense, provided
that such defense shall be conducted by counsel selected by the Trust and
reasonably acceptable to the Transfer Agent. The Transfer Agent may join in such
defense at its own expense, but to the extent that it shall so desire the Trust
shall direct such defense. The Trust shall not settle any Indemnifiable Claim
without the express written consent of the Transfer Agent if the Transfer Agent
determines that such settlement would have an adverse effect on the Transfer
Agent beyond the scope of this Agreement. In such event, the Trust and the
Transfer Agent shall each be responsible for their own defense at their own cost
and expense, and such claim shall not be deemed an Indemnifiable Claim
hereunder. If the Trust shall fail or refuse to defend an Indemnifiable Claim,
the Transfer Agent may provide its own defense at the cost and expense of the
Fund. Anything in this Agreement to the contrary notwithstanding, the Trust
shall not indemnify the Transfer Agent against any liability or expense arising
out of the Transfer Agent's willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties and obligations under this Agreement.
The Transfer Agent shall indemnify and hold the Trust harmless from and
against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to any action or failure
or omission to act by the Transfer Agent as a result of the Transfer Agent's
failure to comply with the Agreement, lack of good faith, gross negligence or
willful misfeasance.
7. The Transfer Agent shall not be liable to the Trust with respect to any
redemption draft on which the signature of the drawer is forged and which the
Fund's Custodian has advised the Transfer Agent to honor the redemption (but
nothing herein is meant to impose any duties upon the Fund's Custodian); nor
shall the Transfer Agent be liable for any material alteration or absence or
forgery of any endorsement, it being understood that the Transfer Agent's sole
responsibility with respect to inspecting redemption drafts is to use reasonable
care to verify the drawer's signature against signatures on file.
8. There shall be excluded from the consideration of whether the Transfer
Agent has breached this Agreement in any way, any period of time, and only such
period of time during which the Transfer Agent's performance is materially
affected, by reason of circumstances beyond its control (collectively,
"Causes"), including, without limitation, mechanical breakdowns of equipment
(including any alternative power supply and operating systems software), flood
or catastrophe, acts of God, failures of transportation, communication or power
supply, strikes, lockouts, work stoppages or other similar circumstances.
9. At any time, the Transfer Agent may apply to an Officer of the Trust for
written instructions with respect to any matter arising in connection with the
Transfer Agent's duties and obligations under this Agreement, and the Transfer
Agent shall not be liable for any action taken or permitted by it in good faith
in accordance with such written instructions. Such application by the Transfer
Agent for written instructions from an Officer of the Trust may set forth in
writing any action proposed to be taken or omitted by the Transfer Agent with
respect to its duties or obligations under this Agreement and the date on and/or
after which such action shall be taken. The Transfer Agent shall not be liable
for any action taken or omitted in accordance with a proposal included in any
such application on or after the date specified therein unless, prior to taking
or omitting any such action, the Transfer Agent has received written
instructions in response to such application specifying the action to be taken
or omitted. The Transfer Agent may consult counsel of the Fund, or upon notice
to the Fund, its own counsel, at the expense of the Trust and shall be fully
protected with respect to anything done or omitted by it in good faith in
accordance with the advice or opinion of counsel to the Trust or its own
counsel.
10. The Transfer Agent may issue new Share certificates in place of
certificates represented to have been lost, stolen or destroyed upon receiving
written instructions from the shareholder accompanied by proof of an indemnity
or surety bond issued by a recognized insurance institution specified by the
Trust or the Transfer Agent. If the Transfer Agent receives written notification
from the shareholder or broker dealer that the certificate issued was never
received, and such notification is made within thirty (30) days of the date of
issuance, the Transfer Agent may reissue the certificate without requiring a
surety bond. The Transfer Agent may also reissue certificates that are
represented as lost, stolen or destroyed without requiring a surety bond
provided that the notification is in writing and accompanied by an
indemnification signed on behalf of a member firm of the New York Stock Exchange
and signed by an officer of said firm with the signature guaranteed.
Notwithstanding the foregoing, the Transfer Agent will reissue a certificate
upon written authorization from an Officer of the Trust.
11. In case of any requests or demands for the inspection of the
shareholder records of the Fund, the Transfer Agent will endeavor to notify the
Trust promptly and to secure instructions from an Officer as to such inspection.
The Transfer Agent reserves the right, however, to exhibit the shareholder
records to any person whenever it receives an opinion from its counsel that
there is a reasonable likelihood that the Transfer Agent will be held liable for
the failure to exhibit the shareholder records to such person; provided,
however, that in connection with any such disclosure the Transfer Agent shall
promptly notify the Trust that such disclosure has been made or is to be made.
12. At the request of an Officer of the Trust, the Transfer Agent will
address and mail such appropriate notices to shareholders as the Trust may
direct.
13. Notwithstanding any of the foregoing provisions of this Agreement, the
Transfer Agent shall be under no duty or obligation to inquire into, and shall
not be liable for:
(a) The legality of the issue or sale of any Shares, the sufficiency
of the amount to be received therefor, or the authority of the Approved
Institution or of the Trust, as the case may be, to request such sale or
issuance;
(b) The legality of a transfer of Shares, or of a redemption of any
Shares, the propriety of the amount to be paid therefor, or the authority
of the Approved Institution or of the Trust, as the case may be, to request
such transfer or redemption;
(c) The legality of the declaration of any dividend by the Trust, or
the legality of the issue of any Shares in payment of any dividend; or
(d) The legality of any recapitalization or readjustment of Shares.
