AMENDED AND RESTATED
HERITAGE FUNDS ACCOUNTING AND PRICING SERVICES AGREEMENT
THIS AGREEMENT is made as of the 1st day of March, 1994, as amended and
restated on October 15, 2002, by and between each of the investment companies
and investment series thereof listed on Schedule A attached hereto, as such
Schedule is amended from time to time (each a "Fund" and collectively, the
"Funds"), and Heritage Asset Management, Inc. ("Heritage"), a Florida
corporation.
WHEREAS, each Fund is organized as a business trust under the laws of the
Commonwealth of Massachusetts, is registered as an open-end management
investment company under the Investment Company Act of 1940, as amended ("1940
Act"), and is authorized to issue its shares in separate investment series; and
WHEREAS, each Fund wishes to retain Heritage to provide certain fund
accounting and pricing services to each Fund and each of its existing investment
series, together with all other investment series established in the future, and
Heritage is willing to furnish such services.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. The Funds hereby appoint Heritage to provide certain
accounting services for each Fund on the terms set forth in this Agreement.
Heritage accepts such appointment and agrees to furnish the services herein set
forth in return for the compensation as provided in Paragraph 11 of this
Agreement.
2. DELIVERY OF DOCUMENTS. Each Fund has made available to Heritage (or has
furnished Heritage with) properly certified or authenticated copies, with all
amendments and supplements thereto, of the following documents:
(a) Declaration of Trust of the Fund;
(b) By-Laws of the Fund;
(c) Resolution of the Fund's Board of Trustees appointing Heritage and
approving the form of this Agreement; and
(d) Resolutions of the Fund's Board of Trustees designating certain of
its officers to give instructions on behalf of the Fund to Heritage and
authorizing Heritage to rely upon Proper Instructions (as hereinafter defined).
3. AUTHORIZED PERSONS. Concurrently with the execution of this Agreement,
each Fund shall deliver to Heritage a certificate setting forth the names,
titles and signatures of such persons authorized to give Proper Instructions or
any other notice, request, direction, instruction, certificate or instrument on
behalf of the Fund ("Authorized Persons"). Such certificate may be accepted and
reasonably relied upon by Heritage as conclusive evidence of the facts set forth
therein and shall be considered to be in full force and effect until delivery to
Heritage of a similar certificate to the contrary. Upon delivery of a
certificate that deletes the name of a person previously authorized to give
Proper Instructions, such person shall no longer be considered an Authorized
Person.
4. PROPER INSTRUCTIONS.
--------------------
(a) Unless otherwise provided in this Agreement, Heritage shall act
only upon Proper Instructions. "Proper Instructions" shall mean: (i) a tested
telex from a Fund; (ii) other communications effected directly between
electro-mechanical or electronic devices or systems, provided that the Heritage
and the Fund agree to the use of such device or system; (iii) a written request,
direction, instruction or certificate signed or initialed on behalf of a Fund by
one or more Authorized Persons; or (iv) telephonic or other oral instructions
given by any Authorized Person that Heritage reasonably believes to have been
given by a person authorized to give such instructions. Proper Instructions may
be in the form of standing instructions.
(b) Oral instruments will be confirmed by tested telex or in writing in
the manner set forth above at the close of business on the same day that oral
instructions are given to Heritage, but the lack of such confirmation shall in
no way affect any action taken by Heritage in reasonable reliance upon such oral
instructions.
(c) Heritage may assume that any Proper Instructions received hereunder
are not in any way inconsistent with any provisions of the applicable Fund's
Declaration of Trust or By-Laws or any vote, resolution or proceeding of the
Fund's Shareholders, or of the Board of Trustees or of any committees thereof.
Heritage shall be entitled reasonably to rely upon any Proper Instructions
actually received by it pursuant to this Agreement. The sole obligation of
Heritage with respect to any follow-up or confirmatory instruction shall be to
make reasonable efforts to detect any discrepancy between said instruction and
the original Proper Instruction and to advise the applicable Fund accordingly.
