MITSUBISHI GLOBAL CUSTODY
CUSTODIAN AGREEMENT
(FOREIGN AND DOMESTIC SECURITIES)
This Custodian Agreement is made by and between Pacific Capital Funds
("Principal"), on behalf of Pacific Capital New Asia Growth Fund (the "Fund")
and THE BANK OF CALIFORNIA, NATIONAL ASSOCIATION ("Custodian"). Principal
desires that Custodian hold and administer on behalf of Principal all Securities
(as herein defined). Custodian is willing to do so on the terms and conditions
set forth in this Agreement. Accordingly, Principal and Custodian agree as
follows:
1. Definitions. Certain terms used in this Agreement are defined as
follows:
(a) "Account" means, collectively, each custodianship account
maintained by Custodian pursuant to Paragraph 3 of this Agreement.
(b) "Eligible Foreign Securities Depository", ("Depository") shall
mean a securities depository or clearing agency incorporated or organized under
the laws of a country other than the United States which operates (i) the
central system for handling securities or equivalent book-entries in that
country, or (ii) a transnational system for the central handling of securities
or equivalent book-entries.
(c) "Investment Manager" means an investment advisor or manager
identified by Principal in a written notice to Custodian as having the authority
to direct Custodian regarding the management, acquisition, or disposition of
Securities.
(d) "Securities" means all of the Fund's domestic or foreign
securities or both within the meaning of Section 2(a)36 of the Investment
Company Act of 1940 ("1940 Act") and regulations issued by the U.S. Securities
and Exchange Commission ("SEC") under Section 17(f) of the 1940 Act, 17 C.F.R.
270.17f-5(c)(1), as amended, which are held by Custodian in the Account, and
shall include cash of any currency or other property and all income and proceeds
of sale of such securities or other property.
(e) "Eligible Foreign Custodian", ("Sub-Custodian") shall mean (i) a
banking institution or trust company incorporated or organized under the laws of
a country other than the United States that is regulated as such by that
country's government or an agency thereof and that has shareholders' equity in
excess of $200 million in U.S. currency (for a foreign currency equivalent
thereof), (ii) a majority owned direct or indirect subsidiary of a qualified
U.S. bank or bank holding company that is incorporated or organized under the
laws of a country other than the United States and that has shareholders' equity
in excess of $100 million in U.S. currency (or a foreign currency equivalent
thereof), or (iii) any other entity that shall have been so qualified by
exemptive order, rule or other appropriate action of the SEC. Custodian shall
evaluate and determine at least annually the continued eligibility of each
Sub-Custodian as described in Paragraph 5(d) of this Agreement.
2. Representations
(a) Principal represents that with respect to any Account
established by Principal to hold Securities, Principal is authorized to enter
into this Agreement and to retain Custodian on the terms and conditions and for
the purposes described herein.
(b) Custodian represents that (i) it is organized under the laws of
the United States and has its principal place of business in the United States,
(ii) it is a bank within the meaning of Section 202(a)(2) of the Investment
Advisers Act of 1940 and Section 2(a)(5) of the Investment Company Act of 1940,
as amended, and (iii) it has equity capital in excess of $1 million.
3. Establishment of Accounts. Principal hereby establishes with Custodian,
and may in the future establish, one or more Accounts in Principal's name. The
Account shall consist of Securities delivered to and receipted for by Custodian
or by any Sub-Custodian. Custodian, in its sole discretion, may reasonably
refuse to accept any property now or hereafter delivered to it for inclusion in
the Account, provided that custodian accepts publicly traded securities and cash
which are customarily held by custodian in domestic and global markets.
4. Custody. Subject to the terms of this Agreement, Custodian shall be
responsible for the safekeeping and custody of the Securities. Custodian may (i)
retain possession of all or any portion of the Securities in a foreign branch or
other office of Custodian, or (ii) retain, in accordance with Paragraph 5 of
this Agreement, one or more Sub-Custodians to hold all or any portion of the
Securities. Custodian and any Sub-Custodian may, in accordance with Paragraph 5
of this Agreement, deposit definitive or book-entry Securities with one or more
Depositories.
