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Exhibit 9(c)
Transfer Agency and Service Agreement
between the Registrant and State Street Bank and Trust Company
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TRANSFER AGENCY AND SERVICE AGREEMENT
between
STATE STREET BANK AND TRUST COMPANY
and
HIGHMARK FUNDS
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TRANSFER AGENCY AND SERVICE AGREEMENT AGREEMENT made as of the 15th
day of February, 1997, by and between HighMark Funds, a Massachusetts business
trust, having its principal office and place of business at ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
"Fund"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company
having its principal office and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Transfer Agent").
WHEREAS, the Fund is authorized to issue shares in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets; and
WHEREAS, the Fund currently offers shares in the series listed on
Schedule A hereto (each such series, together with all other series subsequently
established by the Fund and made subject to this Agreement in accordance with
Article 10, are herein referred to individually as a "Portfolio", and
collectively as the "Portfolios");
WHEREAS, the Fund on behalf of the Portfolios desires to appoint the
Transfer Agent as its transfer agent, dividend disbursing agent, and agent in
connection with certain other activities, and the Transfer Agent desires to
accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article l Terms of Appointment; Duties of the Transfer Agent
1.01 Subject to the terms and conditions set forth in this
Agreement, the Fund, on behalf of the Portfolios, hereby employs and appoints
the Transfer Agent to act as, and the Transfer Agent agrees to act, as its
transfer agent for the authorized and issued shares of beneficial interest of
the Fund representing interests in each of the respective Portfolios ("Shares"),
dividend disbursing agent, and agent in connection with any accumulation,
open-account or similar plans provided to the shareholders of each of the
respective Portfolios of the Fund ("Shareholders") and set out in the currently
effective prospectus and statement of additional information ("prospectus") of
the Fund relating to the applicable Portfolio, including without limitation any
periodic investment plan or periodic withdrawal program.
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1.02 The Transfer Agent agrees that it will perform the
following services:
(a) In accordance with any procedures which may be
established from time to time by agreement between the Fund on behalf of each of
the Portfolios, as applicable, and the Transfer Agent, the Transfer Agent shall:
(i) Receive for acceptance orders for the purchase of
Shares and promptly deliver payment and appropriate
documentation thereof to the custodian of the Fund
authorized pursuant to the Declaration of Trust of
the Fund (the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate
number of Shares and hold such Shares in the
appropriate Shareholder account;
(iii) Receive for acceptance redemption requests and
redemption directions and deliver the appropriate
documentation thereof to the Custodian;
(iv) With respect to the transactions in items (i), (ii)
and (iii) above, the Transfer Agent may execute
transactions directly with broker-dealers authorized
by the Fund (or the Distributor) who shall for such
purpose be deemed to be acting on behalf of the
Fund;
(v) At the appropriate time as and when it receives
monies paid to it by the Custodian with respect to
any redemption, pay over or cause to be paid over in
the appropriate manner such monies as instructed by
the redeeming Shareholders;
(vi) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
(vii) Prepare and transmit payments for dividends and
distributions declared by the Fund on behalf of the
applicable Portfolio;
(viii) Maintain records of account for and advise the Fund
and its Shareholders as to the foregoing;
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(ix) Record the issuance of Shares of the Fund and
maintain pursuant to SEC Rule 17Ad-10(e) a record of
the total number of Shares which are authorized,
based upon data provided to it by the Fund, and
issued and outstanding. The Transfer Agent shall
also provide the Fund on a regular basis with the
total number of Shares which are authorized and
issued and outstanding and shall have no obligation,
when recording the issuance of Shares, to monitor
the issuance of such Shares or to take cognizance of
any laws relating to the issue or sale of such
Shares, which functions shall be the sole
responsibility of the Fund; and
(x) The Transfer Agent shall provide additional services
on behalf of the Fund (e.g., escheatment services)
which may be agreed upon in writing between the Fund
and the Transfer Agent.
(b) In addition to and neither in lieu nor in contravention
of the services set forth in the above paragraph (a), the Transfer Agent shall:
(i) perform the customary services of a transfer agent, dividend disbursing
agent, and, as relevant, agent in connection with accumulation, open-account or
similar plans (including without limitation any periodic investment plan or
periodic withdrawal program), including but not limited to: maintaining all
Shareholder accounts, preparing Shareholder meeting lists, mailing proxies,
mailing Shareholder reports and prospectuses to current Shareholders,
withholding taxes on U.S. resident and non-resident alien accounts, preparing,
mailing and filing U.S. Treasury Department Forms 1099 and other appropriate
forms required with respect to dividends and distributions by federal
authorities for all Shareholders, preparing and mailing confirmation forms and
statements of account to Shareholders for all purchases and redemptions of
Shares and other confirmable transactions in Shareholder accounts, preparing and
mailing activity statements for Shareholders, and providing Shareholder account
information and (ii) provide a system which will enable the Fund to monitor the
total number of Shares sold in each State.
