Exhibit (g)(2)
FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT made as of September 26, 2001 between Pacific Capital Funds (the
"Fund") and The Bank of New York ("BNY").
W I T N E S S E T H:
WHEREAS, the Fund desires to appoint BNY as a Foreign Custody Manager on
the terms and conditions contained herein;
WHEREAS, BNY desires to serve as a Foreign Custody Manager and perform the
duties set forth herein on the terms and conditions contained herein;
NOW THEREFORE, in consideration of the mutual promises hereinafter
contained in this Agreement, the Fund and BNY hereby agree as follows:
ARTICLE I.
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
1. "BOARD" shall mean the board of directors or board of trustees, as the
case may be, of the Fund.
2. "ELIGIBLE FOREIGN CUSTODIAN" shall have the meaning provided in the
Rule.
3. "MONITORING SYSTEM" shall mean a system established by BNY to fulfill
the Responsibilities specified in clauses (d) and (e) of Section 1 of Article
III of this Agreement.
4. "RESPONSIBILITIES" shall mean the responsibilities delegated to BNY
under the Rule as a Foreign Custody Manager with respect to each Specified
Country and each Eligible Foreign Custodian selected by BNY, as such
responsibilities are more fully described in Article III of this Agreement.
5. "RULE" shall mean Rule 17f-5 under the Investment Company Act of 1940,
as amended on June 12, 2000.
6. "SPECIFIED COUNTRY" shall mean each country listed on Schedule I
attached hereto and each country, other than the United States, constituting the
primary market for a security with respect to which the Fund has given
settlement instructions to The Bank of New York as custodian (the "Custodian")
under its Custody Agreement with the Fund.
ARTICLE II.
BNY AS A FOREIGN CUSTODY MANAGER
1. The Fund on behalf of its Board hereby delegates to BNY with respect to
each Specified Country the Responsibilities.
2. BNY accepts the Board's delegation of Responsibilities with respect to
each Specified Country and agrees in performing the Responsibilities as a
Foreign Custody Manager to exercise reasonable care, prudence and diligence such
as a person having responsibility for the safekeeping of the Fund's assets would
exercise.
3. BNY shall provide to the Board at such times as the Board deems
reasonable and appropriate based on the circumstances of the Fund's foreign
custody arrangements written reports notifying the Board of the placement of
assets of the Fund with a particular Eligible Foreign Custodian within a
Specified Country and of any material change in the arrangements (including the
contract governing such arrangements) with respect to assets of the Fund with
any such Eligible Foreign Custodian.
ARTICLE III.
RESPONSIBILITIES
1. Subject to the provisions of this Agreement, BNY shall with respect to
each Specified Country select an Eligible Foreign Custodian. In connection
therewith, BNY shall: (a) determine that assets of the Fund held by such
Eligible Foreign Custodian will be subject to reasonable care, based on the
standards applicable to custodians in the relevant market in which such Eligible
Foreign Custodian operates, after considering all factors relevant to the
safekeeping of such assets, including, without limitation, those contained in
paragraph (c)(1) of the Rule; (b) determine that the Fund's foreign custody
arrangements with each Eligible Foreign Custodian are governed by a written
contract with the Custodian which will provide reasonable care for the Fund's
assets based on the standards specified in paragraph (c)(1) of the Rule; (c)
determine that each contract with an Eligible Foreign Custodian shall include
the provisions specified in paragraph (c)(2)(i)(A) through (F) of the Rule or,
alternatively, in lieu of any or all of such (c)(2)(i)(A) through (F)
provisions, such other provisions as BNY determines will provide, in their
entirety, the same or a greater level of care and protection for the assets of
the Fund as such specified provisions; (d) monitor pursuant to the Monitoring
System the appropriateness of maintaining the assets of the Fund with a
particular Eligible Foreign Custodian pursuant to paragraph (c)(1) of the Rule
and the performance of the contract governing such arrangement under paragraph
(c)(2) of the Rule; and (e) advise the Fund whenever BNY determines under the
Monitoring System that an arrangement (including, any material change in the
contract governing such arrangement) described in preceding clause (d) no longer
meets the requirements of the Rule. In the event BNY
- 2 -
selects an Eligible Foreign Custodian to replace a previously selected Eligible
Foreign Custodian, BNY shall so advise the Fund's custodian.
