Exhibit (h)(5)
FUND ACCOUNTING 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") 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, USBFS is, among other things, in the business of providing
mutual fund accounting services to investment companies; and
WHEREAS, the Tocqueville Funds desire to retain USBFS to provide
accounting services to 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 as Fund Accountant
The Tocqueville Funds hereby appoint USBFS as fund accountant of 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. Services and Duties of USBFS
USBFS shall provide the following fund accounting services for the
Tocqueville Funds, including but not limited to:
A. Portfolio Accounting Services:
(1) Maintain portfolio records on a trade date+1 basis
using security trade information communicated from
the investment adviser.
(2) For each valuation date, obtain prices from a
pricing source approved by the Boards of Trustees
of the Tocqueville Funds (the "Boards of Trustees"
or the "Trustees") and apply those prices to the
portfolio positions. For those securities where
market quotations are not readily available, the
Boards of Trustees shall approve, in good faith,
procedures for determining the fair value for such
securities.
(3) Identify interest and dividend accrual balances as
of each valuation date and calculate gross earnings
on investments for the accounting period.
(4) Determine gain/loss on security sales and identify
them as short-term or long-term; account for
periodic distributions of gains or losses to
shareholders and maintain undistributed gain or
loss balances as of each valuation date.
B. Expense Accrual and Payment Services:
(1) For each valuation date, calculate the expense
accrual amounts as directed by the Tocqueville
Funds as to methodology, rate or dollar amount.
(2) Record payments for Fund expenses upon receipt of
written authorization from the Tocqueville Funds.
(3) Account for Fund expenditures and maintain expense
accrual balances at the level of accounting detail,
as agreed upon by USBFS and the Tocqueville Funds.
(4) Provide expense accrual and payment reporting.
C. Fund Valuation and Financial Reporting Services:
(1) Account for Fund share purchases, sales, exchanges,
transfers, dividend reinvestments, and other Fund
share activity as reported by the Tocqueville
Funds' transfer agent on a timely basis.
(2) Apply equalization accounting as directed by the
Tocqueville Funds.
(3) Determine net investment income (earnings) for each
Fund as of each valuation date. Account for
periodic distributions of earnings to shareholders
and maintain undistributed net investment income
balances as of each valuation date.
(4) Maintain a general ledger and other accounts,
books, and financial records for each Fund in the
form as agreed upon.
(5) Determine the net asset value of each Fund
according to the accounting policies and procedures
set forth in each Fund's Prospectus.
(6) Calculate per share net asset value, per share net
earnings, and other per share amounts reflective of
Fund operations at such time as required by the
nature and characteristics of each Fund.
(7) Communicate, at an agreed upon time, the per share
price for each valuation date to parties as agreed
upon from time to time.
(8) Prepare monthly reports that document the adequacy
of accounting detail to support month-end ledger
balances.
D. Tax Accounting Services:
(1) Maintain accounting records for the investment
portfolio of each Fund to support the tax reporting
required for IRS-defined regulated investment
companies.
(2) Maintain tax lot detail for each Fund's investment
portfolio.
(3) Calculate taxable gain/loss on security sales using
the tax lot relief method designated by the
Tocqueville Funds.
(4) Provide the necessary financial information to
support the taxable components of income and
capital gains distributions to each Fund's transfer
agent to support tax reporting to the shareholders.
E. Compliance Control Services:
(1) Support reporting to regulatory bodies and support
financial statement preparation by making each
Fund's accounting records available to the
Tocqueville Funds, the Securities and Exchange
Commission (the "SEC"), and the outside auditors.
(2) Maintain accounting records according to the 1940
Act and regulations provided thereunder.
F. USBFS will perform the following accounting functions on a
daily basis:
(1) Reconcile cash and investment balances of each Fund
with the custodian, and provide the Tocqueville
Funds' investment adviser with the beginning cash
balance available for investment purposes.
(2) Transmit or mail a copy of the portfolio valuation
to each Fund's investment adviser.
(3) Review the impact of current day's activity on a
per share basis, and review changes in market
value.
G. In addition, USBFS will:
(1) Prepare monthly security transactions listings.
(2) Supply various Tocqueville Funds' fund and class
statistical data as requested by the Tocqueville
Funds on an ongoing basis.
