TRANSFER AGENCY AND SERVICE AGREEMENT
between
HERITAGE CAPITAL APPRECIATION TRUST
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
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Page
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Article 1 Terms of Appointment; Duties of the Bank . . . . . . 1
Article 2 Fees and Expenses . . . . . . . . . . . . . . . . . 5
Article 3 Representations and Warranties of the Bank . . . . . 6
Article 4 Representations and Warranties of the Fund . . . . . 7
Article 5 Indemnification . . . . . . . . . . . . . . . . . . 7
Article 6 Covenants of the Fund and the Bank . . . . . . . . . 11
Article 7 Termination of Agreement . . . . . . . . . . . . . . 13
Article 8 Assignment . . . . . . . . . . . . . . . . . . . . . 14
Article 9 Amendment . . . . . . . . . . . . . . . . . . . . . 14
Article 10 Merger of Agreement . . . . . . . . . . . . . . . . 15
Article 11 Miscellaneous . . . . . . . . . . . . . . . . . . . 15
Article 12 Massachusetts Law to Apply . . . . . . . . . . . . . 16
TRANSFER AGENCY AND SERVICE AGREEMENT
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AGREEMENT made as of the 13th day of November, 1985, by and
between HERITAGE CAPITAL APPRECIATION TRUST, a Massachusetts business
trust, having its principal office and place of business at 0000-00xx
Xxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000 (the "Fund"), and STATE STREET
BANK AND TRUST COMPANY, a Massachusetts corporation having its principal
office and place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 (the "Bank").
WHEREAS, the Fund desires to appoint the Bank as its transfer
agent, dividend disbursing agent and agent in connection with certain
other activities, and the Bank desires to accept such appointment;
WHEREAS, the Fund is authorized to issue Shares of beneficial
interest, without par value ("Shares");
WHEREAS, Xxxxxxx Xxxxx & Associates, Inc. may provide certain
shareholder services in connection with the Fund and the Fund shall not
hold the Bank responsible for such services;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article 1 Terms of Appointment; Duties of the Bank
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1.01 Subject to the terms and conditions set forth in
this Agreement, the Fund hereby employs and appoints the Bank to act as,
and the Bank agrees to act as its transfer agent for the Fund's authorized
and issued Shares; its dividend disbursing agent and its agent in
connection with any accumulation, open-account or similar plans provided
to the Shareholders of the Fund ("Shareholders") and set out in the
current effective Prospectus and Statement of Additional Information of
the Fund, including without limitation any periodic investment plan or
periodic withdrawal program.
1.02 The Bank agrees that it will perform the following
services:
(a) In accordance with the Fund's then current
Prospectus and Statement of Additional Information and procedures
established from time to time by agreement between the Fund and the Bank,
the Bank shall:
(i) receive for acceptance, orders for the purchase
of Shares, and promptly deliver payment and
appropriate documentation therefor to the
Custodian of the Fund (the "Custodian");
(ii) pursuant to purchase orders, issue the
appropriate number of Shares and hold such Shares
in the appropriate account of the Shareholder;
(iii) receive for acceptance, redemption requests and
redemption directions and deliver the appropriate
documentation therefor to the Custodian;
(iv) at the appropriate time as and when the Bank
receives monies paid to it by the Custodian with
respect to any redemption, pay over or cause to
be paid over in the appropriate manner such
monies as instructed by the redeeming
Shareholder;
(v) effect transfers of Shares by the Shareholders
thereof upon receipt of appropriate instructions;
(vi) prepare and transmit payments for dividends and
distributions declared by the Fund;
(vii) maintain records of account for and advise the
Fund and its Shareholders as to the foregoing;
and
(viii) record the issuance of shares of the Fund and
maintain pursuant to Rule 17Ad-10(e) under the
Securities Exchange Act of 1934 a record of the
total number of shares of the Fund which are
authorized, based upon data provided to it by the
Fund, and issued and outstanding. Bank shall
also provide the Fund on a regular basis with the
total number of shares which are authorized and
issued and outstanding and shall have no
obligation, when recording the issuance of
shares, to monitor the issuance of such shares or
to take cognizance of any laws relating to the
issue or sale of such shares, which functions
shall be the sole responsibility of the Fund.
