Exhibit (h)(6)
AMENDED AND RESTATED
FUND ACCOUNTING SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 12th day of January,
2005, by and between The Tocqueville Trust, a Massachusetts business trust and
The Tocqueville Alexis Trust, a Delaware statutory trust, severally and not
jointly (each a "Trust" and together, the "Tocqueville Funds") and U.S. Bancorp
Fund Services, LLC, a Wisconsin limited liability company ("USBFS").
WHEREAS, the parties desire to add The Tocqueville Alexis Trust to the
Fund Accounting Servicing Agreement by and between the The Tocqueville Trust and
USBFS, dated September 12, 1997;
WHEREAS, The Tocqueville Trust, on behalf of The Tocqueville Gold Fund,
and USBFS haave entered into a Fund Accounting Servicing Agreement, dated June
16, 1998, (together with the Fund Accounting Servicing Agreement dated September
12, 1997, the "Prior Agreements") and desire to consolidate the Prior
Agreements;
WHEREAS, this Agreement amends and restates the Prior Agreements;
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.
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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.
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(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.
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(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.
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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. Notwithstanding anything to the contrary, amounts
owed by the Tocqueville Funds to USBFS, including under paragraph 12
hereunder 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, each Tocqueville
Fund shall indemnify and hold harmless, severally and not
jointly, 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
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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.
The provisions of this paragraph 7 shall survive termination of
this Agreement.
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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
Adviser and the Tocqueville Funds all records and other information
relative to the Adviser and the Tocqueville Funds and prior, present, or
potential shareholders of the Tocqueville Funds (and clients of said
shareholders), including information relating to the Funds' portfolio
holdings, 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. USBFS may not, and shall ensure that all
employees with access to portfolio holdings information do not place any
trades based on such information.
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. USBFS further represents and
agrees that it maintains and will continue to maintain (a) policies and
procedures designed to ensure only necessary access to and use of
information about shareholders of the Tocqueville Funds and (b)
safeguards that comply with federal standards to guard nonpublic
personal information concerning the shareholders of the Tocqueville
Funds.
The provisions of this paragraph 8 shall survive termination of this
Agreement.
9. Term of Agreement; Amendment
This Agreement shall become effective on February 28, 2005 and will
continue automatically in effect for successive annual periods, unless
otherwise terminated as provided herein. 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. The termination of this Agreement with
respect to any one Trust will not cause the Agreement's termination with
respect to any other Trust.
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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.
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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
00 Xxxx 00xx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
18. Several, Not Joint Obligations.
The obligations of each Trust hereunder are several, not joint, and no
Trust shall be liable or responsible for the obligations of another
Trust under this Agreement.
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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: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxx X. Xxxxxxx
--------------------------- ---------------------------
Title: President Title: President
------------------------ -------------------------
THE TOCQUEVILLE TRUST
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
---------------------------
Title: President
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Exhibit A
to the
Fund Accounting Servicing Agreement
Fund Names
Each a Separate Series of
The Tocqueville Trust or The Tocqueville Alexis Trust
Name of Series Date Added
-------------- ----------
The Tocqueville Trust
---------------------
The Tocqueville Fund
The Tocqueville Small Cap Value Fund
The Tocqueville International Value Fund
The Tocqueville Gold Fund
The Tocqueville Genesis Fund
The Tocqueville Alexis Trust
----------------------------
The Tocqueville Alexis Fund
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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 ----------------
o 0.02% on first $500 million Each class is an additional 25% of the charge of
o 0.01% on next $500 million the initial class.
o 0.005% on the balance
(Subject to $140,000 complex minimum Master/Feeder Funds
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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