3. Pricing of Securities
For each valuation date, USBFS shall obtain prices from a pricing
source recommended by USBFS and approved by the Boards of Trustees
and apply those prices to the portfolio positions of each Fund. For
those securities where market quotations are not readily available,
the Boards of Trustees shall approve, in good faith, procedures for
determining the fair value for such securities.
If the Tocqueville Funds desire to provide a price that varies from
the pricing source, the Tocqueville Funds shall promptly notify and
supply USBFS with the valuation of any such security on each
valuation date. All pricing changes made by the Tocqueville Funds
will be in writing and must specifically identify the securities to
be changed by CUSIP, name of security, new price or rate to be
applied, and, if applicable, the time period for which the new
price(s) is/are effective.
4. Changes in Accounting Procedures
Any resolution passed by the Boards of Trustees that affects
accounting practices and procedures under this Agreement shall be
effective upon written receipt and acceptance by USBFS.
5. Changes in Equipment, Systems, Service, Etc.
USBFS reserves the right to make changes from time to time, as it
deems advisable, relating to its services, systems, programs, rules,
operating schedules and equipment, so long as such changes do not
adversely affect the service provided to the Tocqueville Funds under
this Agreement.
6. 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 is
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 is 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. Notwithstanding anything to the contrary, amounts owed by the
Tocqueville Funds to USBFS shall only be paid out of the assets and
property of the particular Fund involved.
7. Indemnification; Limitation of Liability
A. USBFS shall exercise reasonable care in the performance of
its duties under this Agreement. USBFS shall not be liable
for any error of judgment or mistake of law or for any loss
suffered by the Tocqueville Funds in connection with matters
to which this Agreement relates, including losses resulting
from mechanical breakdowns or the failure of communication
or power supplies beyond USBFS's control, except a loss
arising out of or relating to USBFS's refusal or failure to
comply with the terms of this Agreement or from bad faith,
negligence, or willful misconduct on its part in the
performance of its duties under this Agreement.
Notwithstanding any other provision of this Agreement, if
USBFS has exercised reasonable care in the performance of
its duties under this Agreement, the Tocqueville Funds shall
indemnify and hold harmless USBFS from and against any and
all claims, demands, losses, expenses, and liabilities of
any and every nature (including reasonable attorneys' fees)
that USBFS may sustain or incur or that may be asserted
against USBFS by any person arising out of any action taken
or omitted to be taken by it in performing the services
hereunder, except for any and all claims, demands, losses,
expenses, and liabilities arising out of or relating to
USBFS's refusal or failure to comply with the terms of this
Agreement or from bad faith, negligence or from willful
misconduct on its part in performance of its duties under
this Agreement, (i) in accordance with the foregoing
standards, or (ii) in reliance upon any written or oral
instruction provided to USBFS by any duly authorized officer
of the Tocqueville Funds, such duly authorized officer to be
included in a list of authorized officers furnished to USBFS
and as amended from time to time in writing by resolution of
the Boards of Trustees.
USBFS shall indemnify and hold the Tocqueville Funds
harmless from and against any and all claims, demands,
losses, expenses, and liabilities of any and every nature
(including reasonable attorneys' fees) that the Tocqueville
Funds may sustain or incur or that may be asserted against
the Tocqueville Funds by any person arising out of any
action taken or omitted to be taken by USBFS as a result of
USBFS's refusal or failure to comply with the terms of this
Agreement, its bad faith, negligence, or willful misconduct.
In the event of a mechanical breakdown or failure of
communication or power supplies beyond its control, USBFS
shall take all reasonable steps to minimize service
interruptions for any period that such interruption
continues beyond USBFS's control. USBFS will make every
reasonable effort to restore any lost or damaged data and
correct any errors resulting from such a breakdown at the
expense of USBFS. USBFS agrees that it shall, at all times,
have reasonable contingency plans with appropriate parties,
making reasonable provision for emergency use of electrical
data processing equipment to the extent appropriate
equipment is available. Representatives of the Tocqueville
Funds shall be entitled to inspect USBFS's premises and
operating capabilities at any time during regular business
hours of USBFS, upon reasonable notice to USBFS.
Notwithstanding the above, USBFS reserves the right to
reprocess and correct administrative errors at its own
expense.
