TRANSFER AGENCY AND SERVICE AGREEMENT
between
HERITAGE GROWTH AND INCOME TRUST
and
HERITAGE ASSET MANAGEMENT, INC.
TABLE OF CONTENTS
Page
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1. TERMS OF APPOINTMENT; DUTIES OF THE AGENT..........................1
2. FEES AND EXPENSES..................................................5
3. REPRESENTATIONS AND WARRANTIES OF THE AGENT........................6
4. REPRESENTATIONS AND WARRANTIES OF THE TRUST........................6
5. PRIVACY POLICY.....................................................7
6. INDEMNIFICATION....................................................8
7. COVENANTS OF THE TRUST AND THE AGENT..............................11
8. TERMINATION OF AGREEMENT..........................................13
9. ASSIGNMENT........................................................13
10. AMENDMENT.........................................................14
11. MERGER OF AGREEMENT...............................................14
12. FLORIDA BUSINESS TRUST............................................14
13. MISCELLANEOUS.....................................................14
14. FLORIDA LAW TO APPLY..............................................15
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AMENDED AND RESTATED
TRANSFER AGENCY AND SERVICE AGREEMENT
-------------------------------------
AGREEMENT made as of the 26th day of January, 1990, as amended on
August 27, 2001 by and between Heritage Growth and Income Trust (formerly
Heritage Income-Growth Trust), a Massachusetts business trust, having its
principal office and place of business at 000 Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx,
Xxxxxxx 00000 (the "Trust"), 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 000
Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000 (the "Agent").
WHEREAS, the Trust 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 Trust is authorized to issue Shares of beneficial
interest, without par value ("Shares") in separate series, portfolios or classes
("Series"); and
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. TERMS OF APPOINTMENT; DUTIES OF THE AGENT
1.1 Subject to the terms and conditions set forth in this Agreement,
the Trust hereby employs and appoints the Agent to act as, and
the Agent agrees to act as, its transfer agent for the Trust'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 Trust
("Shareholders") and set out in the current effective Prospectus
and Statement of Additional Information of the Trust, including
without limitation any periodic investment plan or periodic
withdrawal program.
1.2 The Agent agrees that it will perform the following services in
connection with each of the Trust's Series:
(a) In accordance with the Trust's then current Prospectus and
Statement of Additional Information and procedures
established from time to time by agreement between the
Trust 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 Trust (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;
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(vi) prepare and transmit payments for dividends and
distributions declared by the Trust; (vii) maintain
records of account for and advise the Trust and its
Shareholders as to the foregoing; and (viii) record
the issuance of shares of the Trust 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 Trust which are authorized, based
upon data provided to it by the Trust, and issued
and outstanding. Agent shall also provide the Trust
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
Trust.
(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
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proxies, receiving and tabulating proxies, mailing
Shareholder reports and prospectuses to current
Shareholders, withholding and depositing taxes on
required accounts, preparing and filing the
appropriate Internal Revenue Service forms with
respect to dividends distributions by and holdings
required by then current laws, 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, pursuant to
Rule 10b-10 of the Securities Act of 1934, as
amended, providing account information to
Shareholders or their authorized Agents; and
(ii) provide a system which will enable the Trust to
monitor the total number of Shares sold in each
State. The Trust shall (i) identify to 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 Trust's blue sky State registration
status is solely limited to the initial
establishment of transactions subject to blue sky
compliance by the Trust and the reporting of such
transactions to the Trust as provided above.
(iii) accept and effectuate the registration and
maintenance of accounts through Networking and the
purchase, redemption, transfer and exchange of
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shares in such accounts through Fund/SERV
(Networking and Fund/SERV being programs operated
by the National Securities Clearing Corporation
("NSCC") on behalf of NSCC's participants,
including the distributor of the Trust's shares),
in accordance with instructions transmitted to and
received by the Agent by transmission from NSCC on
behalf of broker-dealers and banks which have been
established by, or in accordance with, the
instructions of authorized persons, as hereinafter
defined on the dealer file maintained by the
Agent; (ii) issue instructions to Trust's banks
for the settlement of transactions between the
Trust and NSCC (acting on behalf of its
broker-dealer and bank participants).
Procedures applicable to certain of these services described in
paragraphs (a) and (b) may be established from time to time by agreement between
the Trust and the Agent and shall be subject to the review and approval of the
Trust. The failure of the Trust 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.