2. For purposes of preceding Section 1 of this Article, BNY's
determination of appropriateness shall not include, nor be deemed to include,
any evaluation of Country Risks associated with investment in a particular
country. For purposes hereof, "Country Risks" shall mean systemic risks of
holding assets in a particular country including but not limited to (a) an
Eligible Foreign Custodian's use of any depositories that act as or operate a
system or a transnational system for the central handling of securities or any
equivalent book-entries; (b) such country's financial infrastructure; (c) such
country's prevailing custody and settlement practices; (d) nationalization,
expropriation or other governmental actions; (e) regulation of the banking or
securities industry; (f) currency controls, restrictions, devaluations or
fluctuations; and (g) market conditions which affect the orderly execution of
securities transactions or affect the value of securities.
ARTICLE IV.
REPRESENTATIONS
1. The Fund hereby represents that: (a) this Agreement has been duly
authorized, executed and delivered by the Fund, constitutes a valid and legally
binding obligation of the Fund enforceable in accordance with its terms, and no
statute, regulation, rule, order, judgment or contract binding on the Fund
prohibits the Fund's execution or performance of this Agreement; (b) this
Agreement has been approved and ratified by the Board at a meeting duly called
and at which a quorum was at all times present, and (c) the Board or the Fund's
investment advisor has considered the Country Risks associated with investment
in each Specified Country and will have considered such risks prior to any
settlement instructions being given to the Custodian with respect to any other
country.
2. BNY hereby represents that: (a) BNY is duly organized and existing
under the laws of the State of New York, with full power to carry on its
businesses as now conducted, and to enter into this Agreement and to perform its
obligations hereunder; (b) this Agreement has been duly authorized, executed and
delivered by BNY, constitutes a valid and legally binding obligation of BNY
enforceable in accordance with its terms, and no statute, regulation, rule,
order, judgment or contract binding on BNY prohibits BNY's execution or
performance of this Agreement; (c) BNY is a member bank of the Federal Reserve
System, and (d) BNY has established the Monitoring System.
ARTICLE V.
CONCERNING BNY
1. BNY shall not be liable for any costs, expenses, damages, liabilities
or claims, including attorneys' and accountants' fees, sustained or incurred by,
or asserted against, the Fund except to the extent the same arises out of the
failure of BNY to exercise the
- 3 -
care, prudence and diligence required by Section 2 of Article II hereof. In no
event shall BNY be liable to the Fund, the Board, or any third party for
special, indirect or consequential damages, or for lost profits or loss of
business, arising in connection with this Agreement.
2. The Fund shall indemnify BNY and hold it harmless from and against any
and all costs, expenses, damages, liabilities or claims, including attorneys'
and accountants' fees, sustained or incurred by, or asserted against, BNY by
reason or as a result of any action or inaction, or arising out of BNY's
performance hereunder, provided that the Fund shall not indemnify BNY to the
extent any such costs, expenses, damages, liabilities or claims arises out of
BNY's failure to exercise the reasonable care, prudence and diligence required
by Section 2 of Article II hereof.
3. For its services hereunder, the Fund agrees to pay to BNY such
compensation and out-of-pocket expenses as shall be mutually agreed.
4. BNY shall have only such duties as are expressly set forth herein. In
no event shall BNY be liable for any Country Risks associated with investments
in a particular country.
ARTICLE VI.
MISCELLANEOUS
1. This Agreement constitutes the entire agreement between the Fund and
BNY as a foreign custody manager, and no provision in the Custody Agreement
between the Fund and the Custodian shall affect the duties and obligations of
BNY hereunder, nor shall any provision in this Agreement affect the duties or
obligations of the Custodian under the Custody Agreement.
2. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to BNY, shall be sufficiently given if received by it
at its offices at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at
such other place as BNY may from time to time designate in writing.
3. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Fund shall be sufficiently given if received
by it at its offices at Bank of Hawaii, Pacific Capital Funds, 000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000 or at such other place as the Fund may
from time to time designate in writing.
4. In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
thereby. This Agreement may not be amended or modified in any manner except by a
written agreement executed by both
- 4 -
parties. This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided however, that this
Agreement shall not be assignable by either party without the written consent of
the other.
5. This Agreement shall be construed in accordance with the substantive
laws of the State of New York, without regard to conflicts of laws principles
thereof. The Fund and BNY hereby consent to the jurisdiction of a state or
federal court situated in New York City, New York in connection with any dispute
arising hereunder. The Fund hereby irrevocably waives, to the fullest extent
permitted by applicable law, any objection which it may now or hereafter have to
the laying of venue of any such proceeding brought in such a court and any claim
that such proceeding brought in such a court has been brought in an inconvenient
forum. The Fund and BNY each hereby irrevocably waives any and all rights to
trial by jury in any legal proceeding arising out of or relating to this
Agreement.
6. The parties hereto agree that in performing hereunder, BNY is acting
solely on behalf of the Fund and no contractual or service relationship shall be
deemed to be established hereby between BNY and any other person by reason of
this Agreement.
7. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but such counterparts shall, together,
constitute only one instrument.
8. This Agreement shall terminate simultaneously with the termination of
the Custody Agreement between the Fund and the Custodian, and may otherwise be
terminated by either party giving to the other party a notice in writing
specifying the date of such termination, which shall be not less than thirty
(30) days after the date of such notice.
- 5 -
IN WITNESS WHEREOF, the Fund and BNY have caused this Agreement to be
executed by their respective officers, thereunto duly authorized, as of the date
first above written.
PACIFIC CAPITAL FUND
By: /s/ Xxxxxxx Xxxxxx
Title: Executive Vice President
Tax Identification No.:
THE BANK OF NEW YORK
By: /s/ Xxxxxxxx XxXxxxxxxx
Title: Vice President
- 6 -
SCHEDULE II
SERIES
DATED AS OF SEPTEMBER 26, 2001
FUND NAME ACCOUNT TAX ID
NUMBER
-------------------------------------------------------------------------------------------------------------
Pacific Capital Balanced Fund 280350 00-0000000
Pacific Capital Tax Free Securities Fund 280351 00-0000000
Pacific Capital International Stock Fund 280352 00-0000000
Pacific Capital Growth and Income Fund 280353 00-0000000
Pacific Capital Value Fund 280354 00-0000000
Pacific Capital Short Intermediate US Treasury Securities Fund 280355 00-0000000
Pacific Capital Diversified Fixed Income Fund 280356 00-0000000
Pacific Capital Small Cap Fund 280357 00-0000000
Pacific Capital Ultra Short Government Fund 280358 00-0000000
Pacific Capital Tax Free Short Intermediate Securities Fund 280359 00-0000000
Pacific Capital New Asia Growth Fund 280360 00-0000000
Pacific Capital Growth Stock Fund 280361 00-0000000
THE BANK OF NEW YORK
GLOBAL CUSTODY FEE SCHEDULE
FOR
PACIFIC CAPITAL FUNDS
(SEE LIST OF PORTFOLIOS)
-------------------------------------------------------------------------------------------------------------
COUNTRY INSTRUMENTS SAFEKEEPING (BPS) TRANSACTION
FEES
-------------------------------------------------------------------------------------------------------------
ARGENTINA ALL 25 $75
AUSTRALIA ALL 4 $35
AUSTRIA EQUITIES/BONDS 5 $60
AUSTRIA DEPO RECEIPT 20 $60
AUSTRIA NON-ATS ALL 28 $100
BAHRAIN ALL 55 $150
BANGLADESH ALL 50 $200
BELGIUM ALL 4 $50
BERMUDA ALL 30 $85
BOLIVIA ALL 55 $100
BOTSWANA ALL 35 $100
BRAZIL ALL 30 $75
BULGARIA ALL 55 $100
CANADA ALL 2.5 $20
CHILE ALL 25 $100
CHINA-SHANGHAI ALL 25 $100
CHINA-SHENZHEN ALL 25 $100
COSTA RICA ALL 15 $60
COLOMBIA ALL 45 $125
CROATIA ALL 50 $125
CYPRUS ALL 25 $75
CZECH REPUBLIC ALL 30 $75
DENMARK ALL 4 $75
EASDAQ ALL 8 $60
ECUADOR ALL 55 $100
EGYPT ALL 45 $125
ESTONIA ALL 15 $75
EUROMARKETS EUROBONDS ONLY* 2 $25
FINLAND ALL 6 $75
FRANCE ALL 4 $55
GERMANY ALL 3 $45
GHANA ALL 35 $75
1
THE BANK OF NEW YORK
GLOBAL CUSTODY FEE SCHEDULE
FOR
PACIFIC CAPITAL FUNDS
(SEE LIST OF PORTFOLIOS)
-------------------------------------------------------------------------------------------------------------
COUNTRY INSTRUMENTS SAFEKEEPING (BPS) TRANSACTION
FEES
-------------------------------------------------------------------------------------------------------------
GREECE ALL 25 $125
HONG KONG ALL 7 $75
HUNGARY ALL 40 $200
ICELAND ALL 12 $25
INDIA ALL 75 $400
INDONESIA ALL 15 $100
IRELAND ALL 5 $35
ISRAEL ALL 30 $60
ITALY ALL 5 $75
IVORY COAST ALL 55 $200
JAPAN ALL 3 $30
JAMAICA ALL 45 $75
JORDAN ALL 50 $150
