AMENDED AND RESTATED EXPENSE LIMITATION AGREEMENT
AMENDED
AND RESTATED EXPENSE LIMITATION AGREEMENT
This
Amended and Restated Expense Limitation Agreement (the “Agreement”) is made and
entered into effective as of February 26, 2010, by and between the Xxxxxx Focus
Fund and the Xxxxxx Dividend Fund (each a “Fund” and collectively the “Funds”),
each a series of shares of the Xxxxxx Investment Trust, a Delaware statutory
trust (the “Trust”), and T2 Partners Management LP, a Delaware limited
partnership (the “Advisor”) and is amending and restating in its entirety that
certain Amended and Restated Expense Limitation Agreement (“Expense Limitation
Agreement”) effective March 15, 2005 by and between the Funds and the
Advisor.
WHEREAS,
the Trust is a Delaware statutory trust organized under the Certificate of Trust
(“Trust Instrument”), dated April 22, 2004 and is registered under the
Investment Company Act of 1940, as amended (the “1940 Act”), as an open-end
investment company of the series type; and
WHEREAS,
the Trust, on behalf of the Funds, and the Advisor have entered into an Amended
and Restated Investment Advisory Agreement dated February 17, 2005, (“Advisory
Agreement”), pursuant to which the Advisor provides investment advisory services
to the Funds; and
WHEREAS,
the Advisor has requested that the Expense Limitation Agreement be amended in
order to modify and change the termination date and to confirm that “acquired
fund fees and expenses” as defined in the Form N-1A instructions are excluded
from the calculation of aggregate expenses incurred by the Funds in determining
the applicable expense limit; and
WHEREAS,
the Funds and the Advisor have determined that it is appropriate and in the best
interests of the Funds and their shareholders to limit the expenses of the
Funds, and, therefore, have entered into this Agreement, in order to maintain
each Fund’s expense ratio within the Operating Expense Limit, as defined
below.
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
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1.
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Expense
Limitation.
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(a) Applicable Expense
Limit. To the extent that the aggregate expenses of every
character (but excluding interest, taxes, brokerage commissions, acquired fund fees and
expenses, investment advisory and/or variable performance incentive fees paid to
the Advisor, other
expenditures which are capitalized in accordance with generally accepted
accounting principles, other extraordinary expenses not incurred in the ordinary
course of the Funds’ business, and amounts, if any, payable pursuant to a plan
adopted in accordance
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(b) Operating Expense
Limit. The maximum operating expense limit (“Operating Expense
Limit”) in any year with respect to each Fund shall be the amount specified in
Schedule A attached
hereto based on a percentage of the average daily net assets of each
Fund.
(c) Method of
Computation. To determine the Advisor’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 exceed the Operating Expense Limit of a Fund,
the Advisor hereby authorizes the Fund to directly reduce the amount of the
investment advisory fees to be paid for that month by the Fund by the
appropriate amount necessary to reimburse the Excess Amount to the
Fund. If the Excess Amount exceeds the investment advisory fees for
that month, the Advisor will then reimburse the Fund directly the difference
between the Excess Amount and the amount of such reduced investment advisory
fees.
(d) Year-End
Adjustment. If necessary, on or before the last day of the
first month of each fiscal year during the term of this agreement, an adjustment
payment shall be made by the appropriate party in order that the amount of the
reduced investment advisory fees and other payments remitted by the Advisor to
the Fund or Funds with respect to the previous fiscal year shall equal the
Excess Amount.
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2.
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Term
and Termination of Agreement.
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This
Agreement with respect to the Funds shall continue in effect until the last day
of March, 2011, and from year to year thereafter provided each such continuance
is specifically approved by 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”). Nevertheless, this Agreement may be terminated by either
party hereto, without payment of any penalty, upon delivery of written notice at
least ninety (90) days prior to the end of the then-current term of the
Agreement to the other party at its principal place of business; provided that,
in the case of termination by the Trust, such action shall be authorized by
resolution of a majority of the Non-Interested Trustees of the Trust or by a
vote of a majority of the outstanding voting securities of the
Trust. Any termination pursuant to this paragraph 2 shall become
effective, unless otherwise specifically agreed upon, on the last day of the
then-current term of the Agreement.
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3.
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Miscellaneous.
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(a) 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.
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(b) 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 by-laws, 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.
(c) Definitions. Any
question of interpretation of any term or provision of this Agreement, including
but not limited to, the investment advisory fee, the computations of net asset
values, and the allocation of expenses, having a counterpart in or otherwise
derived from the terms of the Advisory Agreement or the 1940 Act, shall have the
same meaning as and be resolved by reference to such Advisory Agreement or the
1940 Act.
(d) Counterparts. This
Agreement may be executed in one or more counterpart signatures (including
facsimile signatures), each of which shall be deemed an original but all of
which, when taken together, shall constitute one and the same original
instrument.
(e) Applicable
law. This Agreement shall be construed in accordance with, and
governed by, the substantive laws of the State of Delaware, without regard to
the principles of the conflict of laws or the choice of laws.
IN WITNESS WHEREOF, the
parties have caused this Agreement to be signed by their respective officers,
thereunto duly authorized, as of the day and year first above
written.
XXXXXX
FOCUS FUND AND XXXXXX DIVIDEND FUND,
EACH A
SERIES OF THE XXXXXX INVESTMENT
TRUST
TRUST
[SEAL] /s/ Xxxx X. Xxxxxxx
By: Xxxx X. Xxxxxxx
By: Xxxx X. Xxxxxxx
Title:
Trustee
T2
PARTNERS MANAGEMENT LP
[SEAL] /s/
Xxxxxxx X. Xxxxxx
By:
Xxxxxxx X. Xxxxxx
Title:
Managing Partner
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SCHEDULE
A
OPERATING
EXPENSE LIMITS
This
Agreement relates to the following Funds of the Trust:
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Name of Fund
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Maximum
Operating
Expense Limit |
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Xxxxxx
Focus Fund
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0.45%
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Xxxxxx
Dividend Fund
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0.45%
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