Exhibit (h)(5)
SUB-ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
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THIS AGREEMENT is made as of August 31, 2001 by and among PFPC INC., a
Massachusetts corporation ("PFPC"), PACIFIC FUNDS, a Delaware business trust,
(the "Fund") and PACIFIC LIFE INSURANCE COMPANY, a life insurance company
domiciled in California ("Pacific Life").
W I T N E S S E T H :
WHEREAS, Pacific Life has entered into an Administration Agreement dated
June 13, 2001 with the Fund pursuant to which Pacific Life is authorized to
provide or procure certain administrative and shareholder services for the Fund
and each of its investment portfolios (the "Administration Agreement"); and
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, Pacific Life and the Fund wishes to retain PFPC to provide
administration and accounting services with respect to the Fund's investment
portfolios listed on Exhibit A attached hereto and made a part hereof, as such
Exhibit A may be amended from time to time (each a "Portfolio"), and PFPC wishes
to furnish such services.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and intending to be legally bound hereby the parties hereto
agree as follows:
1. Definitions. As Used in this Agreement:
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(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Fund and any other
person duly
authorized by the Fund's Board of Trustees or by an officer of the
Fund or other duly authorized person to give Oral Instructions and
Written Instructions on behalf of the Fund. An Authorized Person's
scope of authority may be limited by setting forth such limitation in
a written document signed by the parties hereto.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Oral Instructions" mean oral instructions received by PFPC from an
Authorized Person or from a person reasonably believed by PFPC to be
an Authorized Person. PFPC may, in its sole discretion in each
separate instance, consider and rely upon instructions it receives
from an Authorized Person via electronic mail as Oral Instructions.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(h) "Shares" means the shares of beneficial interest of any series or
class of the Fund.
(i) "Written Instructions" mean (i) written instructions signed by an
Authorized Person and received by PFPC or (ii) trade instructions
transmitted (and received by PFPC) by means of an electronic
transaction reporting system access to which requires use of a
password or other authorized identifier. The instructions may be
delivered by hand, mail, tested telegram, cable, telex or facsimile
sending device.
2. Appointment. Pacific Life and the Fund hereby appoints PFPC to provide
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administration and accounting services with respect to each of the
Portfolios, in accordance with the terms set forth in this Agreement. PFPC
accepts such appointment and agrees to furnish such services.
3. Delivery of Documents. The Fund or Pacific Life has provided or, where
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applicable,
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will provide PFPC with the following:
(a) at PFPC's request, certified or authenticated copies of the
resolutions of the Fund's Board of Trustees, approving the appointment
of PFPC or its affiliates to provide services to each Portfolio and
approving this Agreement;
(b) a copy of Fund's most recent effective registration statement;
(c) a copy of each Portfolio's advisory agreement or agreements;
(d) a copy of the distribution/underwriting agreement with respect to each
class of Shares representing an interest in a Portfolio;
(e) a copy of each additional administration agreement with respect to a
Portfolio;
(f) a copy of each distribution and/or shareholder servicing plan and
agreement made in respect of the Fund or a Portfolio;
(g) a copy of the Fund's Declaration of Trust and By-Laws; and
(h) copies (certified or authenticated, where applicable) of any and all
amendments or supplements to the foregoing.
4. Compliance with Rules and Regulations.
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PFPC undertakes to comply with all applicable requirements of the
Securities Laws, and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be performed
by PFPC hereunder. In addition, PFPC shall act in accordance with the
Declaration of Trust, by-laws, and registration statement of the Fund on
file with the Securities and Exchange Commission ("SEC"), as amended from
time to time ("Registration Statement"), the policies and procedures
adopted by the Board of Trustees of the Fund (the "Board"), and the
instructions of the Board. Except as specifically set forth herein, PFPC
assumes no responsibility for such compliance by the Pacific Life, the Fund
or any other entity.
5. Instructions.
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(a) Unless otherwise provided in this Agreement, PFPC shall act only upon
Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or Written
Instruction it receives from an Authorized Person (or from a person
reasonably believed by PFPC to be an Authorized Person) pursuant to
this Agreement. PFPC may assume that any Oral Instruction or Written
Instruction received hereunder is not in any way inconsistent with the
provisions of organizational documents or this Agreement or of any
vote, resolution or proceeding of the Fund's Board of Trustees or of
the Fund's shareholders, unless and until PFPC receives Written
Instructions to the contrary.
(c) Pacific Life agrees to forward (or cause the Fund to forward) to PFPC
Written Instructions confirming Oral Instructions (except where such
Oral Instructions are given by PFPC or its affiliates) so that PFPC
receives the Written Instructions by the close of business on the same
day that such Oral Instructions are received. The fact that such
confirming Written Instructions are not received by PFPC or differ
from the Oral Instructions shall in no way invalidate the transactions
or enforceability of the transactions authorized by the Oral
Instructions or PFPC's ability to rely upon such Oral Instructions.