KAZAKHSTAN T BILLS/ SHORT 40 $150
TERM BK. NOTES
KAZAKHSTAN EQUITIES 60 $140
KENYA ALL 35 $75
LATVIA EQUITIES/BONDS 50 $125
LATVIA GOV'T BONDS 30 $125
LEBANON ALL 35 $130
LITHUANIA ALL 30 $100
LUXEMBOURG ALL 6 $40
MALAYSIA ALL 8 $100
MALTA ALL 20 $55
MAURITIUS ALL 50 $130
MEXICO ALL 4 $25
MOROCCO ALL 40 $125
NAMIBIA ALL 35 $75
NETHERLANDS ALL 5 $35
NEW ZEALAND ALL 5 $50
NIGERIA ALL 35 $75
2
THE BANK OF NEW YORK
GLOBAL CUSTODY FEE SCHEDULE
FOR
PACIFIC CAPITAL FUNDS
(SEE LIST OF PORTFOLIOS)
-------------------------------------------------------------------------------------------------------------
COUNTRY INSTRUMENTS SAFEKEEPING (BPS) TRANSACTION
FEES
-------------------------------------------------------------------------------------------------------------
NORWAY ALL 4 $55
OMAN ALL 55 $150
PAKISTAN ALL 50 $150
PERU ALL 50 $125
PHILIPPINES ALL 12 $120
POLAND ALL 30 $175
PORTUGAL ALL 15 $95
ROMANIA ALL 55 $175
RUSSIA EQUITIES/BONDS 50 $200
RUSSIA MINFIN 25 $75
SINGAPORE ALL 5 $50
SLOVAK REPUBLIC ALL 30 $125
SLOVENIA ALL 50 $250
SOUTH AFRICA ALL 5 $50
SOUTH KOREA ALL 15 $50
SPAIN ALL 5 $65
SRI LANKA ALL 20 $75
SWAZILAND ALL 35 $75
SWEDEN ALL 4 $50
SWITZERLAND ALL 4 $65
TAIWAN ALL 20 $150
THAILAND ALL 10 $60
TRINADAD & TOBAGO ALL 40 $75
TUNISIA ALL 50 $75
TURKEY ALL 25 $50
U.K. ALL 3 $15
UKRAINE ALL 80 $285
URUGUAY ALL 50 $75
VENEZUELA ALL 45 $150
ZAMBIA ALL 35 $75
ZIMBABWE ALL 35 $75
3
* Fee, expressed in basis points per annum, is calculated based upon month end
market value.
MINIMUM FEE FOR USE OF OUR GLOBAL NETWORK
$500 per month per portfolio
THIRD PARTY FOREIGN EXCHANGE SETTLEMENTS
$50 per non-USD currency movement
MINIMUM CHARGES IMPOSED BY AGENT BANKS/LOCAL ADMINISTRATORS
Brazil - 15 basis points for annual administrative charges
Chile - USD $17,500 - $20,000 per annum minimum administration charge
Colombia - USD $600 per month minimum administration charge
Ecuador - USD $800 monthly minimum per relationship
Egypt - USD $400 monthly minimum per relationship
ADDITIONAL CHARGES
Charges incurred by The Bank of New York for local stamp taxes, stamp duties or
other local duties and assessments, stock exchange fees, postage and insurance
for shipping, extraordinary telecommunication fees, or other unusual fees which
are unique to a country in which our client is investing, will be in addition to
the stated fees.
PACIFIC CAPITAL FUNDS THE BANK OF NEW YORK
Approved by: Xxxxxx X. Xxxxxxx Approved by: Xxxxxxxx XxXxxxxxxx
Title: Executive Vice President Title: Vice President
Date: November 28, 2001 Date: November 28, 2001
4
THE BANK OF NEW YORK
GLOBAL CUSTODY FEE SCHEDULE
FOR
PACIFIC CAPITAL FUNDS
(SEE LIST OF PORTFOLIOS)
FUND NAME ACCOUNT NUMBER TAX ID
Pacific Capital Balanced Fund 280350 00-0000000
Pacific Capital Tax Free Securities Fund 280351 00-0000000
Pacific Capital International Stock Fund 280352 00-0000000
Pacific Capital Growth and Income Fund 280353 00-0000000
Pacific Capital Value Fund 280354 00-0000000
Pacific Capital Short Intermediate US Treasury Securities 280355 00-0000000
Fund
Pacific Capital Diversified Fixed Income Fund 280356 00-0000000
Pacific Capital Small Cap Fund 280357 00-0000000
Pacific Capital Ultra Short Government Fund 280358 00-0000000
Pacific Capital Tax Free Short Intermediate Securities Fund 280359 00-0000000
Pacific Capital New Asia Growth Fund 280360 00-0000000
Pacific Capital Growth Stock Fund 280361 00-0000000
5
