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Exhibit 5(c)
SUB-ADVISORY AGREEMENT
PACIFIC CAPITAL NEW ASIA GROWTH FUND
AGREEMENT made as of ____________, 1997 between Pacific
Century Trust (the "Adviser"), and ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ Capital Management (Hong
Kong) LLC ("Sub- Adviser").
WHEREAS, Pacific Capital Funds (the "Trust") is registered as
an open-end, diversified management investment company under the Investment
Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Adviser has been appointed investment adviser
to the Trust's Pacific Capital New Asia Growth Fund (the "Fund"); and
WHEREAS, the Adviser desires to retain Sub-Adviser to assist
it in the provision of a continuous investment program for the Fund and
Sub-Adviser is willing to do so;
WHEREAS, the Board of Trustees of the Trust has approved
this Agreement, and Sub-Adviser is willing to furnish such services upon the
terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Adviser hereby appoints Sub-Adviser to
act as sub- adviser to the Fund as permitted by the Adviser's Advisory
Agreement with the Trust pertaining to the Fund. Intending to be legally bound,
Sub-Adviser accepts such appointment and agrees to render the services herein
set forth for the compensation herein provided.
2. Sub-Advisory Services. Subject to the supervision of the
Trust's Board of Trustees, Sub-Adviser will assist the Adviser in providing a
continuous investment program with respect to the foreign component of the
Fund's portfolio, including investment research and management with respect to
all foreign securities and investments and cash equivalents in the Fund.
Sub-Adviser will provide services under this Agreement in accordance with the
Fund's investment objective, policies and restrictions as stated in the Fund's
prospectus and resolutions of the Trust's Board of Trustees applicable to the
Fund.
Without limiting the generality of the foregoing, Sub-Adviser
further agrees that it:
(a) will prepare, subject to the Adviser's approval, lists of
foreign countries for investment by the Fund and determine from time
to time what securities and other investments will be purchased,
retained or sold for the Fund, including, with the assistance of the
Adviser, the Fund's investments in futures and forward currency
contracts;
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(b) will manage in consultation with the Adviser the Fund's
temporary investments in securities;
(c) will place orders pursuant to its investment
determinations for the Fund either directly with the issuer or with
any broker or dealer;
(d) will not purchase shares of the Fund for itself or for
accounts with respect to which it exercises sole investment discretion
in connection with such transactions except as permitted by the
Trust's Board of Trustees or by federal, state and local law;
(e) will manage the Fund's overall cash position, and
determine from time to time what portion of the Fund's assets will be
held in different currencies;
(f) will provide the Adviser with foreign broker research, a
quarterly review of international economic and investment
developments, and occasional "Spot Lights" on international investment
issues;
(g) will attend regular business and investment-related
meetings with the Trust's Board of Trustees and the Adviser if
requested to do so by the Trust and/or the Adviser; and
(h) will maintain books and records with respect to the
securities transactions for the Fund, furnish to the Adviser and the
Trust's Board of Trustees such periodic and special reports as they
may request with respect to the Fund, and provide in advance to the
Adviser all reports to the Board of Trustees for examination and
review within a reasonable time prior to the Trust's Board meetings.
3. Covenants by Sub-Adviser. Sub-Adviser agrees with respect
to the services provided to the Fund that it:
(a) will conform with all Rules and Regulations of the
Securities and Exchange Commission;
(b) will telecopy trade information to the Adviser on the
first business day following the day of the trade and cause broker
confirmations to be sent directly to the Adviser; and
(c) will treat confidentially and as proprietary information
of the Trust all records and other information relative to the Trust
and prior, present or potential shareholders, and will not use such
records and information for any purpose other than
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performance of its responsibilities and duties hereunder (except after
prior notification to and approval in writing by the Trust, which
approval shall not be unreasonably withheld and may not be withheld
and will be deemed granted where Sub-Adviser may be exposed to civil
or criminal contempt proceedings for failure to comply, when requested
to divulge such information by duly constituted authorities, or when
so requested by the Trust).
