INVESTMENT ADVISORY AGREEMENT
This Agreement is made and entered into effective as of November 30,
2004, by and between the PMFM Investment Trust, a Delaware statutory trust (the
"Trust") on behalf of the PMFM Core Advantage Portfolio Trust, a series of
shares of the Trust (the "Fund"), and PMFM, Inc., a Georgia corporation
(hereinafter referred to as "Advisor").
WHEREAS, the Trust is an open-end management investment company,
registered under the Investment Company Act of 1940, as amended (the "Act");
WHEREAS, the Trust has designated the Fund as a series of interests in
the Trust; and
WHEREAS, the Advisor is registered as an investment advisor under the
Investment Advisers Act of 1940 ("Advisers Act"), and engages in the business of
asset management; and
WHEREAS, the Trust desires to retain the Advisor to render certain
investment management services to the Fund, and the Advisor is willing to render
such services;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Obligations of Investment Advisor
(a) Services. The Advisor agrees to perform the following
services (the "Services") for the Trust:
(1) manage the investment and reinvestment of the
assets of the Fund;
(2) continuously review, supervise, and administer
the investment program of the Fund;
(3) determine, in its discretion, the securities to
be purchased, retained or sold (and implement those
decisions) with respect to the Fund;
(4) provide the Trust and the Fund with records
concerning the Advisor's activities under this Agreement
which the Trust and the Fund are required to maintain; and
(5) render regular reports to the Trust's trustees
and officers concerning the Advisor's discharge of the
foregoing responsibilities.
The Advisor shall discharge the foregoing responsibilities subject to
the control of the trustees and officers of the Trust and in compliance
with (i) such policies as the trustees may from time to time establish;
(ii) the Fund's objectives, policies, and limitations as set forth in
its prospectus and statement of additional information, as the same may
be amended from time to time; and (iii) with all applicable laws and
regulations. All Services to be furnished by the Advisor under this
Agreement may be furnished through the medium of any directors,
officers or employees of the Advisor or through such other parties as
the Advisor may determine from time to time.
(b) Expenses and Personnel. The Advisor agrees, at its own
expense or at the expense of one or more of its affiliates, to render
the Services and to provide the office space, furnishings, equipment
and personnel as may be reasonably required in the judgment of the
trustees and officers of the Trust to perform the Services on the terms
and for the compensation provided herein. The Advisor shall authorize
and permit any of its officers, directors and employees, who may be
elected as trustees or officers of the Trust, to serve in the
capacities in which they are elected. Except to the extent expressly
assumed by the Advisor herein and except to the extent required by law
to be paid by the Advisor, the Trust shall pay all costs and expenses
in connection with its operation.
(c) Books and Records. All books and records prepared and
maintained by the Advisor for the Trust and the Fund under this
Agreement shall be the property of the Trust and the Fund and, upon
request therefor, the Advisor shall surrender to the Trust and the Fund
such of the books and records so requested.
2. Fund Transactions. The Advisor is authorized to select the brokers
or dealers that will execute the purchases and sales of portfolio securities for
the Fund. With respect to brokerage selection, the Advisor shall seek to obtain
the best overall execution for fund transactions, which is a combination of
price, quality of execution and other factors. The Advisor may, in its
discretion, purchase and sell portfolio securities from and to brokers and
dealers who provide the Advisor with brokerage, research, analysis, advice and
similar services, and the Advisor may pay to these brokers and dealers, in
return for such services, a higher commission or spread than may be charged by
other brokers and dealers, provided that the Advisor determines in good faith
that such commission is reasonable in terms either of that particular
transaction or of the overall responsibility of the Advisor to the Fund and its
other clients and that the total commission paid by the Fund will be reasonable
in relation to the benefits to the Fund and its other clients over the
long-term. The Advisor will promptly communicate to the officers and the
trustees of the Trust such information relating to portfolio transactions as
they may reasonably request.
3. Compensation of the Advisor. The Fund will pay to the Advisor an
investment advisory fee (the "Fee") equal to an annualized rate of 1.25% of the
average daily net assets of the Fund. The Fee shall be calculated as of the last
business day of each month based upon the average daily net assets of the Fund
determined in the manner described in the Fund's Prospectus and/or Statement of
Additional Information, and shall be paid to the Advisor by the Fund within five
(5) days after such calculation.
2
4. Status of Investment Advisor. The services of the Advisor to the
Trust and the Fund are not to be deemed exclusive, and the Advisor shall be free
to render similar services to others so long as its services to the Trust and
the Fund are not impaired thereby. The Advisor shall be deemed to be an
independent contractor and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Trust or the Fund in
any way or otherwise be deemed an agent of the Trust or the Fund. Nothing in
this Agreement shall limit or restrict the right of any director, officer or
employee of the Advisor, who may also be a trustee, officer or employee of the
Trust, to engage in any other business or to devote his or her time and
attention in part to the management or other aspects of any other business,
whether of a similar nature or a dissimilar nature.
5. Permissible Interests. Trustees, agents, and stockholders of the
Trust are or may be interested in the Advisor (or any successor thereof) as
directors, partners, officers, or stockholders, or otherwise; and directors,
partners, officers, agents, and stockholders of the Advisor are or may be
interested in the Trust as trustees, stockholders or otherwise; and the Advisor
(or any successor) is or may be interested in the Trust as a stockholder or
otherwise.
