FORM OF
AMENDED AND RESTATED
TRANSFER AGENCY AND SERVICE AGREEMENT
between
HERITAGE CASH TRUST
and
HERITAGE ASSET MANAGEMENT, INC.
TABLE OF CONTENTS
1. Terms of Appointment; Duties of the Agent................................1
2. Fees and Expenses........................................................6
3. Representations and Warranties of the Agent..............................6
4. Representations and Warranties of the Trust..............................7
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. Massachusetts Business Trust............................................14
13. Miscellaneous...........................................................15
14. Florida Law to Apply....................................................15
AMEMDED AND RESTATED
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 13th day of November, 1985, as amended on
______ ___, 2001 by and between Heritage Cash Trust, a Massachusetts business
trust, having its principal office and place of business at 000 Xxxxxxxx
Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000 (the "Trust"), 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
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required accounts, 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
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("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 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 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.
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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.
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.
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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.
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.
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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 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.
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(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
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 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
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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 Trust, and the 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.
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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 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
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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 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
------------------------
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 5
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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 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.
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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 Trust
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. Massachusetts 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 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
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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 CASH TRUST
BY:____________________________
ATTEST:
__________________________________
HERITAGE ASSET MANAGEMENT, INC.
BY:____________________________
ATTEST:
__________________________________
Assistant Secretary
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 October __, 2001
HERITAGE CASH TRUST
General - Fees are based on actual cost of out-of-pocket expenses plus 10%, plus
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 the fund
shareholders.
Payment - The above fees will be due and payable five days after notification is
received at the Trust's offices.
HERITAGE CASH TRUST HERITAGE ASSET MANAGEMENT, INC.
By___________________________________ _______________________________
Title________________________________ _______________________________
Date_________________________________ _______________________________
