Exhibit (h)(8)
SUB-ADMINISTRATION AGREEMENT
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AGREEMENT, made as of this 1st day of January, 2003 between BISYS FUND
SERVICES OHIO, INC. (the "Administrator"), an Ohio corporation having its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and BANK
OF HAWAII, (the "Sub-Administrator"), a Hawaii banking corporation with its
principal office at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, the Administrator entered into an Administration Agreement
dated February 1, 2002 (the "Administration Agreement"), with PACIFIC CAPITAL
FUNDS (the "Trust"), a Massachusetts business trust having its principal place
of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, concerning the provision
of administrative services for the Trust and the underlying investment
portfolios of the Trust (individually referred to herein as a "Fund" and
collectively as the "Funds"); and
WHEREAS, the Administrator desires to retain the Sub-Administrator to
assist it in performing administrative services with respect to each Fund
covered by the Administration Agreement and Sub-Administrator is willing to
perform such services on the terms and conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the mutual promises and covenants
herein set forth the parties agree as follows:
1. Services as Sub-Administrator. As provided herein, the
Sub-Administrator will perform the following duties:
(i) assist the administrator in the supervision of all aspects
of the operations of the Fund except those performed by the
distributor for the Funds under its Distribution Agreement,
the transfer agent for the Funds under its Transfer Agency
Agreement, the fund accountant under its Fund Accounting
Agreement, and the investment adviser for the Funds under
its Investment Advisory Agreement;
(ii) serve as liaison between the Trust and certain other service
providers;
(iii) furnish statistical and research data;
(iv) assist the Administrator in the preparation of compliance
filings pursuant to state securities laws with the advice of
the Trust's counsel and coordinate with the transfer agent
to monitor the sale of the Funds' shares;
(v) assist the Administrator to the extent requested by the
Administrator in the preparation, mailing, and filing of the
Trust's Annual and Semi-Annual Reports to Shareholders and
its Registration Statement;
(vi) assist the Administrator in the preparation of Proxy
Statements and related documents with the advice of Trust's
counsel and coordinate the distribution of such documents;
and
(vii) provide Trustee Board meeting support, including the
preparation of documents related thereto.
2. Compensation. The Administrator shall pay the Sub-Administrator for
the services provided under this Agreement a fee with respect to each Fund
calculated at the annual rate of three one-hundredths of one percent (.03%) of
such Fund's average daily net assets. The fee payable hereunder shall be
calculated and paid on a monthly basis. The fee for the period from the day of
the month this Agreement is entered into until the end of that month shall be
prorated according to the proportion which such period bears to the full monthly
period. Upon any termination of this Agreement before the end of any month, the
fee for such part of a month shall be prorated according to the proportion which
such period bears to the full monthly period and shall be payable upon the date
of termination of this Agreement.
For the purpose of determining fees payable to the
Sub-Administrator, the net asset value of each Fund shall be computed in the
same manner as in the Administration Agreement.
3. Effective Date. This Agreement shall become effective as of the date
first written above (or, if a particular Fund is not in existence on that date,
on the date specified in the amendment to Schedule A to this Agreement relating
to such Fund or, if no date is specified, the date on which such amendment is
executed) (the "Effective Date").
4. Term. This agreement shall continue in effect with respect to each
Fund for such time as the Administration Agreement shall be in effect with
respect to such Fund.
5. Standard of Care; Uncontrollable Events; Limitation of Liability.
The duties of the Sub-Administrator shall be confined to those expressly set
forth herein, and no implied duties are assumed by or may be asserted against it
hereunder. The Sub-Administrator shall not be liable for any error of judgment
or mistake of law or for any loss arising out of any act or omission in carrying
out its duties hereunder, except a loss resulting from willful misfeasance, bad
faith or negligence in the performance of its duties, or by reason of reckless
disregard of its obligations and duties
hereunder, except as may otherwise be provided under provisions of applicable
law which cannot be waived or modified hereby. Any officer, director, employee
or agent of the Sub-Administrator who is or who becomes an officer, Trustee,
employee or agent of the Trust shall be deemed, when engaged in rendering the
Services hereunder in such capacity, to be rendering services directly to or for
the Trust, and shall not be deemed to be acting as an officer, director,
employee or agent or one under the control or direction of Administrator.
The Sub-Administrator shall use reasonable professional diligence to
ensure the accuracy of all services performed under this Agreement, but shall
not be liable for any action taken or omitted by it in the absence of bad faith,
willful misfeasance, negligence or reckless disregard by it of its obligations
and duties. The duties of the Sub-Administrator shall be confined to those
expressly set forth herein, and no implied duties are assumed by or may be
asserted against it hereunder.