5. FUND ACCOUNTING SERVICES.
-------------------------
(a) DAILY ACTIVITIES. Heritage will perform the following accounting
functions on a daily basis for each Fund:
(1) Journalize the Fund's capital share and income and expense
activities;
(2) Verify investment buy/sell trade tickets received from the
Fund's investment adviser(s) or subadviser(s) and transmit trades to the
Fund for proper settlement;
(3) Maintain individual ledgers for investment securities;
(4) Maintain historical tax lots for each security;
(5) Reconcile Share activity and outstanding Share balances with
the transfer agent;
-2-
(6) Update the cash availability throughout the day as required
by the Fund's investment adviser(s) or subadviser(s);
(7) Post to and prepare the Fund's Statement of Assets and
Liabilities and the Statement of Operations;
(8) Calculate various contractual expenses (e.g., advisory and
custody fees);
(9) Monitor the expense accruals and notify Fund management of
any proposed adjustments;
(10) Calculate capital gains and losses;
(11) Determine the Fund's net income;
(12) Obtain security market quotations from appropriately approved
independent pricing services or, if such quotes are unavailable, then
obtain such prices from the Fund's investment adviser(s) or subadviser(s),
and in either case calculate the market value of the Fund's investments;
(13) Value the assets of the Fund and compute the net asset value
per share of the Fund at such times and dates and in the manner specified
in the Fund's current prospectus;
(14) Provide a copy of the daily portfolio valuation to the Fund's
investment adviser(s) or subadviser(s); and
(15) Compute the Fund's yield, total return, expense ratio,
portfolio turnover rate and daily dividend factor and disseminate as
agreed upon by the parties hereto.
(b) MONTHLY ACTIVITIES. On the first business day following the end of
each month, each Fund shall cause its custodian to prepare and forward to
Heritage, within three business days following the end of each such month, a
monthly statement of cash and portfolio transactions, which Heritage will
reconcile with Heritage's accounts and records maintained for the Fund. Within
three business days following Heritage's receipt of the monthly statement
provided by the Fund's custodian, Heritage will provide a written report of any
discrepancies to the Fund's custodian, and will provide a written report of any
unreconciled items to the Fund.
(c) OTHER ACTIVITIES. In addition to the foregoing accounting services,
Heritage, will on behalf of each Fund and its separate investment series:
(1) Prepare quarterly broker security transactions summaries;
(2) Supply various Fund statistical data as reasonably requested
by the Fund on an ongoing basis;
-3-
(3) Assist in the preparation of support schedules necessary for
completion of the Fund's federal, state and, if applicable, excise tax
returns;
(4) Assist in preparation of the Fund's semi-annual reports with
the Securities and Exchange Commission on Form N-SAR;
(5) Assist in the preparation of the Fund's annual and
semi-annual Shareholder reports and any proxy statements;
(6) Assist in the preparation of registration statements on Form
N-1A and other filings relating to the registration of the Fund's Shares;
(7) Act as liaison with the Fund's independent certified public
accountants and provide account analyses, fiscal year summaries, and other
audit related schedules, and take all reasonable actions in the
performance of its obligations under this Agreement to assure that the
necessary information is made available to such accountants for the
expression of their opinion, as such may be required by the Fund from time
to time; and
(8) Render such other similar services as may be reasonably
requested by the Fund.
6. RECORDS. Heritage shall create and maintain all necessary books and
records in accordance with all applicable laws, rules and regulations,
including, but not limited to, records required by Section 31(a) of the 1940 Act
and the rules thereunder, as the same may be amended from time to time,
pertaining to the services performed by it and not otherwise created and
maintained by another party pursuant to contract with the Funds. Such books and
records which are in the possession of the Heritage shall be the property of the
applicable Fund. The Fund, or the Fund's authorized representatives, shall have
access to such books and records at all times during Heritage's normal business
hours. Upon the reasonable request of the Fund, copies of any such books and
records shall be provided by Heritage to the Fund or the Fund's authorized
representatives at the Fund's expense.
7. INFORMATION TO BE PROVIDED TO HERITAGE. Each Fund shall provide, and shall
require each of its agents (including, without limitation, its custodian and
distributor) to provide, to Heritage in a timely fashion all data and
information necessary for Heritage to maintain the Fund's accounts, books and
records as required by this Agreement.
8. CONFIDENTIALITY. Heritage agrees on behalf of itself and its employees to
treat confidentially and as proprietary information of the Funds all books,
records and other information relative to the Funds and the Funds' prior,
present or potential shareholders, and not to use such books, records and other
information for any purpose other than performance of the Heritage's
responsibilities and duties hereunder, except, after prior notification to and
approval by the applicable Fund, which approval shall not be unreasonably
withheld and may not be withheld where Heritage 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.
-4-
9. RIGHT TO RECEIVE ADVICE.
------------------------
(a) ADVICE OF A FUND. If Heritage shall be in doubt as to any action to
be taken or omitted by it, it may request, and shall promptly receive, from a
Fund directions or advice, including Proper Instructions where appropriate.
(b) ADVICE OF COUNSEL. If Heritage shall be in doubt as to any question
of law involved in any action to be taken or omitted by the Heritage, it may
request advice from qualified legal counsel of its own choosing, who is
acceptable to the Fund.
(c) PROTECTION OF HERITAGE. Heritage shall be protected in any action
that it takes or determines not to take in reasonable reliance on any
directions, advice or Proper Instructions received pursuant to subsections (a)
or (b) of this paragraph. However, nothing in this paragraph shall be construed
as imposing upon Heritage any obligation to seek such directions, advice or
Proper Instructions, or to act in accordance with such directions, advice or
Proper Instructions when received, unless, under the terms of another provision
of this Agreement, the same is a condition to Heritage's properly taking or
omitting to take such action. Nothing in this subsection shall excuse Heritage
when an action or omission on its part constitutes willful misfeasance, willful
misconduct, gross negligence or reckless disregard by Heritage of its duties
under this Agreement.
10. COMPLIANCE WITH APPLICABLE REQUIREMENTS. In carrying out its obligations
under this Agreement, Heritage shall at all times conform with all applicable
provisions of the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, the 1940 Act, and the Commodity Exchange Act; any other
applicable provisions of state and federal laws, rules and regulations; and the
provisions of each Fund's current prospectus, Declaration of Trust and By-Laws,
all as amended from time to time.
11. FEES AND EXPENSES.
(a) As compensation for the accounting services rendered by Heritage
during the terms of this Agreement, each Fund will pay Heritage a fee equal to
110% of Heritage's cost in complying with the terms of this Agreement including,
but not limited to, Heritage's cash disbursements, expenses and charges in
connection with the Agreement (including salaries and usual overhead expenses).
(b) Heritage will, on a timely basis, ▇▇▇▇ the Funds for any and all
amounts due it under this Agreement. The Fund will promptly pay to Heritage the
amount of such billing.
(c) Heritage in its sole discretion may from time to time employ or
associate with itself such person or persons as Heritage may believe to be
particularly suited to assist it in performing services under this Agreement.
Such person or persons may be officers and employees who are employed by both
the Fund and Heritage. The compensation of such person or persons shall be paid
by Heritage and no obligation shall be incurred on behalf of the Fund.
12. RESPONSIBILITY OF HERITAGE. Heritage shall be under no duty to take any
action on behalf of the Funds except as specifically set forth herein or as may
be specifically agreed to by Heritage in writing. Heritage shall not be liable
-5-
for any error in judgment or mistake at law for any loss suffered by a Fund in
connection with any matters to which this Agreement relates, but nothing herein
contained shall be construed to protect Heritage against any liability by reason
of willful misfeasance, willful misconduct, or gross negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations and duties under this Agreement. Without limiting the generality of
the foregoing or of any other provision of this Agreement, Heritage in
connection with its duties under this Agreement shall not be under any duty or
obligation to inquire into and shall not be liable for or in respect of:
(a) the validity or invalidity or authority or lack thereof of any
Proper Instruction, notice or other instrument which conforms to the applicable
requirements of this Agreement, and which Heritage reasonably believes to be
genuine.
(b) delays, errors or loss of data occurring by reason of circumstances
beyond Heritage's control, including, without limitation, acts of civil or
military authority, national emergencies, labor difficulties, fire, mechanical
breakdowns, flood or catastrophe, acts of God, insurrection, war, riots or
failure of the mails, transportation, communication or power supply; or
(c) the accuracy of security market quotations provided to Heritage by
independent pricing services or such other service or source designated by the
Fund's investment adviser, except when a Fund or the investment adviser has
given or caused Heritage to be given instructions to utilize a different market
value.
In addition, nothing herein shall require Heritage to perform any duties under
this Agreement on any day on which Heritage or the New York Stock Exchange, Inc.
is closed for business.
13. STANDARD OF CARE; INDEMNIFICATION.
----------------------------------
(a) STANDARD OF CARE. Heritage shall be held to a standard of
reasonable care in carrying out the provisions of this Agreement; provided,
however, that Heritage shall be held to any higher standard of care that would
be imposed upon Heritage by any applicable law, rule or regulation even though
such standard of care was not part of the Agreement.
(b) INDEMNIFICATION BY THE FUND. Each Fund agrees to indemnify and hold
harmless Heritage and its nominees from all losses, damages, costs, charges,
payments, expenses (including reasonable counsel fees), and liabilities arising
directly or indirectly from any action that Heritage takes or does or omits to
take to do (i) at the request or on the direction of or in reasonable reliance
on the written advice of the applicable Fund or (ii) upon Proper Instructions,
provided, that neither Heritage nor any of its nominees shall be indemnified
against any liability to a Fund or to its Shareholders (or any expenses incident
to such liability) arising out of Heritage's own willful misfeasance, willful
misconduct, gross negligence or reckless disregard of its duties and obligations
specifically described in this Agreement or its failure to meet the standard of
care set forth in Paragraph 14(a).
