EX-99.G.2 8 l97258dexv99wgw2.txt EX-99(G)(2) Exhibit (g)(2) FOREIGN CUSTODY MANAGER AGREEMENT AGREEMENT made as of September 26, 2001 between Pacific Capital Funds (the "Fund") and The Bank of New York ("BNY"). W I T N E S S E T H: WHEREAS, the Fund desires to appoint BNY as a Foreign Custody Manager on the terms and conditions contained herein; WHEREAS, BNY desires to serve as a Foreign Custody Manager and perform the duties set forth herein on the terms and conditions contained herein; NOW THEREFORE, in consideration of the mutual promises hereinafter contained in this Agreement, the Fund and BNY hereby agree as follows: ARTICLE I. DEFINITIONS Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings: 1. "BOARD" shall mean the board of directors or board of trustees, as the case may be, of the Fund. 2. "ELIGIBLE FOREIGN CUSTODIAN" shall have the meaning provided in the Rule. 3. "MONITORING SYSTEM" shall mean a system established by BNY to fulfill the Responsibilities specified in clauses (d) and (e) of Section 1 of Article III of this Agreement. 4. "RESPONSIBILITIES" shall mean the responsibilities delegated to BNY under the Rule as a Foreign Custody Manager with respect to each Specified Country and each Eligible Foreign Custodian selected by BNY, as such responsibilities are more fully described in Article III of this Agreement. 5. "RULE" shall mean Rule 17f-5 under the Investment Company Act of 1940, as amended on June 12, 2000. 6. "SPECIFIED COUNTRY" shall mean each country listed on Schedule I attached hereto and each country, other than the United States, constituting the primary market for a security with respect to which the Fund has given settlement instructions to The Bank of New York as custodian (the "Custodian") under its Custody Agreement with the Fund. ARTICLE II. BNY AS A FOREIGN CUSTODY MANAGER 1. The Fund on behalf of its Board hereby delegates to BNY with respect to each Specified Country the Responsibilities. 2. BNY accepts the Board's delegation of Responsibilities with respect to each Specified Country and agrees in performing the Responsibilities as a Foreign Custody Manager to exercise reasonable care, prudence and diligence such as a person having responsibility for the safekeeping of the Fund's assets would exercise. 3. BNY shall provide to the Board at such times as the Board deems reasonable and appropriate based on the circumstances of the Fund's foreign custody arrangements written reports notifying the Board of the placement of assets of the Fund with a particular Eligible Foreign Custodian within a Specified Country and of any material change in the arrangements (including the contract governing such arrangements) with respect to assets of the Fund with any such Eligible Foreign Custodian. ARTICLE III. RESPONSIBILITIES 1. Subject to the provisions of this Agreement, BNY shall with respect to each Specified Country select an Eligible Foreign Custodian. In connection therewith, BNY shall: (a) determine that assets of the Fund held by such Eligible Foreign Custodian will be subject to reasonable care, based on the standards applicable to custodians in the relevant market in which such Eligible Foreign Custodian operates, after considering all factors relevant to the safekeeping of such assets, including, without limitation, those contained in paragraph (c)(1) of the Rule; (b) determine that the Fund's foreign custody arrangements with each Eligible Foreign Custodian are governed by a written contract with the Custodian which will provide reasonable care for the Fund's assets based on the standards specified in paragraph (c)(1) of the Rule; (c) determine that each contract with an Eligible Foreign Custodian shall include the provisions specified in paragraph (c)(2)(i)(A) through (F) of the Rule or, alternatively, in lieu of any or all of such (c)(2)(i)(A) through (F) provisions, such other provisions as BNY determines will provide, in their entirety, the same or a greater level of care and protection for the assets of the Fund as such specified provisions; (d) monitor pursuant to the Monitoring System the appropriateness of maintaining the assets of the Fund with a particular Eligible Foreign Custodian pursuant to paragraph (c)(1) of the Rule and the performance of the contract governing such arrangement under paragraph (c)(2) of the Rule; and (e) advise the Fund whenever BNY determines under the Monitoring System that an arrangement (including, any material change in the contract governing such arrangement) described in preceding clause (d) no longer meets the requirements of the Rule. In the event BNY - 2 - selects an Eligible Foreign Custodian to replace a previously selected Eligible Foreign Custodian, BNY shall so advise the Fund's custodian. 