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EXHIBIT 9(c)
FORM OF ADMINISTRATION AGREEMENT
BETWEEN THE REGISTRANT AND SEI FUND RESOURCES
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ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this __ day of _______, 1997, by and
between The HighMark Group, a Massachusetts business trust, (the "Trust"), and
SEI Fund Resources (the "Administrator"), a Delaware business trust.
WHEREAS, the Trust is an open-end diversified management investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act"), consisting of several series of shares; and
WHEREAS, the Trust desires the Administrator to provide, and the
Administrator is willing to provide, management and administrative services to
such portfolios of the Trust as the Trust and the Administrator may agree on
("Portfolios") and as listed on the schedules attached hereto ("Schedules") and
made a part of this Agreement, on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Trust and the Administrator hereby agree as follows:
ARTICLE 1. RETENTION OF THE ADMINISTRATOR. The Trust hereby retains the
Administrator to act as the administrator of the Portfolios and to furnish the
Portfolios with the management and administrative services as set forth in
Article 2 below. The Administrator hereby accepts such employment to perform the
duties set forth below.
The Administrator shall, for all purposes herein, be deemed to be an
independent contractor and, unless otherwise expressly provided or authorized,
shall have no authority to act for or represent the Trust in any way and shall
not be deemed an agent of the Trust. All of the Administrator's duties shall be
subject to the objectives, policies and restrictions contained in the Trust's
current registration statement, to the Trust's Declaration of Trust and By-Laws,
to the provisions of the 1940 Act, and to any other guidelines that may be
established by the Trust's Trustees.
ARTICLE 2. ADMINISTRATIVE AND ACCOUNTING SERVICES. The Administrator
shall perform or supervise the performance by others of other administrative
services in connection with the operations of the Portfolios, and, on behalf of
the Trust, will investigate, assist in the selection of and conduct relations
with custodians, depositories, accountants, legal counsel, underwriters, brokers
and dealers, corporate fiduciaries, insurers, banks and persons in any other
capacity deemed to be necessary or desirable for the Portfolios' operations. The
Administrator shall provide the Trustees of the Trust with such reports
regarding investment performance and compliance with investment policies and
applicable laws, rules and regulations as they may reasonably request but shall
have no responsibility for supervising the performance by any investment adviser
or sub-adviser of its responsibilities. The Administrator may appoint a sub-
administrator to perform certain of the services to be performed by the
Administrator hereunder.
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The Administrator shall provide the Trust with administrative services,
regulatory reporting, fund accounting and related portfolio accounting services,
all necessary office space, equipment, personnel, compensation and facilities
(including facilities for Shareholders' and Trustees' meetings) for handling the
affairs of the Portfolios and such other services as the Trustees may, from time
to time, reasonably request and the Administrator shall, from time to time,
reasonably determine to be necessary to perform its obligations under this
Agreement. In addition, at the request of the Trust's Board of Trustees (the
"Trustees"), the Administrator shall make reports to the Trustees concerning the
performance of its obligations hereunder.