4. Services Not Exclusive. Except as provided herein, the
services furnished by Sub-Adviser hereunder are deemed not to be exclusive, and
nothing in this Agreement shall (i) prevent Sub-Adviser from acting as
investment adviser or manager for any other person or persons, including other
investment companies, except that the Sub-Adviser shall not provide primary
advisory or sub-advisory services of any nature to any registered investment
company (a) that has an investment objective or style substantially similar to
that of the Pacific Capital New Asia Growth Fund ("an Asia Fund") and (b) that
offers its shares (or any class thereof) in Hawaii, California, Guam or
Arizona. Notwithstanding the prohibited services described in the immediately
preceding sentence, in the event that the Sub-Adviser wishes to advise or
sub-advise another Asia Fund, it shall notify the Adviser and the Trust of such
desire, and, following such notification, the Adviser, the Sub-Adviser and the
Trust shall negotiate in good faith (for at least 30 days prior to any notice
of termination submitted arising from a disagreement on this prohibition), a
modification to this prohibition that will allow the Sub-Adviser to provide
services to another Asia Fund, such that the economic and other interests of
the Adviser, Sub-Adviser and the Trust are adequately addressed, or (ii) limit
or restrict Sub-Adviser from buying, selling or trading any securities or other
investments (including any securities or other investments which the Fund is
eligible to buy) for its or their own accounts or for the accounts of others
for whom it or they may be acting; provided, however, that Sub-Adviser agrees
that it will not undertake any activities which will adversely affect the
performance of its obligations to the Fund under this Agreement.
5. Portfolio Transactions. Investment decisions for the Fund
shall be made by Sub-Adviser independently from those for any other investment
companies and accounts advised or managed by Sub-Adviser. The Fund and such
investment companies and accounts may, however, invest in the same securities.
When a purchase or sale of the same security is made at substantially the same
time on behalf of the Fund and/or another investment company or account, the
transaction will be averaged as to price, and available investments allocated
as to amount, in a manner which Sub-Adviser believes to be equitable to the
Fund and such other investment company or account. In some instances, this
investment procedure may adversely affect the price paid or received by the
Fund or the size of the position obtained or sold by the Fund. To the extent
permitted by law, Sub-Adviser may aggregate the securities to be sold or
purchased for the Fund with those to be sold or purchased for other investment
companies or accounts in order to obtain best execution.
Sub-Adviser shall place orders for the purchase and sale of
portfolio securities and will solicit broker-dealers to execute transactions in
accordance with the Fund's policies and
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restrictions regarding brokerage allocations. Sub-Adviser shall place orders
pursuant to its investment determination for the Fund either directly with the
issuer or with any broker or dealer selected by Sub-Adviser. In executing
portfolio transactions and selecting brokers or dealers, Sub-Adviser shall use
its reasonable best efforts to seek the most favorable execution of orders,
after taking into account all factors Sub-Adviser deems relevant, including the
breadth of the market in the security, the price of the security, the financial
condition and execution capability of the broker or dealer, and the
reasonableness of the commission, if any, both for the specific transaction and
on a continuing basis. Consistent with this obligation, Sub-Adviser may, to the
extent permitted by law, purchase and sell portfolio securities to and from
brokers and dealers who provide brokerage and research services (within the
meaning of Section 28(e) of the Securities Exchange Act of 1934) to or for the
benefit of the Fund and/or other accounts over which Sub-Adviser or any of its
affiliates exercises investment discretion. Sub-Adviser is authorized to pay to
a broker or dealer who provides such brokerage and research services a
commission for executing a portfolio transaction for the Fund which is in
excess of the amount of commission another broker or dealer would have charged
for effecting that transaction if Sub-Adviser determines in good faith that
such commission was reasonable in relation to the value of the brokerage and
research services provided by such broker or dealer, viewed in terms of either
that particular transaction or Sub-Adviser's overall responsibilities to the
Fund and to the Company. In no instance will portfolio securities be purchased
from or sold to Sub-Adviser, or the Fund's principal underwriter, or any
affiliated person thereof except as permitted by the Securities and Exchange
Commission.
6. Books and Records. In compliance with the requirements of
Rule 31a-3 under the 1940 Act, Sub-Adviser hereby agrees that all records which
it maintains for the Trust are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust's request.
Sub-Adviser further agrees to preserve for the periods prescribed by Rule 31a-2
under the 1940 Act the records required to be maintained by Rule 31a-1 under
the 1940 Act.
7. Expenses. During the term of this Agreement, Sub-Adviser
will pay all expenses incurred by it in connection with its activities under
this Agreement other than the cost of securities, commodities and other
investments (including brokerage commissions and other transaction charges, if
any) purchased for the Fund.
