FUND ACCOUNTING AGREEMENT
AGREEMENT made this 29th day of October, 1993, between Pacific
Capital Funds (the "Trust"), a Massachusetts business trust having its principal
place of business at 0000 Xxxx Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, and
THE WINSBURY SERVICE CORPORATION ("Winsbury"), a corporation organized under the
laws of the State of Ohio and having its principal place of business at 0000
Xxxx Xxxxxx-Xxxxxxxxx Xxxx. Xxxxxxxx. Xxxx 00000.
WHEREAS, the Trust desires that Winsbury perform certain fund
accounting services for each investment portfolio of the Trust identified on
Schedule A hereto, as such Schedule shall be amended from time to time
(individually referred to herein as the "Fund" and collectively as the "Funds");
and
WHEREAS, Winsbury is willing to perform such services on the terms
and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and
covenants herein set forth, the parties agree as follows:
1. Services as Fund Accountant. Winsbury will keep and maintain the
following books and records of each Fund pursuant to Rule 31a-1 (the "Rule")
under the Investment Company Act of 1940 (the "1940 Act"):
(a) Journals containing an itemized daily record in detail
of all purchases and sales of securities, all receipts
and disbursements of cash and all other debits and
credits, as required by subsection (b)(1) of the Rule;
(b) General and auxiliary ledgers reflecting all asset,
liability, reserve, capital, income and expense
accounts, including interest accrued and interest
received, as required by subsection (b)(2)(i) of the
Rule.
(c) Separate ledger accounts required by subsection
(b)(2)(ii) and (iii) of the Rule; and
(d) A monthly trial balance of all ledger accounts (except
shareholder accounts) as required by subsection (b)(8)
of the Rule.
In addition to the maintenance of the books and records specified
above, Winsbury shall perform the following accounting services daily for each
Fund:
(a) Calculate the net asset value per Share;
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(b) Calculate the dividend and capital gain distribution, if
any;
(c) Calculate the yield;
(d) Reconcile cash movements with the Fund's custodian:
(e) Affirm to the Fund's custodian all portfolio trades and
cash movements;
(f) Verify and reconcile with the Fund's custodian all daily
trade activity;
(g) Provide the following reports:
i. A current security position report;
ii A summary report of transactions and pending
maturities (including the principal, cost, and
accrued interest on each portfolio security in
maturity date order); and
iii. A current cash position report (including cash
available from portfolio sales and maturities and
sales of a Fund's Shares less cash needed for
redemptions and settlement of portfolio
purchases);
(h) Such other similar services with respect to a Fund as
may be reasonably requested by the Trust.
Winsbury shall perform the following accounting services for each
Fund:
(a) Obtain at least daily for variable net asset value funds
and weekly for money market funds actual dealer
quotations, prices from a pricing service, or matrix
prices on all portfolio securities (including those with
less than 60 days to maturity) in order to xxxx the
entire portfolio to the market; and
(b) Prepare an interim balance sheet, statement of income
and expense, and statement of changes in net assets for
the Fund as of each month-end.
2. Subcontracting. Winsbury may, at its expense, subcontract with
any entity or person concerning the provision of the services contemplated
hereunder; provided, however, that Winsbury shall not be relieved of any of its
obligations under this Agreement by the
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appointment of such subcontractor and provided further, that Winsbury shall be
responsible, to the extent provided in Section 7 hereof, for all acts of such
subcontractor as if such acts were its own.
3. Compensation. The Trust shall pay fees to Winsbury for the
services to be provided by Winsbury under this Agreement in accordance with, and
in the manner set forth in, Schedule B hereto.
4. Reimbursement of Expenses. In addition to paying Winsbury the
fees described in Section 3 hereof, the Trust agrees to reimburse Winsbury for
Winsbury's out-of pocket expenses in providing services hereunder, including
without limitation the following:
(a) All freight and other delivery and bonding charges
incurred by Winsbury in delivering materials to and from
the Trust;
(b) All direct telephone, telephone transmission and
telecopy or other electronic transmission expenses
incurred by Winsbury in communication with the Trust,
the Trust's investment advisor or custodian, dealers or
others as required for Winsbury to perform the services
to be provided hereunder;
(c) Costs of pricing the portfolio securities of each Fund;
(d) The cost of microfilm or microfiche of records or other
materials; and
(e) Any expenses Winsbury shall incur at the written
direction of an officer of the Trust thereunto duly
authorized.