14. The Transfer Agent shall have no duties or responsibilities whatsoever
except such duties and responsibilities as are specifically set forth in this
Agreement, and no covenant or obligation shall be implied in this Agreement
against the Transfer Agent.
15. Purchase and Payment of Services:
(a) The Trust has entered into one or more Management Agreements with Gold
Capital Management, Inc. (the "Management Agreement"). Pursuant to the
Management Agreement, Gold Capital Management, Inc. is obligated to provide or
to acquire the services contemplated by this Agreement for each Fund. Gold
Capital Management, Inc. has entered into an Administrative Services Agreement
with the Transfer Agent pursuant to which the Transfer Agent will receive
compensation for the services it provides pursuant to this Agreement.
ARTICLE IX
TERM AND TERMINATION OF AGREEMENT
This Agreement shall become effective as of the date first written above
and will continue in effect for a period of one (1) year. Either of the parties
hereto may terminate this Agreement by giving to the other party a notice in
writing specifying the date of such termination, which shall be not less than
sixty (60) days after the date of receipt of such notice. In the event such
notice is given by the Trust, it shall be accompanied by a copy of a resolution
of the Board of Trustees of the Trust, certified by the Secretary or any
Assistant Secretary, electing to terminate this Agreement and designating the
successor transfer agent or transfer agents. In the event such notice is given
by the Transfer Agent, the Trust shall, on or before the termination date,
deliver to the Transfer Agent a copy of a resolution of its Board of Trustees,
certified by the Secretary or any Assistant Secretary, designating a successor
transfer agent or transfer agents. In the absence of such designation by the
Trust, the Trust shall upon the date specified in the notice of termination of
this Agreement and delivery of the records maintained hereunder, be deemed to be
its own transfer agent and the Transfer Agent shall thereby be relieved of all
duties and responsibilities pursuant to this Agreement.
In the event this Agreement is terminated as provided herein, the Transfer
Agent, upon the written request of the Fund, shall promptly deliver the records
of the Trust on electromagnetic media to the Trust or its successor transfer
agent. The Trust shall be responsible to the Transfer Agent for the reasonable
costs and expenses associated with the preparation and delivery of such media.
ARTICLE X
MISCELLANEOUS
1. The Trust agrees that prior to effecting any change in the Prospectus
that would increase or alter the duties and obligations of the Transfer Agent
hereunder, it shall advise the Transfer Agent of such proposed change at least
thirty (30) days prior to the intended date of the same, and shall proceed with
such change only if it shall have received the written consent of the Transfer
Agent thereto, which consent shall not be unreasonably withheld.
2. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Trust shall be sufficiently given if addressed
to the Trust and mailed or delivered to it at:
Gold Bank Funds
00000 Xx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
or at such other place as the Trust may from time to time designate in writing.
3. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Transfer Agent shall be sufficiently given if
addressed to the Transfer Agent and mailed or delivered to:
Xxxxx & Xxxxxx, Inc.
000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, XX 00000
or at such other place as the Transfer Agent may from time to time designate in
writing.
4. This Agreement may not be amended or modified in any manner except by a
written agreement executed by both parties with the formality of this Agreement.
5. This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns.
6. This Agreement shall be governed by and construed in accordance with the
laws of the State of Missouri.
7. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but such counterparts shall, together,
constitute only one instrument.
8. The provisions of this Agreement are intended to benefit only the
Transfer Agent and the Trust, and no rights shall be granted to any other person
by virtue of this Agreement.
9. (a) The Transfer Agent shall endeavor to assist in resolving shareholder
inquiries and errors relating to the period during which prior transfer agents
acted as such for the Funds. Any such inquiries or errors that cannot be
expediently resolved by the Transfer Agent will be referred to the Fund.
(b) The Transfer Agent shall only be responsible for the safekeeping and
maintenance of transfer agency records, cancelled Share certificates and
correspondence of the Trust created or produced prior to the time of conversion
that are under its control and acknowledged in a writing to the Trust to be in
its possession. Any expenses or liabilities incurred by the Transfer Agent as a
result of shareholder inquiries, regulatory compliance or audits related to such
records and not caused as a result of Transfer Agent's bad faith, willful
misfeasance or gross negligence shall be the responsibility of the Trust as
provided in Article VIII herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officer, thereunto duly authorized and
their respective corporate seals to be hereunto affixed, as of the day and year
first above written J&B Funds.
By: _______________________________ By: ____________________________
Title:______________________________ Title:___________________________
Attest:_____________________________ Attest:__________________________
Acknowledged and Accepted solely for the
purpose of confirming that fees for these
services will be paid pursuant to the
Administrative Services Agreement between the
Transfer Agent and Gold Capital Management,
Inc.
GOLD CAPITAL MANAGEMENT, INC.
By: _______________________________ By: ____________________________
Title:______________________________ Title:___________________________
APPENDIX
Gold Bank Equity Fund
Gold Bank Money Market Fund