Where Oral Instructions or Written Instructions reasonably appear to
have been received from an Authorized Person, PFPC shall incur no
liability to Pacific Life or the Fund in acting upon such Oral
Instructions or Written Instructions provided that PFPC's actions
comply with such Oral or Written Instructions and the other provisions
of this Agreement.
6. Right to Receive Advice.
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(a) Advice of the Fund. If PFPC is in doubt as to any action it should or
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should not take, PFPC may request directions or advice, including Oral
Instructions or Written Instructions, from the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any question of
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law pertaining to any action it should or should not take, PFPC may
request advice at its own cost from counsel of its own choosing (who
may be counsel for the Fund, the Fund's investment adviser or PFPC, at
the option of PFPC).
(c) Conflicting Advice. In the event of a conflict between directions or
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advice or Oral Instructions or Written Instructions PFPC receives from
the Fund and the advice PFPC receives from counsel, PFPC may rely upon
and follow the advice of counsel. PFPC shall promptly notify Pacific
Life in the event such advice is inconsistent with Oral or Written
Instructions PFPC receives from the Fund or Pacific Life.
(d) Protection of PFPC. PFPC shall be protected in any action it takes or
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does not take in reliance upon directions or advice or Oral
Instructions or Written Instructions it receives from the Fund or from
counsel and which PFPC believes, in good faith, to be consistent with
those directions or advice and Oral Instructions or Written
Instructions. Nothing in this section shall be construed so as to
impose an obligation upon PFPC (i) to seek such directions or advice
or Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions or
Written Instructions unless, under the terms of other provisions of
this Agreement, the same is a condition of PFPC's properly taking or
not taking such action.
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7. Records; Visits.
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(a) The books and records pertaining to the Fund and the Portfolios which
are in the possession or under the control of PFPC shall be the
property of the Fund. Such books and records shall be prepared and
maintained as required by the 1940 Act and other applicable securities
laws, rules and regulations. The Fund, Pacific Life and Authorized
Persons shall have access to such books and records at all times
during PFPC's normal business hours. Upon the reasonable request of
Pacific Life or the Fund, copies of any such books and records shall
be provided by PFPC to the Fund or to an Authorized Person, at the
Fund's expense. Upon reasonable notice by the Fund, PFPC shall make
available during regular business hours its facilities and premises
employed in connection with its performance of this Agreement for
reasonable visits by the Fund, any agent or person designated by the
Fund, Pacific Life or any regulatory agency having authority over the
Fund.
(b) PFPC shall keep the following records:
(i) all books and records with respect to each Portfolio's books of
account;
(ii) records of each Portfolio's securities transactions; and
(iii) all other books and records as PFPC is required to maintain
pursuant to Rules 31a-1 or 31a-2 of the 1940 Act and other
applicable securities laws, rules and regulations in connection
with the services provided hereunder.
8. Confidentiality. Each party shall keep confidential any information
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relating to each other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that is
competitively sensitive material, and not
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generally known to the public, including, but not limited to, information
about product plans, marketing strategies, finances, operations, customer
relationships, customer profiles, customer lists, sales estimates, business
plans, and internal performance results relating to the past, present or
future business activities of the Fund, Pacific Life or PFPC, their
respective subsidiaries and affiliated companies and the customers, clients
and suppliers of any of them; (b) any scientific or technical information,
design, process, procedure, formula, or improvement that is commercially
valuable and secret in the sense that its confidentiality affords the Fund,
Pacific Life or PFPC a competitive advantage over its competitors; (c) all
confidential or proprietary concepts, documentation, reports, data,
specifications, computer software, source code, object code, flow charts,
databases, inventions, know-how, and trade secrets, whether or not
patentable or copyrightable; (d) all books and records of the Fund and each
Portfolio relating to the Fund and its shareholders, including broker-
dealer or other sales relationships; (e) all non-public personally
identifiable financial and/or health information ("NPI"), as defined in
federal and state law, regarding consumers, customers, former customers
and/or their beneficiaries, and (f) anything designated as confidential.
