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EXHIBIT (m)(3)
SHAREHOLDER SERVICING AGENT AGREEMENT
ABN AMRO FUNDS
CLASS S AND CLASS YS SHARES
THIS SHAREHOLDER SERVICING AGENT AGREEMENT is made as of this ____ day
of _________, 2001 (the "Agreement") by and between ABN AMRO Funds (the "Fund"),
a Delaware business trust and ABN AMRO Distribution Services (USA) Inc. (the
"Distributor"), a Delaware corporation.
WHEREAS, the Fund is an open-end investment company registered under
the Investment Company Act of 1940, as amended, currently consisting of a number
of separately managed portfolios (the "Portfolios").
WHEREAS, the Fund has adopted a Shareholder Service Plan (the "Plan")
in respect of Class S and Class YS Shares.
WHEREAS, the Fund desires to appoint the Distributor as a Shareholder
Servicing Agent under the Plan and to retain the Distributor to provide or to
compensate service providers who themselves provide, the services described
herein to clients (the "Clients") who from time to time beneficially own Class S
and Class YS Shares ("Shares") of any Portfolio of the Fund.
WHEREAS, the Distributor is willing to itself provide or to compensate
service providers for providing, such shareholder services in accordance with
the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the Distributor and the Fund hereto agree as follows:
SECTION 1. The Fund hereby appoints the Distributor as a Shareholder Servicing
Agent under the Plan and the Distributor accepts such appointment and agrees to
perform the services hereinafter set forth. The Fund may, in its sole
discretion, appoint other Shareholder Servicing Agents from time to time to
perform services pursuant to the Plan. The Distributor shall provide, or shall
enter into written agreements in the form attached hereto with service providers
pursuant to which the service providers will provide, one or more of the
following shareholder services to Clients who may from time to time beneficially
own Shares:
(i) maintaining accounts relating to Clients that invest in Shares;
(ii) providing information periodically to Clients showing their
positions in Shares;
(iii) arranging for bank wires;
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(iv) responding to Client inquiries relating to the services
performed by the Distributor or any service provider;
(v) responding to inquiries from Clients concerning their
investments in Shares;
(vi) forwarding shareholder communications from the Fund (such as
proxies, shareholder reports, annual and semi-annual statements
and dividend, distribution and tax notices) to Clients;
(vii) processing purchases, exchange and redemption requests from
Clients and placing such orders with the Fund or its service
providers;
(viii) assisting Clients in changing dividend options, account
designations, and addresses;
(ix) providing subaccounting with respect to Shares beneficially
owned by Clients;
(x) processing dividend payments from the Fund on behalf of Clients;
and
(xi) providing such other similar services as the Fund may reasonably
request to the extent that the Distributor and/or the service
provider is permitted to do so under applicable laws or
regulations.
SECTION 2. The Distributor shall provide all office space and equipment,
telephone facilities and personnel (which may be part of the space, equipment
and facilities currently used in the Distributor's business, or any personnel
employed by the Distributor) as may be reasonably necessary or beneficial in
order to fulfill its responsibilities under this Agreement.
SECTION 3. Neither the Distributor nor any of its officers, employees, or agents
is authorized to make any representations concerning the Fund or the Shares
except those contained in the Fund's current prospectus or statement of
additional information for the Shares, copies of which will be supplied to the
Distributor, or in such supplemental literature or advertising as may be
authorized in writing.
SECTION 4. For purposes of this Agreement, the Distributor and each service
provider will be deemed to be independent contractors, and will have no
authority to act as agent for the Fund in any matter or in any respect. By its
written acceptance of this Agreement, the Distributor agrees to and does
release, indemnify, and hold the Fund harmless from and against any and all
liabilities or losses resulting from requests, directions, actions, or inactions
of or by the Distributor or its officers, employees, or agents regarding the
Distributor's responsibilities under this Agreement, the provision of the
aforementioned services to Clients by the Distributor or any service provider,
or the purchase, redemption, transfer, or registration of Shares (or orders
relating to the same) by or on behalf of Clients. The Distributor and its
officers and employees
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shall, upon request, be available during normal business hours to consult with
representatives of the Fund or its designees concerning the performance of the
Distributor's responsibilities under this Agreement.
The Fund agrees to indemnify and hold the Distributor harmless from and against
any and all claims, costs, expenses (including reasonable attorneys' fees),
losses, damages, charges, payments and liabilities of any sort or kind which may
be asserted against the Distributor or for which the Distributor may be held to
be liable in connection with any action required to be taken pursuant to this
Agreement (a "Claim"), unless such Claim resulted from willful misfeasance, bad
faith or negligence by the Distributor in the performance of its duties
hereunder or reckless disregard thereof; reliance on information furnished to
the Fund by the Distributor or its affiliates; or the Distributor's refusal or
failure to comply with the terms or conditions of this Agreement.
