Exhibit (h)(5)
FUND ACCOUNTING AGREEMENT
AGREEMENT made this 1st day of February 2002, between PACIFIC CAPITAL
FUNDS (the "Trust"), a Massachusetts business having its principal place of
business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, XX 00000, and BISYS FUND SERVICES OHIO,
INC. ("BISYS"), a Delaware corporation having its principal place of business at
0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Trust and BISYS entered into a Fund Accounting Agreement
dated January 1, 1998 (the "1998 Agreement"), whereby BISYS agreed to perform
fund accounting services for the Trust, which has continued in effect through
the date hereof;
WHEREAS, the Trust desires that BISYS continue to perform fund accounting
services for the Trust and each investment portfolio of the Trust, as now in
existence and listed on Schedule A, or as hereafter may be established from time
to time (individually referred to herein as the "Fund" and collectively as the
"Funds");
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement; and
WHEREAS, BISYS and Trust wish to enter into a new Agreement in order to
set forth the terms under which BISYS will perform the fund accounting services
set forth herein for the Trust.
NOW, THEREFORE, in consideration of the covenants hereinafter contained,
the Trust and BISYS hereby agree as follows:
1. Services as Fund Accountant.
(a) Maintenance of Books and Records. BISYS 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,
as amended (the 1940 Act"):
(i) 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;
(ii) 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;
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(iii) Separate ledger accounts required by subsection
(b)(2)(ii) and (iii) of the Rule; and
(iv) A monthly trial balance of all ledger accounts (except
shareholder accounts) as required by subsection (b)(8)
of the Rule.
(b) Performance of Daily Accounting Services. In addition to
the maintenance of the books and records specified above,
BISYS shall perform the following accounting services daily
for each Fund:
(i) Calculate the net asset value per share utilizing
prices obtained from the sources described in
subsection 1(b)(ii) below;
(ii) Obtain security prices from independent pricing services, or if
such quotes are unavailable, then obtain such prices from each
Fund's investment adviser or its designee, as approved by the
Trust's Board of Trustees (hereafter referred to as the "Board");
(iii) Verify and reconcile with the Funds' custodian all daily
trade activity;
(iv) Compute, as appropriate, each Fund's net income and
capital gains, dividend payables, dividend factors,
7-day yields, 7-day effective yields, 30-day yields, and
weighted average portfolio maturity;
(v) Review daily the net asset value calculation and
dividend factor (if any) for each Fund prior to release
to shareholders, check and confirm the net asset values
and dividend factors for reasonableness and deviations,
and distribute net asset values and yields to NASDAQ;
(vi) Report to the Trust the daily market pricing of
securities in any money market Funds, with the
comparison to the amortized cost basis;
(vii) Determine unrealized appreciation and depreciation on
securities held in variable net asset value Funds;
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(viii) Amortize premiums and accrete discounts on securities
purchased at a price other than face value, if requested
by the Trust;
(ix) Update fund accounting system to reflect rate changes,
as received from a Fund's investment adviser, on
variable interest rate instruments;
(x) Post Fund transactions to appropriate categories;
(xi) Accrue expenses of each Fund according to
instructions received from the Trust's Administrator;
(xii) Determine the outstanding receivables and payables for
all (1) security trades, (2) Fund share transactions and
(3) income and expense accounts;
(xiii) Provide accounting reports in connection with the
Trust's regular annual audit and other audits and
examinations by regulatory agencies; and
(xiv) Provide such periodic reports as the parties shall agree
upon, as set forth in a separate schedule.
(c) Special Reports and Services.
(i) BISYS may provide additional special reports upon the
request of the Trust or a Fund's investment adviser,
which may result in an additional charge, the amount of
which shall be agreed upon between the parties.
(ii) BISYS may provide such other similar services with
respect to a Fund as may be reasonably requested by the
Trust, which may result in an additional charge, the
amount of which shall be agreed upon between the
parties.
(d) Additional Accounting Services. BISYS shall also perform the
following additional accounting services for each Fund,
without additional compensation:
(i) Provide monthly a hard copy of the unaudited financial
statements described below, upon request of the Trust.