Without limiting the generality of the foregoing, the Administrator shall:
(A) calculate contractual Trust expenses and control
all disbursements for the Trust, and as appropriate compute
the Trust's yields, total return, expense ratios, portfolio
turnover rate and, if required, portfolio average
dollar-weighed maturity;
(B) assist Trust counsel with the preparation of
prospectuses, statements of additional information,
registration statements, and proxy materials;
(C) prepare such reports, applications and documents
(including reports regarding the sale and redemption of Shares
as may be required in order to comply with Federal and state
securities law) as may be necessary or desirable to register
the Trust's shares with state securities authorities, monitor
sale of Trust shares for compliance with state securities
laws, and file with the appropriate state securities
authorities the registration statements and reports for the
Trust and the Trust's shares and all amendments thereto, as
may be necessary or convenient to register and keep effective
the Trust and the Trust's shares with state securities
authorities to enable the Trust to make a continuous offering
of its shares;
(D) develop and prepare communications to shareholders,
including the annual report to shareholders, coordinate
mailing prospectuses, notices, proxy statements, proxies and
other reports to Trust shareholders, and supervise and
facilitate the solicitation of proxies solicited by the Trust
for all shareholder meetings, including tabulation process for
shareholder meetings;
(E) coordinate with Trust counsel the preparation and
negotiation of, and administer contracts on behalf of the
Trust with, among others, the Trust's investment adviser,
distributor, custodian, and transfer agent;
(F) maintain the Trust's general ledger and prepare
the Trust's financial statements, including expense accruals
and payments, determine the net asset value of the Trust's
assets and of the Trust's shares, and supervise the Trust's
transfer agent with respect to the payment of dividends and
other distributions to shareholders in accordance with the
procedures prescribed in the Trust's Registration Statement,
with applicable law, and with such other procedures as may be
established by the Trustees of the Trust;
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(G) calculate performance data of the Trust and its
portfolios for dissemination to information services covering
the investment company industry;
(H) coordinate and supervise the preparation and filing
of the Trust's tax returns;
(I) examine and review the operations and performance
of the various organizations providing services to the Trust
or any Portfolio of the Trust, including, without limitation,
the Trust's investment adviser, distributor, custodian,
transfer agent, outside legal counsel and independent public
accountants, and at the request of the Trustees, report to the
Trustees on the performance of organizations;
(J) assist with the layout and printing of publicly
disseminated prospectuses and assist with and coordinate
layout and printing of the Trust's semi-annual and annual
reports to shareholders;
(K) provide internal legal and administrative services
as requested by the Trust from time to time;
(L) assist with the design, development, and operation
of the Trust, including new portfolio and class investment
objectives, policies and structure;
(M) provide individuals acceptable to the Trustees
for nomination, appointment, or election as officers of the
Trust, who will be responsible for the management of certain
of the Trust's affairs as determined by the Trustees;
(N) advise the Trust and its Trustees on matters
concerning the Trust and its affairs;
(O) obtain and keep in effect fidelity bonds and
directors and officers/errors and omissions insurance policies
for the Trust in accordance with the requirements of Rules
17g-1 and 17d-1(7) under the 1940 Act as such bonds and
policies are approved by the Trust's Board of Trustees;
(P) monitor and advise the Trust and its Portfolios
on their registered investment company status under the
Internal Revenue Code of 1986, as amended;
(Q) perform all administrative services and functions
of the Trust and each Portfolio to the extent administrative
services and functions are not provided to the Trust or such
Portfolio pursuant to the Trust's or such Portfolio's
investment advisory agreement, distribution agreement,
custodian agreement and transfer agent agreement;
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(R) furnish advice and recommendations with respect to
other aspects of the business and affairs of the Portfolios as
the Trust and the Administrator shall determine desirable; and
(S) prepare and file with the SEC the semi-annual report
for the Trust on Form N-SAR and all required notices pursuant
to Rule 24f-2.
Also, the Administrator will perform other services for the Trust as agreed from
time to time, including, but not limited to mailing the annual reports of the
Portfolios; preparing an annual list of shareholders; and mailing notices of
shareholders' meetings, proxies and proxy statements, for all of which the Trust
will pay the Administrator's out-of-pocket expenses.
ARTICLE 3. ALLOCATION OF CHARGES AND EXPENSES.
(A) THE ADMINISTRATOR. The Administrator shall furnish at its own
expense the executive, supervisory and clerical personnel necessary to perform
its obligations under this Agreement. The Administrator shall also provide the
items which it is obligated to provide under this Agreement, and shall pay all
compensation, if any, of officers of the Trust as well as all Trustees of the
Trust who are affiliated persons of the Administrator or any affiliated
corporation of the Administrator; provided, however, that unless otherwise
specifically provided, the Administrator shall not be obligated to pay the
compensation of any employee of the Trust retained by the Trustees of the Trust
to perform services on behalf of the Trust.
