CUSTODIAN AGREEMENT
(FOREIGN AND DOMESTIC SECURITIES)
This Custodian Agreement is made by and between HIGHMARK FUNDS, a Massachusetts
business trust ("Principal") and UNION BANK OF CALIFORNIA, N.A. ("Custodian").
Principal desires that Custodian hold and administer on behalf of Principal
certain Securities (as herein defined). Principal intends that this Agreement be
applicable to certain series of Principal as described on Appendix B to this
Agreement, as may be amended from time to time as mutually agreed upon by the
parties (each a "Fund"). Custodian is willing to do so on the terms and
conditions set forth in this Agreement. Accordingly, Principal and Custodian
agree as follows:
1. DEFINITIONS. Certain terms used in this Agreement are defined as
follows:
1.1 "Account" means, collectively, each account maintained by Custodian
pursuant to Paragraph 3 of this Agreement.
1.2 "Act" means the Investment Company Act of 1940, and the rules and
regulations thereunder, all as amended from time to time by the U.S. Securities
and Exchange Commission ("SEC").
1.3 "Appointed Person" means the individual(s) designated by Principal
to initiate funds transfer instructions to Custodian in accordance with
Paragraph 15 of this Agreement.
1.4 "Board" means the Board of Trustees of Principal.
1.5 "Country Risk" means all factors reasonably related to the systemic
risk of holding Foreign Assets in a particular country including, but not
limited to, such country's political environment, economic and financial
infrastructure, prevailing or developing custody and settlement practices, and
laws and regulations applicable to the safekeeping and recovery of Foreign
Assets held in custody in that country.
1.6 "Eligible Foreign Custodian" ("Sub-Custodian", or collectively
"Sub-Custodians") has the meaning set forth in section (a)(1) of Rule 17f-5 of
the Act or that has otherwise been made exempt pursuant to an SEC exemptive
order.
1.7 "Eligible Securities Depository", ("Depository", or collectively
"Depositories") has the meaning set forth in section (b)(1) of Rule 17f-7 of the
Act or that has otherwise been made exempt pursuant to an SEC exemptive order.
1.8 "Emerging Market" means each market so identified on Appendix A
attached hereto.
1.9 "Foreign Custody Manager" has the meaning set forth in section
(a)(3) of Rule 17f-5 of the Act.
1.10 "Foreign Market" means each market so identified on Appendix A
attached hereto.
1.11 "Investment Manager" means an investment adviser or manager
identified by Principal in a written notice to Custodian as having the authority
to direct Custodian regarding the management, acquisition, or disposition of
Securities.
1.12 "Monitoring System" means the policies and procedures established
by Custodian to fulfill its duties to monitor the custody risks associated with
maintaining securities with a Sub-Custodian or Depository on a continuing basis,
pursuant to this Agreement.
1.13 "Rule 17f-5" means[ss]270.17(f)-5 of the Act, as amended from time
to time.
1.14 "Rule 17f-7" means[ss]270.17(f)-7 of the Act, as amended from time
to time.
1.15 "Securities" means domestic or foreign securities or both within
the meaning of [ss]2(a)(36) of the Act and regulations issued by the SEC under
[ss]270.17(f) of the Act, as amended, which are held by Custodian in the
Account, and shall include cash of any currency or other property of Principal
and all income and proceeds of sale of such securities or other property of
Principal.
2. REPRESENTATIONS
2.1 Principal represents that with respect to any Account established
by Principal to hold Securities, Principal is authorized to enter into this
Agreement and to retain Custodian on the terms and conditions and for the
purposes described herein.
2.2 Custodian represents that it (I) is organized under the laws of the
United States and has its principal place of business in the United States; (II)
is a bank within the meaning of [ss]202(a)(2) of the Investment Advisers Act of
1940 and [ss]2(a)(5) of the Act, as amended; and (III) has equity capital in
excess of $1 million.
3. ESTABLISHMENT OF ACCOUNTS. Principal hereby establishes with Custodian,
and may in the future establish, one or more Accounts in Principal's name. The
Account shall consist of Securities delivered to and receipted for by Custodian
or by any Sub-Custodian. Custodian, in its sole discretion, may reasonably
refuse to accept any property now or hereafter delivered to it for inclusion in
the Account. Principal shall be notified promptly of such refusal and any such
property shall be immediately returned to Principal.