The unaudited financial statements will include the
following items:
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Unaudited Statement of Assets and Liabilities,
Unaudited Statement of Operations,
Unaudited Statement of Changes in Net Assets, and
Unaudited Condensed Financial Information;
(ii) Provide accounting information for the following:
(A) federal and state income tax returns and
federal excise tax returns;
(B) the Trust's semi-annual reports with the
Securities and Exchange Commission ("SEC") on
Form N-SAR;
(C) the Trust's annual, semi-annual and quarterly
(if any) shareholder reports;
(D) registration statements on Form N-1A and other
filings relating to the registration of shares;
(E) the Administrator's monitoring of the Trust's
status as a regulated investment Company under
Subchapter M of the Internal Revenue Code, as
amended;
(F) annual audit by the Trust's auditors; and (G)
examinations performed by the SEC.
2. Subcontracting.
BISYS may, at its expense and with prior notice to the Trust,
subcontract with any entity or person concerning the provision of fund
accounting services contemplated hereunder (a "Sub-Fund Accountant"); provided,
however, that BISYS shall not be relieved of any of its duties and obligations
under this Agreement by the appointment of such Sub-Fund Accountant and provided
further, that BISYS shall be responsible, to the extent provided in Section 5
hereof, for all acts of such subcontractor as if such acts were its own.
3. Compensation.
The Trust shall pay BISYS compensation for the services to be
provided by BISYS under this Agreement in accordance with, and in the manner set
forth in Schedule B attached hereto.
4. Reimbursement of Expenses and Miscellaneous Service Fees.
(A) In addition to paying BISYS the fees provided in
Section 3 and Schedule B, the Trust agrees to
reimburse BISYS for its reasonable out-of-pocket
expenses in providing services hereunder,
including without limitation the following:
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(a) All freight and other delivery and bonding charges incurred by
BISYS in delivering materials to and from the Trust;
(b) All direct telephone, telephone transmission and telecopy or
other electronic transmission expenses incurred by BISYS in
communication with the Trust, the Trust's investment adviser or
custodian, dealers or others as required for BISYS to perform the
services to be provided hereunder;
(c) The cost of microfilm or microfiche of records or other
materials;
(d) All systems-related expenses associated with the provision of
special reports and services pursuant to Section 1(c) herein;
(e) Any expenses BISYS shall incur at the written direction of an
officer of the Trust (other than an employee of BISYS) thereunto
duly authorized; and
(f) Any additional expenses reasonably incurred by BISYS in the
performance of its duties and obligations under this Agreement.
(B) In addition, BISYS shall be entitled to receive the following fees:
(a) Systems development fees billed at an hourly rate of $150 per
hour, as approved by the Trust;
(b) Ad hoc reporting fees billed at an agreed upon rate; and
(c) Fees for pricing the securities of the Funds pursuant to Section
1(b)(ii) of this Agreement.
5. Standard of Care; Uncontrollable Events; Limitation of Liability.
BISYS shall use reasonable professional diligence to ensure the
accuracy of all services performed under this Agreement, but shall not be liable
to the Trust for any action taken or omitted by BISYS in the absence of bad
faith, willful misfeasance, negligence or reckless disregard by it of its
obligations and duties. The duties of BISYS shall be confined to those expressly
set forth herein, and no implied duties are assumed by or may be asserted
against BISYS hereunder.
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BISYS shall maintain adequate and reliable computer and other
equipment necessary or appropriate to carry out its obligations under this
Agreement. Upon the Trust's reasonable request, BISYS shall provide supplemental
information concerning the aspects of its disaster recovery and business
continuity plan that are relevant to the services provided hereunder.
Notwithstanding the foregoing or any other provision of this Agreement, BISYS
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. Events beyond BISYS' reasonable control include, without
limitation, force majeure events. Force majeure events include natural
disasters, actions or decrees of governmental bodies, and communication lines
failures that are not the fault of either party. In the event of force majeure,
computer or other equipment failures or other events beyond its reasonable
control, BISYS shall follow applicable procedures in its disaster recovery and
business continuity plan and use all commercially reasonable efforts to minimize
any service interruption.
