BANK ONE TRUST COMPANY, N.A.
CUSTODIAN AGREEMENT
FOR
MUTUAL FUNDS
BANK ONE TRUST COMPANY, N.A.
CUSTODIAN AGREEMENT
FOR
MUTUAL FUNDS
Execution Form
Name of Fund: Pacific Capital Funds, with respect to each portfolio (each a
"Portfolio") listed on Schedule C as it may be amended from time to time.
Address of Fund: _______________________________________________________________
________________________________________________________________________________
Execution Date: ________________________________________________________________
Effective Date: ________________________________________________________________
This Custodian Agreement is entered into on the Execution Date set forth above
effective on the Effective Date set forth above, by and between the above named
Fund ("Fund") and Bank One Trust Company, N.A. ("Custodian"), with its principal
offices located at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000. In consideration
of the mutual covenants and conditions of this agreement, the Custodian and Fund
hereby agree to the Provisions of this agreement attached hereto and the
Schedules (if any) of this amendment attached hereto.
IN WITNESS WHEREOF, this agreement is executed by the Custodian and the Fund on
the Execution Date.
CUSTODIAN FUND
--------- ----
BANK ONE TRUST COMPANY, N.A. PACIFIC CAPITAL FUNDS
BY ____________________________ BY __________________________
TITLE__________________________ TITLE _______________________
ATTEST ________________________ ATTEST ______________________
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BANK ONE TRUST COMPANY, NA.
CUSTODIAN AGREEMENT
FOR
MUTUAL FUNDS
Table of Contents for Provisions
Section 1 Appointment of Custodian
Section 2 Delivery of Securities, Cash and Other Property
Section 3 Accounts
Section 4 Proper Instructions
Section 5 Payments for Shares
Section 6 Collection of Income
Section 7 Payment of Monies
Section 8 Duties of Custodian with Respect to Securities of the
Fund Held by Custodian
Section 9 Registration of Securities
Section 10 Segregated Account
Section 11 Voting and Other Action
Section 12 Transfer Taxes and Other Disbursements
Section 13 Responsibility of Custodian
Section 14 Options
Section 15 Futures Contracts
Section 16 Records and Reports
Section 17 Effective Period, Termination and Interpretive and
Additional Provisions
Section 18 Successor Custodian
Section 19 Compensation of Custodian
Section 20 Notices
Section 21 Overdrafts
Section 22 Governing Law
Section 23 Severability
Section 24 Non-Waiver
Section 25 No Third Party Benefit
Section 26 Captions
Section 27 Governed Accounts
Section 28 Matters relating to the Fund as a Massachusetts
Business Trust
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BANK ONE TRUST COMPANY, NA
CUSTODIAN AGREEMENT
FOR
MUTUAL FUNDS
Provisions
These Provisions are applicable to the Custodian Agreement between the Custodian
and the Fund described in the foregoing Execution Form.
1. Appointment of Custodian. Subject to the terms and conditions of this
agreement, the Fund hereby appoints and Custodian hereby accepts such
appointment by the Fund as custodian for certain cash, securities and other
property owned by the Fund.
2. Delivery of Securities. Cash and Other Property. The Fund shall deliver
to Custodian the cash, securities and other property described in Schedule D
which shall be approved in writing by Fund and Custodian at the time of delivery
and thereafter attached hereto. Custodian shall accept for deposit hereunder
additional cash, securities and other property upon receiving written notice
from Fund. The Custodian shall only be responsible for custody hereunder of
cash, securities, and other properly delivered to it and then only while they
are held in and as a part of the custodial account. All securities described in
Schedule D and all additional securities received by Custodian from time to time
shall be hereinafter referred to collectively as the "Securities" and shall be
held by Custodian subject to the terms and conditions of this agreement.
3. Accounts. Custodian shall open and maintain a separate account or
accounts in the name of each Portfolio of the Fund, subject only to draft or
order by Custodian pursuant to the terms of this agreement, and shall maintain
in such account or accounts all cash received by it from or for the account of
the Portfolio, other than cash maintained by the Portfolio pursuant to Rule
17f-3 promulgated under the Investment Company Act of 1940 (the "40 Act").
Custodian may deposit the securities held in the account of a Portfolio:
(a) in the banking department of Custodian;
(b) in such other banks or trust companies, including affiliates
of Custodian, as Custodian may deem appropriate provided,
however, that every such bank or trust company shall be
qualified to act as a custodian under the Investment Company
Act of 1940 and that the use of each such bank or trust
company shall on behalf of each applicable
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Portfolio be approved or ratified by vote of a majority of the
Board of Trustees of the Fund. Such funds shall be deposited
by the Custodian in its capacity as Custodian and shall be
withdrawable by the Custodian only in that capacity;
(c) in its accounts with a clearing agency registered with the
Securities and Exchange Commission (the "Commission") under
Section 17A of the Securities Exchange Act of 1934 (the
"Exchange Act"), which acts as a securities depository (the
"Securities Depository"); or
(d) in a book-entry account which is maintained for the Custodian
by a Federal Reserve bank (the "Book Entry Account").
So long as Custodian maintains any account pursuant to subsections
(c) and (d) above for a Portfolio, Custodian shall comply with the
requirements of Rule 17f-4, including, but not limited to:
(i) deposit the Securities in such an account that includes
only assets held for the Portfolio;
(ii) send the Fund confirmation of any transfers to or from
the account maintained for the Portfolio;
(iii) with respect to Securities transferred to the account of
the Portfolio, identify as belonging to the Portfolio,
by book entry or otherwise, a quantity of such
Securities in the fungible bulk of Securities (A)
registered in the name of Custodian or its nominee, or
(B) shown on Custodian's account on the books of the
Securities Depository, the Book-Entry Account, or
Custodian's agent;
(iv) promptly send to the Fund reports it receives from the
appropriate Federal Reserve Bank or Securities
Depository on its system of internal accounting control;
and
(v) send to the Fund such reports of the systems of internal
accounting control of Custodian and its agents through
which such Securities are deposited as are available and
as the Fund may reasonably request from time to time.
