Exhibit g(4)
AMENDMENT, dated June ______, 2001 to the August 20, 1998 global custody
agreement ("Agreement"), between Firstar Bank, N.A. ("Customer"), having a place
of business at 000 Xxxx Xxxxxxxx, Xxxxxxxxx, XX 00000; Tocqueville Small Cap
Value Fund ("the Fund"), having a place of business at 0000 Xxxxxxxx, Xxx Xxxx,
XX 00000, and The Chase Manhattan Bank ("Bank"), having a place of business at
000 Xxxx Xxx., Xxx Xxxx, X.X. 00000-0000.
It is hereby agreed as follows:
Section 1. Except as modified hereby, the Agreement is confirmed in all
respects. Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Agreement.
Section 2. The Agreement is amended by deleting the Investment Company
Rider thereto and inserting, in lieu thereof, the following Rider:
I. Add the following after the first sentence of Section 3 of the
Agreement:
At the request of Fund, Bank may, but need not, add to Schedule A an
Eligible Foreign Custodian where Bank has not acted as Foreign Custody
Manager with respect to the selection thereof. Bank shall notify Fund in
the event that it elects to add any such entity.
II. Add the following language to the end of Section 3 of the
Agreement:
(i) The term Subcustodian as used herein shall mean the following:
(a) a "U.S. Bank," which shall mean a U.S. bank as defined in rule
17f-5(a)(7); and
(b) an "Eligible Foreign Custodian," as defined in rule 17f-5(a)(1).
In addition, an Eligible Foreign Custodian shall also mean any other
entity that shall have been so qualified by exemptive order, rule or
other appropriate action of the SEC.
(ii) The term "securities depository" as used herein shall mean the
following when referring to a securities depository located:
(a) outside the U.S., an "Eligible Securities Depository" which, in
turn, shall have the same meaning as in rule 17f-7(b)(1)(i)-(vi) as the
same may be amended from time to time, or that has otherwise been made
exempt by an SEC exemptive order, rule or other appropriate SEC action,
except that prior to the compliance date with rule 17f-7 for a
particular securities depository the term "securities depository" shall
be as defined in (a)(1)(ii)-(iii) of the 1997 amendments to rule 17f-5.
(b) in the U.S., a "securities depository" as defined in SEC rule
17f-4(a).
(iii) For purposes of clarity, it is understood and agreed that the
term Subcustodian shall not include any Eligible Securities
Depository. For purposes of the provisions of the Agreement
imposing liability on Bank, the term Subcustodian shall not
include any Eligible Foreign Custodian as to which Bank has not
acted as Foreign Custody Manager.
III. Add new Section 16 to the Agreement as follows:
16. Compliance with Securities and Exchange Commission rule 17f-5
("rule 17f-5").
(a) Fund's board of directors (or equivalent body) (hereinafter
"Board") hereby delegates to Bank, and Bank hereby accepts the delegation to it
of, the obligation to perform as Fund's "Foreign Custody Manager" (as that term
is defined in rule 17f-5(a)(3)), including for the purposes of: (i) selecting
Eligible Foreign Custodians (as that term is defined in rule 17f-5(a)(1), as the
same may be amended from time to time, or that have otherwise been exempted by
SEC exemptive order, rule other appropriate SEC action) to hold Fund's Foreign
Assets, and (ii) evaluating the contractual arrangements with such Eligible
Foreign Custodians (as set forth in rule 17f-5(c) (2)), and (iii) monitoring
such foreign custody arrangements (as set forth in rule 17f-5(c)(3)).
(b) In connection with the foregoing, Bank shall:
(i) provide written reports notifying Fund's Board of the placement
of Foreign Assets with particular Eligible Foreign Custodians
and of any material change in the arrangements with such
Eligible Foreign Custodians, with such reports to be provided to
Fund's Board at such times as the Board deems reasonable and
appropriate based on the circumstances of Fund's foreign custody
arrangements but until further notice from Fund requesting a
different schedule, such reports shall be provided not less than
quarterly in summary form, with a more detailed report annually.
(ii) exercise such reasonable care, prudence and diligence in
performing as Fund's Foreign Custody Manager as a person having
responsibility for the safekeeping of Foreign Assets would
exercise;
(iii) in selecting an Eligible Foreign Custodian, first have
determined that Foreign Assets placed and maintained in the
safekeeping of such Eligible Foreign Custodian shall be subject
to reasonable care, based on the standards applicable to
custodians in the relevant market, after having considered all
factors relevant to the safekeeping of such Assets, induding,
without limitation, those factors set forth in rule
17f-5(c)(1)(i)-(iv);
(iv) determine that the written contract with the Eligible Foreign
Custodian requires that the Eligible Foreign Custodian will
provide reasonable care for Foreign Assets based on the
standards applicable to custodians in the relevant market as
provided in rule 17f-5(c)(1) and will further determine that the
written contract contains (1) the provisions specified in Rule
17f-5(c)(2)(i)(A)-(F) or (2) in lieu of any or all of such
provisions set fourth in Rule 17f-5(c)(2)(i)(A)-(F), such other
provisions that provide, in their entirety, the same or greater
level of care and protection for the Fund's assets.
(v) have established a system to monitor the continued
appropriateness of maintaining Foreign Assets with particular
Eligible Foreign Custodians and performance of the governing
contractual arrangements; it being understood,
however, that in the event that Bank shall have determined that
the existing Eligible Foreign Custodian in a given country would
no longer afford Foreign Assets reasonable care and that no
ether Eligible Foreign Custodian in that country would afford
reasonable care, Bank shall promptly so advise Fund and shall
then act in accordance with the Instructions of Fund with
respect to the disposition of the affected Foreign Assets.