5. Effective Date. This Agreement shall become effective with
respect to a Fund as of the date first written above (or, if a particular Fund
is not in existence on that date, on the date an amendment to Schedule A to this
Agreement relating to the Fund is executed) (the "Effective Date").
6. Term. This Agreement shall continue in effect with respect to a
Fund, unless earlier terminated by either party hereto as provided hereunder,
for two years from the date hereof, and thereafter shall be renewed
automatically for successive one-year terms unless written notice not to renew
is given by the non-renewing party to the other party at least 60 days prior to
the expiration of the then-current term; provided, however, that after such
termination for so long as Winsbury, with the written consent of the Trust, in
fact continues to perform any one or more of the services contemplated by this
Agreement or any schedule or exhibit hereto, the provisions of this Agreement,
including without limitation the provisions dealing with indemnification, shall
continue in full force and effect. Compensation due Winsbury and unpaid by the
Trust upon such
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termination shall be immediately due and payable upon and notwithstanding such
termination. Winsbury shall be entitled to collect from the Trust, in addition
to the compensation described under Section 3 hereof, the amount of all of
Winsbury's reasonable cash disbursements for services in connection with
Winsbury's activities in effecting such termination, including without
limitation, the delivery to the Trust and/or its designees of the Trust's
property, records, instruments and documents, or any copies thereof. Subsequent
to such termination Winsbury will provide the Trust with reasonable access to
any Trust documents or records remaining in its possession. This Agreement is
terminable with respect to a particular Fund only upon mutual agreement of the
parties hereto or for "cause" (as defined below) by the party alleging "cause,"
in either case on not less than 60 days' notice by the Trust's Board of Trustees
or by Winsbury.
For purposes of this Agreement, "cause" shall mean (a) willful
misfeasance, bad faith, gross negligence or reckless disregard on the part of
the party to be terminated with respect to its obligations and duties set forth
herein; (b) a final, unappealable judicial, regulatory or administrative ruling
or order in which the party to be terminated has been found guilty of criminal
or unethical behavior in the conduct of it business; (c) financial difficulties
on the part of the party to be terminated which is evidenced by the
authorization or commencement of, or involvement by way of pleading, answer,
consent, or acquiescence in, a voluntary or involuntary case under Title 11 of
the United State Code, as from time to time is in effect, or any applicable law,
other than said Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of the rights of
creditors; or (d) any circumstance which substantially impairs the performance
of the obligations and duties of the party to be terminated, or the ability to
perform those obligations and duties as contemplated herein.
If, for any reason other than "cause" as defined above, Winsbury is
replaced as Fund Accountant, or if a third party is added to perform all or a
part of the services provided by Winsbury under this Agreement (excluding any
sub-accountant appointed by Winsbury as provided in Section 2 hereof), then the
Trust shall make a one-time cash payment, as liquidated damages, to Winsbury
equal to the balance due Winsbury for the remainder of the term of this
Agreement, assuming for purposes of calculation of the payment that the asset
level of the Trust on the date Winsbury is replaced, or a third party is added,
will remain constant for the balance of the contract term.
7. Standard of Care; Reliance on Records and Instructions;
Indemnification. Winsbury shall use its best efforts to insure the accuracy of
all services performed under this Agreement, but shall not be liable to the
Trust for any action taken or omitted by Winsbury in the absence of bad faith,
willful misfeasance, negligence or from reckless disregard by it of its
obligations and duties. A Fund agrees to indemnify and hold harmless Winsbury,
its employees, agents, directors, officers and nominees from and against any and
all claims, demands, actions and suits, whether groundless or otherwise, and
from and against any and all judgments, liabilities, losses, damages, costs,
charges, counsel fees and other expenses of every nature and character arising
out of or in any way relating to Winsbury's actions taken or nonactions with
respect to the performance of services under this Agreement with respect to such
Fund or based, if applicable,
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upon reasonable reliance on information, records, instructions or requests with
respect to such Fund given or made to Winsbury by a duly authorized
representative of the Trust; provided that this indemnification shall not apply
to actions or omissions of Winsbury in cases of its own bad faith, willful
misfeasance, gross negligence or from reckless disregard by it of its
obligations and duties, and further provided that prior to confessing any claim
against it which may be the subject of this indemnification, Winsbury shall give
the Trust written notice of and reasonable opportunity to defend against said
claim in its own name or in the name of Winsbury.
