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EXHIBIT 15c
SERVICES AGREEMENT
THIS AGREEMENT, dated as of August 1, 1997, by and between Performance
Funds Distributor, Inc. (the "Distributor"), having its principal place of
business at 000 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and BISYS FUND
SERVICES LIMITED PARTNERSHIP d/b/a BISYS FUND SERVICES ("BISYS") having its
principal place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
W I T N E S S E T H:
WHEREAS, the Distributor is the principal underwriter of the shares of
Performance Funds Trust (the "Company"), a series investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), comprised
of various series (hereinafter referred to individually as a "Fund" and
collectively as the "Funds");
WHEREAS, the Distributor believes that an important market for each
Fund is comprised of the clients ("Planner Clients") of investment advisers,
broker-dealers, financial planners or similar entities ("Planners");
WHEREAS, the Company currently does not have a significant number of
Planner Clients as shareholders;
WHEREAS, the Distributor desires to retain BISYS to provide the
promotional services described herein; and
WHEREAS, the Distributor desires to compensate BISYS for such services
based upon Fund shares that are owned by Planner Clients introduced to the Funds
through the efforts of BISYS while this Agreement is in effect ("BISYS Planner
Clients").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. Services.
a. Under the terms and conditions of this Agreement, BISYS,
acting directly or through an affiliate, shall engage in such marketing and
promotional activities ("Promotional Activities") as it deems appropriate for
purposes of generating sales of shares to Planner Clients upon the
recommendation of Planners. Such Promotional Activities shall include, but not
be limited to, (a) presentations to Planners, which may include the promotional
materials described in Section 3 of this Agreement, (b) participation at
conferences and seminars, and (c) the services described in Schedule A attached
hereto.
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b. For certain Fund shareholder accounts established for BISYS
Planner Clients, BISYS shall act as the broker-dealer of record and, in that
regard, shall perform such duties and assume such responsibilities as the
parties shall agree upon.
2. Fees.
a. The Distributor agrees to pay BISYS on the first business day
of each month the marketing fees ("Marketing Fees") and asset-based fees
("Asset-Based Fees") that are more particularly described in Schedule B attached
hereto. Such fees shall be based upon the average daily net asset value of all
Fund shares owned beneficially or of record by BISYS Planner Clients. For
purposes of determining the fees payable pursuant to the foregoing sentence, the
Distributor (i) acknowledges that BISYS may introduce the Distributor and/or the
Company's investment adviser to Planners either directly or indirectly through
third parties (the "Third Party Sources") including, by way of example, those
Third Party Sources set forth in Schedule C attached hereto and (ii) for
purposes of calculating the Marketing Fees and Asset-Based Fees that are payable
hereunder, the Distributor agrees that each person that purchases Fund shares
using the services of Third Party Sources through which Fund shares are offered
shall be deemed to be a BISYS Planner Client.
b. The parties hereto agree that the Marketing Fees described
herein shall be payable to BISYS for such period of time that this Agreement
remains in full force and effect. The parties further agree that the Asset-Based
Fees described herein shall be payable to BISYS for such period of time that
this Agreement remains in full force and effect and, in addition, in accordance
with the Schedule for the Payment of Asset-Based Fees Following Termination
contained in Schedule B hereto, notwithstanding the termination of this
Agreement; provided, however, that the obligation to pay Asset-Based Fees
hereunder shall cease in the event (i) the Distributor is terminated as
principal underwriter of the shares of the Company or otherwise ceases to act in
such capacity, or (ii) the Company's plan of distribution, adopted pursuant to
Rule 12b-1 under the 1940 Act, or any other plan for the financing of
shareholder servicing activities (individually, a "Plan"; collectively, the
"Plans") which finances such payment obligation is terminated for whatever
reason by the Company's Board of Directors/Trustees. In the event the Company's
Plan is terminated, the Distributor and BISYS agree to negotiate in good faith
with respect to whether and to what extent the Distributor will continue to make
such payments either from its own resources or in reliance upon financing that
is provided by a successor Plan.
c. BISYS agrees to provide the Distributor periodically with a
list of the Planners and Third Party Sources that have been introduced to the
Distributor and/or the Company's investment adviser.