(a) If Custodian retains possession of Securities, Custodian shall
ensure the Securities are at all times properly identified as being held for the
appropriate Account. Custodian shall segregate physically the Securities from
any Property owned by Custodian. Custodian shall not be required to segregate
physically the Securities from other securities or property held by Custodian
for third parties as Custodian, but Custodian shall maintain adequate records
showing the true ownership of the Securities.
(b) If Custodian deposits Securities with a Sub-Custodian, Custodian
shall maintain adequate records showing the identity and location of the
Sub-Custodian, the Securities held by the Sub-Custodian, and each Account to
which such Securities belong.
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(c) If Custodian or any Sub-Custodian deposits Securities with a
Depository, Custodian shall maintain, or shall cause the Sub-Custodian to
maintain, adequate records showing the identity and location of the Depository,
the Securities held by the Depository, and each Account to which such Securities
belong.
(d) If Principal directs Custodian to deliver certificates or other
physical evidence of ownership of Securities to any broker or other party, other
than a Sub-Custodian or Depository employed by Custodian for purposes of
maintaining the Account, Custodian's sole responsibility shall be to exercise
care and diligence in effecting the delivery as instructed by Principal. Upon
completion of the delivery, Custodian shall be discharged completely of any
further liability or responsibility with respect to the safekeeping and custody
of Securities so delivered.
(e) Custodian shall ensure that (i) the Securities will not be
subject to any right, charge, security interest, lien or claim of any kind in
favor of Custodian or any Sub-Custodian or Depository except for the Securities'
safe custody or administration, and (ii) the beneficial ownership of the
Securities will be freely transferable without the payment of money or value
other than for safe custody or administration.
(f) Principal or its authorized representative shall have reasonable
access to inspect books and records maintained by Custodian or any Sub-Custodian
or Depository holding Securities hereunder to verify the accuracy of such books
and records. Custodian shall notify Principal promptly of any applicable law or
regulation in any country where Securities are held that would restrict such
access or inspection.
(g) The Custodian shall limit the Securities maintained in the
custody of Sub-Custodians in accordance with Paragraph 5 of this Agreement to:
(a) foreign securities, as defined in paragraph (c)(1) of Rule 17f-5 under the
Investment Company Act of 1940, and (b) cash and cash equivalents in such
amounts as the Custodian or the Principal or any Investment Manager may
determine to be reasonably necessary to effect the Fund's foreign securities
transactions.
5. Sub-Custodians and Depositories. With Principal's approval, as provided
in Paragraph 5(c) of this Agreement, Custodian may from time to time retain one
or more Sub-Custodians and Depositories to hold Securities hereunder.
(a) Custodian shall exercise reasonable care in the selection of
Sub-Custodians and Depositories. In making its selection, Custodian shall
consider (i) the Sub-Custodian's or Depository's financial strength, general
reputation and standing in the country in which it is located, its ability to
provide efficiently the custodial services required, and the relative cost of
such services, (ii) whether the Sub-Custodian or Depository would provide a
level of safeguards for safekeeping and custody of Securities not materially
different from those prevailing in the U.S., (iii) whether the Sub-Custodian or
Depository has branch offices in the U.S. in order
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to facilitate jurisdiction over and enforcement of judgments against it, and
(iv) in the case of a Depository, the number of its participants and its
operating history.
(b) Custodian shall given written notice to Principal of its
intention to deposit Securities with a Sub-Custodian or (directly or through a
Sub-Custodian) with a Depository. The notice shall identify the proposed
Sub-Custodian or Depository and shall include reasonably available information
relied on by Custodian in making the selection.
(c) Within 30 days of its receipt of a notice from Custodian
pursuant to Paragraph 5(b) of this Agreement regarding Custodian's proposed
selection of one or more Sub-Custodians or Depositories, Principal shall given
written notice to Custodian of Principal's approval or disapproval of the
proposed selection. Principal hereby approves Custodian's retention of those
Sub-Custodians and Depositories, if any, that have been identified to it by
Custodian prior to Principal's execution of this Agreement.