BISYS shall provide the Trust, at such times as the Trust may
reasonably require, copies of reports rendered by independent public accountants
on the internal controls and procedures of BISYS relating to the services
provided by BISYS under this Agreement.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT SHALL BISYS, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, EACH OF
WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH
DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
6. Term.
This Agreement shall become effective as of the date first written
above and shall continue in effect until June 30, 2006 (the "Initial Term").
Thereafter, unless otherwise terminated as provided herein, this Agreement shall
be renewed automatically for successive one year periods ("Rollover Periods").
This Agreement may be terminated only (i) by provision of a notice of nonrenewal
in the manner set forth below, (ii) by mutual agreement of the parties or (iii)
for "cause," as defined below, upon the provision of sixty (60) days advance
written notice by the party alleging cause. Written notice of nonrenewal must be
provided at least ninety (90) days prior to the end of the Initial Term or any
Rollover Period, as the case may be.
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For purposes of this Agreement, "cause" shall mean (a) a material
breach of this Agreement that has not been remedied for thirty (30) days
following written notice of such breach from the non-breaching party; (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 its business; or (c) financial difficulties on the
part of the party to be terminated which are 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
States 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. BISYS shall not terminate this Agreement pursuant to clause (a) above
based solely upon the Trust's failure to pay an amount to BISYS which is the
subject of a good faith dispute, if (i) the Trust is attempting in good faith to
resolve such dispute with as much expediency as may be possible under the
circumstances, and (ii) the Trust continues to perform its obligations hereunder
in all other material respects (including paying all fees and expenses not
subject to reasonable dispute hereunder).
Notwithstanding the foregoing, following any such termination, in
the event that BISYS in fact continues to perform any one or more of the
services contemplated by this Agreement (or any Schedule or exhibit hereto) with
the consent of the Trust, the provisions of this Agreement, including without
limitation the provisions dealing with indemnification, shall continue in full
force and effect. Fees and out-of-pocket expenses incurred by BISYS but unpaid
by the Trust upon such termination shall be immediately due and payable upon and
notwithstanding such termination. BISYS shall be entitled to collect from the
Trust, in addition to the fees and disbursements provided by Sections 3 and 4
hereof, the amount of all of BISYS' cash disbursements in connection with BISYS'
activities in effecting such termination, including without limitation, the
delivery to the Trust and/or its distributor or investment adviser and/or other
parties of the Trust's property, records, instruments and documents.
If, for any reason other than (i) nonrenewal, (ii) mutual agreement
of the parties or (iii) "cause," as defined above, BISYS's services are
terminated hereunder, BISYS is replaced as fund accountant, or if a third party
is added to perform all or a part of the services provided by BISYS under this
Agreement (excluding any Sub-Fund Accountant appointed as provided in Section 1
hereof), then the Trust shall make a one-time cash payment, in consideration of
the fee structure and services to be provided under this Agreement, and not as a
penalty, to BISYS equal to the balance that would be due BISYS for its services
hereunder during (x) the next twelve (12) months or (y) if less than twelve
(12), the number of months remaining in the then-current term of this Agreement,
assuming for purposes of the calculation of the one-time payment that the fees
that would be earned by BISYS for each month shall be based upon the average
number of shareholder accounts and fees payable to BISYS monthly during the
twelve (12) months prior to the date that services terminate, BISYS is replaced
or a third party is added.
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In the event the Trust or any Fund is merged into another legal
entity in part or in whole pursuant to any form of business reorganization or is
liquidated in part or in whole prior to the expiration of the then-current term
of this Agreement, the parties acknowledge and agree that the liquidated damages
provision set forth above shall be applicable in those instances in which BISYS
is not retained to provide fund accounting services consistent with this
Agreement, including the number of Funds subject to such services. The one-time
cash payment referenced above shall be due and payable on the day prior to the
first day in which services are terminated, BISYS is replaced or a third party
is added. Notwithstanding the foregoing, up to two (2) Funds of the Trust may be
completely liquidated in any given year without incurring liquidated damages,
but only if the liquidation occurs for legitimate economic or regulatory
reasons, rather than pursuant to any express or tacit plan, understanding or
arrangement whereby the assets of the Fund are designed or intended to migrate,
directly or indirectly, to another investment company or other investment
vehicle.