(B) THE TRUST. The Trust assumes and shall pay or cause to be paid all
other expenses of the Trust not otherwise allocated herein, including, without
limitation, organizational costs, taxes, expenses for legal and auditing
services performed by parties unaffiliated with the Administrator, the expenses
of preparing (including typesetting), printing and mailing reports,
prospectuses, statements of additional information, proxy solicitation material
and notices to existing Shareholders, all expenses incurred in connection with
issuing and redeeming Shares, the costs of pricing services, the costs of
custodial services, the cost of initial and ongoing registration of the Shares
under Federal and state securities laws, fees and out-of-pocket expenses of
Trustees who are not affiliated persons of the Administrator or the investment
adviser to the Trust or any affiliated corporation of the Administrator or the
investment Adviser, the costs of Trustees' meetings, insurance, interest,
brokerage costs, litigation and other extraordinary or nonrecurring expenses,
and all fees and charges of investment advisers to the Trust.
ARTICLE 4. COMPENSATION OF THE ADMINISTRATOR.
(A) ADMINISTRATION FEE. For the services to be rendered, the facilities
furnished and the expenses assumed by the Administrator pursuant to this
Agreement, the Trust shall pay to the Administrator compensation at an annual
rate specified in the Schedules. Such compensation shall be calculated and
accrued daily, and paid to the Administrator monthly. The Trust shall also
reimburse the Administrator for its reasonable out-of-pocket expenses.
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If this Agreement becomes effective subsequent to the first day of a
month or terminates before the last day of a month, the Administrator's
compensation for that part of the month in which this Agreement is in effect
shall be prorated in a manner consistent with the calculation of the fees as set
forth above. Payment of the Administrator's compensation for the preceding month
shall be made promptly.
(B) COMPENSATION FROM TRANSACTIONS. The Trust hereby authorizes any
entity or person associated with the Administrator which is a member of a
national securities exchange to effect any transaction on the exchange for the
account of the Trust which is permitted by Section 11(a) of the Securities
Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and the Trust hereby
consents to the retention of compensation for such transactions in accordance
with Rule 11a2-2(T)(a)(2)(iv).
(C) SURVIVAL OF COMPENSATION RATES. All rights of compensation under
this Agreement for services performed as of the termination date shall survive
the termination of this Agreement.
ARTICLE 5. LIMITATION OF LIABILITY OF THE ADMINISTRATOR. The duties of
the Administrator shall be confined to those expressly set forth herein, and no
implied duties are assumed by or may be asserted against the Administrator
hereunder. The Administrator shall not be liable for any error of judgment or
mistake of law or for any loss arising out of any investment or for any act or
omission in carrying out its duties hereunder, except a loss resulting from
willful misfeasance, bad faith or gross 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. (As used in this Article 5, the
term "Administrator" shall include directors, officers, employees and other
agents of the Administrator as well as that corporation itself.)
So long as the Administrator, or its agents, acts in good faith and
with due diligence the Trust assumes full responsibility and shall indemnify the
Administrator and hold it harmless from and against any and all actions, suits
and claims, whether groundless or otherwise, and from and against any and all
losses, damages, costs, charges, reasonable counsel fees and disbursements,
payments, expenses and liabilities (including reasonable investigation expenses)
arising directly or indirectly out of said administration, transfer agency, and
dividend disbursing relationships to the Trust or any other service rendered to
the Trust hereunder. The indemnity and defense provisions set forth herein shall
indefinitely survive the termination of this Agreement.
The 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 provision contained herein shall apply, however, it is
understood that if in any case the Trust may be asked to indemnify or hold the
Administrator harmless, the Trust shall be fully and promptly advised of all
pertinent facts concerning the situation in question, and it is further
understood that the Administrator will use all reasonable care to identify and
notify the Trust promptly concerning any situation which presents or appears
likely to present the probability of such a claim for indemnification against
the Trust, but failure to do so in good faith shall not affect the rights
hereunder.
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The Trust 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 Trust elects to assume the defense
of any such claim, the defense shall be conducted by counsel chosen by the Trust
and satisfactory to the Administrator, whose approval shall not be unreasonably
withheld. In the event that the Trust elects to assume the defense of any suit
and retain counsel, the Administrator shall bear the fees and expenses of any
additional counsel retained by it. If the Trust does not elect to assume the
defense of a suit, it will reimburse the Administrator for the reasonable fees
and expenses of any counsel retained by the Administrator.