(d) Custodian shall evaluate and determine at least annually the
continued eligibility of each Sub-Custodian and Depository approved by Principal
to act as such hereunder. In discharging this responsibility, Custodian shall
(i) monitor continuously the day to day services and reports provided by
Sub-Custodian or Depository, (ii) at least annually, obtain and review the
annual financial report published by such Sub-Custodian or Depository and any
reports on such Sub-Custodian or Depository prepared by a reputable independent
analyst, (iii) at least triennially, physically inspect the operations of such
Sub-Custodian or Depository and (iv) Custodian shall provide client with a
report of its annual review of each Sub-Custodian and Depository.
(e) If Custodian determines that any Sub-Custodian or Depository no
longer satisfies the applicable requirements described in Paragraph 1(b) (in the
case of a Depository) or Paragraph 1(e) (in the case of a Sub-Custodian) of this
Agreement or is otherwise no longer capable or qualified to perform the
functions contemplated herein, Custodian shall promptly given written notice
thereof to Principal. The notice shall, in addition, either (i) indicate
Custodian's intention to transfer Securities held by the removed Sub-Custodian
or Depository to another Sub-Custodian or Depository previously approved by
Principal, or (ii) include a notice pursuant to Paragraph 5(b) of this Agreement
of Custodian's intention to deposit Securities with a new Sub-Custodian or
Depository.
6. Registration. Subject to any specific instructions from Principal,
Custodian shall hold or cause to be held all Securities in the name of
Custodian, or any Sub-Custodian or Depository approved by Principal pursuant to
Paragraph 5 of this Agreement, or in the name of a nominee of any of them, as
Custodian shall determine to be appropriate under the circumstances.
7. Transactions. Principal or any Investment Manager from time to time may
instruct Custodian (which in turn shall be responsible for giving appropriate
instructions to any
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Sub-Custodian or Depository) regarding the purchase or sale of Securities in
accordance with this Paragraph 7:
(a) Custodian shall effect and account for each Securities and
currency sale on the date such transaction actually settles; provided, however,
that Principal may in its sole discretion direct Custodian, in such manner as
shall be acceptable to Custodian, to account for Securities and currency
purchases and sales on contractual settlement date, regardless of whether
settlement of such transactions actually occurs on contractual settlement date.
Principal may, from time to time, direct Custodian to change the accounting
method employed by Custodian in a written notice delivered to Custodian at least
thirty (30) days prior to the date a change in accounting method shall become
effective.
(b) Custodian shall effect purchases by charging the Account with
the amount necessary to make the purchase and effecting payment o the seller or
broker for the securities or other property purchased. Custodian shall have no
liability of any kind to any person, including Principal, except in the case of
negligent or intentional tortious acts, or willful misconduct, if the Custodian
effects payment in accordance with sub-section (g) of this Paragraph 7, and the
seller or broker fails to deliver the securities or other property purchased.
Custodian shall exercise such ordinary care and diligence as would be employed
by a reasonably prudent custodian and due diligence in examining and verifying
the certificates or other indicia of ownership of the property purchased before
accepting them.
(c) Custodian shall effect sales by delivering certificates or other
indicia of ownership of the Property, and, as instructed, shall receive cash for
such sales. Custodian shall have no liability of any kind to any person,
including Principal, if Custodian exercises due diligence and delivers such
certificates or indicia of ownership in accordance with sub-section (g) of this
Paragraph 7 and the purchaser or broker fails to effect payment. If a purchase
or sale is effected through a Depository, Custodian shall exercise such ordinary
care and diligence as would be employed by a reasonably prudent custodian and
due diligence in verifying proper consummation of the transaction by the
Depository.
(d) Principal or, where applicable, the Investment Manager, is
responsible for ensuring Custodian receives timely instructions and/or funds to
enable Custodian to effect settlement of any purchase or sale of Securities or
currency transactions, or such other disposition of Securities as may be
required in connection with operation of the Fund. If Custodian does not receive
such timely instructions or funds, Custodian shall have no liability of any kind
to any person, including Principal, for failing to effect settlement. However,
Custodian shall use reasonable efforts to effect settlement as soon as possible
after receipt of appropriate instructions. Principal shall be liable for
interest compensation and/or principal amounts to Custodian and/or its
counterparty for failure to deliver instructions or funds in a timely manner to
effect settlements of foreign exchange funds movement.
