EXHIBIT D(8)
SUB-ADVISORY AGREEMENT
PERFORMANCE STRATEGIC DIVIDEND FUND
THIS AGREEMENT is made as of October 12, 2004 among Performance Funds
Trust (the "Trust"), Trustmark Investment Advisors (the "Adviser"), a wholly
owned subsidiary of Trustmark National Bank, and Orleans Capital Management (the
"sub-adviser").
WHEREAS, the Trust is registered as an open-end, diversified management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act");
WHEREAS, the Adviser has been appointed investment adviser to the
Trust's Strategic Dividend Fund (the "Fund");
WHEREAS, the Adviser desires to retain the Sub-Adviser to assist it in
the provision of a continuous investment program for the Fund and the
Sub-Adviser is willing to do so; and
WHEREAS, the Sub-Adviser is willing to furnish such services upon the
terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Adviser hereby appoints the Sub-Adviser to act as
the sub-adviser to the Fund as permitted by the Adviser's Advisory Agreement
with the Trust pertaining to the Fund. Intending to be legally bound, the
Sub-Adviser accepts such appointment and agrees to render the services herein
set forth for the compensation herein provided.
2. Sub-Advisory Services. Subject to the supervision of the Trust's
Board of Trustees and the Adviser, the Sub-Adviser will assist the Adviser in
providing a continuous investment program with respect to the Fund's portfolio,
including investment research and management with respect to all securities and
investments and cash equivalents in the Fund. The Sub-Adviser will provide
services under this Agreement in accordance with the Fund's investment
objectives, policies and restrictions as stated in the Fund's prospectus and
resolutions of the Trust's Board of Trustees applicable to the Fund.
Without limiting the generality of the foregoing, the Sub-Adviser
further agrees that it will, with respect to the Fund:
(a) determine from time to time what securities and other
investments will be purchased, retained or sold for the Fund;
(b) place orders pursuant to its investment determinations for the
Fund either directly with the issuer or with any broker or
dealer;
(c) not purchase shares of the Fund for itself or for accounts
with respect to which it exercises sole investment discretion
in connection with such
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transactions except as permitted by the Trust's Board of
Trustees or by federal, state and local law;
(d) manage the Fund's overall cash position;
(e) attend regular business and investment-related meetings with
the Trust's Board of Trustees and the Adviser if requested to
do so by the Trust and/or the Adviser;
(f) ensure all Fund security valuations are reasonable for
purposes of determining whether such securities should be
purchased, owned or sold by the Funds;
(g) ensure that, if required, securities are identified for proper
segregation and collateralization;
(h) vote proxies on behalf of the Fund and provide proxy voting
information to the Fund and its agents in relation to the
Fund's annual filing on Form N-PX and as otherwise reasonably
requested by officers of the Fund; and
(i) maintain books and records with respect to the securities
transactions for the Fund, furnish to the Adviser and the
Trust's Board of Trustees such periodic and special reports as
they may request with respect to the Fund, and provide in
advance to the Adviser all reports to the Board of Trustees
for examination and review within a reasonable time prior to
the Trust's Board meetings.
(h) Covenants by the Sub-Adviser. The Sub-Adviser agrees with
respect to the services provided to the Fund that it will:
(i) conform with all Rules and Regulations of the Securities and
Exchange Commission;
(j) treat confidentially and as proprietary information of the
Trust all records and other information relative to the Trust
and prior, present or potential shareholders, and not use such
records and information for any purpose other than performance
of its responsibilities and duties hereunder (except after
prior notification to and approval in writing by the Trust,
which approval shall not be unreasonably withheld and may not
be withheld and will be deemed granted where the Sub-Adviser
may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information
by duly constituted authorities, or when so requested by the
Trust);
(k) notify the Adviser and the Trust immediately upon detection of
(i) any material failure to manage the Fund in accordance with
its investment objectives and policies or any applicable law;
or (ii) any material breach of any of the Fund's or the
Sub-Adviser's policies, guidelines or procedures. The
Sub-Adviser agrees to correct any such failure promptly and to
take
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any action that the Board may reasonably request in connection
with any such breach;
