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EXHIBIT 9(k)
SUB-ACCOUNTING AGREEMENT BETWEEN THE WINSBURY SERVICE CORPORATION
AND THE BANK OF CALIFORNIA, N.A., DATED DECEMBER 23, 1991
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SUB-ACCOUNTING AGREEMENT
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AGREEMENT made this 23rd day of December, 1991, between THE WINSBURY
SERVICE CORPORATION ("Winsbury"), a corporation 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-Accountant"), a national banking association having its main office at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, Winsbury has entered into a Fund Accounting Agreement, dated
December 23, 1991, with The HighMark Group (the "Trust"), a Massachusetts
business trust having its principal place of business at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, concerning the provision of fund
accounting 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-Accountant to assist it in
performing fund accounting services with respect to each Fund and the
Sub-Accountant 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:
33. SERVICES AS SUB-ACCOUNTANT. The Sub-Accountant will assist Winsbury
in providing fund accounting 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, assistance in connection with the calculation of a
Fund's net asset value per Share, the provision of information concerning a
Fund's portfolio securities and cash positions, and the preparation of reports
concerning the financial position of a Fund. The Sub-Accountant will keep and
maintain all books and records relating to its services in accordance with Rule
31a-1 under the Investment Company Act of 1940, as amended (the "1940 Act").
34. COMPENSATION; REIMBURSEMENT OF EXPENSES. Winsbury shall pay the
Sub- Accountant for the services to be provided by the Sub-Accountant under this
Agreement in accordance with, and in the manner set forth in, Schedule B hereto.
In addition, Winsbury agrees to reimburse the Sub-Accountant for the
Sub-Accountant's reasonable out-of-pocket expenses in providing services
hereunder.
35. 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").
36. 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-Accountant, 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
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which such termination shall become effective. Compensation due the
Sub-Accountant and unpaid by Winsbury upon such termination shall be immediately
due and payable upon and notwithstanding such termination. The Sub-Accountant
shall be entitled to collect from Winsbury, in addition to the compensation
described under paragraph 2 hereof, the amount of all the Sub-Accountant's cash
disbursements for services in connection with the Sub-Accountant'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-Accountant will
provide Winsbury and/or the Trust with reasonable access to any Trust documents
or records remaining in its possession.
37. STANDARD OF CARE; RELIANCE ON RECORDS AND INSTRUCTIONS;
Indemnification. The Sub-Accountant 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-Accountant
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-Accountant, 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-
Accountant'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-Accountant by a duly authorized
representative of Winsbury; provided that this indemnification shall not apply
to actions or omissions of the Sub-Accountant 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-Accountant
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-Accountant.
38. RECORD RETENTION AND CONFIDENTIALITY. The Sub-Accountant shall keep
and maintain on behalf of the Trust all books and records which the Trust and
the Sub-Accountant 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-Accountant 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.
39. UNCONTROLLABLE EVENTS. The Sub-Accountant 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.
40. RIGHTS OF OWNERSHIP. All computer programs and procedures developed
to perform the services to be provided by the Sub-Accountant under this
Agreement are the property of the Sub-Accountant. 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.
41. RETURN OF RECORDS. The Sub-Accountant 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-Accountant's files,
records and documents created and maintained by
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the Sub-Accountant pursuant to this Agreement which are no longer needed by the
Sub-Accountant 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-Accountant 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.
42. REPRESENTATIONS OF WINSBURY. Winsbury certifies to the
Sub-Accountant 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.
43. REPRESENTATIONS OF THE SUB-ACCOUNTANT. The Sub-Accountant
represents and warrants that: (1) the various procedures and systems which the
Sub-Accountant 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-Accountant'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-Accountant and, when executed and delivered by the
Sub-Accountant, will constitute a legal, valid and binding obligation of the
Sub-Accountant, enforceable against the Sub-Accountant 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.
44. INSURANCE. The Sub-Accountant 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-Accountant 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-Accountant under its insurance coverage.
45. 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-Accountant
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.
46. HEADINGS. Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
47. 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.
48. 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.
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[SEAL]
THE WINSBURY SERVICE CORPORATION
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
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Dated: As of December 1, 1992
AMENDED AND RESTATED
SCHEDULE A
TO THE SUB-ACCOUNTING AGREEMENT
BETWEEN
THE WINSBURY SERVICE CORPORATION
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 Government Bond Fund
The HighMark Income and Growth Fund
THE WINSBURY SERVICE CORPORATION
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
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Dated: December 23, 1991
SCHEDULE B
TO THE SUB-ACCOUNTING AGREEMENT
BETWEEN
THE WINSBURY SERVICE CORPORATION
AND
THE BANK OF CALIFORNIA, N.A.
FEES
The Sub-Accountant shall be entitled to receive a fee from Winsbury at
the annual rate of up to one one-hundredth of one percent (.01%) of each Fund's
average daily net assets plus the Sub-Accountant's reasonable out-of-pocket
expenses incurred in the performance of its services as provided in Section 2 of
the Fund Accounting Agreement to which this Schedule B is attached.
THE WINSBURY SERVICE CORPORATION
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
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