Notwithstanding the foregoing, information shall not be subject to such
confidentiality obligations if it: (i) is already known to the receiving
party at the time it is obtained; (ii) is or becomes publicly known or
available through no wrongful act of the receiving party; (iii) is
rightfully received from a third party who, to the best of the receiving
party's knowledge, is not under a duty of confidentiality; (iv) is released
by the protected party to a third party without restriction; (v) is
required to be disclosed by the receiving party pursuant to a requirement
of a court order, subpoena, governmental or regulatory agency or law
(provided the
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receiving party will provide the other party written notice of such
requirement, to the extent such notice is permitted); (vi) is relevant to
the defense of any claim or cause of action asserted against the receiving
party; or (vii) has been or is independently developed or obtained by the
receiving party. Further, each party may share Confidential Information
with such party's counsel, accountants and other service providers to the
extent reasonably necessary to facilitate compliance with applicable legal
and regulatory requirements and financial reporting obligations. With
respect to item (e) in the preceding paragraph, each party further agrees
to establish and maintain administrative, technical and physical safeguards
to protect the security, confidentiality and integrity of the NPI. At the
request of the party that owns the NPI, or in the absence of such request,
upon termination of this Agreement, the other party shall promptly return
all NPI which has been provided to it, or dispose of such NPI in a manner
agreed upon by the parties.
No party shall use the Confidential Information of any other party for
any purpose whatsoever, except as expressly contemplated under this
Agreement.
9. Liaison with Accountants. PFPC shall act as liaison with the Fund's
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independent public accountants and shall provide account analyses, fiscal
year summaries, and other audit-related schedules with respect to each
Portfolio. PFPC shall take all reasonable action in the performance of its
duties under this Agreement to assure that the necessary information is
made available to such accountants for the expression of their opinion, as
required by the Fund.
10. PFPC System.
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(a) PFPC shall retain title to and ownership of any and all data bases,
computer programs, screen formats, report formats, interactive design
techniques, derivative
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works, inventions, discoveries, patentable or copyrightable matters,
concepts, expertise, patents, copyrights, trade secrets, and other
related legal rights utilized by PFPC in connection with the services
provided by PFPC to the Fund under this Agreement.
(b) Notwithstanding the above, PFPC agrees that Pacific Life, the Fund
and/or its or their employees and agents, shall be free to use and
employ their general know-how, skills, and expertise, and to use,
disclose, and employ any generalized ideas, concepts, know-how,
methods, techniques or skills gained or learned during the course of
any services performed hereunder, subject to their obligations
respecting PFPC's Confidential Information pursuant to Section 8.
11. Disaster Recovery. PFPC shall enter into and shall maintain in effect with
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appropriate parties one or more agreements making reasonable provisions for
emergency use of electronic data processing equipment to the extent
appropriate equipment is available. In the event of equipment failures,
PFPC shall, at no additional expense to Pacific Life or the Fund, take
reasonable steps to minimize service interruptions. PFPC shall have no
liability with respect to the loss of data or service interruptions caused
by equipment failure, provided such loss or interruption is not caused by
PFPC's own willful misfeasance, bad faith, negligence or reckless disregard
of its duties or obligations under this Agreement. PFPC agrees to take
measures to ensure that back-up systems are available in the event of a
disaster as described in this Section 11, and to back-up data maintained
pursuant to this Agreement on a daily basis. Upon the Fund's request, PFPC
shall timely provide the Fund with copies of PFPC's then current disaster
recovery plan and related documentation.
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12. Compensation. As compensation for services rendered by PFPC during the
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term of this Agreement, Pacific Life and the Fund will pay to PFPC a fee or
fees as may be agreed to in writing by Pacific Life, the Fund and PFPC.
13. Indemnification.
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(a) The Fund, on behalf of each Portfolio, agrees to indemnify, defend and hold
harmless PFPC and its affiliates, including their respective officers,
directors, agents and employees, from all taxes, charges, expenses,
assessments, claims and liabilities (including, without limitation,
attorneys' fees and disbursements and liabilities arising under the
Securities Laws and any state and foreign securities and blue sky laws)
arising directly or indirectly from any action or omission to act which
PFPC takes (i) in connection with the provision of services to the Fund
hereunder, (ii) at the request or direction of Pacific Life or the Fund,
(iii) upon Oral or Written Instructions, or (iv) under PFPC's prescribed
procedures. Neither PFPC, nor any of its affiliates, shall be indemnified
against any liability (or any expenses incident to such liability) caused
by PFPC's or its affiliates' own willful misfeasance, bad faith, negligence
or reckless disregard of its duties and obligations under this Agreement.
Any amounts payable by the Fund hereunder shall be satisfied only against
the relevant Portfolio's assets and not against the assets of any other
investment portfolio of the Fund. (b) PFPC agrees to indemnify, defend and
hold harmless Pacific Life, the Fund, and each of their affiliates,
including their respective officers, directors, trustees, agents, and
employees, from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, attorneys' fees and
disbursements and liabilities arising under the Securities Laws and any
state and foreign securities and blue sky laws) arising directly or
indirectly
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from the failure of PFPC to comply with any provision, representation,
warranty or other term of this Agreement or with applicable law or
regulation.
