DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT, made this 22nd day of November,
1985, by and between Heritage Cash Trust, a Massachusetts business trust
(the "Trust") and Xxxxxxx, Xxxxx & Associates, Inc. ("Xxxxxxx, Xxxxx").
WHEREAS, the Trust is registered as an open-end, diversified
investment company under the Investment Company Act of 1940 (the "1940
Act") and has registered its shares of beneficial interest (the "Shares")
for sale to the public under the Securities Act of 1933 (the "1933 Act")
and various state securities laws; and
WHEREAS, the Trust wishes to retain Xxxxxxx, Xxxxx as the Trust's
Distributor in connection with the offering and sale of the Shares and to
furnish certain other services to the Trust as specified in this
Agreement; and
WHEREAS, this Agreement has been approved by a vote of the
Trust's Board of Trustees and certain disinterested Trustees in conformity
with Paragraph (b)(2) of Rule 12b-1 under the 1940 Act; and
WHEREAS, Xxxxxxx, Xxxxx is willing to act as Distributor and to
furnish such services on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as
follows:
1. The Trust hereby appoints Xxxxxxx, Xxxxx as Distributor in
connection with the offering and sale of the Shares. The Trust authorizes
Raymond, James, as exclusive agent for the Trust, subject to applicable
federal and state law and the Declaration of Trust, Bylaws and current
Prospectus and Statement of Additional Information of the Trust: (a) to
promote the Trust; (b) to solicit orders for the purchase of the Shares
subject to such terms and conditions as the Trust may specify; and (c) to
accept orders for the purchase of the Shares on behalf of the Trust.
Xxxxxxx, Xxxxx shall offer the Shares on an agency or "best efforts" basis
under which the Trust shall only issue such Shares as are actually sold.
2. The public offering price of the Shares shall be the net
asset value per share (as determined by the Trust) of the outstanding
Shares of the Trust. The net asset value of the Trust shall be calculated
by the amortized cost method pursuant to Rule 2a-7 under the 1940 Act for
so long as the Trust shall meet the conditions of that rule. The Trust
shall make available to Xxxxxxx, Xxxxx a statement of each computation of
net asset value and of the details entering into such computation.
3. As compensation for the services performed and the expenses
assumed by Xxxxxxx, Xxxxx under this Agreement including, but not limited
to, any commissions paid for sales of Shares, the Trust shall pay Raymond,
James, as promptly as possible after the last day of each month, a fee,
accrued daily, of .15% per annum of the Trust's average daily net assets.
The first payment of the fee shall be made as promptly as possible at the
end of the month next succeeding the effective date of this Agreement and
shall constitute a full payment of the fee due Xxxxxxx, Xxxxx for all
services prior to that date. If this Agreement is terminated as of any
date not the last day of a month, such fee shall be paid as promptly as
possible after such date of termination, shall be based on the average
daily net assets of the Trust in that period from the beginning of such
month to such date of termination, and shall be that proportion of such
average daily net assets as the number of days in such period bears to the
number of days in such month. Each such payment shall be accompanied by a
report of the Trust prepared either by the Trust or by State Street Bank
and Trust Company that shall show the amount properly payable to Xxxxxxx,
Xxxxx under this Agreement and the detailed computation thereof.
4. As used in this Agreement, the term "Registration Statement"
shall mean the Registration Statement most recently filed by the Trust
with the Securities and Exchange Commission and effective under the 1933
Act, as such Registration Statement is amended by any amendments thereto
at the time in effect, and the terms "Prospectus" and "Statement of
Additional Information" shall mean the current form of Prospectus and
Statement of Additional Information filed by the Trust as part of the
Registration Statement.
5. Xxxxxxx, Xxxxx shall finance activity which is intended to
result in the sale and retention of Trust shares including, but not
limited to, advertising, salaries and other expenses of the Distributor
relating to selling or servicing efforts, expenses of organizing and
conducting sales seminars, printing of Prospectuses, Statements of
Additional Information and reports for other than existing shareholders,
preparation and distribution of advertising material and sales literature
and payments to dealers whose customers purchase Trust shares. In
connection with such sales and offers of sale, the Trust shall not be
responsible in any way for any other information, statements or
representations given or made by Xxxxxxx, Xxxxx or its representatives or
agents, except such statements or representations as are contained in the
Prospectus, Statement of Additional Information or in information
furnished in writing to Xxxxxxx, Xxxxx by the Trust. Except as
specifically provided in this Agreement, the Trust shall bear none of the
expenses of Xxxxxxx, Xxxxx in connection with its offer and sale of the
Shares.
6. The Trust agrees, at its own expense, to register the Shares
with the Securities and Exchange Commission, state and other regulatory
bodies, and to prepare and file from time to time such Prospectuses,
amendments, reports and other documents as may be necessary to maintain
the Registration Statement. The Trust shall bear all expenses related to
preparing and typesetting such Prospectuses and other materials required
by law and such other expenses, including printing and mailing expenses,
related to the Trust's communications with persons who are shareholders of
the Trust.
