Exhibit (h)(3)
ADMINISTRATION AGREEMENT
THIS AGREEMENT is made and entered into as of this ___ day of _____,
2004, by and between The Tocqueville Alexis Trust, a Delaware statutory trust,
(the "Trust") on behalf of its series, the Tocqueville Alexis Fund (the
"Fund") and U.S. Bancorp Fund Services, LLC, a Wisconsin limited liability
company ("USBFS").
WHEREAS, the Trust engages in business as an open-end management
investment company and is registered under the Investment Company Act of 1940,
as amended (the "1940 Act");
WHEREAS, USBFS is, among other things, in the business of providing
fund administration services for the benefit of its customers; and
WHEREAS, the Trust desires to retain USBFS to provide administration
services for the 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. Services and Duties of USBFS
A. Appointment of Administrator
The Trust hereby appoints USBFS as Administrator of the Fund
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 in
consideration of the compensation provided for herein.
B. USBFS shall provide the following administration services for the
Fund, including but not limited to:
1. General Fund Management
a. Act as liaison among all fund service providers
b. Coordinate board communication by:
i. Assisting fund counsel in establishing meeting
agendas
ii. Preparing board reports based on financial and
administrative data
iii. Evaluating independent auditor
c. Audits
i. Prepare appropriate schedules and assist independent
auditors
ii. Provide information to SEC and facilitate audit
process
iii. Provide office facilities
d. Assist in overall operations of the Fund
2. Compliance
a. Regulatory Compliance
i. Periodically monitor compliance with Investment Company Act of
1940 requirements
1) Asset diversification tests
2) Total return calculations
3) Maintenance of books and records under Rule 3la-3
ii. Periodically monitor Fund's compliance with the policies and
investment limitations of the Fund as set forth in its
prospectus and statement of additional information
b. Blue Sky Compliance
i. Prepare and file with the appropriate state securities
authorities any and all required compliance filings relating to
the registration of the securities of the Fund so as to enable
the Fund to make a continuous offering of its shares
ii. Monitor status and maintain registrations in each state
c. SEC Registration and Reporting
i. Assisting the Fund's counsel in updating prospectus and
statement of additional information; and in preparing proxy
statements, and Rule 24f-2 notice,
ii. Annual and semi-annual reports
d. IRS Compliance
i. Periodically monitor the Fund's status as a regulated
investment company under Subchapter M through review of the
following:
1) Asset diversification requirements
2) Qualifying income requirements
3. Financial Reporting
a. Provide financial data required by the Fund's prospectus and
statement of additional information
b. Prepare financial reports for shareholders, the board, the SEC and
independent auditors
c. Supervise the Fund's Custodian and Fund Accountants in the
maintenance of the Fund's general ledger and in the preparation of
the Fund's financial statements including oversight of expense
accruals and payments, of the determination of net asset value of
the Fund's net assets and of the Fund shares, and of the declaration
and payment of dividends and other distributions to shareholders
4. Tax Reporting
a. Prepare state income breakdowns where relevant
b. File 1099 Miscellaneous for payments to directors and other service
providers
c. Calculate eligible dividend income for corporate shareholders
2. Compensation
USBFS shall be compensated for providing the services set forth in this
Agreement in accordance with the fee schedule set forth on Exhibit A
hereto (as amended from time to time). The Trust 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 Trust shall notify USBFS in writing within thirty (30)
calendar days following receipt of each invoice if the Adviser is
disputing any amounts in good faith. The Trust 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 Trust 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.
3. 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 Fund
or the Adviser 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
Trust 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) which USBFS
may sustain or incur or which 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 Trust or the Trust, 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 Board of Trustees of the Trust.
USBFS shall indemnify and hold the Trust harmless from and against
any and all claims, demands, losses, expenses, and liabilities of
any and every nature (including reasonable attorneys' fees) that the
Trust may sustain or incur or that may be asserted against the Trust
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 Trust 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. The 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.
4. 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
Trust all records and other information relative to the Trust and prior,
present, or potential shareholders of the Trust (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 Fund, 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
Trust.
Further, USBFS will adhere to the privacy policies adopted by the Trust
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
Trust's shareholders to any third party unless specifically directed by
the Trust or allowed under one of the exceptions noted under the Act.
5. 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.
6. 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 Trust, 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
Trust 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 Trust on and in accordance with its request.
7. 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.
8. 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 Trust
by written notice to USBFS, USBFS will promptly, upon such termination
and at the expense of the Trust, 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
Trust (if such form differs from the form in which USBFS has maintained,
the Trust shall pay any expenses associated with transferring the data 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.
9. 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.
10. Data Necessary to Perform Services
The Trust 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
Trust, nothing herein shall be deemed to relieve USBFS of any of its
obligations in such capacity.
11. Assignment
This Agreement may not be assigned by either party without the prior
written consent of the other party.
12. 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
notice to the Trust shall be sent to:
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: _________________________
Exhibit A
to the
Administration Servicing Agreement