4. CUSTODY. Subject to the terms of this Agreement, Custodian shall
be responsible for the safekeeping and custody of Securities. Custodian may (I)
retain possession of all or any portion of Securities, including possession in a
foreign branch or other office of Custodian; or (II) retain, in accordance with
Paragraph 5 of this Agreement, one or more Sub-Custodians to hold all or any
portion of the Securities. Custodian and any Sub-Custodian may, in accordance
with Paragraph 6 of this Agreement, deposit definitive or book-entry Securities
with one or more Depositories.
4.1 If Custodian retains possession of Securities, Custodian shall
ensure the Securities are at all times properly identified as being held for the
appropriate Account. Custodian shall segregate physically the Securities from
other securities or property held by Custodian. Custodian shall not be required
to segregate physically the Securities from other securities or property held by
Custodian for third parties as Custodian, but Custodian shall maintain adequate
records showing the true ownership of the Securities.
4.2 If Custodian deposits Securities with a Sub-Custodian, Custodian
shall maintain adequate records showing the identity and location of the
Sub-Custodian, the Securities held by the Sub-Custodian, and each Account to
which such Securities belong.
4.3 If Custodian or any Sub-Custodian deposits Securities with a
Depository, Custodian shall maintain, or shall cause the Sub-Custodian to
maintain, adequate records showing the identity and location of the Depository,
the Securities held by the Depository, and each Account to which such Securities
belong.
4.4 If Principal directs Custodian to deliver certificates or other
physical evidence of ownership of Securities to any broker or other party, other
than a Sub-Custodian or Depository employed by Custodian for purposes of
maintaining the Account, Custodian's sole responsibility shall be to exercise
care and diligence in effecting the delivery as instructed by Principal. Upon
completion of the delivery, Custodian shall be discharged completely of any
further liability or responsibility with respect to the safekeeping and custody
of Securities so delivered.
4.5 Custodian shall ensure that (I) the Securities will not be subject
to any right, charge, security interest, lien, or claim of any kind in favor of
Custodian or any Sub-Custodian except for Custodian's expenses relating to the
Securities' safe custody or administration or, in the case of cash deposits,
liens or rights in favor of the creditors of the Sub-Custodian arising under
bankruptcy, insolvency, or similar laws, and (II) the beneficial ownership of
the Securities will be freely transferable without the payment of money or value
other than for safe custody or administration.
4.6 Principal or its designee, shall have reasonable access upon
reasonable notice during regular business hours to the books and records, or
shall be given confirmation of the contents of the books and records, maintained
by Custodian or any Sub-Custodian holding Securities hereunder to verify the
accuracy of such books and records. Custodian shall notify Principal promptly of
any applicable law or regulation in any country where Securities are held that
would restrict such access or confirmation.
5. SUB-CUSTODIANS; CUSTODIAN AS FOREIGN CUSTODY MANAGER. Principal,
by resolution adopted by its Board, hereby delegates to the Custodian, subject
to section (b) of Rule 17f-5, the responsibilities set forth below with respect
to Securities of the Fund held outside the United States ("Foreign Assets"), and
the Custodian hereby accepts such delegation as the Foreign Custody Manager with
respect to the Fund.
5.1 SCOPE OF DELEGATED RESPONSIBILITIES:
5.1.1 SELECTION OF ELIGIBLE FOREIGN CUSTODIANS. Subject to the
provisions of this Paragraph 5, the Foreign Custody Manager may place and
maintain Foreign Assets in the care of the Eligible Foreign Custodian selected
by the Foreign Custody Manager in each country listed on Appendix A to this
Agreement, as amended from time to time. In performing its delegated
responsibilities as Foreign Custody Manager to place and maintain Foreign Assets
with an Eligible Foreign Custodian, the Foreign Custody Manager shall determine
that the Foreign Assets will be subject to reasonable care, based on the
standards applicable to custodians in the country in which the Foreign Assets
will be held by that Eligible Foreign Custodian, after considering all factors
relevant to the safekeeping of such assets, including, without limitation the
factors specified in section (c)(1) of Rule 17f-5.
5.1.2 CONTRACTS WITH ELIGIBLE FOREIGN CUSTODIANS. The Foreign
Custody Manager shall determine that the contract governing the foreign custody
arrangements with each Eligible Foreign Custodian selected by the Foreign
Custody Manager will satisfy the requirements of section (c)(2) of Rule 17f-5.
