AMENDED & RESTATED EXPENSE LIMITATION AGREEMENT
AMENDED
& RESTATED EXPENSE LIMITATION AGREEMENT
AMENDED
& RESTATED EXPENSE LIMITATION AGREEMENT, effective as of June 22, 2009 by
and between Xxxx & Xxxxx Capital Management, LLC (the “Manager”) and The
Xxxx & Xxxxx Funds Trust (the “Trust”), on behalf of each series of the
Trust set forth in Schedule A attached hereto (each, a “Fund”, and collectively,
the “Funds”).
WHEREAS,
the Trust is a Delaware statutory trust organized under an Agreement and
Declaration of Trust (“Declaration of Trust”), and is registered under the
Investment Company Act of 1940, as amended (“1940 Act”), as an open-end
management company of the series type, and each Fund is a series of the
Trust;
WHEREAS,
the Trust and the Manager have entered into an Investment Management Agreement
dated May 26, 2009, (“Management Agreement”), pursuant to which the Manager
provides investment management services to each Fund for compensation based on
the value of the average daily net assets of each such Fund;
WHEREAS,
the Fund and the Manager have determined that it is appropriate and in the best
interests of each Fund and its shareholders to maintain the expenses of each
Fund at a level below the level to which each such Fund would normally be
subject in order to maintain each Fund's expense ratios at the Maximum Annual
Operating Expense Limit (as hereinafter defined) specified for such Fund in
Schedule A hereto; and
WHEREAS,
this Expense Limitation Agreement amends and restates the previous Expense
Limitation Agreement dated May 26, 2009 (the "Original Expense Limitation
Agreement");
NOW THEREFORE, in consideration of the mutual promises of the
parties and for other good and valuable consideration, the parties hereto hereby
amend and restate in its entirety the Original Expense Limitation Agreement and
otherwise agree as follows:
1. Expense
Limitation.
1.1. Applicable Expense
Limit. To the extent that the aggregate expenses of every
character incurred by a Fund in any fiscal year, including but not limited to
organizational costs and investment management fees of the Manager (but
excluding interest, taxes, brokerage commissions, other extraordinary expenses
not incurred in the ordinary course of such Fund’s business) (“Fund Operating
Expenses”), exceed the Maximum Annual Operating Expense Limit, as defined in
Section 1.2 below, such excess amount (the “Excess Amount”) shall be the
liability of the Manager.
1.2. Maximum Annual Operating
Expense Limit. The Maximum Annual Operating Expense Limit with
respect to each Fund shall be the amount specified in Schedule A based on a
percentage of the average daily net assets of each Fund.
1.3. Method of
Computation. To determine the Manager’s liability with respect
to the Excess Amount, each month the Fund Operating Expenses for each Fund shall
be annualized as of the last day of the month. If the annualized Fund Operating
Expenses for any month of a Fund exceed the Maximum Annual Operating Expense
Limit of such Fund, the Manager shall first waive or reduce its investment
management fee for such month by an amount sufficient to reduce the annualized
Fund Operating Expenses to an amount no higher than the Maximum Annual Operating
Expense Limit. If the amount of the waived or reduced investment management fee
for any such month is insufficient to pay the Excess Amount, the Manager may
also remit to the appropriate Fund or Funds an amount that, together with the
waived or reduced investment management fee, is sufficient to pay such Excess
Amount.
1.4. Year-End
Adjustment. If necessary, on or before the last day of the
first month of each fiscal year, an adjustment payment shall be made by the
appropriate party in order that the amount of the investment management fees
waived or reduced and other payments remitted by the Manager to the Fund or
Funds with respect to the previous fiscal year shall equal the Excess
Amount.
2. Reimbursement of Fee Waivers
and Expense Reimbursements.
2.1. Reimbursement. If
in any year in which the Management Agreement is still in effect, the estimated
aggregate Fund Operating Expenses of such Fund for the fiscal year are less than
the Maximum Annual Operating Expense Limit for that year, the Manager shall be
entitled to reimbursement by such Fund, in whole or in part as provided below,
of the investment management fees waived or reduced and other payments remitted
by the Manager to such Fund pursuant to Section 1 hereof provided such
reimbursement for that year has been approved by a majority of the Trustees of
the Trust. The total amount of reimbursement to which the Manager may be
entitled (“Reimbursement Amount”) shall equal, at any time, the sum of all
investment management fees previously waived or reduced by the Manager and all
other payments remitted by the Manager to the Fund, pursuant to Section 1
hereof, during any of the previous three (3) fiscal years, less any
reimbursement previously paid by such Fund to the Manager, pursuant to Section
2.2 hereof, with respect to such waivers, reductions, and payments. The
Reimbursement Amount shall not include any additional charges or fees
whatsoever, including, e.g., interest accruable on the Reimbursement
Amount.
