1
Exhibit (d)(4)
TRANSFER AND ASSUMPTION AGREEMENT
---------------------------------
This Transfer and Assumption Agreement (the "Agreement") is made as of
this 11th day of May, 2001 by and between Trustmark Financial Services, Inc. a
Mississippi corporation, ("TFSI"), 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 TFSI 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 TFSI and the assumption of such duties and obligations
by TFSI 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 TFSI all of Trustmark Bank's interest in the Advisory
Contract.
2. Assumption. TFSI 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 TFSI 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.
2
4. No Change of Control. The parties intend that the transfer
of the Advisory Contract from Trustmark Bank to TFSI 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, TFSI, Trustmark Bank and Performance Funds hereby
execute this Agreement as of the day and year first above written.
TRUSTMARK FINANCIAL SERVICES, INC.
By:
---------------------------------------
Name: Xxxxxx Xxxxxx
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
