FIRST AMENDMENT TO
THE GKM FUNDS
DISTRIBUTION AGREEMENT
WHEREAS, The GKM Funds, an Ohio business trust (the "Trust") and Ultimus
Fund Distributors, LLC, an Ohio limited liability company (the "Distributor"),
have entered into a Distribution Agreement as of December 17, 2001 (the
"Agreement");
WHEREAS, the parties desire to add GKM Advisers, LLC, a Delaware limited
liability company (the "Adviser") as a party to the Agreement; and
WHEREAS, the parties desire to amend the Agreement to clarify that it has
always been the understanding of the parties that the Trust has no
responsibility to pay fees and expenses to the Distributor, and that only the
Adviser is responsible for payments;
NOW, THEREFORE, effective September 20, 2006, the Trust and the Distributor
agree to amend the Agreement as follows:
1. GKM Advisers, LLC is hereby added as a party to the Agreement.
2. Section 7 of the Agreement is hereby amended to read as follows:
7. Fees and Expenses.
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The fees and expenses under this Agreement shall not be expenses of
the Trust. For performing its services under this Agreement,
Distributor will receive a fee from the Adviser. The fee is $6,000 per
annum, and shall be paid on a monthly basis. The Adviser shall
promptly reimburse Distributor for any expenses in accordance with the
following paragraph.
In the performance of its obligations under this Agreement,
Distributor will pay only the costs incurred in qualifying as a broker
or dealer under state and federal laws and in establishing and
maintaining its relationships with the dealers selling the Shares. All
other costs in connection with the offering of the Shares will be paid
by the Adviser. These costs include, but are not limited to, licensing
fees, filing fees (including NASD), travel and such other expenses as
may be incurred by Distributor on behalf of the Trust.
3. Section 10 of the Agreement is hereby amended to read as follows:
10. Representations of the Parties.
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(a) The Trust certifies to Distributor and Adviser that: (1) as of the
date of the execution of this Agreement, each Series that is in
existence as of such date has authorized unlimited shares, and (2)
this Agreement has been duly authorized by the Trust and, when
executed and delivered by the Trust, will constitute a legal, valid
and binding obligation of the Trust, enforceable against the Trust in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties.
(b) Distributor represents and warrants that: (1) the various
procedures and systems which Distributor has implemented with regard
to safeguarding from loss or damage attributable to fire, theft, or
any other cause the records and other data of the Trust and
Distributor's records, data, equipment facilities and other property
used in the performance of its obligations hereunder are adequate and
that it will make such changes therein from time to time as are
required for the secure performance of its obligations hereunder, and
(2) this Agreement has been duly authorized by Distributor and, when
executed and delivered by Distributor, will constitute a legal, valid
and binding obligation of Distributor, enforceable against Distributor
in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties.
(c) Adviser represents and warrants that this Agreement has been duly
authorized by Adviser and, when executed and delivered by Adviser,
will constitute a legal, valid and binding obligation of Adviser,
enforceable against Adviser in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting the rights and remedies of creditors and
secured parties.
4. Section 11 of the Agreement is hereby amended to read as follows:
11. Termination and Amendment of this Agreement.
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This Agreement shall automatically terminate, without the payment of
any penalty, in the event of its assignment. This Agreement may be
amended only if such amendment is approved (i) by Distributor, (ii) by
Adviser, (iii) either by action of the Board of Trustees of the Trust
or at a meeting of the Shareholders of the Trust by the affirmative
vote of a majority of the outstanding Shares, and (iv) by a majority
of the Trustees of the Trust who are not interested persons of the
Trust, Adviser or of Distributor by vote cast in person at a meeting
called for the purpose of voting on such approval.
The Trust, Adviser or Distributor may at any time terminate this
Agreement on sixty (60) days' written notice delivered or mailed by
registered mail, postage prepaid, to the other parties.
5. Section 17 of the Agreement is hereby amended to read as follows:
17. Notices.
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Any notices under this Agreement shall be in writing, addressed and
delivered or mailed postage paid to the other party, with a copy to
the Trust's counsel, at such address as such other party may designate
for the receipt of such notice. Such notice will be effective upon
receipt. Until further notice to the other party, it is agreed that
the address of the Trust and the Adviser for this purpose shall be
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx
00000, Attn: Xxxxxxx X. Xxxx; and that the address of Distributor for
this purpose shall be 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx
00000, Attn: Xxxxxx X. Xxxxxx.
6. Excepted as amended hereof, the Agreement shall remain in full force
and effect.
Executed as of the 19th day of September, 2006.
THE GKM FUNDS
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, Trustee
GKM ADVISERS, LLC
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, President
ULTIMUS FUND DISTRIBUTORS, LLC
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