(c) The Fund shall (i) identify to the Transfer Agent in
writing those transactions and assets to be treated as exempt from blue sky
reporting for each State and (ii) verify the
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establishment of transactions for each State on the system prior to the
effective date of this Agreement. The responsibility of the Transfer Agent for
the Fund's blue sky State registration status is solely limited to monitoring
the daily activity for each State, the initial establishment of transactions
subject to blue sky compliance by the Fund and the reporting of such
transactions to the Fund as provided above.
(d) Procedures as to who shall provide certain of these
services in Article 1 may be established from time to time by written agreement
between the Fund and the Transfer Agent, whereby the Transfer Agent may perform
only a portion of these services and the Fund or other agent may perform these
services on each Portfolio's behalf.
Article 2 Fees and Expenses
2.01 For the performance by the Transfer Agent pursuant to
this Agreement, the Fund agrees on behalf of each Retail Shares class of the
Portfolios, except the HighMark Tax-Free Fund, HighMark Government Bond Fund and
the HighMark Income and Growth Fund to pay the Transfer Agent an annual
maintenance fee for each Shareholder account as set out in Schedule B attached
hereto. Such fees and out-of-pocket expenses and cash advances identified under
Section 2.02 below may be changed from time to time subject to mutual written
agreement between the Fund and the Transfer Agent.
2.02 In addition to the fee paid under Section 2.01 above,
the Fund agrees on behalf of each Retail Shares class of the Portfolios to
reimburse the Transfer Agent for out-of-pocket expenses as set forth in Schedule
B hereto, or advances incurred by the Transfer Agent for the items set out in
Schedule B attached hereto. In addition, any other expenses incurred by the
Transfer Agent at the request or with the consent of the Fund, will be
reimbursed by the Fund on behalf of the applicable Portfolio.
2.03 The Fund agrees on behalf of each Retail Shares class
of the Portfolios to pay all fees and reimbursable expenses within thirty (30)
days following the receipt of the respective billing notice. Postage for mailing
of dividends, proxies, Fund reports and other mailings to all
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Shareholder accounts shall be advanced to the Transfer Agent by the Fund at
least seven (7) days prior to the mailing date of such materials.
Article 3 Representations and Warranties of the Transfer Agent
The Transfer Agent represents and warrants to the Fund
that:
3.01 It is a corporation duly organized and existing and in
good standing under the laws of the State of Massachusetts.
3.02 It is duly qualified to carry on its business in the
states where it is conducting business.
3.03 It is empowered under applicable laws and by its
Charter and By-Laws to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
3.05 It has and will continue to have access to the
necessary facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
3.06 It is registered as a transfer agent pursuant to
Section 17A of the Securities Exchange Act of 1934.
Article 4 Representations and Warranties of the Fund
The Fund represents and warrants to the Transfer Agent that:
4.01 It is a business trust duly organized and existing and
in good standing under the laws of the Commonwealth of Massachusetts. .
4.02 It is empowered under applicable laws and by its
Declaration of Trust and By-Laws to enter into and perform this Agreement.
4.03 All corporate proceedings required by said Declaration
of Trust and By-Laws have been taken to authorize it to enter into and perform
this Agreement.
4.04 It is an open-end and diversified management investment
company registered under the Investment Company Act of 1940, as amended.
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4.05 A registration statement under the Securities Act of
1933, as amended, relating to the Shares of each of the Portfolios is currently
effective.
Article 5 Data Access and Proprietary Information
5.01 The Fund acknowledges that the data bases, computer
programs, screen formats, report formats, interactive design techniques, and
documentation manuals furnished to the Fund by the Transfer Agent as part of the
Fund's ability to access certain Fund-related data ("Customer Data") maintained
by the Transfer Agent on data bases under the control and ownership of the
Transfer Agent or other third party ("Data Access Services") constitute
copyrighted, trade secret, or other proprietary information (collectively,
"Proprietary Information") of substantial value to the Transfer Agent or other
third party. In no event shall Proprietary Information be deemed Customer Data.