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(e) At the direction of Principal or the Investment Manager, as the
case may be, Custodian shall convert currency in the Account to other currencies
through customary channels including, without limitation, Custodian or any of
its affiliates, as shall be necessary to effect any transaction directed by
Principal or the Investment Manager. Principal or the Investment Manager, as the
case may be, acknowledges that 1) the foreign currency exchange department is a
part of the Custodian or one of its affiliates or subsidiaries, 2) the Account
is not obligated to effect foreign currency exchange with Custodian, 3) the
Custodian will receive benefits for such foreign currency transactions which are
in addition to the compensation which the Custodian receives for administering
the Account, and 4) the Custodian will make available the relevant data so that
Principal or the Investment Manager, as the case may be, can determine that the
foreign currency exchange transactions are as favorable to the Account as terms
generally available in arm's length transactions between unrelated parties.
(f) Custodian shall have no responsibility to manage or recommend
investments of the Account or to initiate any purchase, sale, or other
investment transaction in the absence of instructions from Principal or, were
applicable, an Investment Manager.
(g) Settlement and payment for Securities received for the Account
of the Fund and the delivery of Securities maintained for the Account of the
Fund may be effected in accordance with the customary established securities
trading or securities processing practices and procedures in the jurisdiction or
market in which the transaction occurs, including, without limitation,
delivering Securities to the purchaser thereof or to a dealer therefor (or an
agent for such purchaser or dealer) against a receipt with the expectation of
receiving later payment for such Securities from such purchaser or dealer.
8. Capital Changes; Income.
(a) Custodian may, without further instructions from Principal or
any Investment Manager, exchange temporary certificates and may surrender and
exchange Securities for other securities in connection with any reorganization,
recapitalization, or similar transaction in which the owner of the Securities is
not given an option. Custodian has no responsibility to effect any such exchange
unless it has received actual notice of the event permitting or requiring such
exchange at its office designated in Paragraph 14 of this Agreement or at the
office of its designated agents.
(b) Custodian, or its designated agents, are authorized, as
Principal's agent, to surrender against payment maturing obligations and
obligations called for redemption, and to collect and receive payments of
interest and principal, dividends, warrants, and other things of value in
connection with Securities. Except as otherwise provided in Paragraph 15(d) of
this Agreement, Custodian or its designated agents shall not be obligated to
enforce collection of any item by legal process or other means.
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(c) Custodian or its designated agents are authorized to sign for
Principal all declarations, affidavits, certificates, or other documents that
may be required to collect or receive payments or distributions with respect to
Securities. Custodian or its designated agents are authorized to disclose,
without further consent of Principal, Principal's identity to issuers of
Securities, or the agents of such issuers, who may request such disclosure.
9. Notices re Account Securities. Custodian shall notify Principal or,
where applicable, the Investment Manager, of any reorganization,
recapitalization, or similar transaction not covered by Paragraph 8, and any
subscription rights, proxies, and other shareholder information pertaining to
the Securities actual notice of which is received by Custodian at its office
designated in Paragraph 14 of this Agreement or at the offices of its designated
agents. Custodian's sole responsibility in this regard shall be to give such
notices to Principal or the Investment Manager, as the case may be, promptly
after Custodian receives them, and Custodian shall not otherwise be responsible
for the timeliness of such notices. Custodian has no responsibility to respond
or otherwise act with respect to any such notice unless and until Custodian has
received appropriate instructions from Principal or the Investment Manager.
10. Taxes. Custodian shall pay or cause to be paid from the Account all
taxes and levies in the nature of taxes imposed on the Account or the Securities
thereof by any country. However, Custodian shall use reasonable efforts to
obtain refunds of taxes withheld on Securities or the income thereof that are
available under applicable tax laws, treaties, and regulations.