Subject to (b)(i)-(v) above, Bank is hereby authorized to place and maintain
Foreign Assets on behalf of Fund with Eligible Foreign Custodians pursuant to a
written contract deemed appropriate by Bank.
(c) Except as expressly provided herein and in Section 17 hereof,
Customer shall be solely responsible to assure that the maintenance of Foreign
Assets hereunder complies with the rules, regulations, interpretations and
exemptive orders promulgated by or under the authority of the SEC.
(d) Bank represents to Fund that it is a U.S. Bank as defined in
rule 17f-5(a)(7). Fund represents to Bank that: (1) the Assets being placed and
maintained in Bank's custody are subject to the Investment Company Act of 1940,
as amended (the "1940 Act") as the same may be amended from time to time; (2)
its Board (or other governing body) has determined that it is reasonable to rely
on Bank to perform as Fund's Foreign Custody Manager; and (3) its Board (or
other governing body) or its investment adviser shall have determined that Fund
may maintain Foreign Assets in each country in which Fund's Foreign Assets shall
be held hereunder and determined to accept the risks arising therefrom
(including, but not limited to, a country's financial infrastructure, prevailing
custody and settlement practices, laws applicable to the safekeeping and
recovery of Foreign Assets held in custody, and the likelihood of
nationalization, currency controls and the like) (collectively ("Country
Risk")). Nothing contained herein shall require Bank to make any selection on
behalf of Fund that would entail consideration of Country Risk and, except as
may be provided in (e) below, to engage in any monitoring of Country Risk.
(e) Bank shall provide to Fund such information relating to Country
Risk as is specified in Appendix 1-A hereto. Fund hereby acknowledges that: (i)
such information is solely designed to inform Fund of market conditions and
procedures and is not intended as a recommendation to invest or not invest in
particular markets; and (ii) Bank has gathered the information from sources it
considers reliable, but that Bank shall have no responsibility for inaccuracies
or incomplete information.
IV. Add the following language to the end of the first sentence of
Section 4(d) of the Agreement: "or in the case of cash deposits, except for
liens or rights in favor of creditors of the Subcustodian arising under
bankruptcy, insolvency or similar laws."
V. Add a new Section 17 to the Agreement as follows:
17. Compliance with Securities and Exchange Commission rule 17f-7
("rule 17f-7").
(a) Bank shall, for consideration by Fund, provide an analysis in
accordance with rule 17f-7(a)(1)(i)(A) of the custody risks associated with
maintaining Fund's Foreign Assets
with each Eligible Securities Depository used by Bank as of the date hereof (or,
in the case of an Eligible Securities Depository not used by Bank as of the date
hereof, prior to the initial placement of Fund's Foreign Assets at such
Depository) and at which any Foreign Assets of Fund are held or are expected to
be held. The foregoing analysis will be provided to Fund at Bank's Website,
WWW,XXXXX.XXX. In connection with the foregoing, Fund shall notify Bank of any
Eligible Securities Depositories at which it does not choose to have its Foreign
Assets held. Bank shall monitor the custody risks associated with maintaining
Fund's Foreign Assets at each such Eligible Securities Depository on a
continuing basis and shall promptly notify Fund or its adviser of any material
changes in such risks.
(b) Bank shall exercise reasonable care, prudence and diligence in
performing the requirements set forth in Section 17(a) above or adhere to a
higher standard of care.
(c) Based on the information available to it in the exercise of
diligence, Bank shall determine the eligibility under rule 17f-7 of each
depository before including it on Appendix 1-B hereto and shall promptly advise
Fund if any Eligible Securities Depository ceases to be eligible. (Eligible
Securities Depositories used by Bank as of the date hereof are set forth in
Appendix 1-B hereto, and as the same may be amended on notice to Fund from time
to time.)
VI. Add a new Appendix 1-A entitled "Information Regarding Country
Risk," as attached hereto.
VII. Add a new Appendix 1-B entitled "Eligible Securities
Depositories," as attached hereto.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
FIRSTAR BANK, N.A.
By: /s/Xxxxxxx X. XxXxx
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Name: Xxxxxxx X. Xxxxx
Title Vice President
Date: 6/22/01
THE CHASE MANHATTAN BANK
By: /s/Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title Vice President
Date: 6/27/01
TOCQUEVILLE SMALL CAP VALUE FUND
By: /s/Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title Secretary
Date: 6/28/01
Appendix 1-A
Information Regarding Country Risk
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1. To aid the Fund or its adviser in its determinations regarding
Country Risk, Bank shall furnish annually and upon the initial placing of
Foreign Assets into a country the following information (check items
applicable):
A. Opinions of local counsel concerning:
____ i. Whether applicable foreign law would restrict the access
afforded Fund's independent public accountants to books and
records kept by an Eligible Foreign Custodian located in that
country.
____ ii. Whether applicable foreign law would restrict the Fund's ability
to recover its assets in the event of the bankruptcy of an
Eligible Foreign Custodian located in that country.
___ iii. Whether applicable foreign law would restrict the Fund's ability
to recover assets that are lost while under the control of an
Eligible Foreign Custodian located in the country.
B. Written information concerning:
___ i. The likelihood of expropriation, nationalization, freezes, or
confiscation of Fund's assets.
___ ii. Whether difficulties in converting Fund's cash and cash
equivalents to U.S. dollars are reasonably foreseeable.
C. A market report with respect to the following topics:
(i) securities regulatory environment, (ii) foreign ownership
restrictions, (iii) foreign exchange, (iv) securities settlement and
registration, (v) taxation, (vi) market settlement risk, (vii) Eligible
Securities Depositories (including Depository evaluation), if any.
2. Bank shall furnish the following additional information:
Market flashes, including with respect to changes in the
information in market reports.
Appendix 1-B
ELIGIBLE SECURITIES DEPOSITORIES
