AMENDMENT TO THE AMENDED AND RESTATED FUND ACCOUNTING AND COMPLIANCE ADMINISTRATION AGREEMENT May 21, 2009
AMENDMENT
TO THE AMENDED AND RESTATED FUND
ACCOUNTING
AND COMPLIANCE ADMINISTRATION AGREEMENT
May 21,
2009
This
amendment to the Amended and Restated Fund Accounting and Compliance
Administration Agreement between the Xxxxxxx Capital Management Investment
Trust, a Delaware statutory trust (“Trust”), and The Nottingham Management
Company d/b/a The Nottingham Company, a North Carolina corporation
(“Administrator”), is made and entered into as of the date first written
above.
WHEREAS,
the parties entered into the Amended and Restated Fund Accounting and Compliance
Administration Agreement on March 27, 2001, pursuant to which the Trust retained
the Administrator to provide certain administrative services to the Trust in the
manner and on the terms set forth therein; and
WHEREAS,
the parties wish to amend the Amended and Restated Fund Accounting and
Compliance Administration Agreement in order to revise the provisions regarding
its duration, termination, and related compensation; and
WHEREAS,
Section 14 of the Amended and Restated Fund Accounting and Compliance
Administration Agreement allows for its amendment by a written
instrument.
NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein and intending to be legally bound, the parties agree as
follows:
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1.
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Duration and
Termination. Section 11 of the Amended and Restated Fund
Accounting and Compliance Administration Agreement is hereby modified and
amended to read as follows:
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Duration and Termination of
this Agreement. This Agreement shall continue in full force
and effect unless terminated as provided in this section. This
Agreement may be terminated (i) by either party upon giving sixty (60) days’
prior written notice to the other party, (ii) by mutual agreement of the
parties, or (iii) for cause, by a party, in the event of willful misconduct,
gross negligence, or breach of this Agreement by the other party, by giving not
less than thirty (30) days’ prior written notice to such other
party.
Upon
termination of this Agreement, the Administrator and the Trust agree to
cooperate in good faith in transferring records and other information in the
Administrator’s possession and wrapping up their relationship under this
Agreement in a commercially reasonable manner. The Trust shall pay to
the Administrator such compensation as may be due to the Administrator under
this Agreement for services performed prior to the date of termination,
including any out-of-pocket reimbursements due and payable
hereunder.
Upon
termination of this Agreement, the Administrator shall be paid the termination
fee set forth on Exhibit B. The termination fee is not a penalty, but
a charge to compensate the Administrator for its services in assisting in
transferring records and reports and otherwise wrapping up its services under
this Agreement. Notwithstanding the foregoing,
the
Administrator shall not be entitled to the termination fee if the Administrator
elects to terminate this Agreement or the Administrator is terminated due to its
willful misconduct, gross negligence, or breach of this Agreement.
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2.
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Compensation
Schedule. The last paragraph in Exhibit B to the Amended
and Restated Fund Accounting and Compliance Administration Agreement is
hereby modified and amended to read as
follows:
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In
accordance with Section 11 of this Agreement, the Administrator shall be
entitled to be paid a fee upon termination of this Agreement with respect to any
Fund. The termination fee shall be equal to the compensation paid by
such Fund to the Administrator under this Agreement for the two (2) months
immediately preceding the date of termination. In the event that
termination of this Agreement is due to the liquidation of a Fund, the
termination fee shall be equal to the compensation paid by such Fund to the
Administrator under this Agreement for the three (3) months immediately
preceding the date of termination. As stated in Section 11 of this
Agreement, the Administrator shall not be entitled to the termination fee if the
Administrator elects to terminate this Agreement or the Administrator is
terminated due to its willful misconduct, gross negligence, or breach of this
Agreement.
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3.
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Other. Except
as expressly modified or amended herein, all other terms and provisions of
the Amended and Restated Fund Accounting and Compliance Administration
Agreement shall remain in full force and
effect.
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IN
WITNESS WHEREOF, the parties have caused this amendment to the Amended and
Restated Fund Accounting and Compliance Administration Agreement to be executed
by a duly authorized officer on one or more counterparts (including facsimile
counterparts) as of the date first written above.
Xxxxxxx
Capital
Management
Investment
Trust The
Nottingham Company
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By: /s/ Xxxx X.
Xxxxxxx
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By: /s/ Xxxxxx X.
Lower
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Name:
Xxxx X. Xxxxxxx
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Name:
Xxxxxx X. Lower
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Title:
President
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Title:
Vice President
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