Exhibit (h)(6)
TRANSFER AGENCY AGREEMENT
AGREEMENT made this 1st day of February, 2002, between PACIFIC
CAPITAL FUNDS (the "Trust"), a Massachusetts business trust 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 Transfer Agency
Agreement dated January 1, 1998 (the "1998 Agreement"), whereby BISYS agreed to
perform transfer agency services for the Trust, which has continued in effect
through the date hereof;
WHEREAS, the Trust desires that BISYS continue to perform transfer
agency services for the Trust and each investment portfolio of the Trust, as now
in existence and listed on Schedule A hereto, 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 transfer agency
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.
BISYS shall perform for the Trust the transfer agent services set
forth in Schedule B hereto. BISYS also agrees to perform for the Trust such
special services incidental to the performance of the services enumerated herein
as agreed to by the parties from time to time. BISYS shall perform such
additional services as are provided on an amendment to Schedule B hereof, in
consideration of such fees as the parties hereto may agree.
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BISYS may, with prior notice to the Trust, appoint in writing other
parties qualified to perform transfer agency services reasonably acceptable to
the Trust (individually, a "Sub-transfer Agent") to carry out some or all of its
responsibilities as transfer agent under this Agreement with respect to a Fund;
provided, however, that the Sub-transfer Agent shall be the agent of BISYS and
not the agent of the Trust or such Fund, and that BISYS shall be fully
responsible for the acts of such Sub-transfer Agent and shall not be relieved of
any of its responsibilities hereunder by the appointment of such Sub-transfer
Agent.
2. Fees.
The Trust shall pay BISYS for the services to be provided by BISYS
under this Agreement in accordance with, and in the manner set forth in,
Schedule C hereto. Fees for any additional services to be provided by BISYS
pursuant to an amendment to Schedule B hereto shall be subject to mutual
agreement at the time such amendment to Schedule B is proposed.
3. Reimbursement of Expenses and Miscellaneous Service Fees.
(a) In addition to paying BISYS the fees set forth in Schedule C,
the Trust agrees to reimburse BISYS for BISYS' reasonable out-of-pocket expenses
(for which no xxxx-up for BISYS overhead expenses shall be included) in
providing services hereunder, including without limitation, the following:
(i) All freight and other delivery and bonding charges
incurred by BISYS in delivering materials to and from
the Trust and in delivering all materials to
shareholders;
(ii) 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,
shareholders or others as required for BISYS to perform
the services to be provided hereunder;
(iii) Sales taxes paid on behalf of the Trust;
(iv) The cost of microfilm or microfiche of records or
other materials;
(v) Courier (delivery expenses);
(vi) Check processing fees;
(vii) Records retention / storage fees;
(viii) Fulfillment;
(ix) XXX custody and other related fees;
(x) NSCC and related costs;
(xi) Sales taxes;
(xii) Costs of statements and confirmations;
(xiii) Costs of tax forms;
(xiv) Costs of all other shareholder correspondence;
(xv) Post office boxes; and
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(xvi) Any expenses BISYS shall incur at the written direction
of an officer of the Trust thereunto duly authorized.
(b) In addition, BISYS shall be entitled to receive the
following fees:
(i) A fee for managing and overseeing the report, print and
mail functions performed by BISYS' third-party vendors,
not to exceed $.04 per page for statements and $.03 per
page for confirmations; fees for programming in
connection with creating or changing the format of
statements, billed at the rate of $150 per hour; and
costs for postage, couriers, stock computer paper,
statements, labels, envelopes, checks, reports, letters,
tax forms, proxies, notices or other forms of printed
material (including the costs of preparing and printing
all printed materials) which shall be required for the
performance of the services to be provided hereunder;
(ii) System development fees, billed at the rate of $150 per
hour, as approved by the Trust, and all systems-related
expenses, agreed in advance, associated with the
provision of special reports and services pursuant to
Item 8 of Schedule D attached hereto;
(iii) Fees for development of custom interfaces, billed at
a mutually agreed upon rate;
(iv) Ad hoc reporting fees, billed at a mutually agreed upon
rate;
(v) Interactive Voice Response System fees, charged
according to BISYS' standard rate schedule, and
applicable to the level of service (e.g., basic,
transaction, premium) selected; and
(vi) Expenses associated with the tracking of "as-of" trades,
billed at the rate of $50 per hour, as approved by the
Trust.
4. Effective Date.
This Agreement shall become effective as of the date first written
above (the "Effective Date").
5. Term.
This Agreement 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
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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.
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 Schedule C and
Section 3 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 transfer agent, 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-transfer Agent 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
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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.
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 transfer agency services consistent with this
Agreement, including the number of accounts 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.
6. 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.
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
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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.
7. Legal Advice.
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 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, gross
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.