14. Responsibility of PFPC.
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(a) PFPC shall be under no duty to take any action hereunder on behalf of
Pacific Life or the Fund or any Portfolio except as specifically set
forth herein or as may be specifically agreed to by PFPC, Pacific Life
and the Fund in a written amendment hereto. PFPC shall be obligated
to exercise care and diligence in the performance of its duties
hereunder and to act in good faith in performing services provided for
under this Agreement. PFPC shall be liable only for any damages
arising out of PFPC's failure to perform its duties under this
Agreement to the extent such damages arise out of PFPC's willful
misfeasance, bad faith, negligence or reckless disregard of such
duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC shall not be liable for losses
beyond its control, including without limitation (subject to Section
11), delays or errors or loss of data occurring by reason of
circumstances beyond PFPC's control, provided that PFPC has acted in
accordance with the standard set forth in Section 14(a) above; and
(ii) PFPC shall not be under any duty or obligation to inquire into
and shall not be liable for the validity or invalidity or authority or
lack thereof of any Oral Instruction or Written Instruction, notice or
other instrument which conforms to the applicable requirements of this
Agreement, and which PFPC reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, (i)
neither PFPC nor
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its affiliates shall be liable for any consequential, special or
indirect losses or damages, whether or not the likelihood of such
losses or damages was known by PFPC or its affiliates.
(d) Each party shall have a duty to reasonably mitigate damages for which
the other party may become responsible.
(e) PFPC will maintain insurance of the types and in the amounts that PFPC
reasonably believes is adequate for its business, including, but not
limited to, insurance covering errors and omissions, and all other
risks customarily insured against by similarly situated companies, all
of which insurance is currently in full force and effect and will
remain so through the term of this Agreement.
15. Description of Accounting Services on a Continuous Basis.
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PFPC will perform the following accounting services with respect to each
Portfolio:
(i) Journalize investment, capital share and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when received from the
investment adviser (which shall include a sub-adviser) for a
Portfolio (the "Adviser") and transmit trades to the Fund's
custodian (the "Custodian") for proper settlement;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of the Fund with the
Custodian, and provide the Adviser with the beginning cash balance
available for investment purposes;
(vi) Update the cash availability throughout the day as required by the
Adviser;
(vii) Post to and prepare the Statement of Assets and Liabilities and the
Statement of Operations;
(viii) Calculate various contractual expenses (e.g., advisory and custody
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fees);
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(ix) Monitor the expense accruals and notify an officer of the Fund of
any proposed adjustments;
(x) Control all disbursements and authorize such disbursements upon
Written Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine net income;
(xiii) Obtain security market quotes from independent pricing services
approved by the Fund or the Adviser, or if such quotes are
unavailable, then obtain such prices in accordance with the
valuation procedures of the Fund, and in either case calculate the
market value of each Portfolio's Investments;
(xiv) Transmit or fax a copy of the daily portfolio valuation to the
Adviser;
(xv) Compute net asset value and per share in accordance with the Fund's
Registration Statement and valuation procedures;
(xvi) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average dollar-
weighted maturity in accordance with applicable laws and
regulations; and
(xvii) Prepare a quarterly financial statement as necessary, which will
include the following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Cash Statement
Schedule of Capital Gains and Losses
Financial Highlights
16. Description of Administration Services on a Continuous Basis.
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PFPC will perform the following administration services with respect to
each Portfolio:
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Portfolio and Fund statistical
data as requested on an ongoing basis;
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(iv) Prepare for execution and file the Fund's Federal and state tax
returns and any foreign tax returns required to be filed by the
Fund;
(v) Monitor each Portfolio's status as a regulated investment company
under Sub-chapter M of the Internal Revenue Code of 1986, as
amended;
(vi) Prepare the Fund's annual and semi-annual reports, prospectus,
Statement of Additional Information, and other communications
required or otherwise to be sent to shareholders;
(vii) Prepare and file in coordination with the Fund's counsel the Post-
Effective Amendments to the Fund's Registration Statement, annual
and semi-annul reports to shareholders, and other communications
required or otherwise to be sent to Fund shareholders; prepare and
file reports to the SEC including the preparation and filing of (i)
annual and semi-annual reports on Form N-SAR and (ii) Notices
pursuant to Rule 24f-2;
(viii) Assist in obtaining the fidelity bond and directors' and
officers'/errors and omissions insurance policies for the Fund in
accordance with the requirements of Rule 17g-1 and 17d-1(d)(7) under
the 1940 Act as such bond and policies are approved by the Fund's
Board of Trustees;
(ix) Monitor the Fund's assets to assure adequate fidelity bond coverage
is maintained;
(x) Draft agendas, resolutions and materials in accordance with
standards specified by the Board of Trustees for quarterly or other
periodic Board meetings;
(xi) Coordinate the preparation, assembly and mailing of Board materials;
(xii) Maintain the Fund's corporate calendar to assure compliance with
various filing and Board approval deadlines;
(xiii) Coordinate contractual relationships and communications between the
Fund and its contractual service providers;
(xiv) Prepare and file state notice filings of the Fund's securities and
monitor the Fund's compliance with the amounts and conditions of
each state qualification, provided that the Fund shall be
responsible for any registration or filing fees related to such
activity;
(xv) To the extent reasonably by Pacific Life, receive and respond to
inquiries from shareholders or their agents or representatives
relating to the Fund in accordance with mutual fund industry
standards, concerning, among other things, account information, or
referring any such inquiries to the Fund's officers or appropriate
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agents.
