Exhibit (d)(13)
PERFORMANCE FUNDS TRUST
SERVICE ORGANIZATION AGREEMENT
SERVICE ORGANIZATION AGREEMENT, dated as of April 28, 2004, as restated July 25,
2005, by and between Performance Funds Trust (the "Trust"), a Delaware business
trust, on behalf of its portfolios (the "Funds"), as set forth in Appendix A,
and Trustmark National Bank (the "Financial Institution"), as a shareholder
servicing agent hereunder (the "Agent") relating to transactions in Class A,
Class B and Institutional Class shares of capital stock, $.001 par value (the
"Shares"), of any of the Funds as set forth in Appendix A. In the event that the
Trust establishes one or more portfolios other than the Funds with respect to
which it decides to retain the Financial Institution hereunder, the Trust shall
promptly notify the Financial Institution in writing. If the Financial
Institution is willing to render such services, it shall notify the Trust in
writing whereupon such portfolio shall become a Fund hereunder.
The Trust and the Financial Institution hereby agree as follows:
1. APPOINTMENT. The Financial Institution, as Agent, hereby, agrees to perform
certain services for its customers (the "Customers") as hereinafter set forth.
The Agent's appointment hereunder is non-exclusive, and the parties recognize
and agree that, from time to time, the Trust may enter into other shareholder
servicing agreements, in writing, with other financial institutions.
2. SERVICES TO BE PERFORMED. The Agent, as agent for its Customers, shall be
responsible for performing shareholder administrative support services, which
will include the following: (i) answering customer inquiries regarding account
status and history, the manner in which purchases, exchanges and redemptions of
shares of the Funds may be effected and certain other matters pertaining to the
Funds; (ii) assisting shareholders in designating and changing dividend options,
account designations and addresses; (iii) providing necessary personnel and
facilities to establish and maintain shareholder accounts and records; (iv)
assisting in aggregating and processing purchase, exchange and redemption
transactions; (v) placing net purchase and redemption orders with the Trust's
distributor; (vi) arranging for wiring of funds; (vii) transmitting and
receiving funds in connection with customer orders to purchase or redeem shares;
(viii) processing dividend payments; (ix) verifying and guaranteeing shareholder
signatures in connection with redemption orders and transfers and changes in
shareholder-designated accounts, as necessary; (x) providing periodic statements
showing a customer's account balance and, to the extent practicable, integrating
such information with other customer transactions otherwise effected through or
with the Shareholder Servicing Agent; (xi) furnishing (either separately or on
an integrated basis with other reports sent to a shareholder by a Shareholder
Servicing Agent) monthly and year-end statement and confirmations of purchases,
exchanges and redemptions; (xii) transmitting on behalf of the Trust, proxy
statements, annual reports, updating prospectuses and other communications from
the Trust to the shareholders of the Funds; (xiii) receiving, tabulating and
transmitting to the Trust proxies executed by shareholders with respect to
meetings of shareholders of the Funds; (xiv) providing sub-transfer agency
services; (xv) providing sub-custodian services; (xvi) providing sub-accounting
services; (xvii) providing fiduciary services (excluding investment management)
and (xviii) providing
asset allocation services. Any of the foregoing services may be deleted as
agreed upon and subsequently added as agreed upon without penalty or
termination.
The Agent shall provide all personnel and facilities necessary in order for it
to perform the functions described in this paragraph with respect to its
Customers.
3. FEES.
3.1. FEES FROM THE TRUST. In consideration for the services described in Section
2 hereof and the incurring of expenses in connection therewith, the Agent shall
receive a fee (which may vary depending upon the services provided), computed
daily and payable monthly, at the annual rate of up to 0.08% of the average
daily net asset value of Shares of each Fund for which the Agent from time to
time performs services under this Agreement on behalf of Customers. Fees with
respect to Customers' Shares in any one Fund will be paid exclusively from the
assets of that class of shares of the Fund in which such Customer's assets are
invested. For purposes of determining the fees payable to the Agent hereunder,
the value of a Fund's net assets shall be computed in the manner specified in
the Fund's then-current prospectus and statement of additional information (the
"Prospectus") for computation of the net asset value of the Fund's Shares.
