TOCQUEVILLE ASSET MANAGEMENT LP
AND
THE HAVEN FUND (TO BE RENAMED THE TOCQUEVILLE ALEXIS FUND)
INTERIM ADVISORY AGREEMENT
_____________, 2002
Tocqueville Asset Management LP
0000 Xxxxxxxx -00xx xxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
The Haven Capital Management Trust (to be renamed the Tocqueville
Alexis Trust) (the "Trust") has been organized as a business trust under the
laws of the State of Delaware to engage in the business of an investment
company. The Trust's shares of beneficial interest may be classified into
series, each series representing the entire undivided interest in a separate
portfolio of assets. As of the date hereof, the Trust has one series of shares,
representing interests in The Haven Fund (to be renamed The Tocqueville Alexis
Fund) (the "Fund").
The Trustees of the Trust (the "Trustees") have selected you to provide
investment advice to the Fund, as more fully set forth below, and you are
willing to provide such advice under the terms and conditions hereinafter set
forth.
Accordingly, the Trust agrees with you as follows:
1. Delivery of Documents. The Trust has furnished you with copies, properly
certified or otherwise authenticated, of the Trust's Declaration of Trust and
By-laws, the Trust's regulatory filings, and all agreements, administrative
orders and exemptions and the minutes and resolutions of the Trust necessary for
you to perform your services hereunder. The Trust will furnish you from time to
time with copies, properly certified or otherwise authenticated, of all
amendments of or supplements to the foregoing, if any.
2. Investment Advisory Services. You will use your best efforts to provide to
the Fund continuing and suitable investment programs consistent with the
investment objective, policies and restrictions of the Fund. In the performance
of your duties hereunder, subject always (x) to the provisions contained in the
documents delivered to you pursuant to Section 1 as each of the same may from
time to time be amended or supplemented and (y) to the limitations set forth in
the N-1A Registration Statement as in effect from time to time, as amended, you
will, at your expense:
(a) determine from time to time which securities shall be
purchased, sold or exchanged and what portion of the assets of
the Fund shall be held in the various securities and assets in
which the Fund invests or in cash;
(b) make decisions for the Fund with respect to foreign currency
matters and foreign exchange contracts, having regard to
foreign exchange controls, if any;
(c) make determinations as to the manner in which voting rights,
subscription rights, rights to consent to corporate action and
any other rights pertaining to the Fund's assets shall be
exercised;
(d) advise the Trust in connection with policy decisions to be
made by the Trustees or any committee thereof with respect to
the Fund's investments and, as requested, furnish the Fund
with research, economic and statistical data in connection
with its investments and investment policies;
(e) submit such reports relating to the valuation of the Fund's
securities as the Trustees or the administrator of the Fund
may reasonably request;
(f) place orders for the purchase, sale or exchange of portfolio
assets for the Fund's accounts with brokers or dealers
selected by you; provided, however, that in connection with
the placing of such orders and the selection of such brokers
or dealers you shall seek to obtain execution and pricing
within the policy guidelines established by the Trustees and
set forth in the N-1A Registration Statement as in effect from
time to time;
(g) provide information in your possession to the administrator of
the Fund as such administrator may request to maintain and
preserve the records required by the Investment Company Act of
1940;
(h) obtain and evaluate such information relating to economies,
industries, businesses, securities markets and securities as
you may deem necessary or useful in the discharge of your
duties hereunder;
(i) from time to time, or at any time requested by the Trustees,
make reports to the Trustees concerning your performance of
the foregoing services and furnish advice and recommendations
with respect to other aspects of the business and affairs of
the Fund; and
(j) cooperate generally with the Trust and the Fund to provide
information necessary for the preparation of registration
statements and periodic reports to be filed with the
Securities and Exchange Commission, including post-effective
amendments to the Form N-1A Registration Statement, filings on
Form N-SAR, periodic statements, reports to shareholders,
shareholder communications and proxy material furnished to
holders of the Shares, filings with state "blue sky"
authorities and with the United States agencies responsible
for tax matters, and other reports and filings of like nature.
3. Expenses of the Fund. You will pay for maintaining the staff and personnel
necessary to perform your obligations under this Agreement and shall, at your
own expense, maintain the office space, facilities, equipment and personnel that
are reasonably necessary to carry out your obligations hereunder. In addition,
you shall pay the reasonable salaries, fees and expenses of such of the Trust's
officers and employees (including payroll taxes) and any fees and expenses of
such of the Trustees as are directors, officers or employees of you.
4. Expenses of the Trust or the Fund Not Paid by You. You will not be required
to pay any expenses which this Agreement does not expressly make payable by you.
