TRANSFER AGENCY AND SERVICE AGREEMENT
between
HERITAGE SERIES TRUST
and
HERITAGE ASSET MANAGEMENT, INC.
TABLE OF CONTENTS
PAGE
----
1. TERMS OF APPOINTMENT; DUTIES OF THE AGENT.............................1
2. FEES AND EXPENSES.....................................................5
3. REPRESENTATIONS AND WARRANTIES OF THE AGENT...........................5
4. REPRESENTATIONS AND WARRANTIES OF THE TRUST...........................6
5. PRIVACY POLICY........................................................7
6. INDEMNIFICATION.......................................................7
7. COVENANTS OF THE TRUST AND THE AGENT.................................11
8. TERMINATION OF AGREEMENT.............................................12
9. ASSIGNMENT...........................................................13
10. AMENDMENT............................................................13
11. MERGER OF AGREEMENT..................................................14
12. MASSACHUSETTS BUSINESS TRUST.........................................14
13. MISCELLANEOUS........................................................14
14. FLORIDA LAW TO APPLY.................................................14
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AMENDED AND RESTATED
TRANSFER AGENCY AND SERVICE AGREEMENT
-------------------------------------
AGREEMENT made as of the 29th day of March, 1993, as amended
on August 27, 2001, by and between Heritage Series 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;
(vi) prepare and transmit payments for dividends
and distributions declared by the Trust;
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(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
proxies, receiving and tabulating proxies,
mailing Shareholder reports and prospectuses
to current Shareholders, withholding and
depositing taxes on required accounts,
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preparing and filing the appropriate
Internal Revenue Service forms with respect
to dividends, distributions 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, and
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 shares in such accounts through
Fund/SERV (Networking and Fund/SERV being
programs operated by the National Securities
Clearing Corporation ("NSCC") on behalf of
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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
-----------------
For the duties and obligations to be performed by the Agent pursuant to
this Agreement, the Trust agrees to pay the Agent as set out in the fee
schedule attached hereto, which may be 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:
3.1 It is a corporation duly organized and existing and in good
standing under the laws of the State of Florida.
3.2 It is duly qualified to carry on its business in the State of
Florida.
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3.3 It is empowered under applicable laws and by its charter and
by-laws to enter into and perform this Agreement.
3.4 All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
3.5 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 Agent 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.
4.4 It is an open-end management investment company registered
under the Investment Company Act of 1940, as amended.
4.5 A Registration Statement containing a Prospectus and Statement
of Additional Information under the Securities Act of 1933, as
amended is currently effective and appropriate state
securities law filings have been made with respect to all
Shares of the Trust being offered for sale.
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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.
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:
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(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 Agent 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
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.
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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 Agent and its agents and
subcontractors shall not be liable and shall be indemnified by
the Trust 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 Trust, 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 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
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protected and indemnified in recognizing stock certificates
which are reasonably believed to bear the proper manual or
facsimile signatures of the officers of the Trust, and proper
countersignature 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.
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
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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
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 and in the manner required by Section
31 of the Investment Company Act of 1940, as amended, and the
Rules thereunder, the Agent agrees that all such records
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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.
8. TERMINATION OF AGREEMENT
------------------------
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 Agent'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
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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, 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.
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 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 Trust hereunder.
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11. MERGER OF AGREEMENT
-------------------
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. MASSACHUSETTS BUSINESS TRUST
----------------------------
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 the Trust's
distributor ("Distributor") any information it provides or
makes available to the Trust 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
--------------------
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 SERIES TRUST
BY:/s/ X. X. Xxxxx
---------------------------
ATTEST:
/s/ Xxxxx Xxxxxx
----------------
HERITAGE ASSET MANAGEMENT, INC.
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 March 29, 1993
Original fee schedule dated March 29, 1993
and amended on August 27, 2001
HERITAGE SERIES 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
--------------------------------- -------------------------