11. Cash. The Principal may from time to time, direct Custodian to hold
Account cash in The HighMark Group of mutual funds or in any investment company
for which Custodian or its affiliates or subsidiaries, acts as investment
advisor, custodies the assets, or provides other services. Principal shall
designate the particular HighMark fund or such other above-mentioned fund that
Principal deems appropriate for the Account. Principal or any Investment
Manager, where applicable, acknowledges that Custodian will receive fees for
such services which will be in addition to those fees charged by Custodian as
agent for the Account.
12. Reports. Custodian shall give written reports to Principal showing (i)
each transaction involving Securities effected by or reported to Custodian, (ii)
the identity and location of Securities held by Custodian as of the date of the
report, (iii) any transfer of location of Securities not otherwise reported, and
(iv) such other information as shall be agreed upon by Principal and Custodian.
Unless otherwise agreed upon by Principal and Custodian, Custodian shall provide
the reports described in this Paragraph 12 on a monthly basis.
13. Instructions from Principal.
(a) Principal shall certify or cause to be certified to Custodian in
writing the names and specimen signatures of all persons authorized to give
instructions, notices, or other communications on behalf of Principal or any
Investment Manager pursuant to this
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Agreement ("Instructions"). Such certification shall remain effective until
Custodian receives notice to the contrary.
(b) Any two (2) persons authorized by the Principal or Investment
Manager, as the case may be, may give Instructions called for by this Agreement
to Custodian in writing, or by telecopy, telex, telegram, or other form of
electronic communication acceptable to Custodian. Unless otherwise expressly
provided, all Instructions shall continue in full force and effect until
canceled or superseded. Any two (2) persons authorized by the Principal or
Investment Manager may given and Custodian may accept oral Instructions on an
exception basis; provided, however, that Principal or Investment Manager shall
promptly confirm any oral Instructions in writing or by telecopy or other means
permitted hereunder. Principal will hold Custodian harmless for the failure of
Principal or Investment Manager to send confirmation in writing or the failure
of such confirmation to conform to the telephone Instructions received. The
Custodian may electronically record any Instruction given by telephone, and any
other telephone discussions with respect to the Custody Account.
(c) All such communications shall be deemed effective upon receipt
by Custodian at its address specified in Paragraph 14 of this Agreement, as
amended from time to time. Custodian without liability may rely upon and act in
accordance with any Instruction that Custodian in good faith believes has been
given by Principal or an Investment Manager.
(d) Custodian may at any time request Instructions from Principal
and may await such Instructions without incurring liability. Custodian has no
obligation to act in the absence of such requested Instructions, but may,
however, without liability take such action as it deems appropriate to carry out
the purposes of this Agreement.
14. Addresses. Until further notice from either party, all communications
called for under this Agreement shall be addressed as follows:
If to Principal:
Name: Pacific Capital Funds New Asia Growth Fund
BISYS Investment Services Group
Street Address: 0000 Xxxx Xxxxxx-Xxxxxxxxx Xxxx
Xxxx, Xxxxx, Xxx: Xxxxxxxx, Xxxx 00000
Attn: Xx. Xxxxx Xxxxxxxx, Manager
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Telex (Answerback):
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If to Custodian: THE BANK OF CALIFORNIA, NATIONAL
ASSOCIATION
Mitsubishi Global Custody
Attn: Xx. Xxxxx X. Xxxxxx, Vice President
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Telex (Answerback): 215748/MBCTD UR
15. Custodian's Responsibilities and Liabilities:
(a) Custodian's duties and responsibilities shall be limited to
those expressly set forth in this Agreement, or as otherwise agreed by Custodian
in writing. In carrying out its responsibilities, Custodian shall exercise no
less than the same degree of care and diligence it exercises with respect to
similar property of its own.
(b) Custodian (i) shall not be required to maintain any special
insurance for the benefit of Principal, and (ii) shall not be liable or
responsible for any loss of or damage to Securities resulting from any causes
beyond Custodian's reasonable control including, without limitations, acts of
God, war, government action, civil commotion, fire, earthquake, or other
casualty or disaster. However, Custodian shall use reasonable efforts to replace
Securities lost or damaged due to such causes with securities of the same class
and issue with all rights and privileges pertaining thereto. The Custodian shall
be liable to the Principal for any loss which shall occur as the result of the
failure of a Sub-Custodian to exercise reasonable care with respect to the
safekeeping of Securities to the same extent that the Custodian would be liable
to the Principal if the Custodian were holding such Securities in their own
premises. The Custodian shall be liable to the Principal only to the extent of
the Principal's direct damages, to be determined based on the market value of
the property which is subject to loss and without reference to any special
conditions or circumstances.