8. Instructions.
Whenever BISYS is requested or authorized to take action hereunder
pursuant to instructions from a shareholder, or a properly authorized agent of a
shareholder ("shareholder's agent"), concerning an account in a Fund, BISYS
shall be entitled to rely upon any certificate, letter or other instrument or
communication, reasonably believed by BISYS to be genuine and to have been
properly made, signed or authorized by an officer or other authorized agent of
the Trust or by the shareholder or shareholder's agent, as the case may be, and
shall be entitled to receive as conclusive proof of any fact or matter required
to be ascertained by it hereunder a certificate signed by an officer of the
Trust or any other person authorized by the Trust's Board of Trustees (hereafter
referred to as the "Trustees") or by the shareholder or shareholder's agent, as
the case may be.
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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 unless BISYS receives written instructions to the
contrary in a timely manner from the Trust.
9. 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, fund accountant 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' 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.
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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.
10. Record Retention and Confidentiality.
BISYS shall keep and maintain on behalf of the Trust all books and
records which the Trust or 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 Investment Company Act of 1940, as
amended (the "1940 Act"), relating to the maintenance of books and records in
connection with the services to be provided hereunder. BISYS 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 (the "Commission") at reasonable times. BISYS shall
otherwise keep confidential all books and records relating to the Trust and its
shareholders, except when (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
a shareholder or shareholder's agent with respect to information concerning an
account as to which such shareholder has either a legal or beneficial interest
or when requested by the Trust or the dealer of record as to such account. 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-transfer Agent, 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
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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.
11. 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 at such times as are prescribed in Schedule D attached hereto, or
as subsequently agreed upon by the parties pursuant to an amendment to Schedule
D. The Trust agrees to examine each such report or copy within twenty (20) days
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 within twenty
(20) 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, except as provided in
Section 6 hereof, BISYS 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.
12. 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.
13. 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' 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
shall be retained by BISYS for six years from the year of creation. At the end
of such six-year period, such records and documents shall be turned over to the
Trust unless the Trust authorizes in writing the destruction of such records and
documents.
14. Bank Accounts.
The Trust and the Funds shall establish and maintain such bank
accounts with such bank or banks as are selected by the Trust, as are necessary
in order that BISYS may
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perform the services required to be performed hereunder. To the extent that the
performance of such services shall require BISYS directly to disburse amounts
for payment of dividends, redemption proceeds or other purposes, the Trust and
Funds shall provide such bank or banks with all instructions and authorizations
necessary for BISYS to effect such disbursements.
15. Representations and Warranties of the Trust.
The Trust represents and warrants to BISYS that: (a) as of the close
of business on the Effective Date, each Fund which is in existence as of the
Effective Date has authorized unlimited shares, (b) by virtue of its Declaration
of Trust, shares of each Fund which are redeemed by the Trust may be sold by the
Trust from its treasury, and (c) 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.
16. Representations and Warranties of BISYS.
BISYS represents and warrants that: (a) BISYS has been in, and shall
continue to be in compliance in all material respects with all provisions of
law, including Section 17A(c) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), required in connection with the performance of its duties
under this Agreement; (b) the various procedures and systems which BISYS has
implemented with regard to safekeeping from loss or damage attributable to fire,
theft or any other cause of the blank checks, records, and other data of the
Trust and BISYS' 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 its obligations hereunder; and (c) 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 right 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.
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17. 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 and industry standards. 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.
18. Information to be Furnished by the Trust and Funds.
The Trust has furnished to BISYS the following, as amended and
current as of the Effective Date:
(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;
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 Transfer Agent
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.
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(d) Two copies of the following (if such documents are employed
by the Trust):
1. Prospectuses and Statement of Additional Information;
2. Distribution Agreement; and
3. All other forms commonly used by the Trust or its
Distributor with regard to their relationships and
transactions with shareholders of the Funds.
(e) A certificate as to shares of beneficial interest of the Trust
authorized, issued, and outstanding as of the Effective Date
and as to receipt of full consideration by the Trust for all
shares outstanding, such statement to be certified by the
Treasurer of the Trust.
19. 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 Transfer Agent for the
Trust.
20. 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 18 hereof forthwith upon
such amendments or changes becoming effective. In addition, the Trust agrees
that no amendments will be made to the Prospectuses or Statement 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' approval of such amendments or changes, which approval shall not
be withheld unreasonably.
21. Reliance on Amendments.
BISYS may rely on any amendments to or changes in any of the
documents and other items to be provided by the Trust pursuant to Sections 18
and 20 of this Agreement and, subject to the provisions of Section 6 hereof, the
Trust hereby indemnifies and holds harmless BISYS from and against any and all
claims, demands, actions, suits, judgments, liabilities,
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losses, damages, costs, charges, counsel fees and other expenses of every nature
and character which may result from actions or omissions on the part of BISYS in
reasonable reliance upon such amendments and/or changes. Although BISYS is
authorized to rely on the above-mentioned amendments to and changes in the
documents and other items to be provided pursuant to Sections 18 and 20 hereof,
in the event the same relate to services provided by BISYS hereunder, BISYS
shall have no liability for failure to comply with or take any action in
conformity with such amendments or changes unless the Trust first obtains BISYS'
written consent to and approval of such amendments or changes.