8. Compensation. For the services provided and the expenses
assumed with respect to the Fund pursuant to this Agreement, the Sub-Adviser
will be entitled to a fee, computed daily and payable quarterly, from Adviser,
calculated at the annual rate of 0.50% of the Fund's average daily net assets.
9. Standard of Care; Limitation of Liability. Sub-Adviser
shall exercise due care and diligence and use the same skill and care in
providing its services hereunder as it uses in providing services to other
investment companies, but shall not be liable for any action taken or
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omitted by Sub-Adviser in performance of services rendered hereunder in the
absence of bad faith, willful misconduct, gross negligence or reckless
disregard of its duties.
10. Reference to Sub-Adviser. Neither the Adviser nor any
affiliate or agent of it shall make reference to or use the name of Sub-Adviser
or any of its affiliates, or any of their clients, except references concerning
the identity of and services provided by Sub-Adviser to the Fund, which
references shall not differ in substance from those included in the current
registration statement pertaining to the Fund, this Agreement and the Advisory
Agreement between the Adviser and the Trust with respect to the Fund, in any
advertising or promotional materials without the prior approval of Sub-Adviser,
which approval shall not be unreasonably withheld or delayed. The Adviser
hereby agrees to make all reasonable efforts to cause the Fund and any
affiliate thereof to satisfy the foregoing obligation.
11. Duration and Termination. Unless sooner terminated, this
Agreement shall continue until the second anniversary hereof and thereafter
shall continue automatically for successive annual periods, provided such
continuance is specifically approved at least annually by the Trust's Board of
Trustees or vote of the lesser of (a) 67% of the shares of the Fund represented
at a meeting if holders of more than 50% of the outstanding shares of the Fund
are present in person or by proxy or (b) more than 50% of the outstanding
shares of the Fund, provided that in either event its continuance also is
approved by a majority of the Trust's Trustees who are not "interested persons"
(as defined in the ▇▇▇▇ ▇▇▇) of any party to this Agreement (the "Disinterested
Trustees"), by vote cast in person at a meeting called for the purpose of
voting on such approval. This Agreement is terminable at any time without
penalty, on 60 days' notice, by Adviser, Sub-Adviser or by the Trust's Board of
Trustees or by vote of the lesser of (a) 67% of the shares of the Fund
represented at a meeting if holders of more than 50% of the outstanding shares
of the Fund are present in person or by proxy or (b) more than 50% of the
outstanding shares of the Fund. This Agreement will terminate automatically in
the event of its assignment (as defined in the 1940 Act).
12. Amendment of this Agreement. No provision of Agreement
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought. No amendment of this
Agreement shall be effective with respect to the Fund until approved by the
vote of (i) a majority of the outstanding voting securities of the Fund and
(ii) a majority of the Disinterested Trustees cast in person at a meeting
called for the purpose of voting on such approval.
13. Notice. Any notice, advice or report to be given pursuant
to this Agreement shall be delivered or mailed:
To Sub-Adviser at:
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ Capital Management (Hong Kong) LLC
Room ▇▇▇-▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
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To the Adviser at:
Pacific Century Trust
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
To the Trust at:
c/o BISYS Fund Services
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
14. Miscellaneous. 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. 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 shall be
governed by the laws of the Commonwealth of Massachusetts.
15. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
16. Personal Liability. The names "Pacific Capital Funds" and
"Trustees" refer respectively to the Trust created and to the Trustees, as
trustees but not individually or personally, acting from time to time under an
Agreement and Declaration of Trust dated as of October 30, 1992 to which
reference is hereby made and a copy of which is on file at the office of the
Secretary of State of The Commonwealth of Massachusetts and elsewhere as
required by law, and to any and all amendments thereto so filed or hereafter
filed. The obligations of "Pacific Capital Funds" entered into in the name or
on behalf hereof by any of the Trustees, representatives or agents are made not
individually, but in such capacities, and are not binding upon any of the
Trustees, shareholders or representatives of the Trust personally, but bind
only the assets of the Trust and all persons dealing with any series of shares
of the Trust must look solely to the assets of the Trust belonging to such
series for the enforcement of any claims against the Trust.
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IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day and
year first above written.
Attest: PACIFIC CENTURY TRUST
___________________________ By:___________________________
Name:_________________________
Title:________________________
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ CAPITAL
MANAGEMENT (HONG KONG) LLC
By:___________________________
Name:_________________________
Title:________________________
PACIFIC CAPITAL FUNDS
By:___________________________
Name:_________________________
Title:________________________
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