EX-99.h.5.
SERVICING AGREEMENT
ABERDEEN FUNDS
Agreement, made as of this __________ day of ______________, 200__ between
Aberdeen Funds (the "Trust") and_____________________, whereby you agree to
provide certain administrative support services to your customers who may from
time to time be the record or beneficial owners of shares (such shares referred
to herein as the "Shares") of the funds listed in Exhibit A (each a "Fund")
subject to the following terms and conditions:
1. Administrative Support Services
You agree to provide administrative support services, directly or through an
affiliate/designee, to your customers who may from time to time own of record or
beneficially a Fund's Shares. Services provided may include, but are not limited
to, some or all of the following: (i) processing dividend and distribution
payments from the Fund on behalf of customers; (ii) providing periodic
statements to your customers showing their positions in the Shares or share
equivalents; (iii) arranging for bank wires; (iv) responding to routine customer
inquiries relating to services performed by you; (v) providing sub-accounting
with respect to the Shares beneficially owned by your customers or the
information necessary for sub-accounting; (vi) if required by law, forwarding
shareholder communications from the Fund (such as proxies, shareholder reports,
annual and semi-annual financial statements and dividend, distribution and tax
notices) to your customers; (vii) forwarding to customers proxy statements and
proxies containing any proposals regarding this Agreement or the Administrative
Services Plan related hereto; (viii) aggregating and processing purchase,
exchange, and redemption requests from customers and placing net purchase,
exchange, and redemption orders for your customers; (ix) providing customers
with a service that invests the assets of their accounts in the Shares pursuant
to specific or preauthorized instructions; (x) establishing and maintaining
customer accounts and records related to transactions in the Shares (xi)
assisting customers in changing dividend or distribution options, account
designations and addresses; or (xii) other similar services if requested by the
Funds.
In providing administrative support services, you agree to follow any written
guidelines or standards relating to the processing of purchase, exchange and
redemption orders for your customers as we may provide to you from time to time.
All purchase and redemption orders will be executed at net asset value in
accordance with the terms and condition of a Fund's then current prospectus and
Statement of Additional Information.
You and your employees will, upon reasonable request, be available during normal
business hours to consult with the Funds or their designees concerning the
performance of your responsibilities under this Agreement.
2. Office Space
You will provide such office space and equipment, telephone facilities and
personnel (which may be any part of the space, equipment and facilities
currently used in your business, or any personnel employed by you) as may be
reasonably necessary or beneficial in order to provide the aforementioned
services to customers.
3. Representations
Neither you nor any of your officers, employees or agents are authorized to make
any representations concerning the Funds or their Shares except those contained
in our then-current prospectuses or then-current Statements of Additional
Information for such shares, copies of which will be supplied by the Fund's
distributor, to you, or in such supplemental literature or advertising as may be
authorized by the Funds in writing.
4. Independent Contractor
For all purposes of this Agreement you will be deemed to be an independent
contractor, and will have no authority to act as limited agent for the Fund in
any matter or in any respect except that if you transmit purchase and sale
instructions to the Funds or its agent after the close of the New York Stock
Exchange, then you will be considered the Fund's agent for purposes of Rule
22c-1 under the Investment Company Act of 1940.
5. Indemnification
By your written acceptance of this Agreement, you agree to and do release,
indemnify and hold the Trust and the Funds harmless from and against any and all
direct or indirect liabilities or losses resulting from requests, directions,
actions or inactions of or by you or your officers, employees or agents
regarding your responsibilities hereunder or the purchase, redemption, transfer
or registration of the Shares by or on behalf of customers.
In turn, we agree to and do release, indemnify and hold you harmless from and
against any and all direct or indirect liabilities or losses resulting from
directions, actions or inactions of or by us or our officers, employees or
agents regarding our responsibilities pursuant to this Agreement.
6. Compensation
In consideration for the services and facilities provided by you hereunder, the
Funds will pay to you, and you will accept as full payment therefore, a fee at
the annual rate designated in Exhibit A of the average daily net assets of a
Fund's Shares owned of record or beneficially by your customers from time to
time for which you provide services hereunder, which fee will be computed daily
and payable monthly. The fee rate stated above may be prospectively increased or
decreased by the Fund and the investment adviser, in their sole discretion, at
any time upon notice to you. Further, the Fund may, in its discretion and
without notice, suspend or withdraw the sale of such Shares, including the sale
of such Shares to you for the account of any customer(s).