4. Proper Instructions. For the purpose of this agreement, "proper
instructions" shall mean (a) any oral authorizations, instructions or approvals
of any kind transmitted to Custodian in person or by telephone by a person
believed in good faith by Custodian to be a
5
person authorized by a resolution of the Board of Directors of the Fund to give
such authorizations, instructions or approvals on behalf of the Fund; or (b)
written authorizations, instructions, or approvals of any kind transmitted to
Custodian by mail, personal delivery, telecopy, telegram or other written means
by at least two (2) persons believed in good faith by Custodian to be persons
authorized by a resolution of the Board of Directors of the Fund to give such
authorization, instructions or approvals on behalf of the Fund. The Fund shall
confirm any oral authorization, instruction or approval described in (a), above,
the same business day by transmittal to Custodian of a written authorization,
instruction or approval described in (b), above.
5. Payments for Shares. Custodian shall receive instructions from the
transfer agent of the Fund (the "Transfer Agent") as to allocation of payments
for Shares of a Portfolio, issued from time to time by the Fund pursuant to its
Dividend Reinvestment Plan. Such payments will be made available to the
Portfolio in federal funds as of specified times agreed upon from time to time
by the Fund and Custodian.
6. Collection of Income. Custodian shall collect all income and other
payments with respect to registered Securities held hereunder to which each
Portfolio shall be entitled by law or pursuant to custom in the securities
business, and shall collect all income and principal and other payments with
respect to bearer Securities if, on the date of payment by the issuer, such
Securities are held by Custodian or agent thereof, and shall deposit such income
and principal, as collected, into such Portfolio's account. Without limiting the
generality of the foregoing, Custodian shall detach and present for payment all
coupons and other income and principal items requiring presentation as and when
they become due, shall collect dividends and interest when due on Securities
held hereunder, and shall endorse and deposit for collection, in the name of the
Portfolio, checks, drafts, and other negotiable instruments on the same day as
received. The Custodian is further authorized, empowered and directed to invest,
said proceeds and any other monies not directed by the Fund or Fund's agent to
be invested in short term interest bearing or short term discount obligations to
the best of Custodian's ability. It is contemplated that the Fund will, from
time to time, provide Custodian with certain written guidelines setting forth
specific short term interest bearing and short term discount obligations which
are acceptable to Fund, and Custodian agreed to act within said guidelines.
Unless provided otherwise in written instructions from the Fund to the
Custodian, the Custodian is specifically authorized, empowered and directed to
invest any short term monies in:
(a) Securities of The One Group U.S. Treasury Securities Money Market
Fund, The One Group Prime Money Market Fund, and The One Group
Municipal Money Market Fund. The One Group is an open-end
investment company registered under the '40 Act. The fact that
the Custodian, any affiliate of the Custodian, or any affiliate
of BANC
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ONE CORPORATION is providing services to and receiving
remuneration from the foregoing investment company or investment
trust as investment advisor, custodian, transfer agent,
registrar, or otherwise shall not preclude the Custodian from
investing in the securities of such investment company or
investment trust;
(b) savings accounts, time deposit accounts, certificates of deposit,
money market funds or other evidences of deposit issued by BANK
ONE, COLUMBUS, N.A. and/or any other national bank, savings and
loan institution, state member bank, state non-member bank, or
other depository institution which now or in the future is an
affiliate or subsidiary of Custodian or of BANC ONE CORPORATION.
With respect to Securities of foreign issuers, while Custodian will me its best
efforts to collect any monies which may to its knowledge become collectible
arising from such Securities including dividends, interest and other income and
principal, and to notify the Fund of any call for redemption, offer of exchange,
right of subscription, reorganization or other proceedings affecting such
Securities, it is understood that Custodian shall be under no responsibility for
any failure or delay in effecting such collections or giving such notices.
Custodian shall not be under any obligation or duty to take action to effect
collection of any amount, if the Securities (domestic or foreign) on which such
amount is payable are in default and payment is refused after due demand or
presentation. Custodian will, however, promptly notify the Fund in writing of
such default and refusal to pay.
7. Payment of Monies. Upon receipt of proper instructions from the Fund on
behalf of the applicable Portfolio, which may be continuing instructions when
Fund and Custodian specifically agree in writing, Custodian shall pay out monies
of a Portfolio from the custodial account in the following cases only:
(a) Upon the purchase of Securities for the account of the Portfolio
but only (i) against the delivery of such Securities to Custodian
(or any bank, banking firm or trust company doing business in the
United States or abroad which is qualified under the '40 Act to
act as a custodian and has been designated by Custodian as its
agent for this purpose) registered in the name of the Portfolio
or in the name of a nominee of the Fund or in the name of a
nominee of Custodian referred to in Section 9 below or in proper
form for transfer; (ii) in the case of a purchase effected
through a Securities Depository, in accordance with the
conditions set forth in Section 3 above or (iii) in the case of
repurchase agreements entered into between the Fund and another
bank or broker-dealer, against delivery of Securities either in
certificate form or through an entry crediting Custodian's
account at the Federal
7
Reserve Bank with such securities.