(xvi) Provide periodic testing of the holdings of each Portfolio to
assist Pacific Life and the Fund in complying with the requirements
of the 1940 Act and the Fund's investment limitations and policies
as contained in the Registration Statement and to report the
results of such testing to the Fund's Board of Trustees and to
Pacific Life with such frequency and in such detail as may be
mutually agreed upon;
(xvii) Review calculation, submit for approval by officers of the Fund,
and arrange for payment of Fund expenses;
(xviii) Organize, attend, and prepare minutes of shareholder meetings;
(xix) Develop or assist in developing procedures to monitor compliance by
the Fund and its various agents with Securities Laws, the
objectives, policies and limitations set forth in the Registration
Statement, any policies or procedures adopted by the Board, and any
other matters as agreed to between Pacific Life or the Fund and
PFPC;
(xx) Assist the Fund in the handling of regulatory examinations and
responses thereto;
(xxi) Coordinate with Fund counsel the preparation and filing of proxy
materials; and
(xxii) Calculate and monitor compliance with NASD Conduct Rule 2830(d)
with respect to each class of shares of the Fund.
17. Duration and Termination. This Agreement shall continue until terminated
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without penalty by a party on sixty (60) days' prior written notice to the
other parties. In the event Pacific Life or the Fund gives notice of
termination, (unless such termination is derived from PFPC's breach of any
provision of this Agreement) all reasonable expenses of PFPC associated
with movement (or duplication) of records and materials and conversion
thereof to a successor accounting and administration services agent(s) (and
any other service provider(s)), and all trailing expenses incurred by PFPC,
will be borne by the party giving such notice. No such expenses shall be
payable in the event PFPC gives notice of termination.
18. Phase Back.
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(a) Upon termination of this Agreement and payment of all undisputed fees,
PFPC shall at the Fund's expense deliver to Pacific Life, the Fund and
any successor service provider as the Fund may designate, in machine
readable form on such media as the Fund or its designee reasonably
requests, a copy of all Fund records, files and data maintained by
PFPC for the Fund hereunder, including, without limitation, all data
in PFPC's possession which are related to the services provided by
PFPC for the Fund. Notwithstanding and in addition to the foregoing,
as soon as reasonably practicable after the issuance of a notice of
termination by a party, PFPC shall at the Fund's expense deliver to
the Fund or its designee the then most current data in PFPC's
possession which are related to the services provided by PFPC for the
Fund.
(b) PFPC agrees to cooperate with any third parties, as designated by the
Fund, in performing the tasks it will perform as part of such
additional support. Further, any service initiated prior to the
effective date of the termination of this Agreement shall be completed
as otherwise provided in accordance with the terms and conditions of
this Agreement.
(c) In the event of a termination under the terms of the Agreement, the
parties may agree to extend the term of this Agreement for the sole
purpose of accomplishing the Phase Back as described in this Section.
(d) If at the time of termination the Fund in good faith legitimately
disputes any fees owed to PFPC under this Agreement, the Fund shall do
the following upon any notice of termination (i) pay PFPC any and all
undisputed fees owed under this Agreement; and (ii) provide PFPC a
detailed written description of the disputed
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amount and the basis for the Fund's dispute with such amount. In
addition, the Fund shall cooperate with PFPC in good faith in
resolving any disputed fees and then promptly paying such amounts
mutually determined to be due.
19. Notices. Notices shall be addressed (a) if to PFPC, at 400 Bellevue
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Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to
Pacific Life or the Fund, at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxx, XX
00000, Attention: Xxxxx Xxxxx; (c) if to none of the foregoing, at such
other address as shall have been given by like notice to the sender of any
such notice or other communication by the other party. If notice is sent
by confirming telegram, cable, telex or facsimile sending device, it shall
be deemed to have been given immediately. If notice is sent by first-class
mail, it shall be deemed to have been given three days after it has been
mailed. If notice is sent by messenger, it shall be deemed to have been
given on the day it is delivered.
