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Exhibit 9(e)
SECURITIES LENDING RECORD ADMINISTRATION AGREEMENT
This SECURITIES LENDING RECORD ADMINISTRATION AGREEMENT made as of the 1st
day of June, 1995, by and between The Bank of California, N.A. (the "Bank")
and The Winsbury Company Limited Partnership, d/b/a The Winsbury Company, an
Ohio limited partnership (the "Record Administrator").
WHEREAS, The Parkstone Group of Funds, a Massachussetts business trust, (the
"Group") is an open-end management investment company which has filed a
registration statement (the "Registration Statement" ) under the Investment
Company Act of 1940, as amended (the "1940 Act") and the Securities Act of
1933.
WHEREAS, the Bank has been engaged by the Group to provide a program for the
lending of its portfolio securities (the "Program") pursuant to the Securities
Lending and Reverse Repurchase Agreement Addendum dated June 1, 1995 to the
Custody Agreement dated October 18, 1991 between the Group and the Bank (the
"Addendum"); and
WHEREAS, the Bank wishes to avail itself of the services, information,
advice, assistance and facilities of the Record Administrator to provide
assistance to the Bank in its operation and administration of the Program; and
NOW, THEREFORE, in consideration of the terms and conditions hereinafter set
forth, it is agreed as follows:
1. Appointment of the Record Administrator. The Bank hereby appoints the
Record Administrator to provide, as it may request from time to time, services
intended to assist the Administrator in supervising the aspects of the Program
as set forth below in Paragraph 2. The Record Administrator hereby accepts
such appointment and agrees during such period to render the services and to
assume the obligations herein set forth for the compensation herein provided.
2. Services as Record Administrator. Record Administrator shall be available
to provide, as the Administrator may request from time to time, services in
connection with the Program, including, but not limited to, reviewing the
Bank's monitoring of the market price of securities; reviewing the Bank's
recordkeeping of dividends, splits, exchanges and similar transactions
affecting the loaned securities; reviewing on a daily basis daily reports of
outstanding loan activity and reinvestments of cash collateral for compliance
with the Group's securities lending and collateral reinvestment parameters; and
reviewing the Bank's preparation of month-end security position reports for the
Program. Bank shall send all such reports to Record Administrator by facsimile
transmission. Based on its reviews as required hereunder. Record Administrator
shall notify Bank of any recommended adjustments, such notice to be provided to
Bank by facsimile transmission on or before the Business Day immediately
following the date such report was sent to Record Administrator.
3. Fees and Expenses. In consideration of services rendered pursuant to this
Agreement, Bank will pay to the Administrator on the first business day of each
month, or at such time(s) as Record Administrator shall request and the parties
hereto shall agree, a fee computed daily and equal to twenty-five percent of
the fees received by the Bank from the Group for services performed pursuant to
the Addendum. Such fees shall be calculated on net basis with respect to any
expenses which are required to be paid by the Bank pursuant to the Addendum.
Record
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Administrator shall make any required disclosures to the Group of the fee
arrangements hereunder.
4. Liability. Record Administrator, in rendering its services hereunder,
agrees to use its best judgment and efforts, and the Bank agrees that Record
Administrator shall not be liable hereunder for any loss suffered by the Bank
in connection with the matters to which this Agreement relates, except for a
loss resulting from willful misfeasance, bad faith or gross negligence on the
part of Record Administrator in the performance of or failure to perform its
obligations and duties under this Agreement. Any person, even though also a
partner, employee, or agent of Record Administrator, who may be or become an
officer, Trustee, employee, or agent of the Group or the Funds shall be deemed,
when rendering services to the Group or the Funds, or acting on any business of
that party, to be rendering such services to or acting solely for that party
and not as a partner, employee, or agent or one under the control or direction
of Record Administrator even though paid by it.
5. Duration, Renewal and Termination. This Agreement shall become effective
as of the date first written above and, unless sooner terminated as provided
herein, shall continue until the Addendum is terminated. Written notice of
termination must be given by the terminating party to the other party at least
60 days prior to termination. This Agreement is terminable for "cause" (as
defined below) by the party alleging "cause," in either case on not less than
30 days' notice by the Bank or by Record Administrator.
For purposes of this Agreement, "cause" shall mean (a) willful misfeasance,
bad faith, gross negligence, or reckless disregard on the part of either party
with respect to its obligations and duties set forth herein; (b) a final,
unappealable judicial, regulatory or administrative ruling or order in which
either party has been found guilty of criminal or unethical behavior in the
conduct of its business; (c) the dissolution or liquidation of either party or
other cessation of business other than a reorganization or recapitalization of
such party as an ongoing business; financial difficulties on the part of either
party which is evidenced by the authorization or commencement of, or
involvement by way of pleading, answer, consent, or acquiescence in, a
voluntary or involuntary case under Title 11 of the United States code, as from
time to time is in effect, or any applicable law, other than said Title 11, of
any jurisdiction relating to the liquidation or reorganization of debtors or to
the modification or alteration of the rights of creditors; or (e) any
circumstance which substantially impairs the performance of either party's
obligations and duties as contemplated herein.
8. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Ohio and the applicable provisions of
the 1940 Act. To the extent applicable law of the State of Ohio, or any of the
provisions herein, conflict with applicable provisions of the 1940 Act, the
latter shall control.
9. Names. The names "The Parkstone Group of Funds" and "Trustees of the
Parkstone Group of Funds" refer respectively to the Trust created and the
Trustees, as trustees but no individually or personally, acting from time to
time under an Agreement and Declaration of Trust dated March 25, 1987 which is
hereby referred to and a copy of which is on file at the office of the State
Secretary of the Commonwealth of Massachusetts and the principal office of the
Trust. The obligations of "The Parkstone Group of Funds" entered into in the
name or on behalf thereof
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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
property of the Trust, and all persons dealing with any class of shares of the
Trust must look solely to the property of the Trust belonging to such class for
the enforcement of any claims against the Trust.
10. Miscellaneous. This Agreement constitutes the full and complete
agreement of the parties hereto with respect to the subject matter hereof. Each
party agrees to perform such further actions and execute such further documents
as are necessary to effectuate the purposes hereof. The captions in this
Agreement are included for convenience only and in no way define or delimit any
of the provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed in several counterparts, all of which together shall
for all purposes constitute one Agreement, binding on all parties.
IN WITNESS HEREOF, the parties have duly executed this Agreement as of the
date first written above.
THE BANK OF CALIFORNIA, N.A.
/s/ Xxxxx X. Xxxxxxx
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By: Xxxxx X. Xxxxxxx
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Its: Vice President & Manager
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THE WINSBURY COMPANY LIMITED PARTNERSHIP
By: BISYS Fund Services, Inc.
General Partner
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Its: Executive Vice President
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