(b) In connection with conversion, exchange, surrender, or redemption
of securities owned by the Fund as set forth in Section 8(b) of
this agreement;
(c) For the payment of any expense or liability incurred by the
Portfolio, including but not limited to the following payments
for the account of the Portfolio: interest, taxes, management,
accounting, transfer agent and legal fees, distribution plan
payments and other operating expenses of the Fund;
(d) For the payment of any dividends or other distributions on shares
of the Portfolio declared pursuant to the governing documents of
the Fund; and
(e) In connection with options and futures contracts, as set forth in
sections 14 and 15 of this agreement, respectively.
(f) For any other purpose of the Fund, but only upon receipt of, in
addition to proper instructions from the Fund, a certified copy
of a resolution of the Board of Trustees of the Fund signed by an
officer of the Fund and certified by its Secretary or an
Assistant Secretary, specifying the amount of such payment,
setting forth the purpose for which such payment is to be made,
declaring such purpose to be a proper purpose, and naming the
person or persons to whom such payment is to be made.
8. Duties of Custodian with Respect to Securities of the Fund Held by
Custodian.
(a) Holding Securities. Custodian shall hold and physically segregate
for the account of each Portfolio all Securities owned by the
Fund other than securities held in a Securities Depository or
Book Entry Account, as provided in Section 3 of this agreement.
(b) Delivery of Securities. Custodian shall release and deliver
Securities owned by a Portfolio held by Custodian or in a
Securities Depository or Book Entry Account for Custodian only
upon receipt of proper instructions from the Fund on behalf of
the applicable Portfolio, which may be continuing instructions
when the Fund and Custodian specifically agree in writing, and
only in the following cases:
(i) Upon the sale of such Securities for the account of the
8
Portfolio and the receipt of payment therefor;
(ii) Upon the receipt of payment in connection with any
repurchase agreement related to such Securities entered into
by the Portfolio;
(iii) In the case of a sale effected through a Securities
Depository or Book Entry Account, in accordance with the
provisions of Section 3 of this agreement;
(iv) In connection with tender or other similar offers for
Securities owned by the Portfolio, provided that, in any
such case, the cash or other consideration is to be
delivered to Custodian;
(v) To the issuer thereof or its agent when such Securities are
called, redeemed, retired, or otherwise become payable,
provided that, in any such case, the cash or other
consideration is to be delivered to Custodian;
(vi) To the issuer thereof, or its agent, for transfer into the
name of the Custodian or into the name of any nominee or
nominees of Custodian, or for exchange for a different
number of bonds, certificates or other evidence representing
the same aggregate face amount or number of units, or for
exchange of interim receipts or temporary Securities or
definitive Securities, provided that, in any such case, the
new Securities are to be delivered to Custodian;
(vii) To the broker selling the same, against a receipt, for
examination in accordance with "street delivery" custom
provided that Custodian may adopt such procedures to ensure
their prompt return to Custodian by the broker in the event
the broker elects not to accept them;
(viii) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization, or
readjustment of the Securities of the issuer of such
Securities, or pursuant to provisions for conversion
contained in such Securities provided that, in any such
case, the new Securities and cash, if any, are to be
delivered to Custodian;
(ix) In the case of warrants, rights or similar Securities, the
surrender thereof upon the exercise of such warrants, rights
or
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similar Securities or the surrender of interim receipts or
temporary securities for definitive Securities, provided
that, in any such case, the new Securities and cash, if any,
are to be delivered to Custodian;
(x) If the Custodian and the Fund have executed a Securities
Lending Agreement, for delivery in connection with any loans
of securities made by the Portfolio pursuant to the terms of
such Securities Lending Agreement;
(xi) For delivery as security in connection with any borrowings
by the Fund on behalf of the Portfolio requiring a pledge of
assets by the Fund on behalf of the Portfolio but only
against receipt of amounts borrowed;
(xii) For delivery with the provisions of any agreement among the
Fund on behalf of the Portfolio, Custodian and a
broker-dealer registered under the Exchange Act and a member
of the National Association of Securities Dealers, Inc.
("NASD"), relating to compliance with the rules of The
Options Clearing Corporation (the "O.C.C.") and of any
registered national securities exchange or any similar
organization, regarding escrow or other arrangements in
connection with transactions of the Fund;
(xiii) For delivery in accordance with the provisions of any
agreement among the Fund on behalf of the Portfolio,
Custodian, and a Futures Commission Merchant registered
under the Commodity Exchange Act, relating to the compliance
with the rules of the Commodity Futures Trading Commission
and/or any Contract Market, or any similar organization or
organizations, regarding account deposits in connection with
transactions by the Portfolio;
(xiv) Upon receipt of instructions from the Transfer Agent for
the Fund, for delivery to such Transfer Agent or to holders
of Shares in connection with distributions in kind, as may
be described from time to time in one or more currently
effective prospectuses of the Fund, in satisfaction of
requests by holders of Shares for repurchase or redemption;
and
(xv) For any other purpose of the Fund, but only upon receipt of
in addition to proper instructions from the Fund on behalf
of the
10
applicable Portfolio, a certified resolution of the Board of
Trustees of the Fund specifying the Securities to be
delivered, setting forth the purpose for which such delivery
is to be made, declaring such purpose to be a proper
purpose, and naming the person or persons to whom delivery
of such Securities shall be made.
(c) Security Holdings Disclosure. The Custodian is not authorized and
shall not disclose the name, address, or security positions of
the Fund in response to requests concerning shareholder
communications under Section 14 of the Securities Exchange Act of
1934, the rules and regulations thereunder, and any similar
state, regulation or rule in effect from time to time.
(d) Because the Fund and the Custodian are deemed to be affiliates
pursuant to interpretive positions taken by the staff of the
Commission, the Custodian agrees to cooperate with the Fund in
establishing such procedures and policies as are necessary or
appropriate to assure compliance with the provisions of Rule
17f-2 under the '40 Act.
