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EXHIBIT 9(d)
SUB-ADMINISTRATION AGREEMENT BETWEEN THE WINSBURY COMPANY LIMITED
PARTNERSHIP AND THE BANK OF CALIFORNIA, N.A., DATED DECEMBER 23, 1991
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SUB-ADMINISTRATION AGREEMENT
AGREEMENT made this 23rd day of December, 1991, between THE WINSBURY
COMPANY LIMITED PARTNERSHIP, d/b/a The Winsubry Company ("Winsbury"), a
partnership organized under the laws of the State of Ohio and having its
principal place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, and THE BANK OF CALIFORNIA, N.A. (the "Sub-Administrator"), a national
banking association having its main office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, Winsbury has entered into a Management and Administration
Agreement, dated December 23, 1991 (the "Management and Administration
Agreement"), with The HighMark Group (the "Trust"), a Massachusetts business
trust having its principal place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, concerning the provision of management and administrative
services for the investment portfolios of the Trust identified on Schedule A
hereto, as such Schedule shall be amended from time to time (individually
referred to herein as the "Fund" and collectively as the "Funds"); and
WHEREAS, Winsbury desires to retain the Sub-Administrator to assist it
in performing administrative services with respect to each Fund and the
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 premises and covenants
herein set forth, the parties agree as follows:
1. SERVICES AS SUB-ADMINISTRATOR. The Sub-Administrator will assist
Winsbury in providing administrative services with respect to each Fund
as may be reasonably requested by Winsbury from time to time. Such
services may include, but are in no way limited to, such clerical,
bookkeeping, accounting, stenographic, and administrative services
which will enable Winsbury to more efficiently perform its obligations
under the Management and Administration Agreement. Specific assignments
may include:
(i) With regard to the investment adviser to the Trust, and at the
direction of Winsbury, to:
a. advise with regard to various compliance requirements
including but not limited to the performance of credit
analysis as required by Rule 2a-7 under the Investment
Company Act of 1940, as amended (the "1940 Act");
b. assist in the preparation of Trustees' compliance
reports;
c. assist in the resolution of other technical issues of
a non-compliance nature; and
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d. serve as on-site liaison;
(ii) Gathering of information deemed necessary by Winsbury to support
(a) required state regulatory filings (including filings required to be
made with California tax, blue sky and bank agencies) and (b) required
federal regulatory filings;
(iii) Preparation of statistical and research data;
(iv) Assistance in the preparation of the Group's Annual and
Semi-Annual Reports to Shareholders; and
(v) Assistance in the gathering of data from the investment adviser
to the Trust for inclusion in Winsbury's periodic reports to the
Trustees.
The Sub-Administrator will keep and maintain all books and records relating to
its services in accordance with Rule 31a-1 under the 1940 Act.
2. COMPENSATION; REIMBURSEMENT OF EXPENSES. Winsbury shall pay the
Sub-Administrator for the services to be provided by the
Sub-Administrator under this Agreement in accordance with, and in the
manner set forth in, Schedule B hereto. In addition, Winsbury agrees to
reimburse the Sub-Administrator for the Sub- Administrator's reasonable
out-of-pocket expenses in providing services hereunder.
3. EFFECTIVE DATE. This Agreement shall become effective with
respect to a Fund 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 a
Fund, unless earlier terminated by either party hereto as provided
hereunder, until October 31, 1993, and thereafter shall be renewed
automatically for successive one-year terms unless written notice not
to renew is given by the non-renewing party to the other party at least
60 days prior to the expiration of the then-current term; provided,
however, that after such termination for so long as the
Sub-Administrator, with the written consent of Winsbury, in fact
continues to perform any one or more of the services contemplated by
this Agreement or any schedule or exhibit hereto, the provisions of
this Agreement, including without limitation the provisions dealing
with indemnification, shall continue in full force and effect. Either
party to this Agreement may terminate such Agreement prior to the
expiration of the initial term set forth above by providing the other
party with written notice of such termination at least 60 days prior to
the date upon which such termination shall become effective.
Compensation due the Sub-Administrator and unpaid by Winsbury upon such
termination shall be immediately due and payable upon and
notwithstanding such termination. The Sub-Administrator shall be
entitled to collect from Winsbury, in addition to the compensation
described under paragraph 2 hereof, the amount of all the Sub-
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Administrator's cash disbursements for services in connection with the
Sub- Administrator's activities in effecting such termination,
including without limitation, the delivery to Winsbury, the Trust,
and/or their respective designees of the Trust's property, records,
instruments and documents, or any copies thereof. Subsequent to such
termination for a reasonable fee to be paid by Winsbury, the
Sub-Administrator will provide Winsbury and/or the Trust with
reasonable access to any Trust documents or records remaining in its
possession.
5. STANDARD OF CARE; RELIANCE ON RECORDS AND INSTRUCTIONS;
INDEMNIFICATION. The Sub-Administrator shall use its best efforts to
insure the accuracy of all services performed under this Agreement, but
shall not be liable to Winsbury or the Trust for any action taken or
omitted by the Sub-Administrator in the absence of bad faith, willful
misfeasance, negligence or from reckless disregard by it of its
obligations and duties. Winsbury agrees to indemnify and hold harmless
the Sub-Administrator, its employees, agents, directors, officers and
nominees from and against any and all claims, demands, actions and
suits, whether groundless or otherwise, and from and against any and
all judgments, liabilities, losses, damages, costs, charges, counsel
fees and other expenses of every nature and character arising out of or
in any way relating to the Sub-Administrator's actions taken or
nonactions with respect to the performance of services under this
Agreement with respect to a Fund or based, if applicable, upon
reasonable reliance on information, records, instructions or requests
with respect to such Fund given or made to the Sub-Administrator by a
duly authorized representative of Winsbury; provided that this
indemnification shall not apply to actions or omissions of the
Sub-Administrator in cases of its own bad faith, willful misfeasance,
negligence or from reckless disregard by it of its obligations and
duties, and further provided that prior to confessing any claim against
it which may be the subject of this indemnification, the Sub-
Administrator shall give Winsbury written notice of and reasonable
opportunity to defend against said claim in its own name or in the name
of the Sub-Administrator.
