1
EXHIBIT 9d
FUND ACCOUNTING AGREEMENT
AGREEMENT made as of the 1st day of August, 1995 between THE HIGHMARK
GROUP (the "Trust"), a Massachusetts business trust having its principal place
of business at 0000 Xxxx Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxxxx, XX 00000, and BISYS
FUND SERVICES OHIO, INC. ("BISYS Fund Services"), a corporation organized under
the laws of the State of Ohio and having its principal place of business at 0000
Xxxx Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxxxx, XX 00000.
WHEREAS, the Trust desires that BISYS Fund Services perform certain
fund accounting services for each investment portfolio 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 the "Funds");
and
WHEREAS, BISYS Fund Services 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 FUND ACCOUNTANT. BISYS Fund Services will keep and
maintain the following books and records of each Fund pursuant to Rule 31a-1
under the Investment Company Act of 1940 (the "Rule"):
a. Journals containing an itemized daily record in detail of all
purchases and sales of securities, all receipts and disbursements of
cash and all other debits and credits, as required by subsection
(b)(1) of the Rule;
b. General and auxiliary ledgers reflecting all asset, liability,
reserve, capital, income and expense accounts, including interest
accrued and interest received, as required by subsection (b)(2)(i)
of the Rule;
c. Separate ledger accounts required by subsection (b)(2)(ii) and (iii)
of the Rule; and
d. A monthly trial balance of all ledger accounts (except shareholder
accounts) as required by subsection (b)(8) of the Rule.
In addition to the maintenance of the books and records specified
above, BISYS Fund Services shall perform the following accounting services daily
for each Fund:
a. Calculate the net asset value per Share;
b. Calculate the dividend and capital gain distribution, if any;
--------------------------------------------------------------------------------
2
THE HIGHMARK GROUP FUND ACCOUNTING AGREEMENT
--------------------------------------------------------------------------------
c. Calculate the yield;
d. Reconcile cash movements with the Fund's custodian;
e. Affirm to the Fund's custodian all portfolio trades and cash
movements;
f. Verify and reconcile with the Fund's custodian all daily trade
activity;
g. Provide the following reports:
(i) A current security position report;
(ii) A summary report of transactions and pending maturities
(including the principal, cost, and accrued interest on
each portfolio security in maturity date order); and
(iii) A current cash position report (including cash available
from portfolio sales and maturities and sales of a Fund's
Shares less cash needed for redemptions and settlement of
portfolio purchases);
h. Such other similar services with respect to a Fund as may be
reasonably requested by the Trust.
BISYS Fund Services shall perform the following accounting services for
each Fund:
a. Obtain at least daily for variable net asset value funds and
weekly for money market funds actual dealer quotations, prices
from a pricing service, or matrix prices on all portfolio
securities (including those with less than 60 days to maturity) in
order to xxxx the entire portfolio to the market; and
b. Prepare an interim balance sheet, statement of income and expense,
and statement of changes in net assets for the Fund as of each
month-end.
2. SUBCONTRACTING. BISYS Fund Services may, at its expense, subcontract
with any entity or person concerning the provision of the services contemplated
hereunder; provided, however, that BISYS Fund Services shall not be relieved of
any of its obligations under this Agreement by the appointment of such
subcontractor and provided further that BISYS Fund Services shall be
responsible, to the extent provided in Section 7 hereof, for all acts of such
subcontractor as if such acts were its own.
--------------------------------------------------------------------------------
2
3
THE HIGHMARK GROUP FUND ACCOUNTING AGREEMENT
--------------------------------------------------------------------------------
3. COMPENSATION. The Trust shall pay BISYS Fund Services for the
services to be provided by BISYS Fund Services under this Agreement in
accordance with, and in the manner set forth in, Schedule B hereto.
4. REIMBURSEMENT OF EXPENSES. In addition to paying BISYS Fund Services
the fees described in Section 3 hereof, the Trust agrees to reimburse BISYS Fund
Services for BISYS Fund Services' out-of-pocket expenses in providing the
services hereunder, including without limitation the following:
a. All freight and other delivery and bonding charges incurred by
BISYS Fund Services in delivering materials to and from the Trust;
b. All direct telephone, telephone transmission and telecopy or other
electronic transmission expenses incurred by BISYS Fund Services
in communication with the Trust, the Trust's investment advisor or
custodian, dealers or others as required for BISYS Fund Services
to perform the services to be provided hereunder;
c. Costs of pricing the portfolio securities of each Fund;
d. The cost of microfilm or microfiche of records or other materials;
and
e. Any expenses BISYS Fund Services shall incur at the written
direction of an officer of the Trust thereunto duly authorized.