9. Registration of Securities. Securities held by Custodian (other than
bearer Securities) shall be registered in the name of the Fund or in the name of
any nominee of the Fund or of any nominee of Custodian, unless the Fund has
authorized in writing the appointment of a nominee to be used in common with
other registered investment companies having the same investment adviser as the
Fund. All Securities accepted by Custodian on behalf of the Fund under the terms
of this agreement shall be in "street name" or other good delivery form.
10. Segregated Account. Custodian shall upon receipt of proper instructions
establish and maintain a segregated account or accounts for and on behalf of
each applicable Portfolio, into which account or accounts may be transferred
cash and/or Securities including Securities maintained in an account by the
Custodian pursuant to Section 3 of this agreement (a) in accordance with the
provisions of any agreement among the Fund on behalf of the Portfolio, Custodian
and a dealer or broker which is registered under the Exchange Act and is a
member in good standing of the NASD relating to compliance with the rules of the
O.C.C. and of any registered national securities exchange, or of any similar
organization or organizations, regarding escrow or other arrangements in
connection with transactions by the Portfolio; (b) for purposes of segregating
cash or government Securities in connection with options purchased or written by
the Fund or commodity futures contracts or options thereon purchased, sold, or
written by the Fund; and (c) for any other purpose, upon receipt of, in addition
to proper instructions, a certified copy of a resolution of the Board of
Trustees signed by an officer of the Fund and certified by the Secretary or an
Assistant Secretary, setting forth the purpose or purposes of such segregated
account and
11
declaring such purposes to be proper corporate purposes.
11. Voting and Other Action. Custodian shall promptly deliver or mail to
the Fund all forms of proxies and all notices of meetings relating to Securities
held for the account of each Portfolio, and, upon receipt of proper
instructions, shall execute and deliver such proxies or other authorizations as
may be required. Neither Custodian nor its nominee shall vote any Securities or
execute any proxy to vote the same or give any consent to take any other action
with respect thereto (except as otherwise herein provided) unless directed to do
so by the Fund on behalf of the Portfolio upon receipt of proper instructions.
12. Transfer Taxes and Other Disbursements. The Fund shall pay or reimburse
Custodian from time to time for any transfer taxes payable upon transfers of
Securities made hereunder, and for all other necessary and proper disbursements
and expenses made or incurred by Custodian in the performance of its duties and
obligations under this agreement. Custodian shall execute and deliver and shall
cause any Securities Depository to execute and deliver such certificates in
connection with Securities delivered to it or by it under this agreement as may
be required under the laws of any jurisdiction to exempt from taxation any
exemptible transfers and/or deliveries of any such Securities.
13. Responsibility of Custodian. As long as and to the extent that it
exercises reasonable care, Custodian shall not be responsible for the title,
validity or genuineness of any property or evidence of title thereto received by
it or delivered by it pursuant to this agreement; shall be held harmless in
acting upon proper instructions, certified resolutions of the Board of Trustees
of the Fund, or any notice, request, consent, certificate or other instrument
reasonably believed by it to be genuine and to be signed by the proper party or
parties; and shall be entitled to receive as conclusive proof of any fact or
matter required to be ascertained by it hereunder, a certificate by the
President, Treasurer, or Secretary or Assistant Secretary of the Fund. Custodian
may receive and accept a certified resolution of the Board of Trustees of the
Fund as conclusive evidence (a) of the authority of any person to act in
accordance with such resolution or (b) of any determination or of any action by
the Board of Trustees of the Fund pursuant to the Declaration of Trust or the
Code of Regulation or the By-Laws as described in such resolution, and such vote
may be considered as in full force and effect until receipt by Custodian of
written notice from the Secretary or Assistant Secretary to the contrary.
Custodian shall be entitled to reasonably rely upon and may act upon advice of
counsel (who may or may not be counsel for the Fund) on all matters, and shall
be without liability for any action reasonably taken or omitted pursuant to such
advice.
If the Fund on behalf of a Portfolio requires Custodian to take any action with
respect to Securities, which action involves the payment of monies or which
action may, in the opinion of Custodian, result in Custodian or its nominee
being liable for the payment of money or incurring liability of some other form,
the Fund on behalf of a Portfolio, as a prerequisite to
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requiring Custodian to take such action, shall provide indemnity to Custodian in
an amount and form satisfactory to it.
With respect to Securities held by Custodian on behalf of a Portfolio, Custodian
shall collect all income or other payments, release and deliver such Securities,
and take any other action as directed by the Fund with respect to dividends,
splits, distributions, spin-offs, puts, calls, conversions, redemptions,
tenders, exchanges, mergers, reorganizations, rights, warrants or any other
similar activity relating to the Securities. The Custodian shall request
direction of Fund upon receipt of actual notice of any such activity. For
purposes of this paragraph, Custodian shall be deemed to have actual notice if
any such activity is published in one or more of the following publications:
J.J. Kenneys Munibase System, Xitek, Inc,. Financial Card Service, Standard &
Poors' Called Bond Listing, Depository Trust Reorganization Notices, and The
Wall Street Journal. If Custodian does not have actual notice of such activity,
any such activity will be handled by Custodian on a "best efforts" basis.