The Administrator may apply to the Trust at any time for instructions
and may consult counsel for the Trust (or other outside counsel) and with
independent accountants and other experts with respect to any matter arising in
connection with the Administrator's duties, and the Administrator shall not be
liable or accountable for any action taken or omitted by it in good faith in
accordance with such instruction or with the opinion of such counsel,
accountants or other experts.
Also, the Administrator shall be protected in acting upon any document
which it reasonably believes to be genuine and to have been signed or presented
by the proper person or persons. Nor shall the Administrator be held to have
notice of any change of authority of any officers, employee or agent of the
Trust until receipt of written notice thereof from the Trust.
ARTICLE 6. ACTIVITIES OF THE ADMINISTRATOR. The services of the
Administrator rendered to the Trust are not to be deemed to be exclusive. The
Administrator is free to render such services to others and to have other
businesses and interests. It is understood that Trustees, officers, employees
and Shareholders of the Trust are or may be or become interested in the
Administrator, as directors, officers, employees and shareholders or otherwise
and that directors, officers, employees and shareholders of the Administrator
and its counsel are or may be or become similarly interested in the Trust, and
that the Administrator may be or become interested in the Trust as a Shareholder
or otherwise.
ARTICLE 7. CONFIDENTIALITY. The Administrator agrees on behalf of
itself and its employees to treat confidentially all records and other
information relative to the Trust and its prior, present or potential
Shareholders and relative to the Adviser and its prior, present or potential
customers, except, after prior notification to and approval in writing by the
Trust, which approval shall not be unreasonably withheld and may not be withheld
where the Administrator 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.
ARTICLE 8. EQUIPMENT FAILURES. In the event of equipment failures
beyond the Administrator's control, the Administrator shall, at no additional
expense to the Trust, take reasonable steps to minimize service interruptions
but shall have no liability with respect thereto. The Administrator shall
develop and maintain a plan for recovery from equipment failures which may
include contractual arrangements with appropriate parties making reasonable
provision for emergency use of electronic data processing equipment to the
extent appropriate equipment is available.
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ARTICLE 9. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS. The
Administrator undertakes to comply with all applicable requirements of the 1933
Act, the 1934 Act, the 1940 Act and any laws, rules and regulations of
governmental authorities having jurisdiction with respect to the duties to be
performed by the Administrator hereunder.
ARTICLE 10. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement
shall become effective on the date set forth in the Schedules and shall remain
in effect for the initial term of the Agreement (the "Initial Term") and each
renewal term thereof (each, a "Renewal Term"), each as set forth in the
Schedules, unless terminated in accordance with the provisions of this Article
10. This Agreement may be terminated only: (a) by the mutual written agreement
of the parties; (b) by either party hereto on 90 days' written notice, as of the
end of the Initial Term or the end of any Renewal Term; (c) by either party
hereto on such date as is specified in written notice given by the terminating
party, in the event of a material breach of this Agreement by the other party,
provided the terminating party has notified the other party of such breach at
least 45 days prior to the specified date of termination and the breaching party
has not remedied such breach by the specified date; (d) effective upon the
filing of a petition for bankruptcy or seeking protection from creditors of the
Administrator; or (e) as to any Portfolio or the Trust, effective upon the
liquidation of such Portfolio or the Trust, as the case may be. For purposes of
this Article 10, the term "liquidation" shall mean a transaction in which the
assets of the Trust or a Portfolio are sold or otherwise disposed of and
proceeds therefrom are distributed in cash to the shareholders in complete
liquidation of the interests of such shareholders in the entity.
This Agreement shall not be assignable by the Administrator, without
the prior written consent of the Trust.
ARTICLE 11. AMENDMENTS. This Agreement may be amended by the parties
hereto only if such amendment is specifically approved by the vote of a majority
of the Trustees of the Trust.