The Sub-Administrator shall maintain adequate and reliable computer and
other equipment necessary or appropriate to carry out its obligations under this
Agreement. Upon the Trust's or the Administrator's reasonable request, the
Sub-Administrator shall provide supplemental information concerning the aspects
of its disaster recovery and business continuity plan that are relevant to the
services provided hereunder. Notwithstanding the foregoing or any other
provision of this Agreement, the Sub-Administrator assumes no responsibility
hereunder, and shall not be liable for, any damage, loss of data, delay or any
other loss whatsoever caused by events beyond its reasonable control. Events
beyond its reasonable control include, without limitation, force majeure events.
Force majeure events include natural disasters, actions or decrees of
governmental bodies, and communication lines failures that are not the fault of
either party. In the event of force majeure, computer or other equipment
failures or other events beyond its reasonable control, the Sub-Administrator
shall follow applicable procedures in its disaster recovery and business
continuity plan and use all commercially reasonable efforts to minimize any
service interruption.
6. Reliance on Records and Instructions; Indemnification
The Sub-Administrator shall indemnify, defend, and hold the
Administrator harmless from and against any and all claims, actions and suits
and all losses, damages, costs, charges, reasonable counsel fees and
disbursements, payments, expenses and liabilities (including reasonable
investigation expenses) resulting directly and proximately from the
Sub-Administrator's willful misfeasance, bad faith or negligence in the
performance of its duties, or by reason of reckless disregard of its obligations
and duties hereunder.
The Administrator shall indemnify, defend, and hold the
Sub-Administrator harmless from and against any and all claims, actions and
suits and all losses, damages, costs, charges, reasonable counsel fees and
disbursements, payments, expenses and liabilities (including reasonable
investigation expenses) it may directly and proximately incur as a result of
actions taken or omissions with respect to the performance of services under
this Agreement or based, if applicable, upon reasonable reliance on information,
records, instructions or requests given or made to it by the
Administrator; provided that this indemnity and hold harmless shall not apply in
cases of the Sub-Administrator's bad faith, willful misfeasance, negligence or
reckless disregard by it of its obligations and duties; and provided further,
that Administrator's obligation under the foregoing indemnity and hold harmless
shall apply only to the extent that Administrator is in fact fully indemnified
and held harmless by the Trust, under the Administration Agreement, for any and
all losses, damages, costs, charges, reasonable counsel fees and disbursements,
payments, expenses and liabilities (including reasonable investigation expenses)
in connection with the relevant transactions, events, acts or omissions
(including, without limitation, any indemnification amounts payable to the
Sub-Administrator), and any payments of indemnity to Sub-Administrator shall be
due only if, as and when such amounts payable to the Sub-Administrator by
Administrator under this paragraph are in fact received by Administrator from
the Trust.
The indemnification rights hereunder shall include the right to
reasonable advances of defense expenses in the event of any pending or
threatened litigation with respect to which indemnification hereunder may
ultimately be merited. In order that the indemnification provisions contained
herein shall apply, however, it is understood that if in any case a party may be
asked to indemnify or hold the other party harmless, the indemnifying party
shall be fully and promptly advised of all pertinent facts concerning the
situation in question, and it is further understood that the indemnified party
will use all reasonable care to identify and notify the indemnifying party
promptly concerning any situation which presents or appears likely to present
the probability of such a claim for indemnification against the indemnifying
party, but failure to do so in good faith shall not affect the rights hereunder
except to the extent the indemnifying party is materially prejudiced thereby.
Prior to confessing or settling any claim against it which may be the subject of
this indemnification, an indemnified party shall give the indemnifying party
written notice of and reasonable opportunity to defend against said claim in its
own name or in the name of the indemnified party.
The indemnifying party shall be entitled to participate at its own
expense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the indemnifying
party elects to assume the defense of any such claim, the defense shall be
conducted by counsel chosen by it and reasonably satisfactory to the indemnified
party, whose approval shall not be unreasonably withheld. In the event that the
indemnifying party elects to assume the defense of any suit and retain counsel,
the indemnified party shall bear the fees and expenses of any additional counsel
retained by it. If the indemnifying party does not elect to assume the defense
of suit, it will reimburse the indemnified party for the reasonable fees and
expenses of any counsel retained by the indemnified party. The indemnity and
defense provisions set forth herein shall indefinitely survive the termination
of this Agreement.
7. Record Retention and Confidentiality. The Sub-Administrator shall
keep and maintain on behalf of the Administrator and the Trust all books and
records which the Trust and the Sub-Administrator are, or may be, required to
keep and maintain in connection with the services to be provided hereunder
pursuant to any applicable statutes, rules and regulations, including without
limitation Rules 31a-1 and 31a-2 under the 1940 Act. The Sub-Administrator
further agrees that all
such books and records shall be the property of the Trust and to make such books
and records available for inspection by the Trust, by the Administrator, or by
the Securities and Exchange Commission at reasonable time and otherwise to keep
confidential all books and records and other information relative to the Trust
and its shareholders; except when requested to divulge such information by
duly-conditioned authorities or court process.