14. Options.
(a) Purchase of Options by a Portfolio. Upon the purchase by a
Portfolio of any Option (as defined below), the Fund on behalf of
the Portfolio shall promptly deliver to the Custodian a
certificate signed by an appropriate officer of the Fund (a
"Certificate") specifying with respect to each such Option: (i)
whether the Option is a put or call Option; (ii) the name of the
issuer of the securities subject to the Option and the title and
number of such securities; (iii) the expiration date: (iv) the
exercise price; (v) the date of purchase and settlement; (vi) the
premium to be paid by the Portfolio; and (vii) the name of the
registered broker-dealer who is acting as the clearing agent (the
"Clearing Agent"). Upon receipt of a Clearing Agent's
confirmation of the purchase of the Option held by such Clearing
Agent for the account of Custodian as custodian for the
Portfolio, Custodian shall pay the premium payable to the
Clearing Agent through whom the purchase was made; provided, that
such premium conforms to the total premium payable as set forth
in such Certificate.
(b) Sale of Options by a Portfolio. Upon the sale of any Option
purchased by a Portfolio in accordance with subsection (a) above,
the Fund on behalf of the Portfolio shall promptly deliver to
Custodian a Certificate specifying with respect to such sale: (i)
the type of Option (put or call); (ii) the name of the issuer of
the securities subject to the Option and the title and number of
such securities; (iii) the date of sale; (iv) the sales price;
(v) the date of settlement; (vi) the total amount payable to the
Portfolio upon such sale; and (vii) the name of the Clearing
Agent through whom the sale was made. Custodian shall consent to
the
13
delivery of the Option sold by the Clearing Agent which
previously supplies the confirmation described in subsection (a)
above with respect to such Option against payment to Custodian of
the total amount payable to the Portfolio; provided that the same
conforms to the total amount payable as set forth in such
Certificate.
(c) Upon the exercise by the Portfolio of any Call Option (as defined
below) purchased by the Portfolio pursuant to subsection (a)
above, the Fund on behalf of the Portfolio shall promptly deliver
to Custodian a Certificate specifying with respect to such Call
Option: (i) the name of the issuer of the securities subject to
such Call Option and the title and number of such securities;
(ii) the expiration date; (iii) the date of exercise and
settlement; (iv) the exercise price per share, (v) the total
amount to be paid by the Portfolio upon such exercise; and (vi)
the name of the Clearing Agent through whom such Call Option was
exercised. Custodian shall, upon receipt of the Securities
underlying the Call Option which was exercised, (A) pay out of
the moneys held for the account of the Portfolio the total amount
payable to the Clearing Agent through whom the Call Option was
exercised; provided that the same conforms to the total amount
payable as set forth in such Certificate, and (B) delete the
exercised Call Option from the statements delivered to the Fund
pursuant to Section 16 of this agreement.
(d) Upon the exercise by a Portfolio of any Put Option (as defined
below) purchased by the Portfolio pursuant to subsection (a)
hereof, the Fund on behalf of the Portfolio shall deliver to
Custodian a Certificate specifying with respect to such Put
Option: (i) the name of the issuer of the securities subject to
such Put Option and the title and number of such securities; (ii)
the expiration date; (iii) the date of exercise and settlement;
(iv) the exercise price per share; (v) the total amount to be
paid to the Portfolio upon such exercise; and (vi) the name of
the Clearing Agent through whom such Put Option was exercised.
Custodian shall upon receipt of the amount payable upon the
exercise of the Put Option (A) deliver or cause the Securities
Depository or Book Entry Account to deliver, out of the account
of the Portfolio to which such Put Option was allocated, the
securities which were subject to such Put Option; provided that
the same conforms to the amount payable to the Portfolio as set
forth in such Certificate, and (B) delete the exercised Put
Option from the statements to be delivered to the Fund pursuant
to Section 16 of this agreement.
(e) Whenever a Portfolio writes a Covered Call Option (as defined
below)
14
with respect to securities held by Custodian hereunder, the Fund
on behalf of the Portfolio shall promptly deliver to Custodian a
Certificate specifying with respect to such Covered Call Option:
(i) the name of the issuer of the securities subject to such
Covered Call Option and the title and number of such securities;
(ii) the expiration date; (iii) the exercise price: (iv) the
premium to be received by the Portfolio; (v) the date such
Covered Call Option was written; and (vi) the name of the
Clearing Agent through whom the premium is to be received.
Custodian shall deliver or cause to be delivered, in exchange for
receipt of the premium specified in the Certificate with respect
to such Covered Call Option, such receipts as are required in
accordance with the customs prevailing among brokers in Covered
Call Options, and shall impose, or direct the Securities
Depository or Book Entry Account to impose, upon the underlying
Securities specified in the Certificate such restrictions as may
be required by such receipts.
(f) Whenever a Covered Call Option written by a Portfolio and
described in the preceding subsection (e) is exercised, the Fund
on behalf of the Portfolio shall promptly deliver to Custodian a
Certificate instructing Custodian to deliver, or to direct the
Securities Depository or Book Entry Account to deliver, the
securities subject to such Covered Call Option and specifying:
(i) the name of the issuer of the securities subject to such
Covered Call Option and the title and number of such securities;
(ii) the Clearing Agent to whom the underlying securities are to
be delivered; and (iii) the total amount payable to the Portfolio
upon such delivery. Upon the return and/or cancellation of any
receipts delivered pursuant to subsection (e) hereof, Custodian
shall deliver, or cause the Securities Depository or Book Entry
Account to deliver, the underlying securities as specified in the
Certificate for the amount to be received as set forth in such
Certificate.