5.1.3 MONITORING. In each case where the Foreign Custody Manager
maintains Foreign Assets with an Eligible Foreign Custodian selected by the
Foreign Custody Manager, the Foreign Custody Manager shall establish a
Monitoring System to monitor the appropriateness of maintaining the Foreign
Assets with such Eligible Foreign Custodian and the contract governing the
custody arrangements established by the Foreign Custody Manager with the
Eligible Foreign Custodian. In the event the Foreign Custody Manager determines
that the custody arrangements with an Eligible Foreign Custodian it has selected
are no longer appropriate, the Foreign Custody Manager shall notify the Board in
accordance with subparagraph 5.3 below.
5.2 GUIDELINES FOR THE EXERCISE OF DELEGATED AUTHORITY. For purposes of
this Paragraph 5, the Fund (or its Investment Manager) shall be deemed to have
considered the Country Risk as is incurred by placing and maintaining Foreign
Assets in each country for which the Custodian is serving as Foreign Custody
Manager of the Fund. To aid the Fund (or its Investment Manager) in monitoring
Country Risk, Custodian shall provide the Fund (or its Investment Manager) the
following information relating to Country Risk: (a) at least annually, opinions
of local counsel concerning whether applicable foreign law would restrict the
access afforded to Principal's independent public accountants to books and
records kept by an eligible foreign custodian located in that country; whether
applicable foreign law would restrict the Customer's ability to recover its
Foreign Assets and cash in the event of the bankruptcy of an Eligible Foreign
Custodian located in that country; whether applicable foreign law would restrict
the Customer's ability to recover Foreign Assets that are lost while under the
control of an Eligible Foreign Custodian located in the country; and (b)
periodic market reports with respect to securities settlement and registration,
taxation, and depositories (including depository evaluation), if any. Custodian
may also periodically provide the Fund (or its Investment Manager) the following
information relating to Country Risk, as such information is received by
Custodian: (I) written information concerning each foreign country's practices
with regard to expropriation, nationalization, freezes, or confiscation of
financial assets; or whether difficulties in converting the Fund's cash and cash
equivalents to U.S. dollars are reasonably foreseeable; and (II) market reports
with respect to the securities regulatory environment, foreign ownership
restrictions, or foreign exchange practices. Principal hereby acknowledges that:
(I) such information is solely designed to inform the Fund (or its Investment
Manager) of market conditions and procedures and is not intended to be
considered comprehensive or as a recommendation to invest or not invest in
particular markets; and (II) Custodian is not the primary source of the
information and has gathered the information from sources it considers reliable,
but that Custodian shall have no responsibility for inaccuracies or incomplete
information.
5.3 REPORTING REQUIREMENTS. The Foreign Custody Manager shall report
the withdrawal of Foreign Assets from an Eligible Foreign Custodian and the
placement of such Foreign Assets with another Eligible Foreign Custodian by
proving to the Board an amended Appendix A at the end of the calendar quarter in
which an amendment to such Appendix has occurred. The Foreign Custody Manager
shall make written reports promptly notifying the Board of any other material
change in the foreign custody arrangements of the Fund or at such other times as
the Board deems reasonable and appropriate.
5.4 STANDARD OF CARE AS FOREIGN CUSTODY MANAGER. In performing its
delegated responsibilities, the Foreign Custody Manager agrees to exercise
reasonable care, prudence and diligence such as a person having responsibility
for the safekeeping of assets of management investment companies registered
under the 1940 Act would exercise.
5.5 REPRESENTATIONS WITH RESPECT TO RULE 17F-5. The Foreign Custody
Manager represents to Principal that it is a U.S. Bank as defined in section
(a)(7) of Rule 17f-5. Principal represents to the Custodian that the Board has
determined, based on information provided to it by the Custodian, that it is
reasonable for the Board to rely on the Custodian to perform the
responsibilities delegated pursuant to this Agreement to the Custodian as
Foreign Custody Manager of the Fund.
6. DEPOSITORIES; COMPLIANCE WITH RULE 17F-7. Custodian shall provide an
analysis of the custody risks associated with maintaining Principal's Foreign
Assets with each Eligible Securities Depository used by Custodian prior to the
initial placement of Principal's Foreign Assets at such Depository and at which
any Foreign Assets of Principal are held or are expected to be held. Custodian
shall monitor the custody risks associated with maintaining Principal's Foreign
Assets at each such Eligible Securities Depository on a continuing basis and
shall promptly notify Customer or its adviser of any material changes in such
risks. Custodian shall exercise reasonable care, prudence and diligence in
performing the requirements set forth in this Paragraph. Based on the
information available to it in the exercise of diligence, Custodian shall
determine the eligibility under Rule 17f-7 of each Depository before including
it on Appendix A hereto and shall promptly advise Principal if any Eligible
Securities Depository ceases to be eligible. For purposes of this Paragraph 6,
the Fund (or its Investment Manager) shall be deemed to have considered the
Country Risk as is incurred by placing and maintaining Foreign Assets in each
country in which each such Eligible Securities Depository operates.