3.2. FEES FROM CUSTOMERS. It is agreed that the Financial Institution may impose
certain conditions on Customers, in addition to or different from those imposed
by the Trust, such as requiring a minimum initial investment or imposing
limitations on the amounts of transactions. It is also understood that the
Financial Institution may directly credit or charge fees to Customers in
connection with an investment in the Funds. The Financial Institution shall
credit or xxxx Customers directly for such credits or fees. In the event the
Financial Institution charges Customers such fees, it shall make appropriate
prior written disclosure (such disclosure to be in accordance with all
applicable laws) to Customers both of any direct fees charged to the Customer
and of the fees received or to be received by it from the Trust pursuant to
Section 3.1 of this Agreement. It is understood however, that in no event shall
the Financial Institution have recourse or access as Agent or otherwise to the
account of any shareholder of the Trust except to the extent expressly
authorized by law or by such shareholder, or to any assets of the Trust, for
payment of any direct fees referred to in this Section 3.2.
4. APPROVAL OF MATERIALS TO BE CIRCULATED. Advance copies or proofs of all
materials which are to be generally circulated or disseminated by the Agent to
Customers or prospective Customers which identify or describe the Trust shall be
provided to the Trust at least 10 days prior to such circulation or
dissemination (unless the Trust consents in writing to a shorter period), and
such materials shall not be circulated or disseminated or further circulated or
disseminated at any time after the Trust shall have given written notice to the
Agent of any objection thereto.
Nothing in this Section 4 shall be construed to make the Trust liable for the
use of any information about the Trust which is disseminated by the Agent.
5. COMPLIANCE WITH LAWS, ETC. The Agent shall comply with all applicable federal
and state laws and regulations in the performance of its duties under this
Agreement, including securities laws.
6. LIMITATION OF AGENT'S LIABILITY. In consideration of the Agent's undertaking
to render the services described in this Agreement, the Trust agrees that the
Agent shall not be liable under this Agreement for any error of judgment or
mistake of law or for any loss suffered by the Trust in connection with the
performance of this Agreement, provided that nothing in this Agreement shall be
deemed to protect or purport to protect the Agent against any liability to the
Trust or its shareholders to which the Agent would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence in the performance
of the Agent's duties under this Agreement or by reason of the Agent's reckless
disregard of its obligations and duties hereunder.
7. INDEMNIFICATION. The Trust agrees to indemnify and hold harmless the Agent
from all taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, liabilities arising under the Securities Act of
1933, as amended, the Securities Exchange Act of 1934, as amended, the
Investment Company Act of 1940, as amended, and any state and foreign securities
and blue sky laws, all as or to be amended from time to time) and expenses,
including attorneys' fees and disbursements arising directly or indirectly from
(i) any misstatements or omissions in the Trust's Prospectus, or (ii) any action
or thing which the Agent takes or does or omits to take or do reasonably
believed by the Agent to be at the request or direction or in reliance on the
advice or instructions, whether oral or written, of the Trust provided, that the
Agent shall not be indemnified against any liability to the Trust or to its
shareholders (or any expenses incident to such liability) arising out of the
Agent's own willful misfeasance, bad faith or gross negligence in the
performance of its duties hereunder or by reason of its reckless disregard of
its obligations and duties hereunder. In order that the indemnification
provision contained in this paragraph shall apply, it is understood that if in
any case the Trust may be asked to indemnify or save the Agent harmless, the
Trust shall be fully and promptly advised of all pertinent facts concerning the
situation in question, and it is further understood that the Agent will use all
reasonable care to identify and notify the Trust promptly concerning any
situation which presents or appears likely to present the probability of such a
claim for indemnification against the Trust. The Trust shall have the option to
defend the Agent against any claim which may be the subject of this
indemnification and, in the event that the Trust so elects, it will so notify
the Agent and thereupon the Trust shall take over complete defense for the
claim, and the Agent shall in such situation incur no further legal or other
expenses for which it shall seek indemnification under this paragraph. The Agent
shall in no case confess any claim or make any compromise or settlement in any
case in which the Trust will be asked to indemnify the Agent, except with the
Trust's prior written consent.