(g) Whenever a Portfolio purchases any Option identical to a
previously written Covered Call Option described in subsection
(e) hereof in a transaction expressly designated as a "Closing
Purchase Transaction" in order to liquidate its position as a
writer of an Option, the Fund on behalf of the Portfolio shall
promptly deliver to Custodian a Certificate specifying with
respect to the Option being purchased: (i) that the transaction
is a Closing Purchase Transaction, (ii) the name of the issuer of
the securities subject to such Option and the title and number of
such securities; (iii) the exercise price; (iv) the premium to be
paid by the Portfolio; (v) the expiration date; (vi) the date of
such purchase; and (vii) the name of the Clearing Agent to whom
the premium is to be paid. Upon Custodian's payment of the
premium and the return and/or
15
cancellation of any receipt issued pursuant to subsection (e) of
this Section 14 with respect to the Covered Call option being
liquidated through the Closing Purchase Transaction, Custodian
shall (A) remove, or direct the Securities Depository or Book
Entry Account to remove, the previously imposed restriction on
the securities underlying the Covered Call Option, and (B) delete
such Option from statements delivered to the Fund by Custodian
pursuant to Section 16 of this agreement.
(h) Upon the expiration of any Option purchased by a Portfolio
pursuant to subsection (a) of this Section 14 or any Covered Call
Option written by a Portfolio and described in subsection (e) of
this Section 14, Custodian shall (i) delete such Option from the
statements delivered to the Fund pursuant to Section 16 of this
agreement and, if such expired Option was a Covered Call Option
written by the Portfolio, (ii) free, or instruct the Securities
Depository or Book Entry Account to free, the Securities
underlying such Covered Call Option from the restrictions imposed
by receipts issued in connection therewith.
(i) For purposes of this Section 14, the following terms shall have
the meanings as set forth below:
(i) "Option" shall mean a Call Option, Covered Call Option
and/or Put Option.
(ii) "Call Option" shall mean an option entitling the holder
thereof, upon timely exercise and payment of the exercise
price, as specified therein, to purchase from the writer or
such Call Option the specified underlying Securities.
(iii) "Covered Call Option" shall mean an option entitling its
holder, upon timely exercise and payment of the specified
exercise price, to purchase from the writer of such Covered
Call Option the specified underlying Securities which are
owned by such writer and are subject to appropriate
restrictions.
(iv) "Put Option" shall mean an option entitling the holder
thereof, upon timely exercise and tender of the specified
underlying Securities, to sell such Securities to the writer
of such Put Option for the specified exercise price.
15. Futures Contracts.
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(a) Whenever a Portfolio shall enter into a Futures Contract (as
defined below) to be held by Custodian under this agreement, the
Fund on behalf of the Portfolio shall deliver to Custodian a
Certificate specifying with respect to such Futures Contract: (i)
the category of Futures Contract (the name of the underlying
stock index or financial instrument); (ii) the number of
identical Futures Contracts entered into; (iii) the delivery or
settlement date of the Futures Contract; (iv) the date the
Futures Contract was entered into; (v) whether the Fund is buying
(going long) or selling (going short) on such Futures Contract;
(vi) the amount of cash and/or the amount and kind of Securities,
if any, to be deposited by Custodian in a margin account with
respect to such Futures Contract and the name in which the margin
account has been, or is to be, established; (vii) the name of the
broker, dealer, or futures commission merchant through whom the
Futures Contract was entered into; and (viii) the amount of fee
or commission, if any, to be paid to the broker, dealer, or
futures commission merchant. Custodian shall upon receipt of such
broker's, dealer's, or futures commission merchant's statement
confirming the purchase (creation of a long position) or sale
(creation of a short position) of a Futures Contract which is
held by such broker, dealer, or futures commission merchant in
the name of Custodian (or of a duly appointed and registered
nominee of Custodian or a designated depository or its nominee)
as custodian for the Portfolio, make payment of the fee or
commission, if any, specified in the Certificate and deposit in
such margin account the amount of cash and/or the amount and kind
of Securities specified in such Certificate.
(b) The Portfolio shall, from time to time, make such additional
deposits to, or withdrawals from, a margin account as specified
in a Certificate received by Custodian. Such Certificate shall
specify the amount of cash and/or the amount and kind of
Securities specifically to be deposited in, or withdrawn from, a
specified margin account. In the event that the Fund fails to
specify in a Certificate the name of the issuer, the title and
the number of shares or the principal amount of any particular
Securities to be deposited by Custodian in a margin account,
Custodian shall not be under any obligation to make any such
deposit and shall so notify the Fund.
(c) Custodian shall make deliveries or payments from a margin account
to the broker, dealer, or futures commission merchant in whose
name, or for whose benefit, the account was established only upon
the receipt of a certificate specifying the broker, dealer, or
futures commission merchant to whom such payment or delivery is
to be made, the amount
17
of money and/or the amount and kind of securities to be paid or
delivered, and the date on which such payment or delivery is to
be made. After receipt of such a Certificate, Custodian shall
make the payments and/or deliveries to the broker, dealer, or
futures commission merchant therein specified.
(d) Whenever a Futures Contract held by Custodian hereunder is
retained by a Portfolio until delivery or settlement is made on
such Futures Contract, the Fund on behalf of the Portfolio shall
deliver to Custodian a Certificate specifying: (i) the Futures
Contract; (ii) with respect to a Stock Index Futures Contract (as
defined below), the total cash settlement amount to be paid or
received, and with respect to a Financial Futures Contract (as
defined below), the Securities and/or amount of cash to be
delivered or received; (iii) the broker, dealer, or futures
commission merchant to or from whom payment or delivery is to be
made or received; and (iv) the amount of cash and/or Securities
to be withdrawn from the related margin account. Upon the receipt
of a broker's, dealer's, or futures commission merchant's
statement or confirmation reasonably believed by Custodian to be
in the form customarily used by brokers, dealers or futures
commission merchants confirming that the Futures Contract is
being settled and that the Portfolio's position in such Futures
Contract is thereby terminated, Custodian shall make the payment
or delivery specified in the Certificate, and delete such Futures
Contract from the statements delivered to the Fund pursuant to
Section 16 of this agreement.
