Exhibit (h)(9)
[Xxxxx Money Management, Inc. Letterhead]
May 1, 2003
The Xxxxx Fund
0000 X. Xxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, XX 00000
Re: Xxxxx Treasury Only Money Market Fund
Ladies and Gentlemen:
This will confirm the expense limitation agreement between The Xxxxx
Fund (the "Trust") and Xxxxx Money Management, Inc. ("Xxxxx") with respect to
the Xxxxx Treasury Only Money Market Fund (the "Fund"), a series of the Trust.
1. Expense Limitation. If in any fiscal year the Fund's operating
expenses exceed 0.68% of the Fund's average net assets, the investment advisory
fee payable to Xxxxx under the Investment Advisory Agreement dated January 16,
1996 and amended and restated on January 29, 2002 between Xxxxx and the Trust on
behalf of the Fund shall be reduced by the amount of such excess. For purposes
of this agreement, the Fund's "operating expenses" shall include, without
limitation, any fees or expenses incurred during the course of the ordinary
operations of the Trust with respect to the Fund (other than fees or expenses
under the Investment Advisory Agreement), but shall exclude interest, taxes,
brokerage commissions, litigation, indemnification or any extraordinary expenses
(as determined under generally accepted accounting principles) not incurred in
the ordinary course of the Fund's business. Any reduction in the investment
advisory fee shall be made monthly by annualizing the Fund's operating expenses
for each month as of the last day of such month. An adjustment shall be made on
or before the last day of the fiscal year if the Fund's operating expenses for
such fiscal year do not exceed 0.68%.
2. Term and Termination. This agreement shall become effective on the
date above written and shall have an initial term of one year. Thereafter, this
agreement shall automatically renew for one-year terms unless Xxxxx provides
written notice to the Trust at the above address of the termination of this
agreement, which notice shall be received by the Trust at least 30 days prior to
the end of the then-current term. In addition, this agreement will terminate
automatically in the event of the termination of the Investment Advisory
Agreement between Xxxxx and the Trust on behalf of the Fund.
3. Governing Law. This agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida, provided that nothing herein
shall be construed in a manner inconsistent with the Investment Company Act of
1940, the Investment Advisers Act of 1940, or rules, orders or interpretations
of the Securities and Exchange Commission or its staff thereunder.
4. Severability. If any one or more of the provisions of this agreement
shall be held to be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions shall not be affected thereby.
5. Limitation of Liability. It is expressly agreed that the obligations
of the Trust hereunder shall not be binding upon any of the Trustees,
shareholders, nominees, officers, agents or employees of the Trust personally,
but shall bind only the trust property of the Trust relating to the Fund. This
agreement has been signed and delivered by an officer of the Trust, acting as
such, and such execution and delivery by such officer shall not be deemed to
have been made by any Trustee or officer individually or to impose any liability
on any of them personally, but shall bind only the trust property of the Trust
relating to the Fund, as provided in the Trust's Trust Instrument dated August
10, 1995, as amended from time to time.
If the foregoing is in accordance with your understanding of the
agreement between us, please indicate your approval by signing and returning a
copy of this letter to Xxxxx at the address above.
Very truly yours,
XXXXX MONEY MANAGEMENT, INC.
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
President
Agreed to:
THE XXXXX FUND
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Vice President and Secretary
