Exhibit (h)(4)
PROSPECT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this __ day of _______,
2004, by and between The Tocqueville Trust, a Massachusetts business trust,
The Tocqueville Alexis Trust, a Delaware statutory trust, (together, the
"Tocqueville Funds"), Tocqueville Asset Management, L.P., a Delaware
corporation (the "Adviser"), and U.S. Bancorp Fund Services, LLC, a Wisconsin
limited liability company ("USBFS").
WHEREAS, the Tocqueville Funds engage in business as open-end
management investment companies and are so registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), with each such series of the
Tocqueville Funds representing interests in a separate portfolio of securities
and other assets;
WHEREAS, the Adviser is duly registered under the Investment Advisers
Act of 1940, as amended, and any applicable state securities laws, as an
investment adviser;
WHEREAS, the Adviser serves as investment adviser to each series of
the Tocqueville Funds;
WHEREAS, USBFS is, among other things, in the business of providing
fulfillment services to mutual funds; and
WHEREAS, the Tocqueville Funds and the Adviser desire to retain USBFS
to provide fulfillment services for each series of the Tocqueville Funds
listed on Exhibit A hereto (as amended from time to time) (each a "Fund").
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally
bound, do hereby agree as follows:
1. Appointment of USBFS to Provide Fulfillment Services
The Tocqueville Funds and the Adviser hereby appoint USBFS to provide
fulfillment services to the Tocqueville Funds on the terms and
conditions set forth in this Agreement, and USBFS hereby accepts such
appointment and agrees to perform the services and duties set forth
in this Agreement.
2. Duties and Responsibilities of USBFS
USBFS shall provide the following fulfillment services for the
Tocqueville Funds, including but not limited to:
A. Answer all prospective shareholder calls concerning each
Fund.
B. Send all available Fund material requested by a prospect
within 24 hours from time of call.
C. Receive and update all Fund fulfillment literature so that
the most current information is sent and quoted.
D. Provide 24 hour answering service to record prospect calls
made after hours (7 p.m. to 8 a.m. Central Time).
E. Maintain and store Fund fulfillment inventory.
F. Send periodic fulfillment reports to the Tocqueville Funds
as agreed upon between the parties.
3. Duties and Responsibilities of the Tocqueville Funds
The Tocqueville Funds shall:
A. Provide Fund fulfillment literature updates to USBFS as
necessary.
B. File with the National Association of Securities Dealers,
Inc., the Securities and Exchange Commission (the "SEC") and
state regulatory agencies, as appropriate, all fulfillment
literature that the Tocqueville Funds request USBFS send to
prospective shareholders.
C. Supply USBFS with sufficient inventory of fulfillment
materials as requested from time to time by USBFS.
D. Provide USBFS with any sundry information about the
Tocqueville Funds in order to answer prospect questions.
4. Compensation
USBFS shall be compensated for providing the services set forth in
this Agreement in accordance with the fee schedule set forth on
Exhibit B hereto (as amended from time to time). The Tocqueville
Funds shall pay all fees and reimbursable expenses within thirty (30)
calendar days following receipt of the billing notice, except for any
fee or expense subject to a good faith dispute. The Tocqueville Funds
shall notify USBFS in writing within thirty (30) calendar days
following receipt of each invoice if the Tocqueville Funds are
disputing any amounts in good faith. The Tocqueville Funds shall
settle such disputed amounts within ten (10) calendar days of the day
on which the parties agree to the amount to be paid. With the
exception of any fee or expense the Tocqueville Funds are disputing
in good faith as set forth above, unpaid invoices shall accrue a
finance charge of one and one-half percent (1 1/2%) per month, after
the due date. To the extent such fees are not payable by the
Tocqueville Funds, the Adviser shall be responsible for paying the
remaining amount of fees to USBFS.
5. Indemnification; Limitation of Liability
The Tocqueville Funds agree to indemnify USBFS from any liability
arising out of the distribution of fulfillment literature that has
not been filed with the appropriate federal and state regulatory
agencies. USBFS agrees to indemnify the Tocqueville Funds from any
liability arising from the improper use of fulfillment literature
during the performance of its duties and responsibilities identified
in this Agreement. USBFS will be liable for bad faith, negligence or
willful misconduct on its part in its duties under this Agreement.
6. Proprietary and Confidential Information
USBFS agrees on behalf of itself and its directors, officers, and
employees to treat confidentially and as proprietary information of
the Tocqueville Funds all records and other information relative to
the Tocqueville Funds and prior, present, or potential shareholders
of the Tocqueville Funds (and clients of said shareholders), and not
to use such records and information for any purpose other than the
performance of its responsibilities and duties hereunder, except
after prior notification to and approval in writing by the
Tocqueville Funds, which approval shall not be unreasonably withheld
and may not be withheld where USBFS 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 Tocqueville Funds.
Further, USBFS will adhere to the privacy policies adopted by the
Tocqueville Funds pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act,
as may be modified from time to time (the "Act"). Notwithstanding the
foregoing, USBFS will not share any nonpublic personal information
concerning any of the Tocqueville Funds' shareholders to any third
party unless specifically directed by the Tocqueville Funds or
allowed under one of the exceptions noted under the Act.
7. Term of Agreement; Amendment
This Agreement shall become effective as of the date first written
above and will continue in effect for a period of one year.