2. For purposes of preceding Section 1 of this Article, BNY's determination of appropriateness shall not include, nor be deemed to include, any evaluation of Country Risks associated with investment in a particular country. For purposes hereof, "Country Risks" shall mean systemic risks of holding assets in a particular country including but not limited to (a) an Eligible Foreign Custodian's use of any depositories that act as or operate a system or a transnational system for the central handling of securities or any equivalent book-entries; (b) such country's financial infrastructure; (c) such country's prevailing custody and settlement practices; (d) nationalization, expropriation or other governmental actions; (e) regulation of the banking or securities industry; (f) currency controls, restrictions, devaluations or fluctuations; and (g) market conditions which affect the orderly execution of securities transactions or affect the value of securities. ARTICLE IV. REPRESENTATIONS 1. The Fund hereby represents that: (a) this Agreement has been duly authorized, executed and delivered by the Fund, constitutes a valid and legally binding obligation of the Fund enforceable in accordance with its terms, and no statute, regulation, rule, order, judgment or contract binding on the Fund prohibits the Fund's execution or performance of this Agreement; (b) this Agreement has been approved and ratified by the Board at a meeting duly called and at which a quorum was at all times present, and (c) the Board or the Fund's investment advisor has considered the Country Risks associated with investment in each Specified Country and will have considered such risks prior to any settlement instructions being given to the Custodian with respect to any other country. 2. BNY hereby represents that: (a) BNY is duly organized and existing under the laws of the State of New York, with full power to carry on its businesses as now conducted, and to enter into this Agreement and to perform its obligations hereunder; (b) this Agreement has been duly authorized, executed and delivered by BNY, constitutes a valid and legally binding obligation of BNY enforceable in accordance with its terms, and no statute, regulation, rule, order, judgment or contract binding on BNY prohibits BNY's execution or performance of this Agreement; (c) BNY is a member bank of the Federal Reserve System, and (d) BNY has established the Monitoring System. ARTICLE V. CONCERNING BNY 1. BNY shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' and accountants' fees, sustained or incurred by, or asserted against, the Fund except to the extent the same arises out of the failure of BNY to exercise the - 3 - care, prudence and diligence required by Section 2 of Article II hereof. In no event shall BNY be liable to the Fund, the Board, or any third party for special, indirect or consequential damages, or for lost profits or loss of business, arising in connection with this Agreement. 2. The Fund shall indemnify BNY and hold it harmless from and against any and all costs, expenses, damages, liabilities or claims, including attorneys' and accountants' fees, sustained or incurred by, or asserted against, BNY by reason or as a result of any action or inaction, or arising out of BNY's performance hereunder, provided that the Fund shall not indemnify BNY to the extent any such costs, expenses, damages, liabilities or claims arises out of BNY's failure to exercise the reasonable care, prudence and diligence required by Section 2 of Article II hereof. 3. For its services hereunder, the Fund agrees to pay to BNY such compensation and out-of-pocket expenses as shall be mutually agreed. 4. BNY shall have only such duties as are expressly set forth herein. In no event shall BNY be liable for any Country Risks associated with investments in a particular country. ARTICLE VI. MISCELLANEOUS 1. This Agreement constitutes the entire agreement between the Fund and BNY as a foreign custody manager, and no provision in the Custody Agreement between the Fund and the Custodian shall affect the duties and obligations of BNY hereunder, nor shall any provision in this Agreement affect the duties or obligations of the Custodian under the Custody Agreement. 