22. Compliance with Law.
Except for the obligations of BISYS set forth in Section 10 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 "1933
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. The Trust
represents and warrants that all shares of the Trust that are offered to the
public are covered by an effective registration statement under the 1933 Act and
the 1940 Act.
23. 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.
24. Assignment.
This Agreement and the rights and duties hereunder shall not be
assignable by either of the parties hereto except by the specific written
consent of the other party. This Section 24 shall not limit or in any way affect
BISYS' right to appoint a Sub-transfer Agent pursuant to Section 1 hereof. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and permitted assigns.
25. 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 and the
applicable provisions of the 1940
13
Act. 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 Trustees, and this Agreement has been
signed and delivered by an authorized officer of the Trust, acting as such, and
neither such authorization by the Trustees 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.
26. 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
27. 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 in the course of performing its duties as
transfer agent, 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 represents, warrants and agrees that it
has in place and will 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.
28. 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.
* * * * *
15
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
16
SCHEDULE A
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN
PACIFIC CAPITAL FUNDS
AND
BISYS FUND SERVICES, 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 TRANSFER AGENCY AGREEMENT
BETWEEN
PACIFIC CAPITAL FUNDS
AND
BISYS FUND SERVICES, INC.
TRANSFER AGENCY SERVICES
1. Shareholder Transactions
a. Process shareholder purchase and redemption orders.
b. Set up account information, including address, dividend option,
taxpayer identification numbers and wire instructions.
c. Issue confirmations in compliance with Rule 10b-10 under the
Securities Exchange Act of 1934, as amended.
d. Issue periodic statements for shareholders.
e. Process transfers and exchanges.
f. Process dividend payments, including the purchase of new shares,
through dividend reimbursement.
2. Shareholder Information Services
a. Make information available to shareholder servicing unit and other
remote access units regarding trade date, share price, current
holdings, yields, and dividend information.
b. Produce detailed history of transactions through duplicate or
special order statements upon request.
c. Provide mailing labels for distribution of financial reports,
prospectuses, proxy statements or marketing material to current
shareholders.
3. Compliance Reporting
a. Provide reports to the Securities and Exchange Commission, the
National Association of Securities Dealers, Inc. and the States
in which the Fund is registered.
b. Prepare and distribute appropriate Internal Revenue Service forms
for corresponding Fund and shareholder income and capital gains.
c. Issue tax withholding reports to the Internal Revenue Service.
4. Dealer/Load Processing (if applicable)
a. Provide reports for tracking rights of accumulation and purchases
made under a Letter of Intent.
b. Account for separation of shareholder investments from
transaction sale charges for purchase of Fund shares.
c. Calculate fees due under 12b-1 plans for distribution and
marketing expenses.
d. Track sales and commission statistics by dealer and provide for
payment of commissions on direct shareholder purchases in a load
Fund.
5. Shareholder Account Maintenance
a. Maintain all shareholder records for each account in the Trust.
b. Issue customer statements on scheduled cycle, providing duplicate
second and third party copies if required.
c. Record shareholder account information changes.
d. Maintain account documentation files for each shareholder.
SCHEDULE C
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN
PACIFIC CAPITAL FUNDS
AND
BISYS FUND SERVICES, INC.
TRANSFER AGENT FEES
Transfer Agency Fees for Pacific Capital Funds:
$22.50 per direct account per year
$17.50 per networked account per year
$ 5.00 per closed account per year
In addition, a fee of $15.00 per XXX account will be charged per
year to each XXX account, and BISYS shall also receive an additional
fee of $15,500 from each Fund annually for each class of shares,
which shall be payable in monthly increments.
The per class 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.
SCHEDULE D
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN
PACIFIC CAPITAL FUNDS
AND
BISYS FUND SERVICES, INC.
REPORTS
1. Daily Shareholder Activity Journal
2. Daily Fund Activity Summary Report
a. Beginning Balance
b. Dealer Transactions
c. Shareholder Transactions
d. Reinvested Dividends
e. Exchanges
f. Adjustments
g. Ending Balance
3. Daily Wire and Check Registers
4. Monthly Dealer Processing Reports
5. Monthly Dividend Reports
6. Sales Data Reports for Blue Sky Registration
7. A copy of the most recent report by independent public accountants
describing control structure policies and procedures relating to transfer
agency operations pursuant to AICPA Statement on Auditing Standards Number
70.
8. Such special reports and additional information that the parties may
agree upon, from time to time.