The parties further acknowledge and agree that, in the event
services are terminated, BISYS is replaced, or a third party is added, as set
forth above, (i) a determination of actual damages incurred by BISYS would be
extremely difficult, and (ii) the liquidated damages provision contained herein
is intended to adequately compensate BISYS for damages incurred and is not
intended to constitute any form of penalty.
7. Indemnification.
The Trust agrees to indemnify and hold harmless BISYS, its
employees, agents, directors, officers and nominees from and against any and all
claims, demands, actions and suits, 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 BISYS'
actions taken or omissions with respect to the performance of services under
this Agreement or based, if applicable, upon reasonable reliance on information,
records, instructions or requests given or made to BISYS by the Trust, the
investment adviser, administrator or custodian thereof; provided that this
indemnification shall not apply to actions or omissions of BISYS in cases of its
own bad faith, willful misfeasance, negligence or reckless disregard by it of
its obligations and duties; and further provided that prior to confessing or
settling any claim against it which may be the subject of this indemnification,
BISYS shall give the Trust written notice of and reasonable opportunity to
defend against said claim in its own name or in the name of BISYS.
BISYS shall indemnify, defend, and hold the Trust harmless from and
against any and all claims, actions and suits and all losses, damages, costs,
charges, reasonable counsel fees and disbursements, payments, expenses and
liabilities (including reasonable investigation expenses) resulting directly and
proximately from BISYS'
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willful misfeasance, bad faith or negligence in the performance of its duties,
or by reason of reckless disregard of its obligations and duties hereunder.
The indemnification rights hereunder shall include the right to
reasonable advances of defense expenses in the event of any pending or
threatened litigation with respect to which indemnification hereunder may
ultimately be merited. In order that the indemnification provisions contained
herein shall apply, however, it is understood that if in any case a party may be
asked to indemnify or hold the other party harmless, the indemnifying party
shall be fully and promptly advised of all pertinent facts concerning the
situation in question, and it is further understood that the indemnified party
will use all reasonable care to identify and notify the indemnifying party
promptly concerning any situation which presents or appears likely to present
the probability of such a claim for indemnification against the indemnifying
party, but failure to do so in good faith shall not affect the rights hereunder
except to the extent the indemnifying party is materially prejudiced thereby.
The indemnifying party shall be entitled to participate at its own
expense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the indemnifying
party elects to assume the defense of any such claim, the defense shall be
conducted by counsel chosen by it and reasonably satisfactory to the indemnified
party, whose approval shall not be unreasonably withheld. In the event that the
indemnifying party elects to assume the defense of any suit and retain counsel,
the indemnified party shall bear the fees and expenses of any additional counsel
retained by it. If the indemnifying party does not elect to assume the defense
of suit, it will reimburse the indemnified party for the reasonable fees and
expenses of any counsel retained by the indemnified party. The indemnity and
defense provisions set forth herein shall indefinitely survive the termination
of this Agreement.
8. Record Retention and Confidentiality.
BISYS shall keep and maintain on behalf of the Trust all books and
records which the Trust and BISYS is, or may be, required to keep and maintain
pursuant to any applicable statutes, rules and regulations, including without
limitation Rules 31a-1 and 31a-2 under the 1940 Act, relating to the maintenance
of books and records in connection with the services to be provided hereunder.
Any records required to be maintained and preserved pursuant to Rules 31a-1 and
31a-2 under the 1940 Act which are prepared or maintained by BISYS on behalf of
the Trust shall be prepared and maintained at the expense of BISYS, but shall be
the property of the Trust and will be surrendered promptly to the Trust on
request, and made available for inspection by the Trust or by the Commission at
reasonable times.