8. LIMITATION OF SHAREHOLDER LIABILITY, ETC. The Agent hereby agrees that
obligations assumed by the Trust pursuant to this Agreement shall be limited in
all cases to the Trust and its assets and that the Agent shall not seek
satisfaction of any such obligation from the shareholders or any shareholder of
the Trust. It is further agreed that the Agent shall not seek satisfaction of
any such obligations from the Board of Trustees or any individual Trustee of the
Trust.
9. NOTICES. All notices or other communications hereunder to either party shall
be in writing. Notices shall be addressed (a) if to the Trust, at the address of
the Trust, or (b) if to the Agent, at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxxx.
10. FURTHER ASSURANCES. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
11. TERMINATION. This Agreement will continue in effect until two years from the
date hereof and thereafter for successive annual periods, provided that such
continuance is specifically approved at least annually (a) by the Trust's Board
of Trustees and (b) by the vote, cast in person at a meeting called for the
purpose, of a majority of the Trust's trustees who are not parties to this
Agreement or "interested persons" (as defined in the 0000 Xxx) of any such
party. This Agreement may be terminated at any time, without the payment of any
penalty, by a vote of a majority of the Trust's outstanding voting securities
(as defined in the 0000 Xxx) or by a vote of a majority of the Trust's entire
Board of Trustees on 60 days' written notice to the Agent or by the Agent on
(60) days' written notice to the Trust. Notice of termination of the Shareholder
Servicing Plan by the Board of Trustees, pursuant to which this Agreement has
been entered, shall constitute a notice of termination of this Agreement.
12. CHANGES; AMENDMENTS. This Agreement may be changed or amended only by
written instrument signed by both parties.
13. REPORTS. The Agent will provide the Trust or its designees such information
as the Trust or its designees may reasonably request (including, without
limitation, periodic certifications confirming the provision to Customers of the
services described herein), and will otherwise cooperate with the Trust and its
designees (including, without limitation, any auditors designated by the Trust),
in connection with the preparation of reports to its Board of Trustees
concerning this Agreement and the monies paid or payable under this Agreement,
as well as any other reports or filings that may be required by law.
14. SUBCONTRACTING BY AGENT. The Agent may subcontract for the performance of
the Agent's obligations hereunder with any one or more persons, including but
not limited to any one or more persons which is an affiliate of the Agent;
PROVIDED, HOWEVER, that the Agent shall be as fully responsible to the Trust for
the acts and omissions of any subcontractor as it would be for its own acts or
omissions. The Agent shall notify the Trust of any such arrangements no later
than the next meeting of the Trust's Board of Trustees following the entry by
the Agent into such arrangements. Notwithstanding this paragraph or paragraph 11
of this Agreement, the Trust reserves the right to terminate this Agreement
immediately or upon such notice as the Trust, in its sole discretion, determines
to give, and without payment of any penalty, if the Trust notifies the Agent
that any subcontractor of the Agent is unacceptable to the Trust for any reason
and the Agent does not terminate its arrangements with such subcontractor as
promptly as reasonably practicable.
15. GOVERNING LAW. This Agreement shall be governed by the laws of the State of
New York.
16. MISCELLANEOUS. The captions in this Agreement are included for convenience
of reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect. This Agreement has been executed
on behalf of the Trust by the undersigned not individually, but in the capacity
indicated.
PERFORMANCE FUNDS TRUST
By: /s/ Xxxxxx X. Xxxxx
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Title: Xxxxxx X. Xxxxx, President
FINANCIAL INSTITUTION:
Trustmark National Bank
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Title: Xxxxx X. Xxxxx, President,
Wealth Management
SCHEDULE A
Fund Class
---- -----
The Money Market Fund A, B
The Short Term Government Income Fund A, Institutional
The Intermediate Term Income Fund A,B, Institutional
The Strategic Dividend Fund A, Institutional
The Mid Cap Growth Fund A,B, Institutional
The Large Cap Equity Fund A,B, Institutional
The Leaders Equity Fund A,B, Institutional