20. Amendments. This Agreement, or any term thereof, may be changed or waived
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only by written amendment, signed by all parties is sought.
21. Delegation; Assignment. PFPC may assign its rights hereunder to any
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majority-owned direct or indirect subsidiary of PFPC or The PNC Financial
Services Group, Inc., provided that PFPC gives the Fund 30 days prior
written notice of such assignment and provides a written representation
that such assignment will not affect the quality of services provided
hereunder or the financial condition of the service provider.
22. Counterparts. This Agreement may be executed in two or more counterparts,
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each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
23. Further Actions. Each party agrees to perform such further acts and
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execute such further
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documents as are necessary to effectuate the purposes hereof.
24. PFPC DataStation Access Services. PFPC shall provide the DataStation
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Internet access services as set forth on Exhibit B attached hereto and made
a part hereof, as such Exhibit B may be amended from time to time. Persons
who are "Authorized Persons" to access DataStation are set forth on Exhibit
C attached hereto and made a part hereof, as such Exhibit C may be amended
from time to time.
25. Miscellaneous.
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(a) Notwithstanding anything in this Agreement to the contrary, the Fund
agrees not to make any modifications to its registration statement or
adopt any policies which would affect materially the obligations or
responsibilities of PFPC hereunder without the prior written notice to
of PFPC.
(b) This Agreement (which includes all exhibits and attachments hereto)
embodies the entire agreement and understanding between the parties
and supersedes all prior agreements and understandings relating to the
subject matter hereof, provided that the parties may embody in one or
more separate documents their agreement, if any, with respect to
delegated duties. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of
the provisions hereof or otherwise affect their construction or
effect. Notwithstanding any provision hereof, the services of PFPC are
not, nor shall they be, construed as constituting legal advice or the
provision of legal services for or on behalf of the Fund or any other
person.
(c) This Agreement shall be deemed to be a contract made in Delaware and
governed by Delaware law, without regard to principles of conflicts of
law.
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(d) If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
(e) The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such party.
(f) A Copy of the Fund's Certificate of Trust is on file with the State of
Delaware and notice is hereby given that this Agreement has been
executed on behalf of the Trust by a trustee or officer of the Trust
in his or her capacity as such and not individually. The obligations
of this Agreement shall only be binding upon the assets and property
of the Fund and shall not be binding upon any trustee, officer, or
shareholder of the Fund individually. Further, the debts, liabilities,
obligations and expenses incurred or contracted for hereunder with
respect to a Portfolio shall be enforceable against the assets of that
Portfolio only and not against the assets of the Fund generally or any
other Portfolio.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By: /s/ Xxxxxx Xxxxx
____________________________
Title: Executive Vice President
_________________________
PACIFIC LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
____________________________
Title: President
_________________________
By: /s/ Xxxxxx X. Milfs
_____________________________
Title: Vice President & Secretary
__________________________
PACIFIC FUNDS
By: /s/ Xxxxx X. Xxxxxxx
_____________________________
Title: President
__________________________
20
EXHIBIT A
---------
THIS EXHIBIT A, dated as of August 31, 2001 is Exhibit A to that certain
Sub-Administration and Accounting Services Agreement dated as of August 31, 2001
among PFPC Inc. and Pacific Life Insurance Company, and Pacific Funds.
PORTFOLIOS
----------
PF AIM Blue Chip Fund
PF AIM Aggressive Growth Fund
PF INVESCO Health Sciences Fund
PF INVESCO Technology Fund
XX Xxxxx Strategic Value Fund
XX Xxxxx Growth LT Fund
XX Xxxxxx International Value Fund
PF MFS Mid-Cap Growth Fund
PF MFS Global Growth Fund
PF PIMCO Managed Bond Fund
PF Pacific Life Money Market Fund
XX Xxxxxxx Brothers Large-Cap Value Fund
21
EXHIBIT B
DataStation Access Services
---------------------------
THIS EXHIBIT B, dated as of August 31, 2001, is Exhibit B to the Sub-
Administration and Accounting Services Agreement dated August 31, among
Pacific Life Insurance Company ("Pacific Life"), PFPC Inc. ("PFPC"), and Pacific
Funds ("Fund").
1. PFPC Services
- -------------
(a) Provide Internet access to PFPC DataStation ("DataStation") at
xxx.xxxxxxxxxxxxxxx.xxx (the "Site") for Fund portfolio data otherwise
-----------------------
supplied by PFPC to Fund service providers via other electronic and
manual methods (the "Services"). Types of information to be provided
on the Site include: (i) data relating to portfolio securities, (ii)
general ledger balances, and (iii) net asset value-related data (NAV
and net asset, distribution and yield detail).