ARTICLE 12. CERTAIN RECORDS. The Administrator shall maintain customary
records in connection with its duties as specified in this Agreement. Any
records required to be maintained and preserved pursuant to Rules 31a-1 and
31a-2 under the 1940 Act which are prepared or maintained by the Administrator
on behalf of the Trust shall be prepared and maintained at the expense of the
Administrator, but shall be the property of the Trust and will be made available
to or surrendered promptly to the Trust on request.
In case of any request or demand for the inspection of such records by
another party, the Administrator shall notify the Trust and follow the Trust's
instructions as to permitting or refusing such inspection; provided that the
Administrator may exhibit such records to any person in any case where it is
advised by its counsel that it may be held liable for failure to do so, unless
(in cases involving potential exposure only to civil liability) the Trust has
agreed to indemnify the Administrator against such liability.
ARTICLE 13. DEFINITIONS OF CERTAIN TERMS. The terms "assignment",
"interested person" and "affiliated person," when used in this Agreement, shall
have the respective meanings
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specified in the 1940 Act and the rules and regulations thereunder, subject to
such exemptions as may be granted by the Securities and Exchange Commission.
ARTICLE 14. NOTICE. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient if sent by registered or
certified mail, postage prepaid, addressed by the party giving notice to the
other party at the last address furnished by the other party to the party giving
notice: if to the Trust, at c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel, SEI Financial
Management Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and if to the
Administrator at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
ARTICLE 15. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the Commonwealth of Massachusetts and the applicable
provisions of the 1940 Act. To the extent that the applicable laws of the
Commonwealth of Massachusetts, or any of the provisions herein, conflict with
the applicable provisions of the 1940 Act, the latter shall control.
ARTICLE 16. MULTIPLE ORIGINALS. This Agreement may be executed in two
or more counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
ARTICLE 17. LIMITATION OF LIABILITY. The Administrator is hereby
expressly put on notice of the limitation of liability as set forth in Article
XI of the Trust's Declaration of Trust and agrees that the obligations pursuant
to this Agreement of a particular Portfolio and of the Trust with respect to
that Portfolio shall be limited solely to the assets of that Portfolio, and the
Administrator shall not seek satisfaction of any such obligation from any other
Portfolio, the shareholders of any Portfolio, the Trustees, officers, employees
or agents of the Trust, or any of them.
ARTICLE 18. BINDING AGREEMENT. This Agreement, and the rights and
obligations of the parties and the Portfolios hereunder, shall be binding on,
and inure to the benefit of, the parties and the Portfolios and the respective
successors and assigns of each of them.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
THE HIGHMARK GROUP
By:
Attest:
SEI FUND RESOURCES
By:
Attest:
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SCHEDULE
TO THE ADMINISTRATION AGREEMENT
DATED AS OF ______________, 1997
BETWEEN
THE HIGHMARK GROUP
AND
SEI FUND RESOURCES
Fees: Pursuant to Article 6, Section A, the Trust shall pay
the Administrator compensation for services rendered to the
HighMark California Tax-Free Fund, HighMark Diversified
Obligations Fund, HighMark Tax-Free Fund, HighMark U.S.
Government Obligations Fund, HighMark 100% U.S. Treasury
Obligations Fund, HighMark Balanced Fund, HighMark Growth
Fund, HighMark Income Equity Fund, HighMark Bond Fund,
HighMark Government Bond Fund, HighMark Income and Growth
Fund, HighMark Intermediate Term Bond Fund, HighMark
California Intermediate Term Bond Fund, HighMark Government
Securities Fund, HighMark Convertible Securities Fund,
HighMark Value Momentum Fund, HighMark Blue Chip Growth Fund,
HighMark Emerging Growth Fund and HighMark International
Equity Fund (the "Portfolios") at an annual rate equal to .20%
of the average daily net assets of the Portfolios, which is
calculated daily and paid monthly.
Term: Pursuant to Article 9, the term of this Agreement shall
commence on __________, 1997 and shall remain in effect
through July 31, 1999 ("Initial Term"). This Agreement shall
continue in effect for successive periods of 1 year after the
Initial Term, unless terminated by either party on not less
than 90 days prior written notice to the other party.