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In case of any request or demand for the inspection of such records
by another party, BISYS shall notify the Trust and follow the Trust's
instructions as to permitting or refusing such inspection; provided that BISYS
may exhibit such records in any case where (i) disclosure is required by law,
(ii) BISYS is advised by counsel that it may incur liability for failure to make
a disclosure, (iii) BISYS is requested to divulge such information by
duly-constituted authorities or court process, or (iv) BISYS is requested to
make a disclosure by the Trust. BISYS shall provide the Trust with reasonable
advance notice of disclosure pursuant to items (i) - (iii) of the previous
sentence, to the extent reasonably practicable.
BISYS and the Trust will each treat as proprietary and confidential
any facts, circumstances, information, plans, projects and technical or
commercial knowledge gained about the other party through the relationship
created by this Agreement, except that information in the public domain and
technical, operational or commercial knowledge that was or is independently
discovered or developed shall not be subject to any such restriction. Each party
agrees that it will not disclose any such covered proprietary or confidential
information gained in relation to the other party to any unaffiliated third
parties, except (i) in the case of disclosure by BISYS, to an approved Sub-Fund
Accountant, or to any third party vendor used by BISYS, provided that further
dissemination inconsistent with this provision would be prohibited, (ii) to
financial or legal advisers (in either case in such manner as to ensure no
further dissemination), (iii) with the written consent of the other party, (iv)
as may be required by law, or (v) as necessary to obtain or retain regulatory
approvals. The parties further agree that a breach of this paragraph by either
party would irreparably damage the other party, and accordingly agree that each
party shall be entitled to an injunction or other equitable relief to prevent
the breach or a further breach of this provision.
9. Activities of BISYS.
The services of BISYS rendered to the Trust hereunder are not to be deemed
to be exclusive. BISYS is free to render such services to others and to have
other businesses and interests. It is understood that Trustees, officers,
employees and Shareholders of the Trust are or may be or become interested in
BISYS, as officers, employees or otherwise and that partners, officers and
employees of BISYS and its counsel are or may be or become similarly interested
in the Trust, and that BISYS may be or become interested in the Trust as a
shareholder or otherwise
10. Reports.
BISYS shall furnish to the Trust and to its properly authorized
auditors, investment advisers, 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 BISYS, or as
subsequently agreed upon by the parties pursuant
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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. In the event that errors or discrepancies, except such errors and
discrepancies as may not reasonably be expected to be discovered by the
recipient after conducting a diligent examination, are not so reported promptly,
a report will for all purposes be accepted by and binding upon the Trust and any
other recipient, and, except as may be provided in Section 5 hereof, BISYS shall
have no liability for errors or discrepancies therein and shall have no further
responsibility with respect to such report.
11. Rights of Ownership.
All computer programs and procedures employed or developed by or on
behalf of BISYS to perform services required to be provided by BISYS under this
Agreement are the property of BISYS. 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 shall be furnished to the Trust in appropriate form
as soon as practicable after termination of this Agreement for any reason.
12. Return of Records.
BISYS may at its option at any time, and shall promptly upon the
Trust's demand, turn over to the Trust and cease to retain BISYS's files,
records and documents created and maintained by BISYS pursuant to this Agreement
which are no longer needed by BISYS 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 BISYS 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 and Warranties.
(a) The Trust represents and warrants that: (1) as of the close of
business on the effective date of this Agreement, 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.
(b) BISYS represents and warrants that: (1) the various procedures
and systems which BISYS 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 BISYS's records, data, equipment facilities and other
property used in the performance of
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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 its
obligations hereunder, and (2) this Agreement has been duly authorized by BISYS
and, when executed and delivered by BISYS, will constitute a legal, valid and
binding obligation of BISYS, enforceable against BISYS 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.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL REPRESENTATIONS
AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY,
SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE
(IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) CONCERNING THE
SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS
AGREEMENT BY BISYS ARE COMPLETELY DISCLAIMED.