7. Quarterly Reports
Any person authorized to direct the disposition of monies paid or payable by the
Funds pursuant to this Agreement will provide to the Board of Trustees of
Aberdeen Funds, (the "Trust") and the Trustees will review, at least quarterly,
a written report of the amounts so expended and the entities to whom such
expenditures were made. In addition, you will furnish the Funds or their
designees with such information as the Funds or their designees may reasonably
request (including, without limitation, periodic certifications confirming the
provision to customers of some or all of the services described herein), and
will otherwise cooperate with the Funds and their designees (including, without
limitation, any auditors designated by the Fund), in connection with the
preparation of reports to the Trust's Board of Trustees concerning this
Agreement and the monies paid or payable by the Funds pursuant hereto, as well
as any other reports or filings that may be required by law.
8. Non-Exclusivity
Both parties may enter into other similar Servicing Agreements with any other
person or persons without the other's consent.
9. Representations
By your written acceptance of this Agreement, you represent, warrant and agree
that: (i) in no event will any of the services provided by you hereunder be
primarily intended to result in the sale of any shares issued by the Fund; (ii)
the compensation payable to you hereunder, together with any other compensation
you receive from customers for services contemplated by this Agreement, will to
the extent required be disclosed to your customers, and will not be excessive or
unreasonable under the laws and instruments governing your relationships with
your customers; and (iii) if you are subject to laws governing, among other
things, the conduct of activities by federally chartered and supervised banks
and other affiliated banking organizations, you will perform only those
activities which are consistent with your statutory and regulatory obligations.
10. Termination
This Agreement will become effective on the date a fully executed copy of this
Agreement is received by the Funds or their designee. This Agreement may be
terminated at any time, without the payment of any penalty with respect to the
Funds by the vote of a majority of the members of the Board of Trustees and who
have no direct or indirect financial interest in the operation of the
Administrative Servicing Plan or in any related agreements to the Administrative
Servicing Plan ("Disinterested Trustees") or by a majority of the outstanding
voting securities of the Fund on at least sixty (60) days written notice to the
parties to this Agreement, or upon material breach of this Agreement or by
either party on at least ninety (90) days written notice to the other party.
In the event this Agreement is terminated under the Terms and Conditions
described in such Agreement, the indemnification provision contained in the
Agreement shall continue until the possibilities for damages or loss have
expired.
11. Notices
All notices and other communications to either you, us or the Funds will be duly
given if mailed, telegraphed, telexed or transmitted by similar
telecommunications device to the address contained in the "Acceptance of
Agreement" (Section 18) portion of this Agreement.
12. Choice of Law
This Agreement will be construed in accordance with the laws of the State of
Delaware and is assignable upon written consent by all the parties hereto.
Amendments will be made only upon written consent by both parties and subject to
the approval of the Board of Trustees of the Trust when applicable.
13. Board of Approval
This Agreement, or form thereof, has been approved by vote of a majority of (i)
the Board of Trustees and (ii) the Disinterested Trustees, cast in person at a
meeting called for the purpose of voting on such approval.
14. Trust Disclosure
The Trust is a statutory trust organized under the Delaware Statutory Trust Act
(12 Del. C.ss.3801 et seq) and under a Certificate of Trust, to which reference
is hereby made and a copy of which is on file at the office of the Secretary of
State of Delaware as required by law, and to any and all amendments thereto so
filed or hereafter filed. Pursuant to Section 3804 of the Delaware Statutory
Trust Act, the debts, liabilities, obligations, costs, charges, reserves and
expenses incurred, contracted for or otherwise existing with respect to a
particular Fund, whether such Fund is now authorized and existing pursuant to
the governing instrument of the Trust or is hereafter authorized and existing
pursuant to said governing instrument, shall be enforceable against the assets
associated with such Fund only, and not against the assets of the Trust
generally or any other Fund thereof, and, except as otherwise provided in the
governing instrument of the Trust, none of the debts, liabilities, obligations,
costs, charges, reserves and expenses incurred, contracted for or otherwise
existing with respect to the Trust generally or any other Fund thereof shall be
enforceable against the assets of such Fund.
The obligation of the Trust and the Funds hereunder are not personally binding
upon nor shall resort be had to the private property of any of the trustees,
shareholders, officers, employees or agents of the Trust but only the Trust's
property allocable to the particular share class shall be bound.
15. Complete Agreement
This Agreement constitutes the entire agreement of the parties hereto with
respect to the matters covered by this Agreement. This Agreement supersedes any
and all prior understandings, written or oral, between the parties and may be
amended at any time and from time to time by written agreement of the parties
hereto subject to the approval of the Board of Trustees of the Trust, when
applicable. Notwithstanding the foregoing, the Trust may amend or modify the
Exhibits incorporated herein, as provided throughout this Agreement, by
providing new exhibits to you. However, such amendment shall only become
effective and part of this Agreement and be considered binding upon the first
transaction by you under the new exhibits.
