TRANSFER AGENCY AND SERVICE AGREEMENT
between
HERITAGE CAPITAL APPRECIATION TRUST
and
HERITAGE ASSET MANAGEMENT, INC.
TABLE OF CONTENTS
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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.........................................................15
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 Capital Appreciation 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:
(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 proxies, receiving and
tabulating proxies, mailing Shareholder reports and
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prospectuses to current Shareholders, withholding and
depositing taxes 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, (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 Trust to
monitor the total number of Shares sold in each
State. The Trust shall
(iii) identify to the Agent in writing those transactions
and assets to be treated as exempt from blue sky
reporting for each State and
(iv) 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.
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(v) 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
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
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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 below may be changed from
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time to time subject to mutual written agreement between the Trust
and the Agent.
3. REPRESENTATIONS AND WARRANTIES OF THE AGENT
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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 Florida.
4.2 It is empowered under applicable laws and by its Declaration of
Trust and By-Laws to enter into and perform this Agreement.
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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.
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
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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
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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
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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,
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.
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(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, 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.
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 6.3 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
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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 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
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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 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 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.
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(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 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.
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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 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 Shareholder, and all other
relevant books, records and other data established or maintained by
the Agent hereunder.
9. ASSIGNMENT
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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.
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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
regulation 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 Trust
hereunder.
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. FLORIDA 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
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any Series. Rather, the Agent can seek to enforce this Agreement
only against the applicable Series itself.
13. MISCELLANEOUS
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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
--------------------
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 CAPITAL APPRECIATION TRUST
BY: /s/ X.X. Xxxxx
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ATTEST:
/s/ Xxxxx Xxxxxx
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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 January 26, 1990:
Original fee schedule dated January 26, 1990
and amended on August 27, 2001
HERITAGE CAPITAL APPRECIATION 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 CAPITAL APPRECIATION TRUST HERITAGE ASSET MANAGEMENT
By: /s/ X.X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Title: Principal Executive Officer Title: Vice President, Transfer Agent
---------------------------- Services
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Date: August 27, 2001 Date: August 27, 2001
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