5. 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 an amendment to Schedule A to this Agreement
relating to the Fund is executed) (the "Effective Date").
6. TERM. This Agreement shall continue in effect with respect to a
Fund, unless earlier terminated by either party hereto as provided hereunder,
until July 31, 1998, 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 BISYS Fund Services, with the written consent of the Trust, 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. Compensation due BISYS Fund Services and
unpaid by the Trust upon such termination shall be immediately due and payable
upon and notwithstanding such termination. BISYS Fund Services shall be entitled
to collect from the Trust, in addition to the compensation described under
Section 3 hereof, the amount of all of BISYS Fund Services' cash disbursements
for services in
--------------------------------------------------------------------------------
3
4
THE HIGHMARK GROUP FUND ACCOUNTING AGREEMENT
--------------------------------------------------------------------------------
connection with BISYS Fund Services' activities in effecting such termination,
including without limitation, the delivery to the Trust and/or its designees of
the Trust's property, records, instruments and documents, or any copies thereof.
Subsequent to such termination, for a reasonable fee, BISYS Fund Services will
provide the Trust with reasonable access to any Trust documents or records
remaining in its possession. This Agreement is terminable at any time with
respect to a particular Fund or the Trust as a whole by either party without
penalty for any reason only upon 120 days' prior written notice by the party
effecting said termination to the other party..
7. STANDARD OF CARE; RELIANCE ON RECORDS AND INSTRUCTIONS;
INDEMNIFICATION. BISYS Fund Services shall use its best efforts to ensure the
accuracy of all services performed under this Agreement, but shall not be liable
to the Trust for any action taken or omitted by BISYS Fund Services in the
absence of bad faith, willful misfeasance, negligence or from reckless disregard
by it of its obligations and duties. A Fund agrees to indemnify and hold
harmless BISYS Fund Services, 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 BISYS Fund
Services' actions taken or nonactions with respect to the performance of
services under this Agreement with respect to such Fund or based, if applicable,
upon reasonable reliance on information, records, instructions or requests with
respect to such Fund given or made to BISYS Fund Services by a duly authorized
representative of the Trust; provided that this indemnification shall not apply
to actions or omissions of BISYS Fund Services 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, BISYS Fund Services
shall give the Trust written notice of and reasonable opportunity to defend
against said claim in its own name or in the name of BISYS Fund Services.
8. RECORD RETENTION AND CONFIDENTIALITY. BISYS Fund Services shall keep
and maintain on behalf of the Trust all books and records which the Trust and
BISYS Fund Services is, or may be, required to keep and maintain pursuant to any
applicable statutes, rules and regulations, including without limitation Rules
31a-1 and 31a-2 under the Investment Company Act of 1940, as amended (the "1940
Act"), relating to the maintenance of books and records in connection with the
services to be provided hereunder. BISYS Fund Services 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 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.
--------------------------------------------------------------------------------
4
5
THE HIGHMARK GROUP FUND ACCOUNTING AGREEMENT
--------------------------------------------------------------------------------
9. UNCONTROLLABLE EVENTS. BISYS Fund Services assumes no responsibility
hereunder, and shall not be liable, for any damage, loss of data, delay or any
loss whatsoever caused by events beyond its reasonable control.
10. REPORTS. BISYS Fund Services will furnish to the trust and to its
properly authorized auditors, investment advisors, examiners, distributors,
dealers, underwriters, salesman, insurance companies and others designated by
the Trust in writing, such reports and at such times as are prescribed pursuant
to the terms and conditions of this Agreement to be provided or completed by
BISYS Fund Services, or as subsequently agreed upon by the parties pursuant to
an amendment hereto. The Trust agrees to examine each such report or copy
promptly and will report or cause to be reported any errors or discrepancies
therein no later than three business days from the receipt thereof. In the event
that errors or discrepancies, except such errors and discrepancies as may not
reasonably be expected to be discovered by the recipient within three days after
conducting a diligent examination, are not so reported within the aforesaid
period of time, a report will for all purposes be accepted by and binding upon
the trust and any other recipient, and BISYS Fund Services shall have no
liability for errors or discrepancies therein and shall have no further
responsibility with respect to such report except to perform reasonable
corrections of such errors and discrepancies within a reasonable time after
requested to do so by the Trust.