The Distributor shall at all times act in good faith and agrees to use its best
efforts within commercially reasonable limits to ensure the accuracy of all
services performed under this Agreement. The Distributor shall not be liable to
the Fund for any error of judgment or mistake of law or for any loss suffered by
the Fund in connection with the performance of its obligations and duties under
this Agreement, except a loss resulting from the Distributor's willful
misfeasance, bad faith or negligence in the performance of such obligations and
duties, or by reason of its reckless disregard thereof; reliance on information
furnished to the Fund by the Distributor or its affiliates; or the Distributor's
refusal or failure to comply with the terms and conditions of this Agreement.
The Fund shall not be liable to the Distributor for any error of judgment or
mistake of law or for any loss suffered by the Distributor, except a loss
resulting from the Fund's willful misfeasance, bad faith or negligence in the
performance of its duties and obligations hereunder, or by reason of its
reckless disregard thereof.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL
EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, TRUSTEES,
OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR LOST PROFITS,
EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
SECTION 5. In consideration of the services and facilities to be provided by the
Distributor or any service provider, each Portfolio that has issued Class S and
Class YS Shares shall pay to the Distributor a fee, as agreed from time to time,
at an annual rate of up to .25% (twenty-five basis points) of the average net
asset value of all Class S and Class YS Shares of each Portfolio, which fee
shall be computed daily and paid monthly. The Fund may, in its discretion and
without notice, suspend or withdraw the sale of Class S and Class YS Shares of
any Portfolio, including the sale of Class S and Class YS Shares to any service
provider for the account of any Client or Clients. The Distributor may waive all
or any portion of its fee from time to time.
SECTION 6. The Fund may enter into other similar servicing agreements with any
other person or persons and may appoint any other person or persons as a
Shareholder Servicing Agent under the Plan without the Distributor's consent.
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SECTION 7. By its written acceptance of this Agreement, the Distributor
represents, warrants, and agrees that the services provided by the Distributor
under this Agreement shall in no event be primarily intended to result in the
sale of Shares.
SECTION 8. This Agreement shall become effective on the date a fully executed
copy of this Agreement is received by the Fund or its designee and shall
continue until terminated by either party. This Agreement is terminable with
respect to the Class S and Class YS Shares of any Portfolio, without penalty, at
any time by the Fund or by the Distributor upon written notice to the Fund.
SECTION 9. All notices and other communications to either the Fund or to the
Distributor shall be duly given if mailed, telegraphed, telefaxed, or
transmitted by similar communications device to the appropriate address stated
herein, or to such other address as either party shall so provide the other.
SECTION 10. This Agreement will be construed in accordance with the laws of the
State of Delaware and may not be "assigned" by either party thereto as that term
is defined in the Investment Company Act of 1940.
SECTION 11. References to the "ABN AMRO Funds" the "Fund," and the "Trustees" of
the Fund refer respectively to the Trust created and the Trustees as trustees,
but not individually or personally, acting from time to time under the
Declaration of Trust of the Fund dated September 8, 1993, a copy of which is on
file at the Fund's principal office. The obligations of the Fund entered into in
the name or on behalf thereof by any of the Trustees, officers, representatives,
or agents are made not individually, but in such capacities, and are not binding
upon any of the Trustees, shareholders, officers, representatives, or agents of
the Fund personally. Further, any obligations of the Fund with respect to any
one Portfolio shall not be binding upon any other Portfolio.
SECTION 12. Any claim or controversy arising out of or relating to this
Agreement, or breach hereof, shall be settled by arbitration administered by the
American Arbitration Association in New York, New York in accordance with its
applicable rules, except that the Federal Rules of Evidence and the Federal
Rules of Civil Procedure with respect to the discovery process shall apply. The
parties hereby agree that judgment upon the award rendered by the arbitrator may
be entered in any court having jurisdiction.
The parties acknowledge and agree that the performance of the obligations under
this Agreement necessitates the use of instrumentalities of interstate commerce
and, notwithstanding other general choice of law provisions in this Agreement,
the parties agree that the Federal Arbitration Act shall govern and control with
respect to the provisions of this Article.
SECTION 13. No change, termination, modification or waiver of any term or
condition of this Agreement shall be valid unless in writing signed by each
party. A party's waiver of a breach of any term or condition in the Agreement
shall not be deemed a waiver of any subsequent breach of the same or another
term or condition.
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SECTION 14. The parties intend every provision of this Agreement to be
severable. If a court of competent jurisdiction determines that any term or
provision is illegal or invalid for any reason, the illegality or invalidity
shall not affect the validity of the remainder of this Agreement. In such case,
the parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties. Without limiting the generality of this
paragraph, if a court determines that any remedy stated in this Agreement has
failed of its essential purpose, then all other provisions of this Agreement,
including the limitations on liability shall remain fully effective.
SECTION 15. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original and which collectively shall be
deemed to constitute only one instrument.
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SECTION 16. This Agreement constitutes the entire Agreement between the parties
with respect to the subject matter hereof and supersedes all prior and
contemporaneous proposals, agreements, contracts, representations, and
understandings, whether written or oral, between the parties with respect to the
subject matter hereof.
By their signatures, the Fund and the Distributor agree to the terms of this
Agreement.
ABN AMRO FUNDS
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ABN AMRO DISTRIBUTION SERVICES (USA) INC.
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