7. REGISTRATION. Subject to any specific instructions from Principal,
Custodian shall hold or cause to be held all Securities in the name of (I)
Principal, or (II) Custodian, or any Sub-Custodian pursuant to Paragraph 5 or
Depository pursuant to Paragraph 6 of this Agreement, or in the name of a
nominee of any of them, as Custodian shall determine to be appropriate under the
circumstances.
8. TRANSACTIONS. Principal or any Investment Manager from time to time
may instruct Custodian (which in turn shall be responsible for giving
appropriate instructions to any Sub-Custodian or Depository) regarding the
purchase or sale of Securities in accordance with this Paragraph 8:
8.1 Custodian shall effect and account for each Securities and currency
sale on the date such transaction actually settles; provided, however, that
Principal may in its sole discretion direct Custodian, in such manner as shall
be acceptable to Custodian, to account for Securities and currency purchases and
sales on contractual settlement date, regardless of whether settlement of such
transactions actually occurs on contractual settlement date. Principal may, from
time to time, direct Custodian to change the accounting method employed by
Custodian in a written notice delivered to Custodian at least thirty (30) days
prior to the date a change in accounting method shall become effective.
8.2 Custodian shall effect purchases by charging the Account with the
amount necessary to make the purchase and effecting payment to the seller or
broker for the securities or other property purchased. Custodian shall have no
liability of any kind to any person, including Principal, except in the case of
negligent or intentional tortuous acts, or willful misconduct, if the Custodian
effects payment on behalf of Principal, and the seller or broker fails to
deliver the securities or other property purchased. Custodian shall exercise
such ordinary care and diligence as would be employed by a reasonably prudent
custodian and due diligence in examining and verifying the certificates or other
indicia of ownership of the property purchased before accepting them.
8.3 Custodian shall effect sales by delivering certificates or other
indicia of ownership of the Property, and, as instructed, shall receive cash for
such sales. Custodian shall have no liability of any kind to any person,
including Principal, if Custodian exercises due diligence and delivers such
certificates or indicia of ownership and the purchaser or broker fails to effect
payment.
8.4 If a purchase or sale is effected through a Depository, Custodian
shall exercise such ordinary care and diligence as would be employed by a
reasonably prudent custodian and due diligence in verifying proper consummation
of the transaction by the Depository.
8.5 Principal or, where applicable, Investment Manager, is responsible
for ensuring that Custodian receives timely instructions and/or funds to enable
Custodian to effect settlement of any purchase or sale of Securities or Currency
Transactions. If Custodian does not receive such timely instructions or funds,
Custodian shall have no liability of any kind to any person, including
Principal, for failing to effect settlement. However, Custodian shall use
reasonable efforts to effect settlement as soon as possible after receipt of
appropriate instructions. Principal shall be liable for interest compensation
and/or principal amounts to Custodian and/or its counterparty for failure to
deliver instructions or funds in a timely manner to effect settlements of
foreign exchange funds movement.
8.6 At the direction of Principal or the Investment Manager, as the
case may be, Custodian shall convert currency in the Account to other currencies
through customary channels including, without limitation, Custodian or any of
its affiliates, as shall be necessary to effect any transaction directed by
Principal or the Investment Manager. Principal or the Investment Manager, as the
case may be, acknowledges that (I) the foreign currency exchange department is a
part of Custodian or one of its affiliates or subsidiaries; (II) the Account is
not obligated to effect foreign currency exchange with Custodian; (III)
Custodian will receive benefits for such foreign currency transactions which are
in addition to the compensation which Custodian receives for administering the
Account; and (IV) Custodian will make available the relevant data so that
Principal or the Investment Manager, as the case may be, can determine that the
foreign currency exchange transactions are as favorable to the Account as terms
generally available in arm's length transactions between unrelated parties.
8.7 Custodian shall have no responsibility to manage or recommend
investments of the Account or to initiate any purchase, sale, or other
investment transaction in the absence of instructions from Principal or, where
applicable, an Investment Manager.