(b) In addition to and not in lieu of the services set
forth in the above paragraph (a), the Bank 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 taxes on
non-resident alien accounts, preparing and filing U.S. Treasury Department
Forms 1099 and other appropriate forms required with respect to dividends
and distributions by federal authorities for all Shareholders, preparing
and mailing confirmation forms and statements of account to Shareholders
for all purchases and redemptions of Shares and other confirmable
transactions in Shareholder accounts, (which shall also indicate
redemptions by check if the Shareholder has elected the checkwriting
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privilege), preparing and mailing activity statements for Shareholders,
and providing Shareholder account information and (ii) provide a system
which will enable the Fund to monitor the total number of Shares sold in
each State. The Fund shall (i) identify to the Bank 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 Bank for the Fund's
blue sky State registration status is solely limited to the initial
establishment of transactions subject to blue sky compliance by the Fund
and the reporting of such transactions to the Fund as provided above.
Procedures applicable to certain of these services
described in paragraphs (a) and (b) may be established from time to time
by agreement between the Fund and the Bank and shall be subject to the
review and approval of the Fund. The failure of the Fund to establish
such procedures with respect to any service
shall not in any way diminish the duty and obligation of the Bank to
perform such service hereunder.
(c) In regard to the services set forth above, the
Bank may not provide certain shareholder services which may be provided by
Xxxxxxx Xxxxx & Associates, Inc. The services to be provided shall be as
mutually agreed upon from time to time between the Fund, the Bank and
Xxxxxxx Xxxxx & Associates, Inc. and as set forth in writing attached
hereto as Appendix B.
Article 2 Fees and Expenses
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2.01 For the duties and obligations to be performed by
the Bank pursuant to this Agreement, the Fund agrees to pay the Bank an
annual maintenance fee for each Shareholder account as set out in the fee
schedule attached hereto. Such fees and out-of-pocket expenses and
advances identified under Section 2.02 below may be changed from time to
time subject to mutual written agreement between the Fund and the Bank.
2.02 In addition to the fee paid under Section 2.01
above, the Fund agrees to promptly reimburse the Bank for reasonable
out-of-pocket expenses or advances incurred by the Bank for the items set
out in the fee schedule attached hereto. In addition, any other expenses
incurred by the Bank at the request or with the consent of the Fund which
are not properly borne by the Bank as part of its duties and obligations
under this Agreement will be promptly reimbursed by the Fund. Postage for
mailing of dividends, proxies, Fund reports and other mailings to all
Shareholder accounts shall be advanced to the Bank by the Fund at least
seven (7) days prior to the mailing date of such materials.
Article 3 Representations and Warranties of the Bank
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The Bank represents and warrants to the Fund that:
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3.01 It is a corporation duly organized and existing and
in good standing under the laws of The Commonwealth of Massachusetts.
3.02 It is duly qualified to carry on its business in
The Commonwealth of Massachusetts.
3.03 It is empowered under applicable laws and by its
charter and by-laws to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken
to authorize it to enter into and perform this Agreement.
3.05 It has and will continue to have access to the
necessary facilities, equipment and personnel to perform its duties and
obligations under this Agreement in accordance with procedures established
from time to time by mutual agreement between the Fund and the Bank.
Article 4 Representations and Warranties of the Fund
------------------------------------------
The Fund represents and warrants to the Bank that;
4.01 It is a business trust duly organized and existing
and in good standing under the laws of Massachusetts.
4.02 It is empowered under applicable laws and by its
Declaration of Trust and By-Laws to enter into and perform this Agreement.
4.03 All corporate proceedings required by said
Declaration of Trust and By-Laws have been taken to authorize it to enter
into and perform this Agreement.
4.04 It is an open-end management investment company
registered under the Investment Company Act of 1940.
4.05 A Registration Statement containing a Prospectus
and Statement of Additional Information under the Securities Act of 1933
is currently effective or will become effective before any public offering
commences, and appropriate state securities law filings have been made or
will be made before any public offering in such state commences, with
respect to all Shares of the Fund being offered for sale.
Article 5 Indemnification
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5.01 The Bank shall not be responsible for, and the Fund
shall indemnify and hold the Bank 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 Bank or its agents or
subcontractors required to be taken by the Bank pursuant to this
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Agreement, provided the Bank and its agents or sub-contractors have acted
in good faith and without negligence or willful misconduct.
(b) The Fund's refusal or failure to comply with the
terms of this Agreement, or the Fund's lack of good faith, negligence or
willful misconduct or the breach of any representation or warranty of the
Fund hereunder.
(c) The reliance on, or use by, the Bank, its agents or
subcontractors of information, records and documents which (i) are
received by the Bank or its agents or subcontractors and furnished to it
by or on behalf of the Fund, and (ii) have been prepared and/or maintained
by the Fund or any other person or firm on behalf of the Fund.