7. The Trust agrees to indemnify, defend and hold harmless
Raymond, James, its several officers and directors, and any person who
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controls Xxxxxxx, Xxxxx within the meaning of Section 15 of the 1933 Act
from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) which
Raymond, James, its officers or Trustees, or any such controlling person
may incur under the 1933 Act or under common law or otherwise arising out
of or based upon any alleged untrue statement of a material fact contained
in the Registration Statement, Prospectus or Statement of Additional
Information or arising out of or based upon any alleged omission to state
a material fact required to be stated in either thereof or necessary to
make the statements in either thereof not misleading, provided that in no
event shall anything contained in this Agreement be construed so as to
protect Xxxxxxx, Xxxxx against any liability to the Trust or its
shareholders to which Xxxxxxx, Xxxxx would otherwise be subject by reason
of willful misfeasance, bad faith, or gross negligence in the performance
of its duties, or by reason of its reckless disregard of its obligations
and duties under this Agreement.
8. Xxxxxxx, Xxxxx agrees to indemnify, defend and hold harmless
the Trust, its several officers and directors, and any person who controls
the Trust within the meaning of Section 15 of the 1933 Act from and
against any and all claims, demands, liabilities and expenses (including
the cost of investigating or defending such claims, demands or liabilities
and any counsel fees incurred in connection therewith) which the Trust,
its officers or Trustees, or any such controlling person may incur under
the 1933 Act or under common law or otherwise arising out of or based upon
any alleged untrue statement of a material fact contained in information
furnished in writing by Xxxxxxx, Xxxxx to the Trust for use in the
Registration Statement, Prospectus or Statement of Additional Information
or arising out of or based upon any alleged omission to state a material
fact in connection with such information required to be stated in the
Registration Statement or Prospectus or necessary to make such information
not misleading.
9. The Trust reserves the right at any time to withdraw all
offerings of the Shares by written notice to the Distributor at its
principal office.
10. The Trust shall not issue certificates representing Shares.
11. Xxxxxxx, Xxxxx at its sole discretion may repurchase Shares
offered for sale by the shareholders. Repurchase of Shares by Xxxxxxx,
Xxxxx shall be at the net asset value next determined after a repurchase
order has been received. Xxxxxxx, Xxxxx will receive no commission or
other remuneration for repurchasing Shares other than the fee set forth in
paragraph 3 hereof. On each business day, Xxxxxxx, Xxxxx shall notify by
telex or in writing the Trust and State Street Bank and Trust Company, the
Trust's transfer agent, of the orders for repurchase of shares received by
Xxxxxxx, Xxxxx since the last such report, the amount to be paid for such
Shares, and the identity of the shareholders offering Shares for
repurchase. Upon such notice, the Trust shall pay Xxxxxxx, Xxxxx such
amounts as are required by Xxxxxxx, Xxxxx for the repurchase of such
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Shares in cash or in the form of a credit against moneys due the Trust
from Xxxxxxx, Xxxxx as proceeds from the sale of Shares. The Trust
reserves the right to suspend such repurchases upon written notice to
Xxxxxxx, Xxxxx. Xxxxxxx, Xxxxx further agrees to act as agent for the
Trust to receive and transmit promptly to the Trust's transfer agent
shareholder requests for redemption of Shares.
12. Xxxxxxx, Xxxxx is an independent contractor and shall be an
agent for the Trust only with respect to the sale and repurchase of the
Shares.
13. The services of Xxxxxxx, Xxxxx to the Trust under this
Agreement are not to be deemed exclusive, and the Distributor shall be
free to render similar services or other services to others so long as its
services hereunder are not impaired thereby.
14. Xxxxxxx, Xxxxx shall prepare reports for the Board of
Trustees of the Trust upon request showing information concerning
expenditures related to this Agreement.
15. As used in this Agreement, the term "net asset value" shall
have the meanings ascribed to it in the Trust's Declaration of Trust; and
the terms "assignment," "interested person," and "majority of the
outstanding voting securities" shall have the meanings given to them by
Section 2(a) of the 1940 Act, subject to such exemptions as may be granted
by the Securities and Exchange Commission by any rule, regulation or
order.
16. Subject to the provisions of paragraphs 17 and 18 below,
this Agreement will remain in effect for one year from the date of its
execution and from year to year thereafter, provided that Xxxxxxx, Xxxxx
does not notify the Trust in writing at least 60 days' prior to the
expiration date in any year that it does not wish continuance of the
Agreement for an additional year.
17. This Agreement shall automatically terminate in the event of
its assignment and may be terminated at any time without the payment of
any penalty by the Trust or by the Distributor on 60 days written notice
to the other party. The Trust may effect such termination by a vote of
(i) a majority of the Trust's Board of Trustees, (ii) a majority of the
Trustees who are not interested persons of the Trust and who have no
direct or indirect financial interest in the operation of the Trust's
Distribution Plan pursuant to Rule 12b-1 under the 1940 Act in this
Agreement or in any agreement related to the Trust's Distribution Plan
(the "Rule 12b-1 Directors"), or (iii) a majority of the outstanding
voting securities of the Trust.
18. This Agreement shall be submitted for approval to the Board
of Trustees of the Trust annually and shall continue in effect only so
long as specifically approved annually (i) by a majority vote of the
Trust's Board of Trustees, and (ii) by the vote of a majority of the Rule
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12b-1 Trustees of the Trust, cast in person at a meeting called for the
purpose of voting on such approval.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their officers thereunto duly authorized.
Dated: November 22, 1985
Attest: HERITAGE CASH TRUST
By: /s/ Xxxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxx
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Attest: XXXXXXX, XXXXX & ASSOCIATES, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
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