9. MARKET TRANSACTIONS; SETTLEMENT DATES. Custodian has identified certain
Foreign Markets and certain Emerging Markets in Appendix A of this Agreement,
which Custodian may amend in writing to Principal from time to time.
9.1 Principal agrees that all settlements of Securities transactions
shall be transacted in accordance with the local laws, customs, market practices
and procedures to which Sub-Custodians and Depositories are subject in each
Foreign and Emerging Market.
9.2 Notwithstanding the foregoing Paragraph 8, Principal understands
and agrees that settlement of Securities transactions is available only on an
actual settlement date basis in certain Emerging Markets, which are identified
in Appendix A, and as may be amended by Custodian in writing to Principal from
time to time.
9.2.1 For Emerging Markets with actual settlement dates, cash of
any currency deposited or delivered to the Account shall be available for use by
Principal or Investment Manager only on the actual business day on which funds
of good value are available to Sub-Custodian in the Account.
9.2.2 For Emerging Markets with actual settlement dates,
Securities deposited or delivered to the Account shall be available for use by
Principal or Investment Manager only on the actual business day on which such
Securities are held in the nominee name or are otherwise subject to the control
of, and in a form for good delivery by, the Sub-Custodian.
10. CAPITAL CHANGES; INCOME.
10.1 Custodian may, without further instructions from Principal or any
Investment Manager, exchange temporary certificates and may surrender and
exchange Securities for other securities in connection with any reorganization,
recapitalization, or similar transaction in which the owner of the Securities is
not given an option. Custodian has no responsibility to effect any such exchange
unless it has received actual notice of the event permitting or requiring such
exchange at its office designated in Paragraph 17 of this Agreement or at the
office of its designated agents.
10.2 Custodian, or its designated agents, are authorized, as
Principal's agent, to surrender against payment maturing obligations and
obligations called for redemption, and to collect and receive payments of
interest and principal, dividends, warrants, and other things of value in
connection with Securities. Except as otherwise provided in Subparagraph 18.4 of
this Agreement, Custodian or its designated agents shall not be obligated to
enforce collection of any item by legal process or other means.
10.3 Custodian or its designated agents are authorized to sign for
Principal all declarations, affidavits, certificates, or other documents that
may be required to collect or receive payments or distributions with respect to
Securities. Custodian or its designated agents are authorized to disclose,
without further consent of Principal, Principal's identity to issuers of
Securities, or the agents of such issuers, who may request such disclosure.
11. NOTICES RE ACCOUNT SECURITIES. Custodian shall notify Principal or,
where applicable, the Investment Manager, of any reorganization,
recapitalization, or similar transaction not covered by Paragraph 10, and any
subscription rights,
proxies, and other shareholder information pertaining to the Securities actual
notice of which is received by Custodian at its office designated in Paragraph
17 of this Agreement or at the offices of its designated agents. Custodian's
sole responsibility in this regard shall be to give such notices to Principal or
the Investment Manager, as the case may be, within a reasonable time after
Custodian receives them, and Custodian shall not otherwise be responsible for
the timeliness of such notices. Custodian has no responsibility to respond or
otherwise act with respect to any such notice unless and until Custodian has
received appropriate instructions from Principal or the Investment Manager.
12. TAXES. Custodian shall pay or cause to be paid from the Account all
taxes and levies in the nature of taxes imposed on the Account or the Securities
thereof by any country. Custodian will use its best efforts to give the
Investment Manager advance written notice of the imposition of such taxes.
However, Custodian shall use reasonable efforts to obtain refunds of taxes
withheld on Securities or the income thereof that are available under applicable
tax laws, treaties, and regulations.
13. CASH. Principal may from time to time, direct Custodian to hold Account
cash in the Funds or in any investment company for which Custodian or its
affiliates or subsidiaries, acts as investment adviser or custodian, or provides
other services. Principal shall designate the particular Fund or such other
above-mentioned fund that Principal deems appropriate for the Account. Principal
or an Investment Manager, where applicable, acknowledges that Custodian will
receive fees for such services which will be in addition to those fees charged
by Custodian as agent for the Account.
14. REPORTS. Custodian shall give written reports to Principal showing (I)
each transaction involving Securities effected by or reported to Custodian; (II)
the identity and location of Securities held by Custodian as of the date of the
report; (III) any transfer of location of Securities not otherwise reported; and
(IV) such other information as shall be agreed upon by Principal and Custodian.
Unless otherwise agreed upon by Principal and Custodian, Custodian shall provide
the reports described in this Paragraph 14 on a monthly basis.
15. INSTRUCTIONS FROM PRINCIPAL.
15.1 Principal shall certify or cause to be certified to Custodian in
writing the names and specimen signatures of all persons authorized to give
instructions, notices, or other communications on behalf of Principal or any
Investment Manager. Such certification shall remain effective until Custodian
receives notice to the contrary.
15.2 Principal or authorized Investment Manager, as the case may be,
may give instruction, notice, or other communication called for by this
Agreement to Custodian in writing, or by telecopy, telex, telegram, or other
form of electronic communication acceptable to Custodian. Unless otherwise
expressly provided, all Instructions shall continue in full force and effect
until canceled or superseded. Principal or Investment Manager may give and
Custodian may accept oral instructions on an exception basis; provided, however,
that Principal or Investment Manager shall promptly confirm any oral
communications in writing or by telecopy or other means permitted hereunder.
Principal will hold Custodian harmless for the failure of Principal or
Investment Manager to send confirmation in writing, the failure of such
confirmation to conform to the telephone instructions received or Custodian's
failure to produce such confirmation at any subsequent time. Custodian may
electronically record any instruction given by telephone, and any other
telephone discussions with respect to the Custody Account.
15.3 All such communications shall be deemed effective upon receipt by
Custodian at its address specified in Paragraph 17 of this Agreement, as amended
from time to time. Custodian without liability may rely upon and act in
accordance with any instruction that Custodian using ordinary care believes has
been given by Principal or an Investment Manager.
15.4 Custodian may at any time request instructions from Principal and
may await such instructions without incurring liability. Custodian has no
obligation to act in the absence of such requested instructions, but may,
however, without liability take such action as it deems appropriate to carry out
the purposes of this Agreement.
16. FUNDS TRANSFER INSTRUCTIONS.
16.1 Principal authorizes Custodian to act upon instructions for the
transfer of funds from the Account to any other account(s) of Principal or to
any third party when such instructions are received from Principal or
Principal's Appointed Persons and which have been authenticated by Custodian in
accordance with the securities procedures agreed to by Principal as set forth in
Subparagraph 16.2 hereof.
16.2 Principal agrees to the security procedure(s) offered by Custodian
to authenticate, amend, and request cancellation of funds transfer instructions
as set forth below. If a funds transfer instruction received by Custodian
purports to have been transmitted or authorized by Principal, it will be deemed
effective as Principal's instruction if Custodian followed the security
procedure(s) set forth below:
16.2.1 AUTHENTICATED ELECTRONIC INSTRUCTION. Funds transfer
instructions received by Custodian via secured electronic systems, e.g., Telex,
Swift, etc. carry the same force as if Principal or the Appointed Person gave
such instruction directly.
16.2.2 STANDING INSTRUCTION FOR FUNDS TRANSFERS. If Principal
instructs Custodian in writing to initiate funds transfers to any account(s) of
Principal or to any designated third party beneficiary under standing
instructions, Custodian will perform no call-back for such Custodian initiated
funds transfers.
16.2.3 REPETITIVE FUNDS TRANSFERS. Repetitive funds transfers may
be initiated via facsimile by Principal or Appointed Person after Custodian has
performed an initial call back to a different Appointed Person to verify the
repetitive transfer information. Upon receiving each funds transfer request,
Custodian will verify that the individual whose signature appears on the funds
transfer request is an Appointed Person, and that the repetitive payment
destination matches the beneficiary data on the initial authorization.
16.2.4 NON-REPETITIVE FUNDS TRANSFERS. Non-repetitive funds
transfers may be initiated via facsimile by Principal or Appointed Person after
Custodian has performed a call back to a different Appointed Person and has
verified that the individual whose signature appears on the funds transfer
request is an Appointed Person. If Principal selects this security procedure for
non-repetitive funds transfers, Principal acknowledges that Principal may assume
a greater risk of unauthorized transfers than with the other procedures offered
by Custodian.
16.3 Custodian will use its best efforts to execute each properly
authorized funds transfer instructions on the day of receipt if Custodian
receives the instruction and is able to authenticate it before Custodian's
cut-off time, and the day of receipt is a funds transfer business day for
Custodian and the transmission facility selected. Custodian may change its
cutoff time without prior notice to Principal.
16.4 Custodian at its sole discretion may reject any funds transfer
instruction which (I) exceeds the collected and available funds on deposit in
the Account; (II) is not authenticated to Custodian's satisfaction or which
Custodian believes may not be authorized by Principal; (III) contains incorrect,
inconsistent, ambiguous, or missing information; (IV) involves funds which are
subject to a lien, security interest, claim, hold, dispute, or legal process
prohibiting withdrawal. Custodian shall incur no liability to Principal for any
loss occasioned by Custodian's refusal, with or without notice to Principal, to
honor any funds transfer instructions.
16.5 If there are insufficient available funds in the Account to cover
Principal's obligations under this Agreement, Custodian may at is sole
discretion choose to complete funds transfers initiated by Principal, and
Principal agrees to immediately repay Custodian the amount of any overdraft
created thereby plus any overdraft charges imposed in connection therewith,
without notice or demand to Principal.
16.6 If Principal's transfer instructions identifies the beneficiary,
the beneficiary's bank, or an intermediary bank by name and an account or other
identifying number, Custodian and subsequent parties to the funds transfer may
act solely on the basis of such number, even if the name and number do not
agree.
16.7 Principal shall have no right to cancel or amend a funds transfer
instruction after its receipt by Custodian. However, Custodian shall use
reasonable efforts to act on a request by Principal to cancel or amend an
instruction prior to executing it, but shall have no liability if cancellation
or amendment is not effected.
16.8 Except as otherwise required by the California Commercial Code,
Custodian shall not be responsible for any loss or liability arising in
connection with this Paragraph 16 from (I) any inaccuracy, act or failure to act
on the part of any person not within Custodian's reasonable control, including,
without limitation, the failure of other financial institutions to provide
accurate or timely information to Custodian or Principal; (II) the failure of
other financial institutions to accept payment orders; (III) Principal's
negligence or breach of this Agreement; (IV) any ambiguity or inaccuracy in any
instruction or in the information set forth in this Agreement given to Custodian
by Principal; or (V) any error, failure or delay in execution of any funds
transfer instruction, or cancellation or amendment, including without
limitation, any inoperability of computer or communication facilities, or other
circumstances beyond Custodian's reasonable control. Provided that Custodian has
complied with this Paragraph 16, Principal agrees to indemnify and hold
Custodian and its directors, officers, employees, agents and attorneys harmless
against any claim of any third party arising from or in connection with this
Agreement or Custodian's performance of funds transfer services for Principal.
Principal agrees to take any and all reasonable actions to mitigate any
potential or actual Custodian loss or liability under this Paragraph 16.
17. ADDRESSES. Until further notice from either party, all communications
called for under this Agreement shall be addressed as follows:
IF TO PRINCIPAL:
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HIGHMARK FUNDS
c/o SEI Investments Distribution Co.
Legal Department
Attn: General Counsel
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▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO CUSTODIAN:
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UNION BANK OF CALIFORNIA, NATIONAL ASSOCIATION
Union Bank of California Global Custody
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇, Vice President
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex (Answerback): 215748/MBCTD UR
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18. CUSTODIAN'S RESPONSIBILITIES AND LIABILITIES:
18.1 Custodian's duties and responsibilities shall be limited to those
expressly set forth in this Agreement, or as otherwise agreed by Custodian in
writing. In carrying out its responsibilities, Custodian shall exercise no less
than the same degree of care and diligence it usually exercises with respect to
similar property of its own.
18.2 Custodian (I) shall not be required to maintain any special
insurance for the benefit of Principal, and (II) shall not be liable or
responsible for any loss, damage, expense, failure to perform or delay caused by
accidents, strikes, fire, flood, war, riot, electrical or mechanical or
communication line or facility failures, acts of third parties (including
without limitation any messenger, telephone or delivery service), acts of God,
war, government action, civil commotion, fire, earthquake, or other casualty or
disaster or any other cause or causes which are beyond Custodian's reasonable
control. However, Custodian shall use reasonable efforts to replace Securities
lost or damaged due to such causes with securities of the same class and issue
with all rights and privileges pertaining thereto. Custodian shall be liable to
Principal for any loss which shall occur as the result of the failure of a
Sub-Custodian to exercise reasonable care with respect to the safekeeping of
assets to the same extent that Custodian would be liable to Principal if
Custodian were holding such securities and cash in its own premises. In all
cases, Custodian's liability for any act or failure to act under this Agreement
shall be limited to the resulting direct loss, if any, of Principal. Under no
circumstances shall Custodian be liable for any consequential, indirect,
punitive, or special damage which Principal may incur or suffer in connection
with this Agreement.