In particular, and without limiting the generality of the foregoing but subject
to the provisions of Section 3, the Trust and the Fund assume and shall pay or
cause to be paid fees to you and the administrator of the Trust and the Fund and
all other expenses of the Trust and the Fund including, without limitation: (i)
charges and expenses of any custodian, subcustodian or depositary appointed by
the Trust or the Fund for the safekeeping of cash, securities or property and
fees and expenses of any transfer agent, dividend paying agent and registrar for
the Fund; (ii) charges and expenses of accounting and auditing; (iii) expenses
and fees associated with registering and qualifying securities issued by the
Trust and the Fund for sale with the Securities and Exchange Commission and in
various states, expenses of preparing Share certificates, if any, and other
expenses in connection with the issuance, offering or distribution of securities
issued by the Trust and the Fund, including freight insurance and other charges
in connection with the shipment of the Fund's portfolio securities; (iv)
expenses and fees associated with obtaining an order pursuant to Section 17(b)
of the Investment Company Act authorizing certain transactions; (v) expenses of
stationery, preparing, printing and distributing reports, notices and dividends
and other documents to the Fund's shareholders, including, without limitation,
to the extent not borne by the Fund's administrator, distributor or transfer
agent; (vi) interest on any indebtedness of the Fund; (vii) governmental fees
and taxes of the Trust and the Fund, including any stock transfer tax payable on
a portfolio security of the Fund; (viii) brokerage commissions and other
expenses incurred in acquiring or disposing of the Fund's portfolio securities;
(ix) costs of trustees' and officers' insurance and fidelity bonds; (x)
compensation and expenses of the Trustees who are not interested persons of you,
including out-of-pocket travel expenses; (xi) costs and expenses incidental to
holding meetings of the Trustees, or any committees thereof, or meetings of
shareholders; (xii) fees for legal, auditing and consulting services and
litigation expenses, including settlement or arbitration costs; (xiii) dues and
expenses incurred in connection with membership in investment company
organizations and expenses relating to investor and public relations; and (xiv)
costs, expenses and fees incurred in connection with obtaining, maintaining,
refinancing or repaying indebtedness.
5. Compensation of the Adviser. For all services to be rendered, facilities
furnished and expenses paid or assumed by you as herein provided, the Trust will
pay you, on behalf of the Fund, an investment advisory fee, which shall accrue
daily and be payable monthly in arrears, calculated at an annual rate of 0.60%
of the Fund's average daily net assets.
If this Agreement becomes effective subsequent to the first day of a
month or shall terminate before the last day of a month, compensation for that
part of the month that this Agreement is in effect shall be subject to a pro
rata adjustment based on the number of days elapsed in the relevant month as a
percentage of the total number of days in such month in order to permit the fee
to be calculated in a manner consistent with the calculation of the fee as set
forth above. During any period when the determination of net asset value is
suspended by the Trustees, the average net asset value of a Share for the last
day prior to such suspension shall for this purpose be deemed to be the average
net asset value at the close of each succeeding day until it is again
determined.
In the event the operating expenses of the Fund, including amounts
payable to you pursuant to this Section 5, for any fiscal year of the Fund
ending on a date on which this Agreement is in effect, exceed the expense
limitations applicable to the Fund imposed by applicable state securities laws
or regulations thereunder, as such limitations may be raised or lowered from
time to time, you shall reduce your management fee by the extent of such excess
and, if required pursuant to any such laws or regulations, will reimburse the
Fund in the amount of such excess; provided, however, to the extent permitted by
law, there shall be excluded from such expenses the amount of any interest,
taxes, brokerage commissions and extraordinary expenses (including but not
limited to legal claims and liabilities and litigation costs, including
settlement or arbitration costs, and any indemnification related thereto) paid
or payable by the Fund. Whenever the expenses of the Fund exceed a pro rata
portion of the applicable annual expense limitations, the estimated amount of
reimbursement under such limitations shall be applicable as an offset against
the monthly payment of the management fee due to you. Should two or more such
expense limitations be applicable as at the end of the last business day of the
month, that expense limitation which results in the largest reduction in your
fee shall be applicable.
The net asset value of the Fund shall be determined pursuant to the
applicable provisions of the Trust's Declaration of Trust and applicable law,
and as described in the N-1A Registration Statement, as such registration
statement may be amended from time to time.
6. Other Activities of Adviser and Its Affiliates. Nothing herein contained
shall prevent you or any affiliate or associate of yours from engaging in any
other business or from acting as investment adviser or investment manager for
any other person or entity, whether or not having investment policies or
portfolios similar to that of the Fund; and it is specifically understood that
officers, directors, and employees of yours and of your subsidiaries, if any,
may continue to engage in providing portfolio management services and advice to
other investment companies, whether or not registered, and to other investment
advisory clients of yours.
7. Avoidance of Inconsistent Position. In connection with purchases or sales of
portfolio securities for the account of the Fund, neither you nor any of your
directors, officers or employees will act as principal or agent or receive any
commission. If any occasion should arise in which you advise persons concerning
the Shares, you will act solely on your own behalf and not in any way on behalf
of the Trust or the Fund.
8. No Partnership or Joint Venture. The Trust, the Fund and you are not partners
of or joint venturers with each other and nothing herein shall be construed so
as to make them such partners or joint venturers or impose any liability as
such on any of them.