16. Privacy Program
Each party of this Agreement agrees to protect Customer Information (defined
below) and to comply as may be necessary with requirements of the
Xxxxx-Xxxxx-Xxxxxx Act, the relevant state and federal regulations pursuant
thereto, including Regulation S-P, and state privacy laws (all the foregoing
referred to as "Privacy Law").
Customer Information means any information contained on an application of a
customer ("Customer") of the Funds or other form and all nonpublic personal
information about a Customer that a party receives from the other party.
Customer Information includes, by way of example and not limitation, name,
address, telephone number, social security number, date of birth and personal
financial information.
The parties shall establish and maintain safeguards against the unauthorized
access, destruction, loss or alteration of Customer Information in their
control, which are no less rigorous than those maintained by a party for its own
information of a similar nature. In the event of any improper disclosure of any
Customer Information, the party responsible for the disclosure will immediately
notify the other party.
The provisions of this Privacy Program shall survive the termination of the
Agreement.
17. Anti-Money Laundering Program
We will rely upon you to establish a written Anti-Money Laundering Program (the
"Program") to include policies, procedures, and controls that comply with the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act (USA Patriot Act) of 0000, ("xxx XXX") and
the Bank Secrecy Act of 1970 ("BSA"). Each party to this Agreement acknowledges,
represents, and warrants that each party has adopted and implemented an
Anti-Money Laundering Program that complies and will continue to comply with all
aspects and requirements of the ACT, the BSA, and all other applicable
anti-money laundering laws and regulations.
Upon request, you shall promptly certify to having such Program that complies
with and continues to comply with all aspects and requirements of the ACT, the
BSA, and all other applicable federal, state and local anti-money laundering
laws and regulations.
Your Program shall include, and the Trust's distributor shall rely upon, your
policies, procedures and controls to, among other things, (i) verify the
identity (due diligence) of your customers, (ii) maintain records of the
information used to identify your customer, (iii) determine if your customer
appears on lists of known or suspected terrorists or associated with known or
terrorists organizations (said customer hereinafter referred to as a "Prohibited
Customer"), and (iv) to ensure that that Prohibited Customers and foreign shell
banks do not maintain investments in any Fund.
Your Program shall also comply with the Customer Identification Program ("CIP")
for customers who open accounts on or after October 1, 2003, and as such, shall
among other matters provide for the release of customer information to law
enforcement agencies, and the filing of Suspicious Activity Reports ("SARs"), as
and if applicable, and in accordance with the ACT. In addition, your Program
also shall include procedures for fulfilling the currency reporting requirements
of the ACT and the BSA, as and if applicable.
The provisions of this Anti-Money Laundering section shall survive the
termination of the Agreement.
18. Acceptance of Agreement
If you agree to be legally bound by the provisions of this Agreement, please
sign a copy of this Agreement here indicated below and promptly return it to the
Fund's designee, Aberdeen Fund Distributors LLC ("Distributor"), to the address
below:
Aberdeen Fund Distributors LLC
Attention:___________________
_____________________________
_____________________________
This Agreement will become effective on the date a fully executed copy of this
Agreement is received by our designee.
Accepted by:
____________________________
Name:
Title:
Aberdeen Funds
Date: _________________________
Accepted and Agreed to:
By: _________________________
Name: _________________________
Title: _________________________
Company: _________________________
Date: _________________________
Exhibit A
Aberdeen Select Equity Fund
Aberdeen Select Mid Cap Growth Fund
Aberdeen Select Small Cap Fund
Aberdeen Select Growth Fund
Aberdeen Select Worldwide Fund
Aberdeen China Opportunities Fund
Aberdeen Developing Markets Fund
Aberdeen International Equity Fund
Aberdeen Hedged Core Equity Fund
Aberdeen Market Neutral Fund
Aberdeen Equity Long-Short Fund
Aberdeen Global Financial Services Fund
Aberdeen Health Sciences Fund
Aberdeen Natural Resources Fund
Aberdeen Technology and Communications Fund
Aberdeen Global Utilities Fund
Aberdeen Optimal Allocations Fund: Growth
Aberdeen Optimal Allocations Fund: Moderate Growth
Aberdeen Optimal Allocations Fund: Moderate
Aberdeen Optimal Allocations Fund: Defensive
Aberdeen Optimal Allocations Fund: Specialty
Aberdeen Small Cap Fund
Aberdeen Small Cap Opportunities Fund
Aberdeen Small Cap Growth Fund
Aberdeen Small Cap Value Fund
Aberdeen Tax-Free Income Fund
o Administrative Servicing Fees
The servicing fee shall be ____%
Acknowledgement: Dealer:
Aberdeen Funds
_______________________
c/o____________________[Distributor]
_______________________
_______________________
x _______________________________ x _______________________________
By: By:
