EXHIBIT (9)
TRANSFER AGENCY AND SERVICE AGREEMENT
between
HERITAGE INCOME TRUST
and
HERITAGE ASSET MANAGEMENT, INC.
TABLE OF CONTENTS
Page
Article 1 Terms of Appointment; Duties of the Agent . . 1
Article 2 Fees and Expenses . . . . . . . . . . . . . . . . . . 5
Article 3 Representations and Warranties of the Agent . . . . . 6
Article 4 Representations and Warranties of the Fund . . . . . . 6
Article 5 Indemnification . . . . . . . . . . . . . . . . . . . 7
Article 6 Covenants of the Fund and the Agent . . . . . . . . . 11
Article 7 Termination of Agreement . . . . . . . . . . . . . . . 12
Article 8 Assignment . . . . . . . . . . . . . . . . . . . . . . 13
Article 9 Amendment . . . . . . . . . . . . . . . . . . . . . . 14
Article 10 Merger of Agreement . . . . . . . . . . . . . . . . . 14
Article 11 Miscellaneous . . . . . . . . . . . . . . . . . . . . 14
Article 12 Massachusetts Law to Apply . . . . . . . . . . . . . . 15
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 31st day of October, 1989, by and
between HERITAGE INCOME TRUST, a Massachusetts business trust, having its
principal office and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Fund"), and HERITAGE ASSET MANAGEMENT,
INC., a Florida corporation and a duly registered transfer agent pursuant
to the securities & exchange act of 1934 having its principal office and
place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Agent").
WHEREAS, the Fund desires to appoint the Agent as its transfer
agent, dividend disbursing agent and agent in connection with certain
other activities, and the Agent desires to accept such appointment;
WHEREAS, the Fund is authorized to issue Shares of beneficial
interest, without par value ("Shares")
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article 1 Terms of Appointment: Duties of the Agent
1.01 Subject to the terms and conditions set forth in this
Agreement, the Fund hereby employs and appoints the Agent to act as, and
the Agent agrees to act as its transfer agent for the Fund's authorized
and issued Shares; its dividend disbursing agent and its agent in
connection with any accumulation, open-account or similar plans provided
to the Shareholders of the Fund ("Shareholders") and set out in the
current effective Prospectus and Statement of Additional Information of
the Fund, including without limitation any periodic investment plan or
periodic withdrawal program.
1.02 The Agent agrees that it will perform the following
services:
(a) In accordance with the Fund's then current Prospectus and
Statement of Additional Information and procedures established from time
to time by agreement between the Fund and the Agent, the Agent shall:
(i) receive for acceptance, orders for the purchase of
Shares, and promptly deliver payment and appropriate
documentation therefor to the Custodian of the Fund (the
"Custodian");
(ii) pursuant to purchase orders, issue the appropriate number
of Shares and hold such Shares in the appropriate account
of the Shareholder;
(iii) receive for acceptance, redemption requests and
redemption directions and deliver the appropriate
documentation therefor to the Custodian:
(iv) at the appropriate time as and when the Agent 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 Shareholder;
(v) effect transfers of Shares by the Shareholders thereof
upon receipt of appropriate instructions;
(vi) prepare and transmit payments for dividends and
distributions declared by the Fund;
(vii) maintain records of account for and advise the Fund and
its Shareholders as to the foregoing; and
(viii) record the issuance of shares of the Fund and maintain
pursuant to rule 17Ad-10(e) under the Securities Exchange
Act of 1934 a record of the total number of shares of the
Fund which are authorized, based upon data provided to it
by the Fund, and issued and outstanding. 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.
(b) In addition to and not in lieu of the services set forth
in the above paragraph (a), the Agent shall: (i) perform all of 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, receiving and tabulation proxies, mailing Shareholder reports and
prospectuses to current Shareholders, withholding taxes on non-resident
alien accounts, preparing 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, (which shall also indicate redemptions by check
if the Shareholder has elected the checkwriting privilege), 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. The Fund shall
(i) identify the Agent in writing those transactions and assets to be
treated as exempt from blue sky reporting for each State and (ii) verify
the establishment of transactions for each State on the system prior to
activation and thereafter monitor the daily activity for each State. The
responsibility of the Agent for the Fund's blue sky State registration
status is solely limited to 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.
Procedures applicable to certain of these services described in
paragraphs (a) and (b) may be established from time to time by agreement
between the Fund and the Agent and shall be subject to the review and
approval of the Fund. The failure of the Fund to establish such procedures
with respect to any service shall not in any way diminish the duty and
obligation of the Agent to perform such service hereunder.
(c) In regard to the services set forth above, the Agent may
not provide certain shareholder services which may be provided by ▇▇▇▇▇▇▇
▇▇▇▇▇ & Associates, Inc. The services to be provided shall be as mutually
agreed upon from time to time between the Fund, the Agent and ▇▇▇▇▇▇▇
▇▇▇▇▇ & Associates, Inc. and as set forth in writing attached hereto as
Appendix B. Article 2 Fees and Expenses
2.01 For the duties and obligations to be performed by the
Agent pursuant to this Agreement, the Fund agrees to pay the agent an
annual maintenance fee for each Shareholder account as set out in the fee
schedule attached hereto. Such fees and out-of-pocket expenses and
advances identified under Section 2.02 below may be changed from time to
time subject to mutual written agreement between the Fund and the Agent.
2.02 In addition to the fee paid under Section 2.01 above, the
Fund agrees to promptly reimburse the Agent for reasonable out-of-pocket
expenses or advances incurred by the Agent for the items set out in the
fee schedule attached hereto. In addition, any other expenses incurred by
the Agent at the request or with the consent of the Fund which are not
properly borne by the agent as part of its duties and obligations under
this Agreement will be promptly reimbursed by the Fund. Postage for
mailing of dividends, proxies, Fund reports and other mailings to all
Shareholder accounts shall be advanced to the Agent by the Fund at least
seven (7) days prior to the mailing date of such materials.
Article 3 Representations and Warranties of the Agent
The 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 Florida.
3.02 It is duly qualified to carry on its business in the
State of Florida.
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 in accordance with procedures established from time
to time by mutual agreement between the Fund and the Agent.
Article 4 Representations and Warranties of the Fund
The Fund represents and warrants to the Agent that;
4.01 It is a business trust duly organized and existing and in
good standing under the laws 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 management investment company
registered under the Investment Company Act of 1940.
4.05 A Registration Statement containing a Prospectus and
Statement of Additional Information under the Securities Act of 1933 is
currently effective or will become effective before any public offering
commences, and appropriate state securities law filings have been made or
will be made before any public offering in such state commences, with
respect to all Shares of the Fund being offered for sale.
Article 5 Indemnification
5.01 The Agent shall not be responsible for, and the Fund
shall indemnify and hold the Agent harmless from and against, any and all
losses, damages, and any and all reasonable costs, charges, counsel fees,
payments expenses and liability arising out of or attributable to:
(a) All actions of the Agent or its agents or subcontractors
required to be taken by the Agent pursuant to this Agreement, provided the
Agent and its agents or sub-contractors have acted in good faith and
without negligence or willful misconduct.
(b) The Fund's refusal or failure to comply with the terms of
this Agreement, or the Fund's lack of good faith, negligence or willful
misconduct or the breach of any representation or warranty of the Fund
hereunder.
(c) The reliance on, or use by, the Agent, its agents or
subcontractors of information, records and documents which (i) are
received by the Agent or its agents or subcontractors and furnished to it
by or on behalf of the Fund, and (ii) have been prepared and/or maintained
by the Fund or any other person or firm on behalf of the Fund.
(d) The reliance on or the carrying out by the Agent or its
agents or subcontractors of any written instructions of the Fund. "Written
Instructions" means written instructions delivered by mail, tested
telegram cable, telex or facsimile sending device and received by the
Agent, or its agents or subcontractors, signed by authorized persons.
(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.
5.02 The Fund shall not be responsible for and the Agent shall
indemnify and hold the Fund harmless from and against any and all losses,
damages, and any and all reasonable costs, charges, counsel fees,
payments, expenses and liability arising out of or attributable to the
Agent's failure to comply with the terms of this Agreement or any action
or failure or omission to act by the Bank as a result of the lack of good
faith, negligence or willful misconduct of the Agent or any of its agents
or subcontractors referred to in Section 8.03 (i) and (ii) or which arise
out of the breach of any representation or warranty of the Agent
hereunder.
5.03 At any time the Agent may apply to any authorized officer
of the Fund for instructions, and may consult with experienced securities
counsel with respect to any matter arising in connection with the services
to be performed by the Agent under this Agreement, and Agent and its
agents and subcontractors shall not be liable and shall be indemnified by
the Fund for any such instructions or upon the opinion of such counsel
that such actions or omissions comply with the terms of this Agreement and
with all applicable laws. The 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 by the Agent 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
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. The Agent its agents and
subcontractors shall also be protected and indemnified in recognizing
stock certificates which are reasonably believed to bear the proper manual
or facsimile signatures of the officers of the Fund, and proper counter-
signature of any former transfer agent or registrar, or of a co-transfer
agent or co-registrar.
5.04 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, or other causes
reasonably beyond its control, such party shall not be liable for damages
to the other party resulting from such failure to perform or otherwise
from such causes. In addition, the Agent shall enter into and shall
maintain in effect with appropriate parties one or more agreements making
reasonable provision for emergency use of electronic data processing
equipment to the extent appropriate equipment is available and the Agent
shall further use reasonable care to minimize the likelihood of such
damage, loss of data, delays and/or errors and should such damage, loss of
data, delays and/or errors occur, the Agent shall use its best efforts to
mitigate the effects of such occurrence.