9. Name of Trust and Fund. The Trust and the Fund may use the name "Tocqueville"
or any name derived from or similar to the name "Tocqueville Asset Management
LP" only for so long as this Agreement or any extension, renewal, or amendment
hereof remains in effect. At such time as such Agreement shall no longer be in
effect, the Trust and the Fund will (to the extent they lawfully can) cease to
use such a name or any other name indicating that the Fund is advised or they
are otherwise connected with you. The Trust acknowledges that it will adopt the
name "The Tocqueville Alexis Trust," and the Fund will adopt the name "The
Tocqueville Alexis Fund," through permission of Tocqueville Asset Management LP
and agrees that Xxxxxxxxxxx Asset Management reserves to itself and any
successor to its business the right to grant the non-exclusive right to use the
name "Tocqueville" or any similar name to any other corporation or entity,
including but not limited to any investment company of which Tocqueville Asset
Management LP, or any subsidiary or affiliate thereof or any successor to the
business of any thereof shall be the investment adviser.
10. Limitation of Liability of Adviser. You shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Trust or the Fund in
connection with the matters to which this Agreement relates if such actions by
you were performed in good faith and were reasonably believed by you to be in or
not opposed to the best interests of the Trust or Fund, as the case may be,
except a loss resulting from willful misfeasance, bad faith or gross negligence
on your part in the performance of your duties or from reckless disregard by you
of your obligations and duties under this Agreement. Any person, even though
also employed by you, who may be or become an employee of and paid by the Trust
or the Fund shall be deemed, when acting within the scope of his employment by
the Trust or the Fund, to be acting in such employment solely for the Trust or
the Fund and not as your employee or agent.
You shall not be liable for any losses caused by disturbances of
your operations by virtue of force majeure, war, riot, or damage caused by
nature or due to other events for which you are not responsible (e.g., strike,
lock-out or losses caused by the imposition of foreign exchange controls,
expropriation of assets or other acts of domestic or foreign authorities).
The presence of exculpatory language in this Agreement shall not be
deemed by the Trust, the Fund, you or any other party appointed pursuant to this
Agreement, including without limitation any custodian, as in any way limiting
causes of action and remedies which may, notwithstanding such language, be
available to the Trust or Fund either under common law or statutory law
principles applicable to fiduciary relationships or under the federal securities
laws.
11. Duration and Termination of this Agreement. This Agreement shall remain in
force until you and the Trust have entered into an advisory contract that is
approved by a majority of the Trust's outstanding voting securities, but, in no
event, later than 150 days following the date on which the Trust's previous
contract with Haven Capital Management, Inc., dated May 19, 1994, was
terminated. This Agreement may, on 60 days' written notice, be terminated at any
time by the Trustees without the payment of any penalty by the Trust or the
Fund, by vote of a majority of the outstanding voting securities of the Fund, or
by you. Termination of this Agreement with respect to the Fund shall not be
deemed to terminate or otherwise invalidate any provision of any contract
between you and any other series of the Trust. In interpreting the provisions of
this Section 11, the definitions contained in Section 2(a) and Rule 15a-4 of the
Investment Company Act (particularly the definitions "previous contract" and
"voting security") shall be applied.
12. Amendment of This Agreement. No provision of this Agreement may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought, and no amendment, transfer, assignment, sale,
hypothecation or pledge of this Agreement shall be effective until approved by
(a) the Trustees, including a majority of the Trustees who are not interested
persons of you or (other than as Trustees) of the Trust cast in person at a
meeting called for the purpose of voting on such approval, and (b) a majority of
the outstanding voting securities of the Fund, as defined in the Investment
Company Act, provided that no approval shall be required pursuant to this clause
(b) in respect of any contract between you and the holders of outstanding voting
securities of any other series of the Trust other than the Fund.
13. Notice. Any notice or other communication required to be given pursuant to
this Agreement shall be in writing or by fax, with hard copy to follow, and
shall be effective upon receipt. Notices and communications shall be given:
(a) to the Trust and the Fund c/o Tocqueville Asset Management LP, 0000
Xxxxxxxx -00xx xxxxx Xxx Xxxx, XX 00000 , Attention: Xxxxx X. Xxxxxxxxx and
(b) to you at the same address.
14. Governing Law. This Agreement shall be construed in accordance with the laws
of the State of New York and the applicable provisions of the Investment Company
Act. To the extent the applicable laws of the State of New York, or any of the
provisions herein, conflict with the applicable provisions of the Investment
Company Act, the latter shall control.
15. Miscellaneous. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction or effect. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. The names The Haven Capital Management Trust and The Haven Fund are
the designations of the Trustees under the Declaration, originally dated as of
March 17, 1994, as amended from time to time. The Declaration has been filed
with the Secretary of State of the State of Delaware. The obligations of the
Trust or the Fund are not binding upon any of the Trustees, shareholders,
officers, employees or agents of the Trust individually, but only upon the
assets and property of the Fund.
Yours very truly,
THE HAVEN CAPITAL MANAGEMENT TRUST (to be
renamed the Tocqueville Alexis Trust), for
itself and its initial series, The Haven Fund
(to be renamed The Tocqueville Alexis Fund)
By:_______________________________
The foregoing Agreement is hereby agreed to as of the date hereof.
TOCQUEVILLE ASSET MANAGEMENT LP
By:________________________________