8. Record Retention and Confidentiality. Winsbury shall keep and
maintain on behalf of the Trust all books and records which the Trust and
Winsbury is, or may be, required to keep and maintain pursuant to any applicable
statutes, rules and regulations, including without limitation the Rule, Winsbury
further agrees that all such books and records shall be the property of the
Trust and to make such books and records available for inspection by the Trust
or by the Securities and Exchange Commission at reasonable times and otherwise
to keep confidential all books and records and other information relative to the
Trust and its shareholders; except when requested to divulge such information by
duly-constituted authorities or court process.
9. Uncontrollable Events. Winsbury assumes no responsibility
hereunder, and shall not be liable, for any damage, loss of data, delay or any
other loss whatsoever caused by events beyond its reasonable control.
10. Reports. Winsbury will furnish to the Trust and to its properly
authorized auditors, investment advisors, examiners, distributors, dealers,
underwriters, salesmen, insurance companies and others designated by the Trust
in writing, such reports and at such times as are prescribed pursuant to the
terms and the conditions of this Agreement to be provided or completed by
Winsbury, or as subsequently agreed upon by the parties pursuant to an amendment
hereto. The Trust agrees to examine each such report or copy promptly and will
report or cause to be reported any errors or discrepancies therein no later than
three business days from the receipt thereof. In the event that errors or
discrepancies, except such errors and discrepancies as may not reasonably be
expected to be discovered by the recipient within three days after conducting a
diligent examination, are not so reported within the aforesaid period of time, a
report will for all purposes be accepted by and binding upon the Trust and any
other recipient, and Winsbury shall have no liability for errors or
discrepancies therein and shall have no further responsibility with respect to
such report except to perform reasonable corrections of such errors and
discrepancies within a reasonable time after requested to do so by the Trust.
11. Rights of Ownership. All computer programs and procedures
developed to perform services required to be provided by Winsbury under this
Agreement are the property of Winsbury. All records and other data except such
computer programs and procedures are the exclusive property of the Trust and all
such other records and data will be furnished to the Trust in appropriate form
as soon as practicable after termination of this Agreement for any reason.
12. Return of Records. Winsbury may at its option at any time, and
shall
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promptly upon the Trust's demand, turn over to the Trust and cease to retain
Winsbury's files, records and documents created and maintained by Winsbury
pursuant to this Agreement which are no longer needed by Winsbury in the
performance of its services or for its legal protection. If not so turned over
to the Trust, such documents and records will be retained by Winsbury for six
years from the year of creation. At the end of such six year period, such
records and documents will be turned over to the Trust unless the Trust
authorizes in writing the destruction of such records and documents.
13. Representations of the Trust. The Trust certifies to Winsbury
that: (1) as of the close of business on the Effective Date, each Fund that is
in existence as of the Effective Date has authorized unlimited shares, and (2)
this Agreement has been duly authorized by the Trust and, when executed and
delivered by the Trust, will constitute a legal, valid and binding obligation of
the Trust, enforceable against the Trust in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
14. Representations of Winsbury. Winsbury represents and warrants
that: (1) the various procedures and systems which Winsbury has implemented with
regard to safeguarding from loss or damage attributable to fire, theft, or any
other cause the records, and other data of the Trust and Winsbury's records,
data, equipment facilities and other property used in the performance of its
obligations hereunder are adequate and that it will make such changes therein
from time to time as are required for the secure performance of it obligations
hereunder, and (2) this Agreement has been duly authorized by Winsbury and, when
executed and delivered by Winsbury, will constitute a legal, valid and binding
obligation of Winsbury, enforceable against Winsbury in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and remedies of creditors and
secured parties.
15. Insurance. Winsbury shall notify the Trust should any of its
insurance coverage be cancelled or reduced. Such notification shall include the
date of change and the reasons therefor. Winsbury shall notify the Trust of any
material claims against it with respect to services performed under this
Agreement, whether or not they may be covered by insurance, and shall notify the
Trust from time to time as may be appropriate of the total outstanding claims
made by Winsbury under its insurance coverage.
16. Information to be Furnished by the Trust and Funds. The Trust
has furnished to Winsbury a list of all the officers of the Trust, together with
specimen signatures of those officers who are authorized to instruct Winsbury in
all matters.