5.05 Neither party to this Agreement shall be liable to the
other party for consequential damages under any provision of this
Agreement or for any act or failure to act hereunder.
5.06 In order that the indemnification provisions contained in
this Article 5 shall apply, upon the assertion of a claim or the
institution of any agency action or investigation for which either party
may be required to indemnify the other, the party seeking indemnification
shall promptly notify the other party of such assertion, and shall keep
the other party advised with respect to all developments concerning same.
The party who may be required to indemnify shall have the option to
participate with the party seeking indemnification in the defense of same.
The party seeking indemnification shall in no case confess any claim or
make any compromise in any case in which the other party may be required
to indemnify it except with the other party's prior written consent.
Article 6 Covenants of the Fund and the Agent
6.01 The Fund shall promptly furnish to the Agent the
following:
(a) A certified copy of the resolution of the Board of
Trustees of the Fund authorizing the appointment of the Agent and the
execution and delivery of this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of the
Fund and all amendments thereto.
6.02 The Agent represents and warrants that to the best of its
knowledge, the various procedures and systems which the Agent has
implemented with regard to safeguarding from loss or damage the stock
certificates, check forms, facsimile signature imprinting devices, and
other property used in the performance of its obligations hereunder are
adequate and will enable the Agent to perform satisfactorily its
obligations hereunder and that the Agent will make such changes therein
from time to time as in its judgment are required for the secure
performance of its obligations hereunder.
6.03 The Agent shall keep all records relating to the services
to be performed hereunder, in the form and manner it may deem advisable.
To the extend required by Section 31 of the Investment Company Act of
1940, as amended, and the Rules thereunder, the Agent agrees that all such
records prepared or maintained by the Agent relating to the services to be
performed by the 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.
6.04 The 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.
6.05 In case of any requests or demands for the inspection of
the Shareholder records of the Fund, the Agent will endeavor to notify the
Fund and to secure instructions from an authorized officer of the Fund as
to such inspection. The 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.
Article 7 Termination of Agreement
7.01 This Agreement may be terminated by either party upon
sixty (60) days written notice to the other. Any such termination shall
not effect the rights and obligations of the parties under Article 5
hereof. Should the Fund exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and
material will be borne by the Fund. Additionally, the Agent reserves the
right to charge for any other reasonable expenses associated with such
termination. In the event that the Fund designates a successor to any of
the Agent's obligations hereunder, the Agent shall, at the expense and
direction of the Fund, transfer to such successor a certified list of the
Shareholders of the Fund, a complete record of the account of each
Shareholder, and all other relevant books, records and other data
established or maintained by the Agent hereunder.
Article 8 Assignment
8.01 Except as provided in Section 8.03 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by the
Agent without the written consent of the Fund.
8.02 This Agreement shall insure to the benefit of and be
binding upon the parties and their respective permitted successors and
assigns.
8.03 The Agent may, without further consent on the part of the
Fund, subcontract for the performance hereof with (i) Sungard Shareholders
Systems, Inc. or (iii) ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Associates, Inc. for the
performance of certain duties in connection with the Agent performance of
this Agreement; provided, however, that the Agent shall be as fully
responsible to the Fund for the acts and omissions of any subcontractor
referred to in (i) and (ii) above as it is for its own acts and omissions
and further provided, the Fund shall hold the Agent harmless for the acts
and omissions of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. referred to in (iii).
Article 9 Amendment
9.01 This Agreement may bee amended or modified only by a
written agreement executed by both parties and authorized or approved by a
resolution of the Board of Trustees of the Fund.
9.02 In the event the Fund issues additional series of shares
in addition to the Shares with respect to which it desires to have the
Agent render services as transfer agent, dividend disbursing agent and
agent under the terms hereof, it shall so notify the Agent in writing, and
if the Agent agrees, in writing to provide such services, such additional
series of Shares shall become a Fund hereunder.
Article 10 Merger of Agreement
10.01 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 11 Miscellaneous
11.01 The Fund authorizes the Agent to provide ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Associates, Inc. any information it provides or makes available to the
Fund in connection with this Agreement.
11.02 The Agent agrees to treat all records and other
information relative to the Fund and its prior, present or potential
Shareholders confidentially and the Agent on behalf of itself and its
employees agrees to keep confidential all such information, except after
prior notification to and approval in writing by the fund, which approval
shall not be unreasonably withheld and may not be withheld where the Agent
may be exposed to civil or criminal contempt proceedings for failure to
comply, when requested to divulge such informationby duly constitutes
authorities, or when so requested by the Fund.
Article 12 Florida Law to Apply
12.01 This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the State of
Florida.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed in their names and on their behalf under their seals by and
through their duly authorized officers, as of the day and year first above
written.
HERITAGE INCOME TRUST
BY:__________________________
ATTEST:
____________________________
HERITAGE ASSET MANAGEMENT, INC.
BY:____________________________
Vice President
ATTEST:
____________________________
Assistant Secretary