B. In order that the indemnification provisions contained in
this section shall apply, it is understood that if in any
case the indemnitor may be asked to indemnify or hold the
indemnitee harmless, the indemnitor shall be fully and
promptly advised of all pertinent facts concerning the
situation in question, and it is further understood that the
indemnitee will use all reasonable care to notify the
indemnitor promptly concerning any situation that presents
or appears likely to present the probability of a claim for
indemnification. The indemnitor shall have the option to
defend the indemnitee against any claim that may be the
subject of this indemnification. In the event that the
indemnitor so elects, it will so notify the indemnitee and
thereupon the indemnitor shall take over complete defense of
the claim, and the indemnitee shall in such situation
initiate no further legal or other expenses for which it
shall seek indemnification under this section. Indemnitee
shall in no case confess any claim or make any compromise in
any case in which the indemnitor will be asked to indemnify
the indemnitee except with the indemnitor's prior written
consent.
8. 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.
9. 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 either party upon giving ninety (90) days prior written
notice to the other party 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.
10. Records
USBFS shall keep records relating to the services to be performed
hereunder in the form and manner, and for such period, as it may deem
advisable and is agreeable to the Tocqueville Funds, but not
inconsistent with the rules and regulations of appropriate government
authorities, in particular, Section 31 of the 1940 Act and the rules
thereunder. USBFS agrees that all such records prepared or maintained
by USBFS relating to the services to be performed by USBFS hereunder
are the property of the Tocqueville Funds and will be preserved,
maintained, and made available in accordance with such applicable
sections and rules of the 1940 Act and will be promptly surrendered
to the Tocqueville Funds on and in accordance with its request.
11. 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.
12. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any
of USBFS's 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's personnel in the
establishment of books, records and other data by such successor.
13. No Agency Relationship
Nothing herein contained shall be deemed to authorize or empower
USBFS to act as agent for the other party to this Agreement, or to
conduct business in the name, or for the account, of the other party
to this Agreement.
14. 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.
15. Notification of Error
The Tocqueville Funds will notify USBFS of any discrepancy between
USBFS and the Tocqueville Funds, including, but not limited to,
failing to account for a security position in a fund's portfolio, by
the later of: within three (3) business days after receipt of any
reports rendered by USBFS to the Tocqueville Funds; within three (3)
business days after discovery of any error or omission not covered in
the balancing or control procedure, or within three (3) business days
of receiving notice from any shareholder.
16. Assignment
This Agreement may not be assigned by either party without the prior
written consent of the other party.
17. Notices
Any notice required or permitted to be given by either party to the
other 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 party's address set forth
below:
Notice to USBFS shall be sent to:
U.S. Bancorp Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Tocqueville Funds shall be sent to:
The Tocqueville Trust and The Tocqueville Alexis Trust
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
By: ____________________________
Title: _________________________
Exhibit A
to the
Fund Accounting Servicing Agreement
Fund Names
Each a Separate Series of
The Tocqueville Trust and The Tocqueville Alexis Trust
Name of Series Date Added
-------------- ----------
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
Fund Accounting Servicing Agreement
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FUND ACCOUNTING SERVICES
ANNUAL FEE SCHEDULE
Tocqueville Funds
(Effective for a period of three (3) years from date of the Agreement)
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Complex level fee structure based upon assets Multiple Classes
in the Tocqueville Funds complex ----------------
* 0.02% on first $500 million Each class is an additional 25% of the charge of the
* 0.01% on next $500 million initial class.
* 0.005% on the balance
(Subject to $156,000 complex Master/Feeder Funds
minimum for 6 Funds) -------------------
Each master and feeder is charged according to the schedule.
Multiple Manager Funds
----------------------
Additional base fee:
$12,000 per manager/sub-advisor per fund
Extraordinary services - quoted separately
----------------------
Conversion Estimate - one month's fee (if necessary)
-------------------
NOTE - All schedules subject to change depending upon the use
of derivatives - options, futures, short sales, etc.
All fees are billed monthly plus out-of-pocket expenses,
including pricing, corporate action, and factor services:
o $.15 Domestic and Canadian Equities
o $.15 Options
o $.50 Corp/Gov/Agency Bonds
o $.80 CMO's
o $.50 International Equities and Bonds
o $.80 Municipal Bonds
o $.80 Money Market Instruments
o $125 /fund/month - Mutual Fund Pricing
o $2.00 /equity Security/Month Corporate Actions
o $125 /month Manual Security Pricing (>10/day)
o Factor Services (BondBuyer)
o $1.50 /CMO/month
o $.25 /Mortgage Backed/month
o $300 /month Minimum Per Fund Group
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