11. RIGHTS OF OWNERSHIP. All computer programs and procedures developed
to perform services required to be provided by BISYS Fund Services under this
Agreement are the property of BISYS Fund Services. 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 the Trust in
appropriate form as soon as practicable after termination of this Agreement for
any reason.
12. RETURN OF RECORDS. BISYS Fund Services may at its option at any
time, and shall promptly upon the Trust's demand, turn over to the Trust and
cease to retain BISYS Fund Services' files, records and documents created and
maintained by BISYS Fund Services pursuant to this Agreement which are no longer
needed by BISYS Fund Services in the performance of its services or for its
legal protection. If not so turned over to the Trust, such documents and records
will be retained by BISYS Fund Services 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 the Trust unless the Trust authorizes in writing the destruction of such
records and documents.
13. REPRESENTATIONS OF THE TRUST. The Trust certifies to BISYS Fund
Services that: (1) as of the close of business on the Effective Date, each Fund
that is in existence as of the Effective Date has authorized unlimited shares,
and (2) this Agreement has been duly authorized by the Trust and, when executed
and delivered by the Trust, will constitute a legal, valid and binding
obligation of the Trust, enforceable against the Trust in accordance with its
terms, subject to bankruptcy,
--------------------------------------------------------------------------------
5
6
THE HIGHMARK GROUP FUND ACCOUNTING AGREEMENT
--------------------------------------------------------------------------------
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties.
14. REPRESENTATIONS OF BISYS FUND SERVICES. BISYS Fund Services
represents and warrants that: (1) the various procedures and systems which BISYS
Fund Services 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 BISYS Fund Services' 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 its obligations hereunder, and (2) this Agreement has
been duly authorized by BISYS Fund Services and, when executed and delivered by
BISYS Fund Services, will constitute a legal, valid and binding obligation of
BISYS Fund Services, enforceable against BISYS Fund Services 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.
15. INSURANCE. BISYS Fund Services shall notify the Trust should any of
its insurance coverage be canceled or reduced. Such notification shall include
the data of change and the reasons therefor. BISYS Fund Services shall notify
the Trust of nay material claims against it with respect to services performed
under this Agreement, whether or not they may be covered by insurance, and shall
notify the Trust from time to time as may be appropriate of the total
outstanding claims made by BISYS Fund Services under its insurance coverage.
16. INFORMATION TO BE FURNISHED BY THE TRUST AND FUNDS. The Trust has
furnished to BISYS Fund Services the following:
a. Copies of the Declaration of Trust of the Trust and of any
amendments thereto, certified by the proper official of the state
in which such Declaration has been filed.
b. Copies of the following documents:
(i) The Trust's Code of Regulations and any amendments
thereto;
(ii) Certified copies of resolutions of the Board of Trustees
covering the approval of this Agreement, authorization of
a specified officer of the Trust to execute and deliver
this Agreement and authorization for specified officers of
the Trust to instruct BISYS Fund Services thereunder.
c. A list of all the officers of the Trust, together with specimen
signatures of those officers who are authorized to instruct BISYS
Fund Services in all matters.
--------------------------------------------------------------------------------
6
7
THE HIGHMARK GROUP FUND ACCOUNTING AGREEMENT
--------------------------------------------------------------------------------
d. Two copies of the following (if such documents are employed by the
Trust):
(i) Prospectuses and Statements of Additional Information for
each Fund.
17. INFORMATION FURNISHED BY BISYS FUND SERVICES. BISYS Fund Services
has furnished to the Trust the following:
a. BISYS Fund Services' Articles of Incorporation.
b. BISYS Fund Services' Code of Regulations and any amendments
thereto.
c. Certified copies of actions of BISYS Fund Services covering the
following matters:
(i) Approval of this Agreement, and authorization of a
specified officer of BISYS Fund Services of BISYS Fund
Services to execute and deliver this Agreement;
(ii) Authorization of BISYS Fund Services to act as fund
accountant for the Trust and to provide accounting
services for the Trust.