8. Rights of Ownership. All computer programs and procedures developed
to perform the services to be provided by the Sub-Administrator under this
Agreement are the property of the Sub-Administrator. All records and other data
except such computer programs and procedures are the exclusive property of the
Trust and all such other records and data will be furnished to the Administrator
and/or the Trust in appropriate form as soon as practicable after termination of
this Agreement for any reason.
9. Return of Records. The Sub-Administrator may at its option at any
time, and shall promptly upon the demand of the Administrator and/or the Trust,
turn over to the Administrator and/or the Trust and cease to retain the
Sub-Administrator's files, records and documents created and maintained by the
Sub-Administrator pursuant to this Agreement which are no longer needed by the
Sub-Administrator in the performance of its services or for its legal
protection. If not so turned over to the Administrator and/or the Trust, such
documents and records will be retained by the Sub-Administrator for six years
from the year of creation. At the end of such six-year period, such records and
documents will be turned over to the Administrator and/or the Trust unless the
Trust authorizes in writing the destruction of such records and documents.
10. Notices. Any notice provided hereunder shall be sufficiently given
when sent by registered or certified mail to the Administrator at the following
address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: President, and to the
Sub-Administrator at the following address: Bank of Hawaii at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as
either party may from time to time specify in writing to the other party
pursuant to this Section.
11. Headings. Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
12. Assignment. This Agreement and the rights and duties hereunder
shall not be assignable with respect to a Fund by either of the parties hereto
except by the specific written consent of the other party and with the specific
written consent of the Trust.
13. Governing Law. This Agreement shall be governed by and provisions
shall be construed in accordance with the laws of The Commonwealth of
Massachusetts.
14. Confidentiality/Privacy. The Sub-Administrator agrees on behalf of
itself and its employees to treat confidentially and as the proprietary
information of the Trust, all records and other information relative to the
Trust and prior, present or potential shareholders, and not to use such records
and information for any purpose other than performance of its responsibilities
and duties hereunder, except, after prior notification to and approval in
writing by Administrator or the Trust, which approval shall not be unreasonably
withheld.
The Sub-Administrator acknowledges that nonpublic personal financial
information relating to consumers or customers of the Trust provided by, or at
the direction of the Trust to Administrator, or collected or retained by
Administrator to perform its duties as administrator of the Funds shall be
considered confidential information. Sub-Administrator Service Trust shall not
give, sell or in any way transfer such confidential information to any person or
entity, except at the direction of Administrator or as required or permitted by
law. Sub-Administrator shall have in place and maintain physical, electronic and
procedural safeguards reasonably designed to protect the security,
confidentiality and integrity of, and to prevent unauthorized access to or use
of records and information relating to consumers or customers of the Trust. The
Sub-Administrator acknowledges receipt of the Trust's Statement of its privacy
policies and practices as required by Securities and Exchange Commission
Regulation S-P.
15. Representations and Warranties. The Administrator represents and
warrants to the Sub-Administrator that this Agreement has been duly authorized
by the Administrator and, when executed and delivered by the Administrator, will
constitute a legal, valid and binding obligation of the Administrator,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties.
The Sub-Administrator represents and warrants that: (a) the
Sub-Administrator's equipment, facilities and other property used in the
performance of its obligations hereunder, and the various procedures used by it
to maintain and safeguard all data and records relating thereto from loss or
damage attributable to fire, theft or any other cause, are adequate and that it
will make such changes therein from time to time as are required for the secure
performance of its obligations hereunder; and (b) this Agreement has been duly
authorized by Sub-Administrator and, when executed and delivered by
Sub-Administrator, will constitute a legal, valid and binding obligation of
Sub-Administrator, enforceable against Sub-Administrator in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the right and remedies of creditors and
secured parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
BISYS FUND SRVICES OHIO, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By: _____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
BANK OF HAWAII
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
By: _____________________________
▇▇▇▇▇ ▇▇▇▇▇▇
Vice Chairman
Approved and Accepted:
PACIFIC CAPITAL FUNDS
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: _____________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
President
SCHEDULE A
TO THE
SUB-ADMINISTRATION AGREEMENT
BETWEEN
BISYS FUND SERVICES OHIO, INC.
AND
BANK OF HAWAII
NAME OF FUND
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- Diversified Fixed Income Fund
- Value Fund
- Growth and Income Fund
- Growth Stock Fund
- International Stock Fund
- New Asia Growth Fund
- Short Intermediate U.S. Government Securities Fund
- Small Cap Fund
- Tax-Free Securities Fund
- Tax-Free Short Intermediate Securities Fund
- Ultra Short Government Fund
- Balanced Fund