(c) The parties intend that Custodian shall not be considered a
fiduciary of the Account. Accordingly, Custodian shall have no power to make
decisions regarding any policy, interpretation, practice, or procedure with
respect to the Account, but shall perform the ministerial and administrative
functions described in this Agreement provided herein and within the framework
of policies, interpretations, rules, practices, and procedures made by Principal
or an Investment Manager, where applicable, as the same shall be reflected in
instructions to Custodian from Principal or any Investment Manager.
(d) Custodian shall not be required to appear in or defend any legal
proceedings with respect to the Account or the Securities unless Custodian has
been indemnified to its satisfaction against loss and expense (including
reasonable attorneys' fees).
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(e) Custodian may consult with counsel acceptable to it after
written notification to Principal concerning its duties and responsibilities
under this Agreement, and shall not be liable for any action taken or not taken
in good faith on the advice of such counsel.
16. Indemnities.
(a) Principal hereby agrees to indemnify Custodian against all
liability, claims, demands, damages, losses, and costs, including reasonable
attorneys' fees and expenses of legal proceedings, resulting from Custodian's
compliance with instructions from Principal or any Investment Manager and the
terms of this Agreement, except where Custodian has acted with negligence or
willful misconduct.
(b) Custodian's right to indemnity under Paragraph 16(a) of this
Agreement shall survive the termination of this Agreement.
17. Compensation; Expenses. Principal shall reimburse Custodian for all
reasonable out-of-pocket expenses and processing costs incurred by Custodian in
the administration of the Account including, without limitation, reasonable
counsel fees incurred by Custodian pursuant to Paragraph 15(e) of this
Agreement. Principal also shall pay Custodian reasonable compensation for its
services hereunder as specified in Appendix A. Custodian shall be entitled to
withdraw such expenses or compensation from the Account if Principal fails to
pay the same to Custodian within 45 days after Custodian has sent an appropriate
billing to Principal.
18. Amendment; Termination. This Agreement may be amended at any time by a
written instrument signed by the parties. Either party may terminate this
Agreement and the Account upon 90 days' written notice to the other, sent by
registered mail or overnight courier, unless the parties agree on a different
time period. Upon such termination, Custodian may not deliver the Securities to
the Principal, on behalf of the Fund, but instead shall deliver or cause to be
delivered the Securities, less any amounts due and owing to Custodian under this
Agreement, to a successor custodian designated by Principal or, if a successor
custodian has not accepted an appointment by the effective date of termination
of the Account, to a bank or trust company, which is a "bank" as defined in the
Investment Company Act of 1940, doing business in the United States, of its own
selection, having an aggregate capital surplus, and undivided profits, as shown
by its last published report, of not less than $25,000,000. Thereafter, such
bank or trust company shall be the successor of the Custodian under this
Agreement. Upon completion of such delivery Custodian shall be discharged of any
further liability or responsibility with respect to the Securities so delivered.
19. Successors. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors in interest. Without consent
of the parties and approval of the Board of Trustees of the Principal, this
agreement cannot be assigned to any third party.
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20. Governing Law. The validity, construction, and administration of this
Agreement shall be governed by the applicable laws of the United States from
time to time in force and effect and, to the extent not preempted by such laws
of the United States, by the laws of the State of California from time to time
in force and effect.
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21. Effective Date. This Agreement shall be effective as of the date
appearing below and shall supersede any prior or existing agreements between the
parties pertaining to the subject matter hereof.
Date:_______________________________
By:_________________________________
Authorized Signature
"Principal"
The Bank of California, National Association
By:_________________________________
Title:______________________________
By:_________________________________
Title:______________________________
"Custodian"
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