(l) upon request, provide the Adviser and/or the officers of the
Trust with supporting certifications in connection with any
filings and certifications made pursuant to the Xxxxxxxx-Xxxxx
Act of 2002; and
(m) promptly notify the Adviser and the Trust in the event (i) the
Sub-Adviser is served or otherwise receives notice of any
action, suit, proceeding, inquiry or investigation, at law or
in equity, before or by any court, public board, or body,
involving the affairs of the Trust (excluding class action
suits in which the Fund is a member of the plaintiff class by
reason of the Fund's ownership of shares in the defendant) or
the compliance by the Sub-Adviser with the federal or state
securities laws or (ii) an actual change in control of the
Sub-Adviser resulting in an "assignment" (as defined in the
1940 Act) has occurred or is otherwise proposed to occur.
3. Services Not Exclusive. Except as provided herein, the services
furnished by the Sub-Adviser hereunder are deemed not to be exclusive, and
nothing in this Agreement shall (i) prevent the Sub-Adviser from acting as
investment adviser or manager for any other person or persons, including other
management investment companies, or (ii) limit or restrict the Sub-Adviser from
buying, selling or trading any securities or other investments (including any
securities or other investments which the Funds are eligible to buy) for its or
their own accounts or for the accounts of others for whom it or they may be
acting; provided, however, that the Sub-Adviser agrees that it will not
undertake any activities which, in its reasonable judgment, will adversely
affect the performance of its obligations to the Fund under this Agreement.
4. Portfolio Transactions. Investment decisions for the Fund shall be
made by the Sub-Adviser independently from those for any other investment
companies and accounts advised or managed by the Sub-Adviser. The Fund and such
investment companies and accounts may, however, invest in the same securities.
When a purchase or sale of the same security is made at substantially the same
time on behalf of the Fund and/or another investment company or account, the
transaction will be averaged as to price, and available investments allocated as
to amount, in a manner which the Sub-Adviser believes to be equitable to the
Fund and such other investment company or account. The Fund acknowledges that in
some instances, this investment procedure may adversely affect the price paid or
received by the Fund or the size of the position obtained or sold by the Fund.
To the extent permitted by law, the Sub-Adviser may aggregate the securities to
be sold or purchased for the Fund with those to be sold or purchased for other
investment companies or accounts in order to obtain best execution.
The Sub-Adviser shall place orders for the purchase and sale of
portfolio securities and shall solicit broker-dealers to execute transactions in
accordance with the Fund's policies and restrictions regarding brokerage
allocations. The Sub-Adviser shall place orders pursuant to its investment
determination for the Fund either directly with the issuer or with any broker or
dealer selected by the Sub-Adviser. In executing portfolio transactions and
selecting brokers or dealers, the Sub-Adviser shall use its reasonable best
efforts to seek the most favorable execution of orders, after taking into
account all factors the Sub-Adviser deems relevant, including the breadth of the
market in the security, the price of the security, the
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financial condition and execution capability of the broker or dealer, and the
reasonableness of the commission, if any, both for the specific transaction and
on a continuing basis.
Consistent with this obligation, the Sub-Adviser may, to the extent
permitted by law, purchase and sell portfolio securities to and from brokers and
dealers who provide brokerage and research services (within the meaning of
Section 28(e) of the Securities Exchange Act of 1934) to or for the benefit of
the Fund and/or other accounts over which the Sub-Adviser or any of its
affiliates exercises investment discretion. The Sub-Adviser is authorized to pay
to a broker or dealer who provides such brokerage and research services a
commission for executing a portfolio transaction for the Fund which is in excess
of the amount of commission another broker or dealer would have charged for
effecting that transaction if the Sub-Adviser determines in good faith that such
commission was reasonable in relation to the value of the brokerage and research
services provided by such broker or dealer, viewed in terms of either that
particular transaction or the Sub-Adviser's overall responsibilities to the
Fund. In no instance will portfolio securities be purchased from or sold to the
Sub-Adviser, or the Fund's principal underwriter, or any affiliated person
thereof except as permitted by the 1940 Act or the rules of the Securities and
Exchange Commission thereunder.