(e) Whenever a Portfolio shall enter into a Futures Contract to
offset a Futures Contract held by Custodian hereunder, the Fund
on behalf of the Portfolio shall deliver to Custodian a
Certificate specifying: (i) the items of information required in
a Certificate described in subsection (a) above, and (ii) the
Futures Contract being offset. Custodian shall, upon receipt of a
broker's, dealer's, or futures commission merchant's statement or
confirmation reasonably believed by Custodian to be in the form
customarily used by brokers, dealers, or futures commission
merchants confirming the offsetting transaction, make payment of
the fee or commission, if any, specified in the Certificate and
delete the Futures Contract being offset from the statements
delivered to the Fund pursuant to Section 16 of this agreement.
(f) Custodian shall accept cash and/or Securities tendered or
delivered by a broker, dealer, or futures commission merchant in
connection with any Futures Contract held by Custodian hereunder
when instructed to accept such cash and/or Securities in a
Certificate. Such Certificate
18
shall instruct Custodian where to deposit such cash and/or
Securities.
(g) For purposes of this Section 15, the following terms shall have
the meanings set forth below:
(i) "Futures Contract" shall mean a Financial Futures Contract
and/or Stock Index Futures Contract.
(ii) "Financial Futures Contract" shall mean the firm commitment
to buy or sell fixed income securities, including U.S.
Treasury Bills, U.S. Treasury Notes, U.S. Treasury Bonds,
Government National Mortgage Association mortgage-backed
securities and commercial paper, at a specified time at an
agreed upon price.
(iii) "Stock Index Futures Contract" shall mean a bilateral
agreement pursuant to which the parties agree to take or
make delivery of an amount of cash equal to a specified
dollar amount times the difference between the value of a
particular stock index at the close of the last business day
of the contract and the price at which the Futures Contract
is originally struck.
16. Records and Reports. Fund hereby acknowledges that it may have the
right to receive broker confirmations within the time period prescribed by 12
C.F.R Section 12.5 at no additional cost. In lieu of receiving such
confirmations within such time period, Custodian and Fund agree to the
alternative procedures set forth below.
Custodian shall create and maintain records relating to its activities and
obligations under this agreement in such manner as will meet the obligations of
the Fund under the '40 Act, with particular attention to Section 31 thereof and
Rules 31a-1 and 31a-2 thereunder, applicable Federal and State tax laws and any
other law or administrative rules or procedures which may be applicable to the
Fund and employees and agents of the Securities and Exchange Commission. All
such records shall remain the property of the Fund, shall be subject to the
provisions of Section 13 of this agreement, and shall be open to the inspection
and audit at reasonable times by duly authorized officers, employees or agents
of the Fund. Custodian shall, at the Fund's request, supply the Fund with a
tabulation of Securities owned by each Portfolio and held by Custodian and shall
supply to the Fund a report from time to time as parties shall agree of all
monies received or paid on behalf of each Portfolio and of the resultant cash
balance, a list of all security transactions that remain unsettled at such time,
and such other reports as the Fund may reasonably request.
17. Effective Period, Termination and Interpretive and Additional
Provisions. This agreement shall become effective as of the date first set forth
in this agreement, and may be terminated by either party by 90 days advance
written notice delivered pursuant to Section
19
20 of this agreement to the other party.
Upon termination hereof, the Fund shall pay to Custodian such compensation as
may be due as of the date of such termination, and shall likewise reimburse
Custodian for its costs, expenses and disbursements as of the date of such
termination as contemplated by this agreement.
In connection with the operation of this agreement, Custodian and the Fund may
agree from time to time on such provisions interpretive or in addition to the
provisions of this agreement as may in their joint opinion be consistent with
the general tenor of this agreement. Any such interpretive or additional
provisions shall be signed by both parties and annexed hereto, provided that no
such interpretive or additional provisions shall contravene any applicable
Federal or State regulations, or any provision of the Declaration of Trust and
By-Laws of the Fund as the same may from time to time be amended.
18. Successor Custodian. If a successor custodian for the Fund, or one or
more of the Portfolios is appointed by the Board of Trustees of the Fund,
Custodian shall, upon termination, deliver to such successor custodian, duly
endorsed and in form for transfer, all Securities of each applicable Portfolio
then held hereunder and all other property of the applicable Portfolio(s)
deposited with or held by it hereunder and Custodian shall be released of all
duties and obligations under this agreement
If no such successor custodian is appointed and this agreement is terminated
pursuant to Section 17 of this agreement, Custodian shall, in like manner, at
its office, upon receipt of a certified resolution of the Board of Trustees of
the Fund, deliver such property in accordance with such resolution.
In the event that no written order designating a successor custodian or
certified copy of a resolution of the Board of Trustees of the Fund shall have
been delivered to Custodian on or before the date when such termination shall
become effective, then Custodian shall have the right to deliver to a bank or
trust company of its own selection qualified to act as a custodian under the '40
Act, all property of applicable Portfolios held by Custodian, under this
agreement. Thereafter, such bank or trust company shall be the successor of
Custodian under this agreement and Custodian shall be released of all duties and
obligations under this agreement. Alternatively, Custodian shall have the right
to commence an action in the nature of an interpleader, and seek to deposit the
property in a court of competent jurisdiction.
19. Compensation of Custodian. Custodian shall be entitled to compensation
for its services as set forth in Schedule A attached hereto and made a part
hereof (the "Fee Schedule") and for reimbursement of its out of pocket expenses.