17. Amendments to Documents. The Trust shall furnish Winsbury
written copies of any amendments to, or changes in, the list referred to in
Section 16 hereof forthwith. In addition, the Trust agrees that no amendments
will be made to the Prospectuses or Statements of Additional Information of the
Trust which might have the effect of changing the procedures
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employed by Winsbury in providing the services agreed to hereunder or which
amendment might affect the duties of Winsbury hereunder unless the Trust first
notifies Winsbury of such amendments or changes.
18. Compliance with Law. Except for the obligations of Winsbury set
forth in Section 8 hereof, the Trust assumes full responsibility for the
preparation, contents and distribution of each prospectus of the Trust as to
compliance with all applicable requirements of the Securities Act of 1933, as
amended (the "Securities Act"), the 1940 Act and any other laws, rules and
regulations of governmental authorities having jurisdiction. Winsbury shall have
no obligation to take cognizance of any laws relating to the sale of the Trust's
shares. The Trust represents and warrants that no shares of the Trust will be
offered to the public until the Trust's registration statement under the
Securities Act and the 1940 Act has been declared or becomes effective.
19. Notices. Any notice provided hereunder shall be sufficiently
given when sent by registered or certified mail to the party required to be
served with such notice, at the following address: 0000 Xxxx Xxxxxx-Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxx 00000, or at such other address as such party may from time
to time specify in writing to the other party pursuant to this Section.
20. Headings. Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
21. Assignment. This Agreement and the rights and duties hereunder
shall not be assignable with respect to a Fund by either of the parties hereto
except by the specific written consent of the other party.
22. Governing Law. This Agreement shall be governed by and
provisions shall be construed in accordance with the laws of the Commonwealth of
Massachusetts.
23. Limitation of Liability of the Trustees and Shareholders. The
names "Pacific Capital Funds" and "Trustees of Pacific Capital Funds" refer
respectively to the Trust created and the Trustees, as trustees but not
individually or personally, acting from time to time under a Declaration of
Trust dated as of October 30, 1992, to which reference is hereby made and a copy
of which is on file at the office of the Secretary of the Commonwealth of
Massachusetts and elsewhere as required by law, and to any and all amendments
thereto so filed or hereafter filed. The obligations of "Pacific Capital Funds"
entered into in the name or on behalf thereof by any of the Trustees,
representatives or agents are made not individually, but in such capacities, and
are not binding upon any of the Trustees, Shareholders or representatives of the
Trust personally, but bind only the assets of the Trust, and all persons dealing
with any series of shares of the Trust must look solely to the assets of the
Trust belonging to such series for the enforcement of any claims against the
Trust.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed all as of the day and year first above written.
Yours very truly,
PACIFIC CAPITAL FUND
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
THE WINSBURY COMPANY
LIMITED PARTNERSHIP
By: The Winsbury Corporation,
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Sr. Vice President
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Dated: October 29, 1993
SCHEDULE A
TO THE FUND ACCOUNTING AGREEMENT
BETWEEN
PACIFIC CAPITAL FUNDS
AND
THE WINSBURY COMPANY LIMITED PARTNERSHIP
Name of Fund
------------------------------------------------
U.S. Treasury Securities Fund
Short Intermediate U.S. Treasury Securities Fund
Diversified Fixed Income Fund
Tax-Free Short Intermediate Securities Fund
Tax-Free Securities Fund
Growth Stock Fund
Balanced Fund
Income Stock Fund
PACIFIC CAPITAL FUNDS
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
THE WINSBURY COMPANY LIMITED
PARTNERSHIP
By: The Winsbury Corporation
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Sr. Vice President
A-1
Dated: October 29, 1993
SCHEDULE B
TO THE FUND ACCOUNTING AGREEMENT
BETWEEN
PACIFIC CAPITAL FUNDS
AND
THE WINSBURY SERVICE CORPORATION
FEES
Winsbury shall be entitled to receive a fee from each Fund at the
annual rate of three one-hundredths of one percent (.03%) of such Fund's average
daily net assets plus Winsbury's reasonable out-of-pocket expenses incurred in
the performance of its services as provided in Section 4 of the Fund Accounting
Agreement to which this Schedule B is attached, with a minimum annual fee of
$30,000 per taxable Fund and $40,000 per tax-exempt Fund.
PACIFIC CAPITAL FUND
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
THE WINSBURY COMPANY
LIMITED PARTNERSHIP
By: The Winsbury Corporation,
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Sr. Vice President
B-1
