FIRST AMENDMENT TO THE FUND ACCOUNTING AND COMPLIANCE ADMINISTRATION AGREEMENT June 8, 2009
FIRST
AMENDMENT TO THE FUND ACCOUNTING
June 8,
2009
This
first amendment to the Fund Accounting and Compliance Administration Agreement
between the Xxxxxx 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 Fund Accounting and Compliance Administration Agreement on December 17,
2004, 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 Fund Accounting and Compliance Administration Agreement in order to
revise the provisions regarding its duration, termination, and related
compensation; and
WHEREAS, Section 13 of the
Fund Accounting and Compliance Administration Agreement allows for its amendment
by a written instrument.
NOW, THEREFORE, the parties
agree as follows:
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1.
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Duration and
Termination. Section 10 of the 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 otherwise 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 or such shorter
period as is mutually agreed upon by the parties, (ii) by mutual written
agreement of the parties, or (iii) for cause, by a party, in the event of
willful misconduct, gross negligence, or breach 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.
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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 service 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 Fund
Accounting and Compliance Administration Agreement is hereby modified and
amended to read as follows:
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In
accordance with Section 10 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 10 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 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 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.
XXXXXX
INVESTMENT
TRUST THE
NOTTINGHAM COMPANY
| By: /s/ Xxxxxxx X. Xxxxxx | By: /s/ Xxxxxx X. Lower |
| Name: Xxxxxxx X. Xxxxxx | Name: Xxxxxx X. Lower |
| Title: President | Title: Vice President |
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