6. RECORD RETENTION AND CONFIDENTIALITY. The Sub-Administrator
shall keep and maintain on behalf of 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 Winsbury, or by the
Securities and Exchange Commission at reasonable times 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-constituted authorities or court process.
7. UNCONTROLLABLE EVENTS. 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.
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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 Winsbury 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 Winsbury and/or the Trust,
turn over to Winsbury 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 Winsbury 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 Winsbury and/or The Trust unless the Trust authorizes in writing the
destruction of such records and documents.
10. REPRESENTATIONS OF WINSBURY. Winsbury certifies to the
Sub-Administrator that this Agreement has been duly authorized by
Winsbury and, when executed and delivered by Winsbury, will constitute
a legal, valid and binding obligation of Winsbury, enforceable against
Winsbury 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.
11. REPRESENTATIONS OF THE SUB-ADMINISTRATOR. The Sub-Administrator
represents and warrants that: (1) the various procedures and systems
which the Sub-Administrator has implemented with regard to safeguarding
from loss or damage attributable to fire, theft, or any other cause of
the records and other data of the Trust and the Sub-Administrator's
records, data, equipment facilities and other property used in the
performance of its obligations hereunder are adequate and that it will
make such changes therein from time to time as are required for the
secure performance of it obligations hereunder, and (2) this Agreement
has been duly authorized by the Sub-Administrator and, when executed
and delivered by the Sub-Administrator, will constitute a legal, valid
and binding obligation of the Sub-Administrator, enforceable against
the Sub-Administrator 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.
12. INSURANCE. The Sub-Administrator shall notify Winsbury should
any of its insurance coverage be cancelled or reduced. Such
notification shall include the date of change and the reasons
therefor. The Sub-Administrator shall notify Winsbury of any material
claims against it with respect to services performed under this
Agreement, whether or not they may be covered by insurance, and shall
notify Winsbury from time to time as may be appropriate of the total
outstanding claims made by the Sub-Administrator under its insurance
coverage.
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13. NOTICES. Any notice provided hereunder shall be sufficiently
given when sent by registered or certified mail to Winsbury at the
following address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, and to the Sub-Administrator at the following address: ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other
address as either party may from time to time specify in writing to the
other party pursuant to this Section.
14. HEADINGS. Paragraph headings in this Agreement are included
for convenience only and are not to be used to construe or interpret
this Agreement.
15. 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.
16. GOVERNING LAW. This Agreement shall be governed by and
provisions shall be construed in accordance with the laws of The
Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
[SEAL] THE WINSBURY COMPANY
LIMITED PARTNERSHIP
By: The Winsbury Corporation,
General Partner
By: /S/
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Title: Chairman
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THE BANK OF CALIFORNIA, N.A.
By: /S/
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Title: Vice President
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Dated: As of December 1, 1992
AMENDED AND RESTATED
SCHEDULE A
TO THE SUB-ADMINISTRATION AGREEMENT
BETWEEN
THE WINSBURY COMPANY
AND
THE BANK OF CALIFORNIA, N.A.
NAME OF FUND
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The HighMark U.S. Government Obligations Fund
The HighMark Diversified Obligations Fund
The HighMark 100% U.S. Treasury Obligations Fund
The HighMark Tax-Free Fund
The HighMark California Tax-Free Fund
The HighMark Balanced Fund
The HighMark Growth Fund
The HighMark Income Equity Fund
The HighMark Special Growth Equity Fund
The HighMark Bond Fund
The HighMark U.S. Government Bond Fund
The HighMark Growth and Income Fund
THE Winsbury COMPANY
LIMITED PARTNERSHIP
By: The Winsbury Corporation
General Partner
By: /S/
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Title: President
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THE BANK OF CALIFORNIA, N.A.
By: /S/
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Title: Vice President and Manager
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Dated: As of December 1, 1992
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SCHEDULE B
TO THE SUB-ADMINISTRATION AGREEMENT
BETWEEN
THE WINSBURY COMPANY
AND
THE BANK OF CALIFORNIA, N.A.
Name of Fund Compensation 1
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The HighMark California Tax-Free Fund Annual Rate of up to five
The HighMark Diversified Obligations Fund one-hundredths (.05%) of
The HighMark Tax-Free Fund each such Fund's average
The HighMark U.S. Government Obligations Fund daily net assets
The HighMark 100% U.S. Treasury Obligations Fund
The HighMark Balanced Fund
The HighMark Growth Fund
The HighMark Special Growth Equity Fund
The HighMark Income Equity Fund
The HighMark Bond Fund
The HighMark U.S. Government Bond Fund
The HighMark Growth and Income Fund
THE WINSBURY COMPANY LIMITED PARTNERSHIP
By: The Winsbury Corporation
General Partner
By: _____________________________
Title: __________________________
THE BANK OF CALIFORNIA, N.A.
By:______________________________
Title:___________________________
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1 All fees are computed daily and paid periodically.