(b) Supply each of the Authorized Persons specified on Exhibit C as
permissible users of DataStation (the "Users") with a logon ID and
Password;
(c) Provide to Users access to the information listed in (a) above using
standard inquiry tools and reports. Users will be able to modify
standard inquiries to develop user-defined inquiry tools; however,
PFPC will review computer costs for running user-defined inquiries and
may assess surcharges for those requiring excessive hardware
resources. In addition, costs for developing custom reports or
enhancements are not included in the fees set forth below and will be
negotiated and billed separately.
(d) Utilize a form of encryption that is generally available to the public
in the U.S. for standard Internet browsers and establish, monitor and
verify firewalls and other security features (commercially reasonable
for this type of information and these types of users) and exercise
commercially reasonable efforts to maintain the security and integrity
of the Site; and
(e) Monitor the telephone lines involved in providing the Services and
inform the Fund promptly of any malfunctions or service interruptions.
2. Duties of Pacific Life and the Users
- ------------------------------------
(a) Provide and maintain a web browser supporting Secure Sockets Layer
128-bit encryption; and
22
(b) Keep logon IDs and passwords confidential and notify PFPC immediately
in the event that a logon ID or password is lost, stolen or if you
have reason to believe that the logon ID and password are being used
by an unauthorized person.
3. Standard of Care; Limitations of Liability
- ------------------------------------------
(a) Notwithstanding anything to the contrary contained in the Agreement or
this Exhibit B, PFPC shall be liable for direct damages incurred by
Pacific Life or the Fund and which arise out of PFPC's failure to
perform its duties and obligations described in this Exhibit B to the
extent such damages constitute willful misfeasance, bad faith,
negligence or reckless disregard of its duties and obligations under
this Exhibit B.
(b) Pacific Life acknowledges that the Internet is an "open," publicly
accessible network and not under the control of any party. PFPC's
provision of Services is dependent upon the proper functioning of the
Internet and services provided by telecommunications carriers,
firewall providers, encryption system developers and others. Pacific
Life agrees that PFPC shall not be liable in any respect for the
actions or omissions of any third party wrongdoers (i.e., hackers not
employed by such party or its affiliates) or of any third parties
involved in the Services other than those retained by PFPC, and shall
not be liable in any respect for the selection of any such third
party, unless that selection constitutes a breach of PFPC's standard
of care above.
(c) Without limiting the generality of the foregoing or any other
provisions of this Exhibit B or the Agreement, PFPC shall not be
liable for delays or failures to perform any of the Services or errors
or loss of data occurring by reason of circumstances beyond such
party's control, including acts of civil or military authority,
national emergencies, fire, flood, catastrophe, acts of God,
insurrections, war, riots or failure of the mails, transportation,
communication or power supply, functions or malfunctions of the
Internet or telecommunications services, firewalls, encryption systems
or security devices caused by any of the above, or laws or regulations
imposed after the date of this Exhibit.
4. Fees for DataStation Services.
- ------------------------------
As consideration for the performance by PFPC of the Services, Pacific
Life will pay the fees set forth in a separate fee letter or work
order as agreed between the parties from time to time.
5. Duration, Termination and Changes to Terms.
- -------------------------------------------
(a) PFPC shall have the right at any time to review and propose changes to
the terms and fees described in this Agreement. Such changes will
become effective and bind the parties hereto after ninety (90) days
from the date PFPC notifies the Fund of such changes, unless the Fund
terminates this Agreement pursuant hereto or the parties agree
otherwise at such time.
23
(b) Either party may terminate this Agreement upon sixty (60) days prior
written notice to the other. Any outstanding fees must be paid before
this Agreement terminates.
6. Miscellaneous. In the event of a conflict between specific terms of this
- -------------
Exhibit B and the Agreement, this Exhibit B shall control as to the
Internet Services.
PACIFIC LIFE INSURANCE PFPC INC.
COMPANY
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxx
_______________________ ____________________________
Name: Xxxxx X. Xxxxxxx Name: Xxxxxx Xxxxx
Title: President Title: Executive Vice President
By: /s/ Xxxxxx X. Milfs
_______________________
Name: Xxxxxx X. Milfs
Title: Vice President & Secretary
PACIFIC FUNDS
By: /s/ Xxxxx X. Xxxxxxx
_______________________
Name: Xxxxx X. Xxxxxxx
Title: President
24
EXHIBIT C
DataStationAuthorized Persons
THIS EXHIBIT C, dated as of August 31, 2001 is Exhibit C to the Sub-
Administration and Accounting Services Agreement dated August 31, among Pacific
Life Insurance Company ("Pacific Life"), PFPC Inc. ("PFPC"), and Pacific Funds
("Fund").