2.2. Method of
Computation. To determine each Fund’s accrual, if any, to
reimburse the Manager for the Reimbursement Amount, each month the Fund
Operating Expenses of each Fund shall be annualized as of the last day of the
month. If the annualized Fund Operating Expenses of a Fund for any month are
less than the Maximum Annual Operating Expense Limit of such Fund, such Fund,
shall accrue into its net asset value an amount payable to the Manager
sufficient to increase the annualized Fund Operating Expenses of that Fund to an
amount no greater than the Maximum Annual Operating Expense Limit of that Fund,
provided that such amount paid to the Manager will in no event exceed the total
Reimbursement Amount. For accounting purposes, when the annualized Fund
Operating Expenses of a Fund are below the Maximum Annual Operating Expense
Limit, a liability will be accrued daily for these amounts.
2.3. Year-End
Adjustment. If necessary, on or before the last day of the
first month of each fiscal year, an adjustment payment shall be made by the
appropriate party in order that the actual Fund Operating Expenses of a Fund for
the prior fiscal year (including any reimbursement payments hereunder with
respect to such fiscal year) do not exceed the Maximum Annual Operating Expense
Limit.
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2.4. Limitation of
Liability. The Manager shall look only to the assets of the
Fund for which it waived or reduced fees or remitted payments for reimbursement
under this Agreement and for payment of any claim hereunder, and neither the
Funds, nor any of the Trust's trustees, officers, employees, agents, or
shareholders, whether past, present or future shall be personally liable
therefor.
3. Term and Termination of
Agreement.
This
Agreement shall continue in effect with respect to all Funds until February 1,
2011 and shall thereafter continue in effect with respect to each Fund from year
to year provided such continuance is specifically approved by both a majority of
the Trustees of the Trust who (i) are not “interested persons” of the Trust or
any other party to this Agreement, as defined in the 1940 Act, and (ii) have no
direct or indirect financial interest in the operation of this Agreement
(“Non-Interested Trustees”) and the Manager. This Agreement shall terminate
automatically upon the termination of the Management Agreement.
4. Miscellaneous.
4.1. Captions. The
captions in this Agreement are included for convenience of reference only and in
no other way define or delineate any of the provisions hereof or otherwise
affect their construction or effect.
4.2. Interpretation. Nothing
herein contained shall be deemed to require the Trust or the Funds to take any
action contrary to the Trust’s Declaration of Trust, or any applicable statutory
or regulatory requirement to which it is subject or by which it is bound, or to
relieve or deprive the Trust’s Board of Trustees of its responsibility for and
control of the conduct of the affairs of the Trust or the Funds.
4.3. Definitions. Any
question of interpretation of any term or provision of this Agreement, including
but not limited to the investment management fee, the computations of net asset
values, and the allocation of expenses, having a counterpart in or otherwise
derived from the terms and provisions of the Management Agreement or the 1940
Act, shall have the same meaning as and be resolved by reference to such
Management Agreement or the 1940 Act.
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IN
WITNESS WHEREOF, the parties have caused this Expense Limitation Agreement to be
signed by their respective officers thereunto duly authorized and their
respective corporate seals to be hereunto affixed, as of the day and year first
above written.
THE XXXX
& XXXXX FUNDS TRUST
ON BEHALF
OF EACH OF ITS FUNDS
By:/s/ Xxxxxxx X.
Xxxx
Xxxxxxx
X. Xxxx
President
and Chief Executive Officer
XXXX
& XXXXX CAPITAL MANAGEMENT, LLC
By:/s/ X. Xxxx
Xxxxx
X. Xxxx
Xxxxx
Secretary
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SCHEDULE
A
MAXIMUM
ANNUAL OPERATING EXPENSE LIMITS
This
Agreement relates to the following Funds of The Xxxx & Xxxxx Funds Trust
(the “Trust”).
|
Name of Fund
|
Maximum Annual Operating Expense
Limit
|
|
|
The
Xxxx & Xxxxx Fund
|
1.88
|
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