Subsequent to the initial one year term, this Agreement may be
terminated by any party upon giving ninety (90) days prior written
notice to the other parties or such shorter period as is mutually
agreed upon by the parties. However, this Agreement may be amended by
mutual written consent of the parties.
8. Governing Law
This Agreement shall be construed in accordance with the laws of the
State of Wisconsin, without regard to conflicts of law principles. To
the extent that the applicable laws of the State of Wisconsin, or any
of the provisions herein, conflict with the applicable provisions of
the 1940 Act, the latter shall control, and nothing herein shall be
construed in a manner inconsistent with the 1940 Act or any rule or
order of the SEC thereunder.
9. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any
of USBFS' duties or responsibilities hereunder is designated by the
Tocqueville Funds by written notice to USBFS, USBFS will promptly,
upon such termination and at the expense of the Tocqueville Funds,
transfer to such successor all relevant books, records,
correspondence and other data established or maintained by USBFS
under this Agreement in a form reasonably acceptable to the
Tocqueville Funds (if such form differs from the form in which USBFS
has maintained the same, the Tocqueville Funds shall pay any expenses
associated with transferring the same to such form), and will
cooperate in the transfer of such duties and responsibilities,
including provision for assistance from USBFS' personnel in the
establishment of books, records and other data by such successor.
10. No Agency Relationship
Nothing herein contained shall be deemed to authorize or empower
USBFS to act as agent for any other party to this Agreement, or to
conduct business in the name, or for the account, of any other party
to this Agreement.
11. Data Necessary to Perform Services
The Tocqueville Funds or its agent shall furnish to USBFS the data
necessary to perform the services described herein at such times and
in such form as mutually agreed upon. If USBFS is also acting in
another capacity for the Tocqueville Funds, nothing herein shall be
deemed to relieve USBFS of any of its obligations in such capacity.
12. Assignment
This Agreement may not be assigned by any party without the prior
written consent of the other parties.
13. Notices
Any notice required or permitted to be given by any party to the
others shall be in writing and shall be deemed to have been given on
the date delivered personally or by courier service, or three (3)
days after sent by registered or certified mail, postage prepaid,
return receipt requested, or on the date sent and confirmed received
by facsimile transmission to the other parties' addresses set forth
below:
Notice to USBFS shall be sent to:
U.S. Bancorp Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
notice to the Tocqueville Funds shall be sent to:
The Tocqueville Trust and The Tocqueville Alexis Trust
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and notice to the Adviser shall be sent to:
Tocqueville Asset Management, L.P.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by a duly authorized officer on one or more counterparts as of the
date first above written.
THE TOCQUEVILLE ALEXIS TRUST U.S. BANCORP FUND SERVICES, LLC
By: ______________________________ By: ______________________________
Title: ___________________________ Title: ___________________________
THE TOCQUEVILLE TRUST TOCQUEVILLE ASSET MANAGEMENT, L.P.
By: ______________________________ By: ______________________________
Title: ___________________________ Title: ___________________________
Exhibit A
to the
Prospect Servicing Agreement
Fund Names
Each a Separate Series of
The Tocqueville Trust and The Tocqueville Alexis Trust
Name of Series Date Added
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The Tocqueville Fund
The Tocqueville Small Cap Value Fund
The Tocqueville International Value
The Tocqueville Gold Fund
The Tocqueville Genesis Fund
The Tocqueville Alexis Fund
Exhibit B
to the
Prospect Servicing Agreement
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PROSPECT SERVICING
ANNUAL FEE SCHEDULE
Tocqueville Funds
(Effective for a period of three (3) years from date of the Agreement)
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Full Service (Inbound Teleservicing and Kit Lead Conversion Reporting
Assembly and Mailing) Account Management $ 700/month
Database Installation, Setup $1,500/fund group
TIER 1 (0-50 orders per month)
Account Management $ 300/month
Web On-line Fund Fulfillment
TIER 2 (51-250 orders per month) Account Management $ 500/month
Account Management $ 300/month Installation, Setup $ 0 (NC)
First 50 orders NC Per Retail Request $ .40/retail request
Per order over 50 $ 4.00/order Per Intermediary Request $ .60/retail request
TIER 3 (251-500 orders per month)
Account Management $ 1,000/month Follow-up Services
First 250 orders NC Correspondence $2.00/letter
Per order over 250 $ 3.50/order E-mail Correspondence (Separate Quote)*
Telemarketing (Separate Quote)*
TIER 4 (over 500 orders per month) Customized Services (Separate Quote)*
Account Management $ 2,000/month
First 500 orders NC * Dependent upon client requirements
Per order over 500 $ 3.00/order
All fees are billed monthly plus out-of-pocket
E-mail/internet Lead Origination - $2.50 per request expenses, including, but not limited to:
Customized reporting development ($150.00/hour)
Service includes account management, lead reporting, call Postage, stationery
servicing, database management, kit assembly and mailing Programming, special reports
(excluding postage and materials). Retention of records
File transmission charges
Legal expenses
Inbound Teleservicing (only) All other out-of-pocket expenses
Account Management $100/month
Call Servicing $.99/minute
Base Reporting Services Included.
Assumes that client is responsible for
costs associated with order delivery.
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