6. Limits of Liability; Indemnification. The Advisor assumes no
responsibility under this Agreement other than to render the services called for
hereunder. The Advisor shall not be liable for any error of judgment or for any
loss suffered by the Trust or the Fund in connection with the matters to which
this Agreement relates, except a loss resulting from a breach of fiduciary duty
with respect to receipt of compensation for services (in which case any award of
damages shall be limited to the period and the amount set forth in Section
36(b)(3) of the Act) or a loss resulting from willful misfeasance, bad faith or
gross negligence on its part in the performance of, or from reckless disregard
by it of its obligations and duties under, this Agreement. It is agreed that the
Advisor shall have no responsibility or liability for the accuracy or
completeness of the Trust's registration statement under the Act or the
Securities Act of 1933 ("1933 Act"), except for information supplied by the
Advisor for inclusion therein. The Trust agrees to indemnify the Advisor to the
full extent permitted by the Trust's Declaration of Trust.
7. Term. This Agreement shall remain in effect for an initial term of
two years from the date hereof, and from year to year thereafter provided such
continuance is approved at least annually by the vote of a majority of the
trustees of the Trust who are not "interested persons" (as defined in the Act)
of the Trust, which vote must be cast in person at a meeting called for the
purpose of voting on such approval; provided, however, that:
(a) the Trust may, at any time and without the payment of any
penalty, terminate this Agreement upon 60 days written notice of a
decision to terminate this Agreement by (i) the Trust's trustees; or
(ii) the vote of a majority of the outstanding voting securities of the
Fund;
(b) the Agreement shall immediately terminate in the event of
its assignment (within the meaning of the Act and the Rules
thereunder);
3
(c) The Advisor may, at any time and without the payment of
any penalty, terminate this Agreement upon 60 days written notice to
the Trust and the Fund; and
(d) the terms of paragraph 6 of this Agreement shall survive
the termination of this Agreement.
8. Amendments. No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed
by the party against which enforcement of the change, waiver, discharge or
termination is sought, and no amendment of this Agreement shall be effective
until approved by vote of the holders of a majority of the Trust's outstanding
voting securities.
9. Applicable Law. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of Delaware.
10. Representations and Warranties.
(a) Representations and Warranties of the Advisor. The Advisor
hereby represents and warrants to the Trust as follows: (i) the Advisor
is a corporation duly organized and in good standing under the laws of
the State of Georgia and is fully authorized to enter into this
Agreement and carry out its duties and obligations hereunder; and (ii)
the Advisor is registered as an investment advisor with the SEC under
the Advisers Act, and shall maintain such registration in effect at all
times during the term of this Agreement.
(b) Representations and Warranties of the Trust. The Trust
hereby represents and warrants to the Advisor as follows: (i) the Trust
has been duly organized as a statutory trust under the laws of the
State of Delaware and is authorized to enter into this Agreement and
carry out its terms; (ii) the Trust is registered as an investment
company with the Commission under the Act; (iii) shares of each Fund
are (or will be) registered for offer and sale to the public under the
1933 Act; and (iv) such registrations will be kept in effect during the
term of this Agreement.
11. Structure of Agreement. The Trust is entering into this Agreement
solely on behalf of the Fund. No breach of any term of this Agreement shall
create a right or obligation with respect to any series of the Trust other than
the Fund; (b) under no circumstances shall the Advisor have the right to set off
claims relating to the Fund by applying property of any other series of the
Trust; and (c) the business and contractual relationships created by this
Agreement, consideration for entering into this Agreement, and the consequences
of such relationship and consideration relate solely to the Trust and the Fund.
4
12. Use of Names. The Trust acknowledges that all rights to the name
"PMFM" belongs to the Advisor, and that the Trust is being granted a limited
license to use such words in its name, the name of its series and the name of
its classes of shares.
13. Severability. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby and, to this extent, the provisions
of this Agreement shall be deemed to be severable.
14. Notice. Notices of any kind to be given to the Trust hereunder by
the Advisor shall be in writing and shall be duly given if mailed or delivered
to the PMFM Investment Trust at 0000 Xxxxxxxx Xxxx Xxxx - Xxxxx 0000X, Xxxxxx,
Xxxxxxx 00000, with a copy to The Nottingham Company at 000 Xxxxx Xxxxxxxx
Xxxxxx, Post Xxxxxx Xxx 00, Xxxxx Xxxxx, XX 00000-0000, Attention: C. Xxxxx
Xxxxxx III or to such other address or to such individual as shall be so
specified by the Trust to the Advisor. Notices of any kind to be given to the
Advisor hereunder by the Trust shall be in writing and shall be duly given if
mailed or delivered to PMFM, Inc. at 0000 Xxxxxxxx Xxxx Xxxx - Xxxxx 0000X,
Xxxxxx, Xxxxxxx 00000 Attention: Xxxxxx X. Xxxxxxx, or at such other address or
to such individual as shall be so specified by the Advisor to the Trust. Notices
shall be effective upon delivery.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and the year first written above.
PMFM INVESTMENT TRUST PMFM, INC.
/s/ Xxxxxx X. XxXxxx /s/ Xxxxxx X. Xxxxxxx
___________________________ _____________________________
Xxxxxx X. XxXxxx, Trustee By: Xxxxxx X. Xxxxxxx
Title: President
ATTEST: ATTEST:
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
___________________________ _____________________________
Xxxxxx X. Xxxxxxx, Secretary Xxxxxxx X. Xxxxxxx, Secretary
[Seal] [Corporate Seal]
5