5. Books and Records. In compliance with the requirements of Rule 3la-3
under the 1940 Act, the Sub-Adviser hereby agrees that all records which it
maintains for the Trust are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust's request.
The Sub-Adviser further agrees to preserve for the periods prescribed by Rule
31a-2 under the 1940 Act the records required to be maintained by Rule 31a-1
under the 1940 Act.
6. Expenses. During the term of this Agreement, the Sub-Adviser shall
pay all expenses incurred by it in connection with its activities under this
Agreement other than the cost of securities, commodities and other investments
(including brokerage commissions and other transaction charges, if any)
purchased for the Fund.
7. Compensation. For the services provided and the expenses assumed
with respect to the Fund pursuant to this Agreement, the Sub-Adviser will be
entitled to a fee, computed daily and payable quarterly directly from the
Advisor, calculated at the annual rate of 0.40% on the Fund's average daily net
assets.
8. Standard of Care; Limitation of Liability. The Sub-Adviser shall
exercise due care and diligence and use the same skill and care in providing its
services hereunder as it uses in providing services to other investment
companies and accounts, but shall not be liable for any action taken or omitted
by it in the performance of services rendered hereunder in the absence of its
bad faith, willful misconduct, gross negligence or reckless disregard of its
duties.
9. Reference to the Sub-Adviser. Neither the Adviser nor any of its
affiliates or agents shall make reference to or use the name of the Sub-Adviser
or any of its affiliates, or any of their clients, except references concerning
the identity of and services provided by the Sub-Adviser to the Fund, which
references shall not differ in substance from those included in the current
registration statement pertaining to the Fund, this Agreement and the Advisory
Agreement between the Adviser and the Trust with respect to the Fund, in any
advertising or
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promotional materials without the prior approval of the Sub-Adviser, which
approval shall not be unreasonably withheld or delayed.
10. Duration and Termination. Unless sooner terminated, this Agreement
shall terminate May 18, 2006 and thereafter shall continue automatically for
successive annual periods, provided such continuance is specifically approved at
least annually by the Trust's Board of Trustees or vote of the lesser of (a) 67
% of the shares of the Fund represented at a meeting if holders of more than 50%
of the outstanding shares of the Fund are present in person or by proxy, or (b)
more than 50% of the outstanding shares of the Fund, provided that in either
event its continuance also is approved by a majority of the Trust's Trustees who
are not "interested persons "(as defined in the 0000 Xxx) of any party to this
Agreement (the "Disinterested Trustees"), by vote cast in person at a meeting
called for the purpose of voting on such approval. This Agreement is terminable
at any time without penalty, with respect to the Fund, on 60 days' notice, by
the Adviser, the Sub-Adviser or the Trust's Board of Trustees or by vote of the
lesser of (a) 67% of the shares of the Fund represented at a meeting if holders
of more than 50% of the outstanding shares of the Fund are present in person or
by proxy, or (b) more than 50% of the outstanding shares of the Fund. This
Agreement will terminate automatically in the event of its assignment (as
defined in the 1940 Act).
11. Amendment of this Agreement. 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. No amendment of this Agreement shall be
effective until approved by the vote of (i) a majority of the outstanding voting
securities of the Fund, if required by the 1940 Act or the rules of the
Securities and Exchange Commission thereunder, and (ii) a majority of the
Disinterested Trustees cast in person at a meeting called for the purpose of
voting on such approval.
12. Notice. Any notice, advice or report to be given pursuant to this
Agreement shall be delivered or mailed:
To The Sub-Adviser at:
---------------------
Xxxxxxx Xxxxx
Orleans Capital Management
0000 Xxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
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To the Adviser at:
-----------------
Xxxxxx Xxxx
Trustmark National Bank, Legal Department
P.O. Box 291
7th Floor Legal Department
Xxxxxxx, XX 00000
To the Trust at:
---------------
c/o BISYS Fund Services
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000-0000
14. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and shall be governed by the laws of the
state of Delaware (without regard to conflict of law principles). 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.
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day and
year first above written.
TRUSTMARK INVESTMENT ADVISORS,INC.
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Director
ORLEANS CAPITAL MANAGEMENT
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: President
PERFORMANCE FUNDS TRUST
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
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