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3. Review and Approval of Promotional Materials; Regulatory
Filings.
The parties hereto agree and acknowledge that the Distributor
shall have authority and control over the content and use of all advertisements,
sales literature or marketing materials (hereinafter referred to collectively as
"Promotional Materials"), including those Promotional Materials that are
produced by BISYS. All Promotional Materials that are produced by BISYS shall be
submitted to the Distributor for review and approval. BISYS shall not use any
Promotional Materials that it has produced without having received prior
approval from the Distributor. BISYS shall bear no responsibility for (i) filing
any Promotional Materials with regulatory bodies (including, but not limited to,
the Securities and Exchange Commission (the "SEC"), the National Association of
Securities Dealers, Inc. and state securities regulators) possessing regulatory
jurisdiction with respect to such Materials or (ii) obtaining approval from such
regulatory bodies for the use of such Materials. BISYS shall provide the
Distributor, three business days prior to use, with sufficient copies of all
final Promotional Materials for the Distributor's files and to allow the
Distributor to make all filings with any regulatory bodies (as described in the
preceding sentence) as required by federal, state or other laws or regulatory
requirements.
4. Representations and Warranties.
a. Representations and Warranties of the Distributor. The
Distributor represents and warrants that, at all times during the duration of
this Agreement, all activities of the Distributor, its officers, agents and
employees shall comply with all applicable laws, rules and regulations,
including, without limitation, the 1940 Act, all rules and regulations
promulgated by the Commission thereunder and all rules and regulations adopted
by any securities association registered under the Securities Exchange Act of
1934.
b. Representations and Warranties of BISYS. BISYS represents and
warrants that it has satisfied all state and federal regulatory requirements
applicable to the services it has undertaken to perform under this Agreement.
5. Duration and Termination.
a. Initial Term. This Agreement shall continue in effect, unless
earlier terminated by either party hereto as provided hereunder, until July 31,
1998 (the "Initial Term"). Thereafter, unless otherwise terminated as provided
herein, this Agreement shall be renewed automatically for successive one-year
periods ("Rollover Periods").
b. Termination. This Agreement may be terminated without
penalty:
i) by provision of written notice of nonrenewal at
least sixty (60) days prior to the end of the Initial
Term or any Rollover Period, as the case may be;
ii) by mutual agreement of the parties;
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iii) in the event of a material breach that has not been cured
within thirty (30) days following written notice of such
breach from the non-breaching party; or
iv) by vote of a majority of the members of the Board of
Trustees of the Company who are not interested persons of
the Company and have no direct or indirect financial
interest in the operation of any Rule 12b-1 plan of
distribution or by vote of a majority of the outstanding
voting securities of such Company, on not more than 60
days written notice to BISYS.
6. Miscellaneous.
All notices and other communications made hereunder shall be in
writing and shall be deemed duly given when received by the party to whom such
notice has been directed at the respective addresses set forth herein or to such
other addresses as either party may designate by written notice to the other
party hereunder. The headings in this Agreement are for convenience of reference
only and shall not alter or otherwise affect the meaning of the provisions
herein. This Agreement embodies the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes any and all prior
agreements, arrangements and understandings relating to the subject matter
hereof. This Agreement cannot be changed or terminated orally and no waiver of
compliance with any provision, and no consent provided herein, shall be
effective unless evidenced by an instrument executed by the party to be charged.
This Agreement shall be governed by the internal laws of the State of Ohio,
without giving effect to conflict of laws principles. This Agreement shall be
binding upon and inure to the benefit of the parties and their successors, but
this Agreement may not be assigned by either party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
PERFORMANCE FUNDS DISTRIBUTOR, INC.