2. FEES AND EXPENSES
-----------------
2.1 For the duties and obligations to be performed by the Agent
pursuant to this Agreement, the Trust 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
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changed from time to time subject to mutual written agreement
between the Trust and the Agent.
3. REPRESENTATIONS AND WARRANTIES OF THE AGENT
-------------------------------------------
The Agent represents and warrants to the Trust that:
3.2 It is a corporation duly organized and existing and in good
standing under the laws of the State of Florida.
3.3 It is duly qualified to carry on its business in the State of
Florida.
3.4 It is empowered under applicable law and by its charter and
by-laws to enter into and perform this Agreement.
3.5 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
3.6 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
Trust and the Agent.
4. REPRESENTATIONS AND WARRANTIES OF THE TRUST
-------------------------------------------
The Trust represents and warrants to the Bank that;
4.1 It is a business trust duly organized and existing and in good
standing under the laws of Massachusetts.
4.2 It is empowered under applicable laws and by its Declaration of
Trust and By-Laws to enter into and perform this Agreement.
4.3 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.
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4.4 It is an open-end management investment company registered under
the Investment Company Act of 1940.
4.5 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 Trust
being offered for sale.
5. PRIVACY POLICY
--------------
5.1 The Agent acknowledges and agrees that any non-public personal
information relating to customers of the Trust is provided to
the Agent solely for the purpose of enabling it to perform
services pursuant to this agreement and may not be re-used by
the Agent for any other purpose. The Trust has provided the
Agent with a copy of the Trust's privacy policy under
Regulation S-P, 17 C.F.R. Part 240, and will provide copies of
annual and other notices under, or amendments to its privacy
policy. The Agent agrees that non-public personal information
will not be released to any third parties except as permitted
by both Regulation S-P and policies of the Trust. The Agent
represents and warrants to the Trust that it has adopted and
implemented procedures to safeguard non-public personal
information relating to customer records and information, and
that such procedures are reasonably designed to: (i) insure
the security and confidentiality of customer records and
information; (ii) protect against any anticipated threats or
hazards to the security or integrity of customer records and
information; and (iii) protect against unauthorized access to
or use of customer records or information.
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5.2 Each party shall take reasonable efforts to advise its
employees of their obligations pursuant to this Section 5. The
obligations of this Section shall survive any earlier
termination of this Agreement.
6. INDEMNIFICATION
---------------
6.1 The Agent shall not be responsible for, and the Trust 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 (including the defense of
any lawsuit in which the Agent is a named party)
provided the Agent and its agents or sub-contractors
have acted in good faith and without negligence or
willful misconduct.
(b) The Trust's refusal or failure to comply with the
terms of this Agreement, or the Trust's lack of good
faith, negligence or willful misconduct or the breach
of any representation or warranty of the Trust
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 Trust, and (ii) have been prepared and/or
maintained by the Trust or any other person or firm
on behalf of the Trust.
(d) The reliance on or the carrying out by the Bank or
its agents or subcontractors of any written
instructions of the Trust. "Written Instructions"
means written instructions delivered by mail, tested
telegram cable, or facsimile sending device and
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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.
6.2 The Trust shall not be responsible for and the Agent shall
indemnify and hold the Trust 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 Agent 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 9.3 or which arise out of the breach of any
representation or warranty of the Agent hereunder.
6.3 At any time the Agent may apply to any authorized officer of
the Trust 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 the Agent and its agents and
subcontractors shall not be liable and shall be indemnified by
the Trust for any action taken or omitted by them in good
faith in reliance upon 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
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indemnified in acting upon any paper or document furnished by
or on behalf of the Trust, reasonably believed by the Bank 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 Trust, and
shall not be held to have notice of any change of authority of
any person, until receipt of written notice thereof from the
Trust. 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 the
proper counter-signature of any former transfer agent or
registrar, or of a co-transfer agent or co-registrar.
6.4 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.
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6.5 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.
6.6 In order that the indemnification provisions contained in this
Article 6 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.
7. COVENANTS OF THE TRUST AND THE AGENT
------------------------------------
7.1 The Trust shall promptly furnish to the Agent the following:
(a) A certified copy of the resolution of the Board of
Trustees of the Trust 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
Trust and all amendments thereto.