The Fund agrees to treat all Proprietary Information as proprietary to the
Transfer Agent and further agrees that it shall not divulge any Proprietary
Information to any person or organization except as may be provided hereunder.
Without limiting the foregoing, the Fund agrees for itself and its employees and
agents:
(a) to access Customer Data solely from locations as may
be designated in writing by the Transfer Agent and
solely in accordance with the Transfer Agent's
applicable user documentation;
(b) to refrain from copying or duplicating in any way
the Proprietary Information;
(c) to refrain from obtaining unauthorized access to any
portion of the Proprietary Information, and if such
access is inadvertently obtained, to inform the
Transfer Agent in a timely manner of such fact and
dispose of such information in accordance with the
Transfer Agent 's instructions;
(d) to refrain from causing or allowing data acquired
hereunder from being retransmitted to any
unauthorized computer facility or other location,
except with the prior written consent of the
Transfer Agent;
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(e) that the Fund shall have access only to those
authorized transactions agreed upon by the parties;
and
(f) to honor all reasonable written requests made by the
Transfer Agent to protect at the Transfer Agent's
expense the rights of the Transfer Agent in
Proprietary Information at common law, under federal
copyright law and under other federal or state law.
Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this Article 5. The obligations of this Article
shall survive any earlier termination of this Agreement.
5.02 If the Fund notifies the Transfer Agent that any of the
Data Access Services do not operate in material compliance with the most
recently issued user documentation for such services, the Transfer Agent shall
endeavor in a timely manner to correct such failure. Organizations from which
the Transfer Agent may obtain certain data included in the Data Access Services
are solely responsible for the contents of such data and the Fund agrees to make
no claim against the Transfer Agent arising out of the contents of such
third-party data, including, but not limited to, the accuracy thereof. DATA
ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN
CONNECTION THEREWITH ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. THE TRANSFER
AGENT EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
5.03 If the transactions available to the Fund include the
ability to originate electronic instructions to the Transfer Agent in order to
(i) effect the transfer or movement of cash or Shares or (ii) transmit
Shareholder information or other information, then in such event the Transfer
Agent shall be entitled to rely on the validity and authenticity of such
instruction without undertaking any further inquiry as long as such instruction
is undertaken in conformity with security procedures established by the Transfer
Agent from time to time.
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Article 6 Indemnification
6.01 The Transfer Agent shall not be responsible for, and
the Fund shall on behalf of the applicable Portfolio indemnify and hold the
Transfer Agent harmless from and against, any and all losses, damages, costs,
charges, reasonable counsel fees, payments, expenses and liability arising out
of or attributable to:
(a) All actions of the Transfer Agent or its agents or
subcontractors required to be taken pursuant to this Agreement, provided that
such actions are taken in good faith and without negligence or willful
misconduct.
(b) The Fund's lack of good faith, negligence or willful
misconduct which arise out of the breach of any representation or warranty of
the Fund hereunder.
(c) The reliance on or use by the Transfer Agent or its
agents or subcontractors of information, records, documents or services which
(i) are received by the Transfer Agent or its agents or subcontractors, and (ii)
have been prepared, maintained or performed by the Fund or any other person or
firm on behalf of the Fund including but not limited to any previous transfer
agent or registrar, provided that such actions are taken in good faith and
without negligence or willful misconduct.
(d) The reliance on, or the carrying out by the Transfer
Agent or its agents or subcontractors of any instructions or requests of the
Fund on behalf of the applicable Portfolio reasonably believed by the Bank to
have been signed or authorized by the Fund on behalf of the applicable
Portfolio, provided that such actions are taken in good faith and without
negligence or willful misconduct.
(e) The offer or sale of Shares in violation of any
requirement under the federal securities laws or regulations or the securities
laws or regulations of any state that such Shares be registered in such state or
in violation of any stop order or other determination or ruling by any federal
agency or any state with respect to the offer or sale of such Shares in such
state, provided that such actions are taken in good faith and without negligence
or willful misconduct and further provided, that the Transfer Agent shall not be
indemnified with respect to claims based solely on the
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fact that shares of the Fund were not registered in a state and the Transfer
Agent had been previously notified by the Fund that the Fund is not registered
in such state.
