Exhibit (d)(4)
TRANSFER AND ASSUMPTION AGREEMENT
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This Transfer and Assumption Agreement (the "Agreement") is made as of
this 1st day of June 2002 by and between Trustmark Investment Advisors, Inc. a
Mississippi corporation, Trustmark National Bank, a national banking
association, ("Trustmark Bank") and Performance Funds Trust, a Delaware business
trust registered as an investment company under the Investment Company Act of
1940, as amended ("Performance Funds").
WHEREAS, Trustmark Bank and Performance Funds, are parties to that
certain Master Investment Advisory Contract dated as of May 19, 1992, as amended
(the "Advisory Contract"); and
WHEREAS, Section 217 of the Xxxxx-Xxxxx-Xxxxxx Act requires banks that
serve as investment advisers to registered investment companies to register with
the Securities and Exchange Commission ("SEC") under the Investment Advisers Act
of 1940, as amended; or to push such activities out to a subsidiary of the bank
that is registered with the SEC; and
WHEREAS Trustmark Investment Advisors, Inc. is a wholly owned subsidiary
of Trustmark Bank and is registered with the SEC as an investment adviser under
the Investment Advisers Act of 1940, as amended, and wishes to assume Trustmark
Bank's duties and obligations under the Advisory Contract; and
WHEREAS, SEC Rule 2a-6 provides that a transaction "that does not result
in a change of actual control or management of the investment adviser of an
investment company" is not an assignment for purposes of Section 15 of the
Investment Company Act of 1940, as amended; and
WHEREAS, the transfer of Trustmark Bank's duties and obligations under
the Advisory Contract to Trustmark Investment Advisors, Inc. and the assumption
of such duties and obligations by Trustmark Investment Advisors, Inc. will not
result in a change of actual control or management of the investment adviser and
will not constitute an assignment of the Advisory Contract under the provisions
of SEC Rule 2a-6;
NOW, THEREFORE, based on the foregoing, the parties agree as follows:
1. Transfer. Trustmark Bank hereby transfers, and sets over to
Trustmark Investment Advisors, Inc. all of Trustmark Bank's
interest in the Advisory Contract.
2. Assumption. Trustmark Investment Advisors, Inc. intending to
be legally bound, hereby accepts the foregoing Transfer of
Advisory Contract, and from and after the date hereof, assumes
and agrees to perform all duties and obligations of Trustmark
Bank under the Advisory Contract accruing from and after the
date hereof.
3. No release of Trustmark Bank. Trustmark Bank recognizes that
the assumption of its duties and responsibilities under the
Advisory Contract by Trustmark Investment Advisors, Inc. does
not relieve Trustmark Bank from its obligations to
Performance Funds for the performance of the terms, covenants,
obligations and duties contained in the Advisory Contract.
4. No Change of Control. The parties intend that the transfer of
the Advisory Contract from Trustmark Bank to Trustmark
Investment Advisors, Inc. shall not result in a change of
actual control or management of the investment manager of the
Performance Funds and shall not constitute an assignment of
the Advisory Contract under the provisions of SEC Rule 2a-6.
IN WITNESS WHEREOF, Trustmark Investment Advisors, Inc., Trustmark Bank
and Performance Funds hereby execute this Agreement as of the day and year first
above written.
TRUSTMARK INVESTMENT ADVISORS, INC.
By: ___________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
TRUSTMARK NATIONAL BANK
By: ___________________________________
Name: Xxxxxx X. Host
Title: President and Chief Operating Officer,
Financial Services
PERFORMANCE FUNDS TRUST
By: ____________________________________
Name: Xxxxxx X. Xxxxx
Title: President
