INVESTMENT ADVISORY AGREEMENT
This Agreement is made and entered into effective as of April 2, 2003, by
and between the Turnaround Investment Trust, a Delaware statutory trust (the
"Trust") on behalf of the Turnaround Fund, a series of shares of the Trust (the
"Fund"), and Alsin Capital Management, Inc., a Oregon corporation (hereinafter
referred to as "ACM").
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, ACM is registered as an investment adviser under the Investment
Advisers Act of 1940, and engages in the business of asset management; and
WHEREAS, the Trust desires to retain ACM to render certain investment
management services to the Fund, and ACM 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 Adviser
(a) Services. ACM 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 ACM'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 ACM's discharge of the foregoing responsibilities.
ACM 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 ACM under this Agreement
may be furnished through the medium of any directors, officers or
employees of ACM or through such other parties as ACM may determine
from time to time.
(b) Expenses and Personnel. ACM 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. ACM 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 ACM herein and
except to the extent required by law to be paid by ACM, 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 ACM for the Trust and the Fund under this Agreement shall
be the property of the Trust and the Fund and, upon request therefor,
ACM shall surrender to the Trust and the Fund such of the books and
records so requested.
2. Fund Transactions. ACM 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, ACM shall seek to obtain the best
overall execution for fund transactions, which is a combination of price,
quality of execution and other factors. ACM may, in its discretion, purchase and
sell portfolio securities from and to brokers and dealers who provide ACM with
brokerage, research, analysis, advice and similar services, and ACM 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 ACM
determines in good faith that such commission is reasonable in terms either of
that particular transaction or of the overall responsibility of ACM 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. ACM 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 ACM. The Fund will pay to ACM an investment advisory
fee (the "Fee") equal to an annualized rate of 1.00% 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 ACM by the Fund within five (5) days after
such calculation.
4. Status of Investment Adviser. The services of ACM to the Trust and
the Fund are not to be deemed exclusive, and ACM shall be free to render similar
services to others so long as its services to the Trust and the Fund are not
impaired thereby. ACM shall be deemed to be an independent contractor and shall,
unless otherwise expressly provided or authorized, have no authority to act for
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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 ACM, 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 ACM (or any successor thereof) as directors,
partners, officers, or stockholders, or otherwise; and directors, partners,
officers, agents, and stockholders of ACM are or may be interested in the Trust
as trustees, stockholders or otherwise; and ACM (or any successor) is or may be
interested in the Trust as a stockholder or otherwise.
6. Limits of Liability; Indemnification. ACM assumes no responsibility
under this Agreement other than to render the services called for hereunder. ACM
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 Adviser
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 Adviser for inclusion
therein. The Trust agrees to indemnify the Adviser 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);
(c) ACM 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.
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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 Adviser. The Adviser
hereby represents and warrants to the Trust as follows: (i) the Adviser
is a corporation duly organized and in good standing under the laws of
the State of Oregon and is fully authorized to enter into this
Agreement and carry out its duties and obligations hereunder; and (ii)
the Adviser is registered as an investment adviser 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 Adviser 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 (or will be) 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 Adviser 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.
12. 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.
13. Notice. Notices of any kind to be given to the Trust hereunder by
the Adviser shall be in writing and shall be duly given if mailed or delivered
to the Turnaround Investment Trust at Xxxx Xxxxxx Xxx 0000, Xxxxxx, Xxxxxx
00000-0000, 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
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or to such other address or to such individual as shall be so specified by the
Trust to the Adviser. Notices of any kind to be given to the Adviser hereunder
by the Trust shall be in writing and shall be duly given if mailed or delivered
to the Adviser at Xxxx Xxxxxx Xxx 0000, Xxxxxx , Xxxxxx 00000-0000, Attention:
Xxxx X. Xxxxx, or at such other address or to such individual as shall be so
specified by the Adviser 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.
TURNAROUND INVESTMENT TRUST ALSIN CAPITAL MANAGEMENT, INC.
/s/ Xxxxx X. Xxxxxxxx /s/Xxxx X. Xxxxx
By: Xxxxx X. Xxxxxxxx, Trustee By: Xxxx X. Xxxxx
Title: Trustee Title: President
ATTEST: ATTEST:
____________________________ ________________________________
________________ Secretary __________________Secretary
[Corporate Seal] [Corporate Seal]