6.02 At any time the Transfer Agent may apply to any officer
of the Fund for instructions, and may consult with legal counsel with respect to
any matter arising in connection with the services to be performed by the
Transfer Agent under this Agreement, and the Transfer Agent and its agents or
subcontractors shall not be liable and shall be indemnified by the Fund on
behalf of the applicable Portfolio for any action taken or omitted by it in
reliance upon such instructions or upon the written opinion of such counsel. The
Transfer Agent, its agents and subcontractors shall be protected and indemnified
in acting upon any paper or document furnished by or on behalf of the Fund,
reasonably believed to be genuine and to have been signed by the proper person
or persons, or upon any instruction, information, data, records or documents
provided the Transfer Agent or its agents or subcontractors by machine readable
input, telex, CRT data entry or other similar means authorized by the Fund, and
shall not be held to have notice of any change of authority of any person, until
receipt of written notice thereof from the Fund.
6.03 In order that the indemnification provisions contained
in this Article 6 shall apply, upon the assertion of a claim for which the Fund
may be required to indemnify the Transfer Agent, the Transfer Agent shall
promptly notify the Fund of such assertion, and shall keep the Fund advised with
respect to all developments concerning such claim. The Fund shall have the
option to participate with the Transfer Agent in the defense of such claim or to
defend against said claim in its own name or in the name of the Transfer Agent.
The Transfer Agent shall in no case confess any claim or make any compromise in
any case in which the Fund may be required to indemnify the Transfer Agent
except with the Fund's prior written consent.
Article 7 Standard of Care
7.01 The Transfer Agent shall at all times act in good faith
and agrees to use its best efforts within reasonable limits to insure the
accuracy of all services performed under this Agreement, but assumes no
responsibility and shall not be liable for loss or damage due to errors
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unless said errors are caused by its negligence, bad faith, or willful
misconduct or that of its employees. Article 8 Covenants of the Fund and the
Transfer Agent
8.01 The Fund on behalf of each Portfolio shall promptly
furnish to the Transfer Agent the following:
(a) A certified copy of the resolution of the Board of
Trustees of the Fund authorizing the appointment of the Transfer Agent and the
execution and delivery of this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of the
Fund and amendments thereto.
8.02 The Transfer Agent hereby agrees to establish and
maintain facilities and procedures reasonably acceptable to the Fund for
safekeeping of check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such forms and
devices.
8.03 The Transfer Agent shall keep records relating to the
services to be performed hereunder, in the form and manner as it may deem
advisable. To the extent required by Section 31 of the Investment Company Act of
1940, as amended, and the Rules thereunder, the Transfer Agent agrees that all
such records prepared or maintained by the Transfer Agent relating to the
services to be performed by the Transfer Agent hereunder are the property of the
Fund and will be preserved, maintained and made available in accordance with
such Section and Rules, and will be surrendered promptly to the Fund on and in
accordance with its request.
8.04 The Transfer Agent and the Fund agree that all books,
records, information and data pertaining to the business of the other party
which are exchanged or received pursuant to the negotiation or the carrying out
of this Agreement shall remain confidential, and shall not be voluntarily
disclosed to any other person, except as may be required by law.
8.05 In case of any requests or demands for the inspection
of the Shareholder records of any Portfolio of the Fund, the Transfer Agent will
endeavor to notify the Fund and to secure instructions from an authorized
officer of the Fund as to such inspection. The Transfer
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Agent reserves the right, however, to exhibit the Shareholder records to any
person whenever it is advised by its counsel that it may be held liable for the
failure to exhibit the Shareholder records to such person unless (in cases
involving potential exposure only to civil liability) the Fund has agreed to
indemnify the Transfer Agent against such liability.
Article 9 Termination of Agreement
9.1 This Agreement may be terminated by either party upon
one hundred twenty (120) days written notice to the other.
9.2 Should the Fund exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and materials
will be borne by the Fund on behalf of the applicable Retail Class shares of
each Portfolio(s). Additionally, the Transfer Agent reserves the right to charge
as liquidation damages associated with such termination, the equivalent to the
prior one month transfer agency fees if termination occurs within the first year
of the Transfer Agency & Service Agreement.
Article 10 Additional Funds
10.01 In the event that the Fund establishes one or more
additional series of Shares with respect to which it desires to have the
Transfer Agent render services as transfer agent under the terms hereof, it
shall notify the Transfer Agent in writing, and if the Transfer Agent agrees in
writing to provided such services, such series of Shares shall become a
Portfolio hereunder.