(d) The reliance on or the carrying out by the Bank or
its agents or subcontractors of any written instructions of the Fund.
"Written Instructions" means written instructions delivered by mail,
tested telegram cable, telex or facsimile sending device and received by
the Bank, or its agents or subcontractors, signed by authorized persons.
(e) The offer or sale of Shares in violation of any
requirement under the federal securities laws or regulations or the
securities laws or regulations of any state that such Shares be registered
in such state or in violation of any stop order or other determination or
ruling by any federal agency or any state with respect to the offer or
sale of such Shares in such state.
5.02 The Fund shall not be responsible for and the Bank
shall indemnify and hold the Fund harmless from and against any and all
losses, damages, and any and all reasonable costs, charges, counsel fees,
payments, expenses and liability arising out of or attributable to the
Bank's failure to comply with the terms of this Agreement or any action or
failure or omission to act by the Bank as a result of the lack of good
faith, negligence or willful misconduct of the Bank or any of its agents
or subcontractors referred to in Section 8.03 (i) and (ii) or which arise
out of the breach of any representation or warranty of the Bank hereunder.
5.03 At any time the Bank may apply to any authorized
officer of the Fund for instructions, and may consult with experienced
securities counsel with respect to any matter arising in connection with
the services to be performed by the Bank under this Agreement, and the
Bank and its agents and subcontractors shall not be liable and shall be
indemnified by the Fund 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 Bank, its agents and
subcontractors shall be protected and indemnified in acting upon any paper
or document furnished by or on behalf of the Fund, reasonably believed by
the 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 Bank or its agents or subcontractors by machine readable
input, telex, CRT data entry or other similar means authorized by the
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Fund, and shall not be held to have notice of any change of authority of
any person, until receipt of written notice thereof from the Fund. The
Bank, 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 countersignature of any former transfer agent
or registrar or of a co-transfer agent or co-registrar.
5.04 In the event either party is unable, to perform its
obligations under the terms of this Agreement because of acts
of God, strikes, equipment or transmission failure or damage, or other
causes reasonably beyond its control, such party shall not be liable for
damages to the other party resulting from such failure to perform or
otherwise from such causes. In addition, the Bank 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 Bank 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 Bank shall use its best
efforts to mitigate the effects of such occurrence.
5.05 Neither party to this Agreement shall be liable to
the other party for consequential damages under any provision of this
Agreement or for any act or failure to act hereunder.
5.06 In order that the indemnification provisions
contained in this Article 5 shall apply, upon the assertion of a claim or
the institution of any agency action or investigation for which either
party may be required to indemnify the other, the party seeking
indemnification shall promptly notify the other party of such assertion,
and shall keep the other party advised with respect to all developments
concerning same. The party who may be required to indemnify shall have
the option to participate with the party seeking indemnification in the
defense of same. The party seeking indemnification shall in no case
confess any claim or make any compromise in any case in which the other
party may be required to indemnify it except with the other party prior
written consent.
Article 6 Covenants of the Fund and the Bank
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6.01 The Fund shall promptly furnish to the Bank the
following:
(a) A certified copy of the resolution of the Board of
Trustees of the Fund authorizing the appointment of the Bank and the
execution and delivery of this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of
the Fund and all amendments thereto.
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6.02 The Bank represents and warrants that to the best
of its knowledge, the various procedures and systems which the Bank 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 Bank to perform satisfactorily its
obligations hereunder and that the Bank will make such changes therein
from time to time as in its judgment are required for the secure
performance of its obligations hereunder.
6.03 The Bank 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 Bank agrees that
all such records prepared or maintained by the Bank relating to the
services to be performed by the Bank hereunder are the property of the
Fund and will be preserved, maintained and made available in accordance
with such Section and Rules, and will be surrendered promptly to the Fund
on and in accordance with its request.
6.04 The Bank and the Fund agree that all books,
records, information and data pertaining to the business of the other
party which are exchanged or received pursuant to the negotiation or the
carrying out of this Agreement shall remain confidential, and shall not be
voluntarily disclosed to any other person, except as may be required by
law.
6.05 In case of any requests or demands for the
inspection of the Shareholder records of the Fund, the Bank will endeavor
to notify the Fund and to secure instructions from an authorized officer
of the Fund as to such inspection. The Bank reserves the right, however,
to exhibit the Shareholder records to any person whenever it is advised by
its counsel that it may be held liable for the failure to exhibit the
Shareholder records to such person.