(c) INDEMNIFICATION BY HERITAGE. Heritage agrees to indemnify and hold
harmless each Fund and its nominees from all losses, damages, costs, charges,
payments, expenses (including reasonable counsel fees), and liabilities arising
-6-
out of or attributed to any action or failure or omission to act by Heritage as
a result of Heritage's own willful misfeasance, willful misconduct, gross
negligence or reckless disregard of its duties and obligations specifically
described in this Agreement.
14. INSURANCE. Heritage will at all times maintain in effect insurance
coverage, including, without limitation, Fidelity Bond and Electronic Data
coverage, at levels of coverage consistent with those customarily maintained by
other high quality investor servicing agents for registered investment companies
and with such policies as the Board of Trustees of the Funds may from time to
time adopt.
15. DURATION AND TERMINATION. This Agreement shall continue until termination
by either Heritage or any Fund on sixty days' written notice. In the event that
in connection with any such termination a successor to any of Heritage's duties
or responsibilities hereunder is designated by a Fund by written notice to
Heritage, Heritage will cooperate fully in the transfer of such duties and
obligations, including provision for assistance by Heritage's personnel in the
establishment of books, records and other data by such successor. The applicable
Fund will reimburse Heritage for all reasonable expenses incurred by Heritage in
connection with such transfer. The termination of this Agreement with respect to
a Fund will not cause the termination of this Agreement on behalf of the other
Funds that are a party hereto.
16. NOTICES. All notices and other communications, including Proper
Instructions (collectively referred to as "Notices" in this paragraph),
hereunder shall be in writing or by confirming telegram, cable, telex or
facsimile sending device. Notices to Heritage shall be addressed to Heritage at
▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. Notices to a Fund shall also be
addressed to the applicable Fund at ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇. All postage, cable, telex, or facsimile sending device charges arising
from the sending of a Notice hereunder shall be paid by the sender.
17. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
18. AMENDMENT; MODIFICATION; WAIVER. This Agreement or any part hereof may be
amended, modified or waived only by an instrument in writing signed by both
parties hereto.
19. ASSIGNMENT. Neither this Agreement nor any rights or obligations hereunder
may be assigned by either party without the written consent of the other party.
20. COUNTERPARTS. This Agreement may be executed in two counterparts, each of
which shall be deemed an original. The Agreement shall become effective when one
or two counterparts have been signed and delivered by each of the parties.
21. MISCELLANEOUS. This Agreement embodies the entire agreement and
understanding between the parties thereto, and supersedes all prior agreements
and understandings, relating to the subject matter hereof, provided that the
parties hereto may embody in one or more separate documents their agreement, if
any, with respect to Proper Instructions. The captions in this Agreement are
included for convenience of reference only and in no way define or delimit any
-7-
of the provisions hereof or otherwise affect their construction or effect. This
Agreement shall be deemed to be a contract made in Florida and governed by
Florida law. If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule regulation or otherwise, the remainder of this
Agreement shall not be affected thereby. This Agreement shall be binding and
shall inure to the benefits of the parties hereto and their respective
successors.
22. MASSACHUSETTS BUSINESS TRUST. Notice is hereby given that Heritage shall
have no right to seek to proceed against or enforce this Agreement against the
individual shareholders of any Fund or against the Trustees or officers of any
Fund. Rather, Heritage can seek to enforce this Agreement only against the
applicable Fund itself.
23. PRIVACY POLICY. Heritage acknowledges and agrees that any non-public
personal information relating to customers of the Funds may be provided to
Heritage solely for the purpose of enabling it to perform services pursuant to
this agreement and may not be re-used by Heritage for any other purpose. The
Funds have provided Heritage with a copy of the Funds' 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. Heritage 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 Funds. Heritage
represents and warrants to the Funds 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.
-8-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below on this day and year first above
written.
HERITAGE MUTUAL FUNDS
(as listed in Schedule A hereto)
By: /s/ ▇.▇. ▇▇▇▇▇
--------------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Executive Vice President and
Principal Executive Officer
HERITAGE ASSET MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
-9-
SCHEDULE A
----------
Heritage Cash Trust:
Money Market Fund
Municipal Money Market Fund
Heritage Capital Appreciation Trust
Heritage Growth and Income Trust
Heritage Income Trust:
High Yield Bond Fund
Intermediate Government Fund
Heritage Series Trust:
Aggressive Growth Fund
Growth Equity Fund
International Equity Fund
Mid Cap Stock Fund
Small Cap Stock Fund
Technology Fund
Value Equity Fund
Dated: October 15, 2002