Article 11 Assignment
11.01 Except as provided in Section 11.03 below, neither
this Agreement nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
11.02 This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors and assigns.
11.03 The Transfer Agent may, without further consent on the
part of the Fund, subcontract for the performance hereof with (i) Boston
Financial Data Services, Inc., a Massachusetts corporation ("BFDS") which is
duly registered as a transfer agent pursuant to
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Section 17Ac2-1 of the Securities Exchange Act of 1934, as amended ("Section
17Ac2-1"), (ii) a BFDS subsidiary duly registered as a transfer agent pursuant
to Section 17Ac2-1 or (iii) a BFDS affiliate; provided, however, that the
Transfer Agent shall be as fully responsible to the Fund for the acts and
omissions of any subcontractor as it is for its own acts and omissions.
Article 12 Amendment
12.01 This Agreement may be amended or modified by a written
agreement executed by both parties.
Article 13 Massachusetts Law to Apply
13.01 This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts without regard to the conflict of laws, provisions thereof.
Article 14 Force Majeure
14.01 In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure or damage reasonably beyond its control, or
other causes reasonably beyond its control, such party shall not be liable to
the other for any damages resulting from such failure to perform or otherwise
from such causes.
Article 15 Consequential Damages
15.01 Neither party to this Agreement shall be liable to the
other party for consequential damages under any provision of this Agreement or
for any consequential damages arising out of any act or failure to act
hereunder.
Article 16 Merger of Agreement
16.01 This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect to
the subject matter hereof whether oral or written.
Article 17 Limitations of Liability of the Trustees and Shareholders
17.01 A copy of the Declaration of Trust of the Fund is on
file with the Secretary of the Commonwealth of Massachusetts, and notice is
hereby given that this instrument is executed
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on behalf of the Trustees of the Fund as Trustees and not individually and that
the obligations of this instrument are not binding upon any of the Trustees or
Shareholders individually but are binding only upon the assets and property of
the Fund.
Article 18 Counterparts
18.01 This Agreement may be executed by the parties hereto
on any number of counterparts, and all of said counterparts taken together shall
be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in their names and on their behalf by and through their
duly authorized officers, as of the day and year first above written.
HIGHMARK FUNDS
BY: /s/
--------------------------------
Vice President
ATTEST:
/s/
--------------------------------
STATE STREET BANK AND TRUST
COMPANY
BY: /s/
--------------------------------
Vice President
ATTEST:
/s/
--------------------------------
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SCHEDULE A
TO THE TRANSFER AGENCY
AND SERVICE AGREEMENT
DATED
FEBRUARY 15, 1997
HighMark California Tax-Free Money Market Fund (Fiduciary and Retail Shares)
HighMark Diversified Money Market Fund (Fiduciary and Retail Shares)
HighMark Tax-Free Fund (Fiduciary and Retail Shares)
HighMark U.S. Government Money Market Fund (Fiduciary and Retail Shares)
HighMark 100% U.S. Treasury Money Market Fund (Fiduciary and Retail Shares)
HighMark Balanced Fund (Fiduciary and Retail Shares)
HighMark Growth Fund (Fiduciary and Retail Shares)
HighMark Income Equity Fund (Fiduciary and Retail Shares)
HighMark Bond Fund (Fiduciary and Retail Shares)
HighMark Government Bond Fund (Fiduciary and Retail Shares)
HighMark Income and Growth Fund (Fiduciary and Retail Shares)
HighMark Intermediate Term Bond Fund (Fiduciary and Retail Shares)
HighMark California Intermediate Term Bond Fund (Fiduciary and Retail Shares)
HighMark Government Securities Fund (Fiduciary Shares only)
HighMark Convertible Securities Fund (Fiduciary Shares only)
HighMark Value Momentum Fund (Fiduciary and Retail Shares)
HighMark Blue Chip Growth Fund (Fiduciary Shares only)
HighMark Emerging Growth Fund (Fiduciary and Retail Shares)
HighMark International Equity Fund (Fiduciary Shares only)
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SCHEDULE B
TO THE TRANSFER AGENCY
AND SERVICE AGREEMENT
Annual fees (per class/per fund) $18,000
Fees are billable on a monthly basis at the rate of
1/12 of the annual fee.
Account Transaction Fee $14.00/account
▇▇▇ Custodial Fees
Acceptance & Setup $5.00/account
Annual Maintenance $10.00/account
Out-of-Pocket Expenses
Out of pocket expenses include but are not limited to: confirmation statements,
postage, forms, audio response, telephone, records retention, transcripts,
microfilm, microfiche, and expenses incurred at the specific direction of the
fund.
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