18. AMENDMENTS TO DOCUMENTS. The Trust shall furnish BISYS Fund
Services written copies of any amendments to, or changes in, any of the items
referred to in Section 16 hereof forthwith upon such amendments or changes
becoming effective. In addition, the Trust agrees that no amendments will be
made to the Prospectuses or Statements of Additional Information of the Trust
which might have the effect of changing the procedures employed by BISYS Fund
Services in providing the services agreed to hereunder or which amendment might
affect the duties of BISYS Fund Services hereunder unless the Trust first
obtains BISYS Fund Services' approval of such amendments or changes.
19. COMPLIANCE WITH LAW. Except for the obligations of BISYS Fund
Services set forth in Section 8 hereof, the Trust assumes full responsibility
for the preparation, contents and distribution of each prospectus of the Trust
as to compliance with all applicable requirements of the Securities Act of 1933,
as amended (the "Securities Act"), the 1940 Act and any other laws, rules and
regulations of governmental authorities having jurisdiction. BISYS Fund Services
shall have no obligation to take cognizance of any laws relating to the sale of
the Trust's shares. The Trust represents and warrants that no shares of the
Trust will be offered to the public until the Trust's registration statement
under the Securities Act and the 1940 Act has been declared or becomes
effective.
--------------------------------------------------------------------------------
7
8
THE HIGHMARK GROUP FUND ACCOUNTING AGREEMENT
--------------------------------------------------------------------------------
20. NOTICES. Any notice provided hereunder shall be sufficiently given
when sent by registered or certified mail to the party required to be served
with such notice, at the following address:
0000 Xxxx Xxxxxx-Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
or at such other address as such party may from time to time specify in writing
to the other party pursuant to this Section.
21. HEADINGS. Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
22. 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.
23. GOVERNING LAW. This Agreement shall be governed by and provisions
shall be construed in accordance with the laws of the Commonwealth of
Massachusetts.
24. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS. The names
"The HighMark Group" and "Trustees of The HighMark Group" refer respectively to
the Trust created and the Trustees, as trustees but not individually or
personally, acting from time to time under a Declaration of Trust dated as of
March 10, 1987, to which reference is hereby made and a copy of which is on file
at the office of the Secretary of the Commonwealth of Massachusetts and
elsewhere as required by haw, and to any and all amendments thereto so filed or
hereafter filed. The obligations of "The HighMark Group" entered into in the
name or on behalf thereof by any of the Trustees, representatives or agents are
made not individually, but in such capacities, and are not binding upon
--------------------------------------------------------------------------------
8
9
THE HIGHMARK GROUP FUND ACCOUNTING AGREEMENT
--------------------------------------------------------------------------------
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.
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 HIGHMARK GROUP
By:/s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
BISYS FUND SERVICES
OHIO, INC.
By:/s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
--------------------------------------------------------------------------------
9
10
THE HIGHMARK GROUP SCHEDULE A
--------------------------------------------------------------------------------
NAME OF FUND
The HighMark California Tax-Free Fund
The HighMark Diversified Obligations Fund
The HighMark Tax-Free Fund
The HighMark U.S. Government Obligations Fund
The HighMark 100% U.S. Treasury Obligations Fund
The HighMark Balanced Fund
The HighMark Growth Fund
The HighMark Income Equity Fund
The HighMark Bond Fund
The HighMark Government Bond Fund
The HighMark Income and Growth Fund
The HighMark Municipal Bond Fund
The HighMark California Municipal Bond Fund
THE HIGHMARK GROUP
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
BISYS FUND SERVICES
OHIO, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
Dated: As of August 1, 1995
--------------------------------------------------------------------------------
11
THE HIGHMARK GROUP SCHEDULE B
--------------------------------------------------------------------------------
FEES
BISYS Fund Services shall be entitled to receive a fee from each Fund
at the annual rate of three one-hundredths of one percent (.03%) of each Fund's
average daily net assets plus BISYS Fund Services' reasonable out-of-pocket
expenses incurred in the performance of its services as provided in Section 4 of
the Fund Accounting Agreement to which this Schedule B is attached, with a
minimum annual fee of $30,000 per Fund.
THE HIGHMARK GROUP
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
BISYS FUND SERVICES
OHIO, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
Dated: As of August 1, 1995
--------------------------------------------------------------------------------