2. Any notice or other instrument in writing, authorized or required by this Agreement to be given to BNY, shall be sufficiently given if received by it at its offices at 100 Church Street, 10th Floor, New York, New York 10286, or at such other place as BNY may from time to time designate in writing. 3. Any notice or other instrument in writing, authorized or required by this Agreement to be given to the Fund shall be sufficiently given if received by it at its offices at Bank of Hawaii, Pacific Capital Funds, 130 Merchant Street, Suite 240, Honolulu, HI 96813 or at such other place as the Fund may from time to time designate in writing. 4. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected thereby. This Agreement may not be amended or modified in any manner except by a written agreement executed by both - 4 - parties. This Agreement shall extend to and shall be binding upon the parties hereto, and their respective successors and assigns; provided however, that this Agreement shall not be assignable by either party without the written consent of the other. 5. This Agreement shall be construed in accordance with the substantive laws of the State of New York, without regard to conflicts of laws principles thereof. The Fund and BNY hereby consent to the jurisdiction of a state or federal court situated in New York City, New York in connection with any dispute arising hereunder. The Fund hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that such proceeding brought in such a court has been brought in an inconvenient forum. The Fund and BNY each hereby irrevocably waives any and all rights to trial by jury in any legal proceeding arising out of or relating to this Agreement. 6. The parties hereto agree that in performing hereunder, BNY is acting solely on behalf of the Fund and no contractual or service relationship shall be deemed to be established hereby between BNY and any other person by reason of this Agreement. 7. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute only one instrument. 8. This Agreement shall terminate simultaneously with the termination of the Custody Agreement between the Fund and the Custodian, and may otherwise be terminated by either party giving to the other party a notice in writing specifying the date of such termination, which shall be not less than thirty (30) days after the date of such notice. - 5 - IN WITNESS WHEREOF, the Fund and BNY have caused this Agreement to be executed by their respective officers, thereunto duly authorized, as of the date first above written. PACIFIC CAPITAL FUND By: /s/ Gregory Maddox Title: Executive Vice President Tax Identification No.: THE BANK OF NEW YORK By: /s/ Marjorie McLaughlin Title: Vice President - 6 - SCHEDULE II SERIES DATED AS OF SEPTEMBER 26, 2001
FUND NAME ACCOUNT TAX ID NUMBER ------------------------------------------------------------------------------------------------------------- Pacific Capital Balanced Fund 280350 31-1385453 Pacific Capital Tax Free Securities Fund 280351 31-1385448 Pacific Capital International Stock Fund 280352 31-1621217 Pacific Capital Growth and Income Fund 280353 31-1385454 Pacific Capital Value Fund 280354 31-1621218 Pacific Capital Short Intermediate US Treasury Securities Fund 280355 31-1385447 Pacific Capital Diversified Fixed Income Fund 280356 31-1385451 Pacific Capital Small Cap Fund 280357 31-1621216 Pacific Capital Ultra Short Government Fund 280358 31-1704932 Pacific Capital Tax Free Short Intermediate Securities Fund 280359 31-1385450 Pacific Capital New Asia Growth Fund 280360 31-1425505 Pacific Capital Growth Stock Fund 280361 31-1385452
THE BANK OF NEW YORK GLOBAL CUSTODY FEE SCHEDULE FOR PACIFIC CAPITAL FUNDS (SEE LIST OF PORTFOLIOS)
------------------------------------------------------------------------------------------------------------- COUNTRY INSTRUMENTS SAFEKEEPING (BPS) TRANSACTION FEES ------------------------------------------------------------------------------------------------------------- ARGENTINA ALL 25 $75 AUSTRALIA ALL 4 $35 AUSTRIA EQUITIES/BONDS 5 $60 AUSTRIA DEPO RECEIPT 20 $60 AUSTRIA NON-ATS ALL 28 $100 BAHRAIN ALL 55 $150 BANGLADESH ALL 50 $200 BELGIUM ALL 4 $50 BERMUDA ALL 30 $85 BOLIVIA ALL 55 $100 BOTSWANA ALL 35 $100 BRAZIL ALL 30 $75 BULGARIA ALL 55 $100 CANADA ALL 2.5 $20 CHILE ALL 25 $100 CHINA-SHANGHAI ALL 25 $100 CHINA-SHENZHEN ALL 25 $100 COSTA RICA ALL 15 $60 COLOMBIA ALL 45 $125 CROATIA ALL 50 $125 CYPRUS ALL 25 $75 CZECH REPUBLIC ALL 30 $75 DENMARK ALL 4 $75 EASDAQ ALL 8 $60 ECUADOR ALL 55 $100 EGYPT ALL 45 $125 ESTONIA ALL 15 $75 EUROMARKETS EUROBONDS ONLY* 2 $25 FINLAND ALL 6 $75 FRANCE ALL 4 $55 GERMANY ALL 3 $45 GHANA ALL 35 $75