20. Notices. Any notices required or desired to be given to any party
hereto shall be in writing, shall be addressed to such other party at that
party's address set forth at the
20
beginning of this agreement and shall be deemed given when deposited in the
United States mail, certified, return receipt requested, or actually received by
the party to whom it was addressed if delivered by an alternate method. Any
party may change the address to which notices or other communications are to be
given by giving the other parties notice of such change.
21. Overdrafts. Any Securities purchased in anticipation of the delivery of
cash on behalf of the Portfolio shall not be credited to the Account of the
Portfolio if such cash is not actually received by the Custodian by the
anticipated delivery date. In such event, Custodian may, in its sole discretion,
advance the necessary funds to complete the transaction and immediately shall
notify the Portfolio of the foregoing. Upon receipt of such notification, the
Portfolio shall wire such funds to the Custodian, in such amount as agreed upon
by the Funds and Custodian to make the Custodian whole in connection with the
shortfall, by 1:00 p.m. eastern standard time on the day the notification is
received or, alternatively, instruct the Custodian to sell Securities in the
Portfolio's account in the amount agreed. Upon Custodian's receipt of the funds
representing the shortfall, the subject Securities will be credited to the
Portfolio's account. If the Custodian has not received funds in the amount
necessary to cover the shortfall in the Portfolio's account within two days
following notification, Custodian is authorized to sell the subject Securities
and retain that portion of the proceeds necessary to make the Custodian whole,
and shall credit any remaining proceeds to the Account of the Portfolio.
22. Governing Law. This agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of Ohio.
23. Severability. The intention of the parties to this agreement is to
comply fully with all laws, rules, regulations and public policies, and this
agreement shall be construed consistently with all laws, rules, regulations and
public policies to the extent possible. If and to the extent that any court of
competent jurisdiction determines it is impossible to construe any provision of
this agreement consistently with any law, rule, regulation or public policy and
consequently holds that provision to be invalid, such holding shall in no way
affect the validity of the other provisions of this agreement, which shall
remain in full force and effect.
24. Non-Waiver. No failure by any party to insist upon compliance with any
term of this agreement, to exercise any option, enforce any right, or seek any
remedy upon any default of any other party shall affect, or constitute a waiver
of, the first party's right to insist on such strict compliance, exercise that
option, enforce that right, or seek that remedy with respect to that default or
any prior, contemporaneous, or subsequent default. No custom or practice of the
parties at variance with any provision of this agreement shall affect or
constitute a waiver of, any party's right to demand strict compliance with all
provisions of this agreement.
25. No Third Party Benefit. This agreement is intended for the exclusive
benefit
21
of the parties to this agreement and their respective successors and assigns,
and nothing contained in this agreement shall be construed as creating any
rights or benefits in or to any third party.
26. Captions. The captions of the various sections of this agreement are
not part of the context of this agreement, but are only labels to assist in
locating those sections and shall be ignored in construing this agreement.
27. Governed Accounts. All sub-accounts governed by this Agreement are
listed in Schedule B attached hereto ("Sub-Accounts").
28. Matters Relating to the Fund as a Massachusetts Business Trust. The
Declaration of Trust establishing the Fund, dated October 30, 1992, a copy of
which, together with all amendments thereto (the "Declaration") is on file in
the office of the Secretary of the Commonwealth of Massachusetts, provides that
the name "Pacific Capital Funds" refers to the Trustees under the Declaration
collectively as trustees and not individually or personally. The obligations of
"Pacific Capital Funds" entered into in the name or on behalf thereof by any of
the Fund's Trustees, representatives or agents are made not individually, but in
such capacities, and are not binding upon any of the Trustees, shareholders,
representatives, or agents of the Fund personally, but bind only the assets of
the Fund, and all persons dealing with any Portfolio of the Fund must look
solely to the assets of the Fund belonging to such Portfolio for the enforcement
of any claims against the Fund.
CUSTODIAN FUND
BANK ONE TRUST COMPANY, N.A. PACIFIC CAPITAL FUNDS
By______________________________ By_______________________
Title____________________________ Title______________________
Attest___________________________ Attest_____________________
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SCHEDULE A
FEE SCHEDULE
This agreement is made as of __________________, 199___, by and between
Pacific Capital Funds, with its principal office located at
_________________________________ (the"Fund") on behalf of each Portfolio listed
on Schedule C and Bank One Trust Company, N.A., with its principal offices
located at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 ("Custodian").
Whereas the above-mentioned Fund and Custodian entered into a Custodian
Agreement as of ________, 199__, and whereas Section 19 of said Agreement
stipulates that the compensation of Custodian shall be agreed upon by said Fund
and Custodian, the following is hereby agreed:
The compensation of the Custodian shall be computed according to the
following schedule attached hereto.
For the purpose of this Agreement, a transaction is defined as any purchase
or sale of a security, free receipt, free delivery and corporate reorganization
items such as tenders, mergers and acquisitions.
Said fee shall be computed and billed to the Fund on a monthly basis.
23
SCHEDULE B
SUB-ACCOUNTS
Set forth below is a list of all sub-accounts opened by the Custodian under
the terms and conditions of the Custodian Agreement dated _________, 199__, by
and between Pacific Capital Funds, with its principal offices located
at___________________________________ (the "Fund"), on behalf of each Portfolio
listed on Schedule C, and Bank One Trust Company, N.A., with its principal
offices located at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (the
"Custodian"). Any additions or deletions to this list will be by execution of a
new Schedule B.
Sub-Account Name Sub-Account Number
24
SCHEDULE C
LIST OF PORTFOLIOS
Diversified Fixed Income Fund
Growth and Income Fund
Growth Stock Fund
Short Intermediate U.S. Treasury Securities Fund
Tax-Free Securities Fund
Tax-Free Short Intermediate Securities Fund
U.S. Treasury Securities Fund
25