7.2 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
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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.
7.3 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 extent 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 Trust
and will be preserved, maintained and made available in
accordance with such Section and Rules, and will be
surrendered promptly to the Trust on and in accordance with
its request.
7.4 The Agent and the Trust 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.
7.5 In case of any requests or demands for the inspection of the
Shareholder records of the Trust, the Agent will endeavor to
notify the Trust and to secure instructions from an authorized
officer of the Trust 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.
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8. TERMINATION OF AGREEMENT
------------------------
8.1 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 7 hereof. Should the Trust exercise its right to
terminate, all out-of-pocket expenses associated with the
movement of records and material will be borne by the Trust.
Additionally, the Agent reserves the right to charge for any
other reasonable expenses associated with such termination. In
the event that the Trust designates a successor to any of the
Bank's obligations hereunder, the Agent shall, at the expense
and direction of the Trust, transfer to such successor a
certified list of the Shareholders of the Trust, 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.
9. ASSIGNMENT
----------
9.1 Except as provided in Section 9.3 below, neither this
Agreement nor any rights or obligations hereunder may be
assigned by the Agent without the written consent of the
Trust.
9.2 This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and
assigns.
9.3 The Agent may, without further consent on the part of the
Trust, to Section 17A(c)(1), or (iii) contract with other
parties for the performance of certain duties in connection
with the Agent's performance of this Agreement; provided,
however, that the Agent shall be as fully responsible to the
Trust for the acts and omissions of any subcontractor as it is
for its own acts and omissions.
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10. AMENDMENT
---------
10.1 This Agreement may be 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 Trust.
10.2 In the event the Trust 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.
11. MERGER OF AGREEMENT
-------------------
11.1 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.
12. FLORIDA BUSINESS TRUST
----------------------
12.1 Notice is hereby given that the Agent shall have no right to
seek to proceed against or enforce this Agreement against the
individual shareholders of any Series or against the Trustees
or officers of any Series. Rather, the Agent can seek to
enforce this Agreement only against the applicable Series
itself.
13. MISCELLANEOUS
-------------
13.1 The Trust authorizes the Agent to provide Xxxxxxx, Xxxxx &
Associates, Inc. any information it provides or makes
available to the Fund in connection with this Agreement,
unless such information is restricted by the Distributor.
13.2 The Agent agrees to treat all records and other information
relative to the Trust 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 Trust, 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 information
by duly constituted authorities, or when so requested by the
Trust.
14. FLORIDA LAW TO APPLY
--------------------
14.1 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State
of Florida.
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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 GROWTH AND INCOME TRUST
BY:/s/ X.X. Xxxxx
------------------------------
ATTEST:
/s/ Xxxxx Xxxxxx
-------------------------------
HERITAGE GROWTH AND INCOME TRUST
BY: /s/ Xxxxxx X. Xxxxxxx
------------------------------
ATTEST:
/s/ Xxxxx Xxxxxx
-------------------------------
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HERITAGE ASSET MANAGEMENT
Fee Information for Services as
Plan, Transfer and Dividend Disbursing Agent
Original contract dated January 26, 1990:
Original fee schedule dated January 26, 1990
and amended on August 27, 2001
HERITAGE GROWTH AND INCOME TRUST
(formerly Heritage Income-Growth Trust)
GENERAL - Fees are based on actual cost of out-of-pocket expenses plus 10% plus
other expenses.
OUT-OF-POCKET EXPENSES - Out-of-pocket expenses include but are not limited to:
shareholder account maintenance, office space, equipment and employees necessary
to perform the duties of this Agreement, postage, forms, telephone, paper and
electronic document storage, microfiche, statement preparation and other
expenses incurred at the specific direction of the fund.
OTHER EXPENSES - Other expenses include fees paid to the Distributor, other
broker-dealers and service providers for account maintenance, sub-transfer agent
and transactions processing services performed on behalf of fund shareholders.
PAYMENT - The above fees will be due and payable five days after notification is
received at the Trust's offices.
HERITAGE SERIES TRUST HERITAGE ASSET MANAGEMENT, INC.
By: /s/ X.X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------ -----------------------------
Title: Principal Executive Officer Title: Vice President, Transfer
---------------------------- Agent Services
--------------------------
Date: August 27, 2001 Date: August 27, 2001
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