1 THE BANK OF NEW YORK GLOBAL CUSTODY FEE SCHEDULE FOR PACIFIC CAPITAL FUNDS (SEE LIST OF PORTFOLIOS)
------------------------------------------------------------------------------------------------------------- COUNTRY INSTRUMENTS SAFEKEEPING (BPS) TRANSACTION FEES ------------------------------------------------------------------------------------------------------------- GREECE ALL 25 $125 HONG KONG ALL 7 $75 HUNGARY ALL 40 $200 ICELAND ALL 12 $25 INDIA ALL 75 $400 INDONESIA ALL 15 $100 IRELAND ALL 5 $35 ISRAEL ALL 30 $60 ITALY ALL 5 $75 IVORY COAST ALL 55 $200 JAPAN ALL 3 $30 JAMAICA ALL 45 $75 JORDAN ALL 50 $150 KAZAKHSTAN T BILLS/ SHORT 40 $150 TERM BK. NOTES KAZAKHSTAN EQUITIES 60 $140 KENYA ALL 35 $75 LATVIA EQUITIES/BONDS 50 $125 LATVIA GOV'T BONDS 30 $125 LEBANON ALL 35 $130 LITHUANIA ALL 30 $100 LUXEMBOURG ALL 6 $40 MALAYSIA ALL 8 $100 MALTA ALL 20 $55 MAURITIUS ALL 50 $130 MEXICO ALL 4 $25 MOROCCO ALL 40 $125 NAMIBIA ALL 35 $75 NETHERLANDS ALL 5 $35 NEW ZEALAND ALL 5 $50 NIGERIA ALL 35 $75
2 THE BANK OF NEW YORK GLOBAL CUSTODY FEE SCHEDULE FOR PACIFIC CAPITAL FUNDS (SEE LIST OF PORTFOLIOS)
------------------------------------------------------------------------------------------------------------- COUNTRY INSTRUMENTS SAFEKEEPING (BPS) TRANSACTION FEES ------------------------------------------------------------------------------------------------------------- NORWAY ALL 4 $55 OMAN ALL 55 $150 PAKISTAN ALL 50 $150 PERU ALL 50 $125 PHILIPPINES ALL 12 $120 POLAND ALL 30 $175 PORTUGAL ALL 15 $95 ROMANIA ALL 55 $175 RUSSIA EQUITIES/BONDS 50 $200 RUSSIA MINFIN 25 $75 SINGAPORE ALL 5 $50 SLOVAK REPUBLIC ALL 30 $125 SLOVENIA ALL 50 $250 SOUTH AFRICA ALL 5 $50 SOUTH KOREA ALL 15 $50 SPAIN ALL 5 $65 SRI LANKA ALL 20 $75 SWAZILAND ALL 35 $75 SWEDEN ALL 4 $50 SWITZERLAND ALL 4 $65 TAIWAN ALL 20 $150 THAILAND ALL 10 $60 TRINADAD & TOBAGO ALL 40 $75 TUNISIA ALL 50 $75 TURKEY ALL 25 $50 U.K. ALL 3 $15 UKRAINE ALL 80 $285 URUGUAY ALL 50 $75 VENEZUELA ALL 45 $150 ZAMBIA ALL 35 $75 ZIMBABWE ALL 35 $75
3 * Fee, expressed in basis points per annum, is calculated based upon month end market value. MINIMUM FEE FOR USE OF OUR GLOBAL NETWORK $500 per month per portfolio THIRD PARTY FOREIGN EXCHANGE SETTLEMENTS $50 per non-USD currency movement MINIMUM CHARGES IMPOSED BY AGENT BANKS/LOCAL ADMINISTRATORS Brazil - 15 basis points for annual administrative charges Chile - USD $17,500 - $20,000 per annum minimum administration charge Colombia - USD $600 per month minimum administration charge Ecuador - USD $800 monthly minimum per relationship Egypt - USD $400 monthly minimum per relationship ADDITIONAL CHARGES Charges incurred by The Bank of New York for local stamp taxes, stamp duties or other local duties and assessments, stock exchange fees, postage and insurance for shipping, extraordinary telecommunication fees, or other unusual fees which are unique to a country in which our client is investing, will be in addition to the stated fees. PACIFIC CAPITAL FUNDS THE BANK OF NEW YORK Approved by: Andrew P. Spencer Approved by: Marjorie McLaughlin Title: Executive Vice President Title: Vice President Date: November 28, 2001 Date: November 28, 2001 4 THE BANK OF NEW YORK GLOBAL CUSTODY FEE SCHEDULE FOR PACIFIC CAPITAL FUNDS (SEE LIST OF PORTFOLIOS)
FUND NAME ACCOUNT NUMBER TAX ID Pacific Capital Balanced Fund 280350 31-1385453 Pacific Capital Tax Free Securities Fund 280351 31-1385448 Pacific Capital International Stock Fund 280352 31-1621217 Pacific Capital Growth and Income Fund 280353 31-1385454 Pacific Capital Value Fund 280354 31-1621218 Pacific Capital Short Intermediate US Treasury Securities 280355 31-1385447 Fund Pacific Capital Diversified Fixed Income Fund 280356 31-1385451 Pacific Capital Small Cap Fund 280357 31-1621216 Pacific Capital Ultra Short Government Fund 280358 31-1704932 Pacific Capital Tax Free Short Intermediate Securities Fund 280359 31-1385450 Pacific Capital New Asia Growth Fund 280360 31-1425505 Pacific Capital Growth Stock Fund 280361 31-1385452
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