By:
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BISYS FUND SERVICES LIMITED
PARTNERSHIP
By: BISYS Fund Services, Inc.,
General Partner
By:
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SCHEDULE A
TO THE
SERVICES AGREEMENT BETWEEN
PERFORMANCE FUNDS DISTRIBUTOR, INC.
AND
BISYS FUND SERVICES LIMITED PARTNERSHIP
SERVICES
1. BISYS will provide a national wholesaling and internal wholesaling
distribution team.
2. Use by BISYS of its proprietary national database comprised of
approximately 3350 R.I.A.'s and 8000 Financial Planners
3. Dedicated 800 number support center/state of the art telephone
system/inbound/outbound.
4. Senior management contact and relationships with major mutual fund clearing
platforms.
5. Direct liaison with shareholder services, fund accounting, transfer agency,
and client services.
6. Monthly/quarterly national activity reports, i.e., sales, assets, channel
update, marketing, etc.
7. Institutional marketing programs, i.e., Platinum Collection, investment
advisor profiles, individual fund fact sheets, etc.
8. Portfolio manager national conference call facilitation.
9. Internet access/web.
10. Attendance and participation and national mutual fund conferences.
11. Ongoing market research and support.
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XXXXXXXX X
TO THE
SERVICES AGREEMENT BETWEEN
PERFORMANCE FUNDS DISTRIBUTOR, INC.
AND
BISYS FUND SERVICES LIMITED PARTNERSHIP
FEES
MARKETING FEE SCHEDULE
Subject to the minimum fee amount described below, BISYS shall be
entitled to (i) an annual marketing fee of $60,000 until such time as $50
million in assets are raised through sales of Planner Client Shares; (ii) an
annual marketing fee of $45,000 after $50 million in assets have been raised
until such time as $100 million in assets have been raised; and (iii) an annual
marketing fee of $30,000 after $100 million in assets have been raised. At such
time as assets raised exceed $150 million, the parties shall renegotiate, in
good faith, the annual marketing fee payable hereunder. The foregoing fee
amounts will be prorated when a break point is reached during any particular
annual period. All annual marketing fee amounts shall be accrued monthly and
paid quarterly. Notwithstanding the foregoing fee schedule, BISYS shall be
entitled to receive a minimum marketing fee for the first year of the Services
Agreement in the amount of $60,000.
ASSET-BASED FEE SCHEDULE
Annual Fee as a Percentage of the
Fund Assets Attributable Average Daily Net Asset Value of
to Planner Client Shares Planner Client Shares
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First $50 million Twenty-five one-hundredths of one percent
(.25%) of such average daily net asset value
Next $50 million Twenty one-hundredths of one percent (.20%)
of such average daily net asset value
Next $50 million Fifteen one-hundredths of one percent (.15%)
of such average daily net asset value
All amounts in excess of $150 million Five one-hundredths of one percent (.05%) of
such average daily net asset value
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SCHEDULE FOR THE
PAYMENT OF ASSET-BASED FEES
FOLLOWING TERMINATION
Time Period Following Termination Asset-Based Fee That is Payable
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First Year 100% of the fee that is payable in accordance
with the Asset-Based Fee Schedule
Second Year 80% of the fee that is payable in accordance
with the Asset-Based Fee Schedule
Third Year and Beyond No Fee is Due
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SCHEDULE C
TO THE
SERVICES AGREEMENT BETWEEN
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AND
BISYS FUND SERVICES LIMITED PARTNERSHIP
THIRD PARTY SOURCES
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Schwab Institutional
Fidelity Investment Advisors Group
Trust Company of America
First Trust of Denver Datalynx System
Xxxx Xxxxx Advisor Service
Waterhouse Securities
Resources Trust
Broker Dealer Sponsored Wrap Fee Programs
(Xxxxx Xxxxxx, American Express, LPL, etc.)
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