14. Insurance.
BISYS shall maintain a fidelity bond covering larceny and
embezzlement and an insurance policy with respect to directors and officers
errors and omissions coverage in amounts that are appropriate in light of its
duties and responsibilities hereunder. Upon the request of the Trust, BISYS
shall provide evidence that coverage is in place. BISYS shall notify the Trust
should its insurance coverage with respect to professional liability or errors
and omissions coverage be canceled. Such notification shall include the date of
cancellation and the reasons therefore. BISYS 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 should the total outstanding claims made by BISYS under its insurance
coverage materially impair, or threaten to materially impair, the adequacy of
its coverage.
15. Information Furnished by the Trust.
The Trust has furnished to BISYS the following, as amended and
current as of the effective date of this Agreement:
(a) Copies of the Declaration of Trust of the Trust and of any
amendments thereto, certified by the proper official of the
state in which such Declaration has been filed.
(b) Copies of the following documents:
1. The Trust's Bylaws and any amendments thereto;
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2. Certified copies of resolutions of the Trustees
covering the following matters:
A. Approval of this Agreement and authorization of a
specified officer of the Trust to execute and
deliver this Agreement and authorization for
specified officers of the Trust to instruct BISYS
hereunder; and
B. Authorization of BISYS to act as fund
accountant for the Trust.
(c) A list of all officers of the Trust and any other persons
(who may be associated with the Trust or its investment
advisor), together with specimen signatures of those officers
and other persons, who are authorized to instruct BISYS in all
matters.
(d) Two copies of the Prospectuses and Statement of
Additional Information of each Fund.
16. Information Furnished by BISYS.
BISYS has furnished to the Trust evidence of the following:
(a) Approval of this Agreement by BISYS, and authorization of a
specified officer of BISYS to execute and deliver this
Agreement;
(b) Authorization of BISYS to act as fund accountant for the
Trust.
17. Amendments to Documents.
The Trust shall furnish BISYS written copies of any amendments to,
or changes in, any of the items referred to in Section 15 hereof forthwith upon
such amendments or changes becoming effective. 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
employed by BISYS in providing the services agreed to hereunder or which
amendment might affect the duties of BISYS hereunder unless the Trust first
obtains BISYS's approval of such amendments or changes, which approval shall not
be withheld unreasonably.
18. Legal Advice; Reliance on Prospectus and Instructions.
BISYS shall notify the Trust at any time BISYS believes that it is
in need of the advice of counsel (other than counsel in the regular employ of
BISYS or any
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affiliated companies) with regard to BISYS' responsibilities and duties pursuant
to this Agreement. After so notifying the Trust, BISYS, at its discretion, shall
be entitled to seek, receive and act upon advice of legal counsel of its
choosing, such advice to be at the expense of the Trust unless relating to a
matter involving BISYS' willful misfeasance, bad faith, negligence or reckless
disregard of BISYS' responsibilities and duties hereunder, and BISYS shall in no
event be liable to the Trust or any Fund or any shareholder or beneficial owner
of the Trust for any action reasonably taken pursuant to such advice.
As to the services to be provided hereunder, BISYS may rely
conclusively upon the terms of the Prospectuses and Statement of Additional
Information of the Trust relating to the relevant Funds to the extent that such
services are described therein, as well as the minutes of Board meetings (if
applicable) and other records of the Trust unless BISYS receives written
instructions to the contrary in a timely manner from the Trust.
Also, BISYS shall be protected in acting upon any document which it
reasonably believes to be genuine and to have been signed or presented by the
proper person or persons. The Administrator will not be held to have notice of
any change of authority of any officers, employees or agents of the Trust until
receipt of written notice thereof from the Trust.
19. Compliance with Law.
Except for the obligations of BISYS 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. BISYS shall have no obligation to
take cognizance of any laws relating to the sale of the Trust's shares.
20. 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: if to the Trust, to Bank of Hawaii at 000
Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000, Attn: Xxxxx Xxxxxx, SVP; with a copy to
the Trust at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, Attn: Xxxxxxx X. Xxxxxx;
and if to BISYS, to it at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000; Attn:
President, or at such other address as such party may from time to time specify
in writing to the other party pursuant to this Section.