18.3 The parties intend that Custodian shall not be considered a
fiduciary of the Account. Accordingly, Custodian shall have no power to make
decisions regarding any policy, interpretation, practice, or procedure with
respect to the Account, but shall perform the ministerial and administrative
functions described in this Agreement as provided herein and within the
framework of policies, interpretations, rules, practices, and procedures made by
Principal or an Investment Manager, where applicable, as the same shall be
reflected in instructions to Custodian from Principal or any Investment Manager.
18.4 Custodian shall not be required to appear in or defend any legal
proceedings with respect to the Account or the Securities unless Custodian has
been indemnified to its reasonable satisfaction against loss and expense
(including reasonable attorneys' fees).
18.5 With respect to legal proceedings referred to in Subparagraph 18.4
of this agreement, Custodian may consult with counsel acceptable to it after
written notification to Principal concerning its duties and responsibilities
under this Agreement, and shall not be liable for any action taken or not taken
in good faith on the advice of such counsel.
19. INDEMNITIES.
19.1 Principal hereby agrees to indemnify Custodian against all
liability, claims, demands, damages, losses, and costs, including reasonable
attorneys' fees and expenses of legal proceedings, resulting from Custodian's
compliance with instructions from Principal or any Investment Manager and the
terms of this Agreement, except where Custodian has acted with negligence or
willful misconduct.
19.2 The Custodian shall be held to the exercise of reasonable care in
carrying out the provisions of this Agreement but shall be liable only for its
own negligent or bad faith acts or failures to act.
19.3 Custodian's right to indemnity under Subparagraph 19.1 of this
Agreement shall survive the termination of this Agreement.
20. COMPENSATION; EXPENSES. The Custodian shall be entitled to compensate
for its services and expenses as Custodian for the assets of a Fund as described
on Appendix C hereto.
21. AMENDMENT; TERMINATION. This Agreement may be amended at any time
by a written instrument signed by the parties. Either party may terminate this
Agreement and the Account upon 90 days' written notice to the other unless the
parties agree on a different time period. Upon such termination, Custodian shall
deliver or cause to be delivered the Securities, less any amounts due and owing
to Custodian under this Agreement, to a successor custodian designated by
Principal or, if a successor custodian has not accepted an appointment by the
effective date of termination of the Account, to Principal. Upon completion of
such delivery Custodian shall be discharged of any further liability or
responsibility with respect to the Securities so delivered.
22. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors in interest. Without consent
of the parties, this agreement cannot be assigned to any third party.
23. GOVERNING LAW. The validity, construction, and administration of
this Agreement shall be governed by the applicable laws of the United States
from time to time in force and effect and, to the extent not preempted by such
laws of the United States, by the laws of The Commonwealth of Massachusetts.
24. PRINCIPAL'S AGREEMENT AND DECLARATION OF TRUST. Principal is a business
trust organized under Massachusetts law and under a Declaration of Trust, 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
law, and to any and all amendments thereto so filed or hereafter filed.
Custodian acknowledges that the obligations of any Fund entered into in the name
or on behalf thereof by any of the Trustees, officers, employees or agents are
made not individually, but in such capacities, and are not binding upon any of
the Trustees, officers, employees, agents or shareholders of Principal
personally, but bind only the assets of Principal and all persons dealing with
any series or funds of Principal, must look solely to the assets of Principal
belonging to such series or funds for the enforcement of any claims against
Principal.
25. EFFECTIVE DATE. This Agreement shall be effective as of the date
appearing below, and shall supersede any prior or existing agreements between
the parties pertaining to the subject matter hereof.
Date: December 5, 2001
PRINCIPAL: HIGHMARK FUNDS
/s/▇▇▇▇ ▇. ▇▇▇▇▇
Authorized Signature
Vice President
Title
UNION BANK OF CALIFORNIA, N.A.
/s/ ▇▇▇▇ ▇▇▇
Authorized Signature
Vice President
Title
Appendix B
Name of Fund:
Diversified Money Market Fund
U.S. Government Money Market Fund
100% U.S. Treasury Money Market Fund
California Tax-Free Money Market Fund
California Intermediate Tax-Free Bond Fund
Bond Fund
Balanced Fund
Core Equity Fund
Large Cap Value Fund (formerly, the Income Equity Fund)
Value Momentum Fund
Growth Fund
International Equity Fund
Small Cap Value Fund
Small Cap Growth Fund
Appendix C
The following parties agree to the contents of the attached fee matrix/schedules
(Appendix C) for the HighMark Funds as noted in Appendix B.