Article 7 Termination of Agreement
------------------------
7.01 This Agreement may be terminated by either party
upon sixty (60) days written notice to the other. Any such termination
shall not effect the rights and obligations of the parties under Article 5
hereof. Should the Fund exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and
material will be borne by the Fund. Additionally, the Bank reserves the
right to charge for any other reasonable expenses associated with such
termination. In the event that the Fund designates a successor to any of
the Bank's obligations hereunder, the Bank shall, at the expense and
direction of the Fund, transfer to such successor a certified list of the
Shareholders of the Fund, a complete record of the account of each
Shareholder, and all other relevant books, records and other data
established or maintained by the Bank hereunder.
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Article 8 Assignment
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8.01 Except as provided in Section 8.03 below, neither
this Agreement nor any rights or obligations hereunder may be assigned by
the Bank without the written consent of the Fund.
8.02 This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors and
assigns.
8.03 The Bank may, without further consent on the part
of the Fund, subcontract for the performance hereof with (i) Boston
Financial Data Services, Inc., a Massachusetts corporation ("BFDS") which
is duly registered as a transfer agent pursuant to Section 17A(c)(1) of
the Securities Exchange Act of 1934 ("Section 17A(c)(1)"), (ii) a BFDS
subsidiary duly registered as a transfer agent pursuant to Section
17A(c)(1), or (iii) Xxxxxxx, Xxxxx & Associates, Inc. for the performance
of certain duties in connection with the Bank's performance of this
Agreement; provided, however, that the Bank shall be as fully responsible
to the Fund for the acts and omissions of any subcontractor referred to in
(i) and (ii) above as it is for its own acts and omissions and further
provided, the Fund shall hold the Bank harmless for the acts and omissions
of Xxxxxxx Xxxxx & Associates, Inc. referred to in (iii).
Article 9 Amendment
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9.01 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 Fund.
9.02 In the event the Fund issues additional series of
shares in addition to the Shares with respect to which it desires to have
the Bank render services as transfer agent, dividend disbursing agent and
agent under the terms hereof, it shall so notify the Bank in writing, and
if the Bank agrees, in writing to provide such services, such additional
series of Shares shall become a Fund hereunder.
Article 10 Merger of Agreement
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10.01 This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect
to the subject matter hereof whether oral or written.
Article 11 Miscellaneous
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11.01 The Fund authorizes the Bank to provide Xxxxxxx,
Xxxxx & Associates, Inc. any information it provides or makes available to
the Fund in connection with this Agreement.
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11.02 The Bank agrees to treat all records and other
information relative to the Fund and its prior, present or potential
Shareholders confidentially and the Bank on behalf of itself and its
employees agrees to keep confidential all such information, except after
prior notification to and approval in writing by the Fund, which approval
shall not be unreasonably withheld and may not be withheld where the Bank
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 Fund.
Article 12 Massachusetts Law to Apply
12.01 This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws of
The Commonwealth of Massachusetts.
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/ Xxxxxxx X. Xxxxx
--------------------------------
ATTEST:
/s/ Xxxxx Xxxxxxxxx
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STATE STREET BANK AND TRUST COMPANY
By: /s/ Officer
--------------------------------
Vice President
ATTEST:
By: /s/ Officer
-------------------------
Assistant Secretary
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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 NOVEMBER 15, 1993
HERITAGE CAPITAL APPRECIATION TRUST
General - Fees are based on actual cost of services provided PLUS 10% with
a per account annual limit, plus out-of-pocket expenses. Specific charges
are listed below.
Account Charges - Heritage Asset Management will charge Heritage Capital
Appreciation Trust the actual cost of servicing accounts, not to exceed a
charge of $8.00 per account per year. The fee is billable on a monthly
basis. The billing rate shall be the lesser of actual expenses (which may
include startup costs amortized over three years) or 1/12 of the $8.00 per
account per year maximum annual fee.
Out-of-Pocket Expenses - Out-of-pocket expenses include but are not
limited to: postage, forms, telephone, microfilm, microfiche, statement
preparation and other expenses incurred at the specific direction of the
fund. Postage for mass mailings is due seven days in advance of the
mailing date.
Payment - The above fees will be due and payable five days after
notification is received at the fund's offices.
HERITAGE CAPITAL APPRECIATION TRUST HERITAGE ASSET MANAGEMENT
BY: /s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxx
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Title Treasurer President
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11/15/93 11/15/93
Date ------------------------------ -------------------------