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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. This Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns.
22. Governing Law and Matters Relating to the Trust as a
Massachusetts Business Trust.
This Agreement shall be governed by and provisions shall be
construed in accordance with the laws of the State of New York. To the extent
that the applicable laws of the State of New York, or any of the provisions
herein, conflict with the applicable provisions of the 1940 Act, the latter
shall control. It is expressly agreed that the obligations of the Trust
hereunder shall not be binding upon any of the Trustees, shareholders, nominees,
officers, agents or employees of the Trust personally, but shall bind only the
trust property of the Trust. The execution and delivery of this Agreement have
been authorized by the Board, and this Agreement has been signed and delivered
by an authorized officer of the Trust, acting as such, and neither such
authorization by the Board nor such execution and delivery by such officer shall
be deemed to have been made by any of them individually or to impose any
liability on any of them personally, but shall bind only the trust property of
the Trust as provided in the Trust's Declaration of Trust.
23. Privacy.
Nonpublic personal financial information relating to consumers or
customers of the Trust provided by, or at the direction of the Trust to BISYS,
or collected or retained by BISYS to perform its duties shall be considered
confidential information. BISYS shall not give, sell or in any way transfer such
confidential information to any person or entity, other than affiliates of BISYS
except at the direction of the Trust or as required or permitted by law. BISYS
shall have in place and maintain physical, electronic and procedural safeguards
reasonably designed to protect the security, confidentiality and integrity of,
and to prevent unauthorized access to or use of records and information relating
to consumers or customers of the Trust. The Trust represents to BISYS that it
has adopted a Statement of its privacy policies and practices as required by the
Commission's Regulation S-P and agrees to provide BISYS with a copy of that
statement annually.
24. Miscellaneous.
(a) Paragraph headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
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(b) This Agreement constitutes the complete agreement of the parties
hereto as to the subject matter covered by this Agreement, and supercedes all
prior negotiations, understandings and agreements bearing upon the subject
matter covered herein, including, without limitation, the 1998 Agreement.
(c) This Agreement may be executed in counterparts, each of which shall be
an original but all of which, taken together, shall constitute one and the same
agreement.
(d) No amendment to this Agreement shall be valid unless made in writing
and executed by both parties hereto. The parties hereto may amend such
procedures as may be set forth herein by written agreement as may be appropriate
or practical under the circumstances, and BISYS may conclusively assume that any
special procedure which has been approved by an executive officer of the Trust
(other than an officer or employee of BISYS) does not conflict with or violate
any requirements of the Trust's Declaration of Trust, By-Laws or then-current
prospectuses, or any rule, regulation or requirement of any regulatory body.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
PACIFIC CAPITAL FUNDS
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: President
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
17
SCHEDULE A
TO THE FUND ACCOUNTING AGREEMENT
BETWEEN
PACIFIC CAPITAL FUNDS
AND
BISYS FUND SERVICES OHIO, INC.
FUNDS
- Diversified Fixed Income Fund
- Value Fund
- Growth And Income Fund
- Growth Stock Fund
- International Stock Fund
- New Asia Growth Fund
- Short Intermediate U.S. Treasury Securities Fund
- Small Company Growth Fund
- Tax-Free Securities Fund
- Tax-Free Short Intermediate Securities Fund
- Ultra Short Government Fund
- Balanced Fund
- Small Cap Fund
SCHEDULE B
TO THE FUND ACCOUNTING AGREEMENT
BETWEEN
PACIFIC CAPITAL FUNDS
AND
BISYS FUND SERVICES OHIO, INC.
Fund Accounting Fees:
For its services under this Agreement, BISYS shall receive an annual fee of
$20,000 from each Fund, and an additional fee of $15,000 annually from each Fund
for each additional class of shares, which fees shall be payable in monthly
increments.
The fees payable hereunder shall be subject to increase annually following the
first year of the Initial Term to reflect any annual percentage increase in the
Consumer Price Index published by the U.S. Department of Labor.