The following individuals shall be Fund Authorized Persons to access PFPC
DataStation:
Name Company or Firm Signature
------ --------------- ---------
-------------------- --------------------- ----------------------
-------------------- --------------------- ----------------------
-------------------- --------------------- ----------------------
-------------------- --------------------- ----------------------
-------------------- --------------------- ----------------------
-------------------- --------------------- ----------------------
-------------------- --------------------- ----------------------
PACIFIC LIFE INSURANCE PFPC INC.
COMPANY
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxx
----------------------- ---------------------
Name Xxxxx X. Xxxxxxx Name: Xxxxxx Xxxxx
Title: President Title: Executive Vice President
By: /s/ Xxxxxx X. Milfs
-----------------------
Name Xxxxxx X. Milfs
Title: Vice President & Secretary
PACIFIC FUNDS
By: /s/ Xxxxx X. Xxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: President
25
August 31, 2001
PACIFIC FUNDS
Re: Sub-Administration and Accounting Services Agreement Fee Schedule
-----------------------------------------------------------------
Dear Sir/Madam:
This letter constitutes our agreement with respect to compensation to be
paid to PFPC Inc. ("PFPC") by Pacific Life Insurance Company ("Pacific Life")
and the Pacific Funds (the "Fund") under the terms of a Sub-Administration and
Accounting Services Agreement dated August 31, 2001 among the Fund, Pacific Life
and PFPC (the "Agreement") as amended from time to time for services provided on
behalf of each of the Funds. Pursuant to Paragraph 12 of the Agreement, and in
consideration of the services to be provided to the Fund, the Fund and Pacific
Life will pay PFPC an annual sub-administration and accounting services fee to
be calculated daily and paid monthly as set forth below. Pacific Life shall be
responsible for all fees set forth in numbered Sections 1, 2, 3 and 4 below.
The Fund shall be responsible for all fees set forth in numbered Section 5
below.
1. Asset Based Fees:
The following annual fee will be calculated based upon each Portfolio's
average net assets and paid monthly:
.10% of each Fund's first $200 million of average net assets;
.075% of each Fund's next $200 million of average net assets;
.05% of each Fund's next $200 million of average net assets; and,
.03% of each Fund's average net assets in excess of $600 million.
2. Minimum Monthly Fee:
The minimum monthly fee will be $9,500 for each Portfolio, exclusive of
multiple class fee, data station fees and out-of-pocket expenses.
3. Monthly Multiple Class Fee:
The monthly multiple class fee will be $1,000 per class, for each class
beyond the first class in each Fund.
4. Monthly DataStation Fees:
1-2 Funds $250 per month
3-5 Funds $250 per month plus $85 per Fund over 2 Funds
6-10 Funds $505 per month plus $65 per Fund over 5 Funds
11-15 Funds $830 per month plus $50 per Fund over 10 Funds
16-20 Funds $1,080 per month plus $35 per Fund over 15 Funds
over 20 Funds $1,250 per month plus $30 per Fund over 20 Funds
5. Out-of-Pocket Expenses:
Pacific Life will reimburse PFPC for out-of-pocket expenses incurred on the
Fund's behalf, including, but not limited to, postage, telephone, telex,
overnight express charges, deconversion costs initiated by Pacific Life or
the Fund, costs to obtain independent security market quotes, cost of access
to the data warehouse system, processing fees related to initial Blue Sky
filings and travel expenses incurred for Board meeting attendance.
6. Miscellaneous:
Any fee or out-of-pocket expenses not paid within 60 days of the date of the
original invoice will be charged a late payment fee of 1% per month until
payment of the fees are received by PFPC.
If during the next two years, PFPC is removed from the Administration and
Accounting Services Agreement, PFPC will recoup from the Fund 100% of the
fees waived during that period.
The fee for the period from the date hereof until the end of that year
shall be prorated according to the proportion which such period bears to
the full annual period.
If the foregoing accurately sets forth our agreement and you intend to be
legally bound thereby, please execute a copy of this letter and return it to us.
Very truly yours,
PFPC INC.
By: /s/ Xxxxxx Xxxxx
______________________
Name: Xxxxxx Xxxxx
____________________
Title: Executive Vice President
_________________________
Agreed and Accepted:
PACIFIC FUNDS
By: /s/ Xxxxx X. Xxxxxxx
______________________________
Name: Xxxxx X. Xxxxxxx
____________________________
Title: President
___________________________
PACIFIC LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
______________________________
Name: Xxxxx X. Xxxxxxx
____________________________
Title: President
___________________________
By: /s/ Xxxxxx X. Milfs
______________________________
Name: Xxxxxx X. Milfs
____________________________
Title: Vice President & Secretary
___________________________
