Exhibit (h)(7)
AMENDED AND RESTATED
PROSPECT 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
Fulfillment Servicing Agreement by and between the The Tocqueville Trust and
USBFS, dated October 8, 1996;
WHEREAS, The Tocqueville Trust, on behalf of The Tocqueville Gold Fund,
and USBFS have entered into a Fulfillment Servicing Agreement, dated June 16,
1998, (together with the Fulfillment Servicing Agreement dated October 8, 1996,
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
fulfillment services to mutual funds; and
WHEREAS, the Tocqueville Funds desire to retain USBFS to provide
fulfillment services for 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 to Provide Fulfillment Services
The Tocqueville Funds hereby appoint USBFS to provide fulfillment
services to 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. Duties and Responsibilities of USBFS
USBFS shall provide the following fulfillment services for the
Tocqueville Funds, including but not limited to:
A. Answer all prospective shareholder calls concerning each Fund.
B. Send all available Fund material requested by a prospect within
24 hours from time of call.
C. Receive and update all Fund fulfillment literature so that the
most current information is sent and quoted.
D. Provide 24 hour answering service to record prospect calls made
after hours (7 p.m. to 8 a.m. Central Time).
E. Maintain and store Fund fulfillment inventory.
F. Send periodic fulfillment reports to the Tocqueville Funds as
agreed upon between the parties.
3. Duties and Responsibilities of the Tocqueville Funds
The Tocqueville Funds shall:
A. Provide Fund fulfillment literature updates to USBFS as
necessary.
B. File with the National Association of Securities Dealers, Inc.,
the Securities and Exchange Commission (the "SEC") and state
regulatory agencies, as appropriate, all fulfillment literature
that the Tocqueville Funds request USBFS send to prospective
shareholders.
C. Supply USBFS with sufficient inventory of fulfillment materials
as requested from time to time by USBFS.
D. Provide USBFS with any sundry information about the Tocqueville
Funds in order to answer prospect questions.
4. 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 are 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.
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5. Indemnification; Limitation of Liability
Each Tocqueville Fund agrees to indemnify, severally and not jointly,
USBFS from any liability arising out of the distribution of fulfillment
literature that has not been filed with the appropriate federal and
state regulatory agencies. USBFS agrees to indemnify the Tocqueville
Funds from any liability arising from the improper use of fulfillment
literature during the performance of its duties and responsibilities
identified in this Agreement. USBFS will be liable for bad faith,
negligence or willful misconduct on its part in its duties under this
Agreement.
The provisions of this paragraph 5 shall survive termination of this
Agreement.
6. 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), 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 6 shall survive termination of this
Agreement.
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7. 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 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. The termination of this Agreement with
respect to any one Trust will not cause the Agreement's termination with
respect to any other Trust.
8. 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.
9. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any of
USBFS' 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'
personnel in the establishment of books, records and other data by such
successor.
10. No Agency Relationship
Nothing herein contained shall be deemed to authorize or empower USBFS
to act as agent for any other party to this Agreement, or to conduct
business in the name, or for the account, of any other party to this
Agreement.
11. 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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12. Assignment
This Agreement may not be assigned by any party without the prior
written consent of the other parties.
13. Notices
Any notice required or permitted to be given by any party to the others
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 parties' addresses 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 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
14. 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
Prospect 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
Prospect Servicing Agreement
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PROSPECT SERVICING
ANNUAL FEE SCHEDULE
Tocqueville Funds
(Effective for a period of three (3) years from date of the Agreement)
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Full Service (Inbound Teleservicing and Kit Lead Conversion Reporting
------------------------------------------- -------------------------
Assembly and Mailing) Account Management $ 700/month
--------------------- Database Installation, Setup $1,500/fund group
TIER 1 (0-50 orders per month)
Account Management $ 300/month
TIER 2 (51-250 orders per month) Web On-line Fund Fulfillment
Account Management $ 300/month ----------------------------
First 50 orders NC Account Management $ 500/month
Per order over 50 $ 4.00/order Installation, Setup $ 0 (NC)
Per Retail Request $ .40/retail request
Per Intermediary Request $ .60/retail request
TIER 3 (251-500 orders per month)
Account Management $ 1,000/month Follow-up Services
First 250 orders NC ------------------
Per order over 250 $ 3.50/order Correspondence $2.00/letter
E-mail Correspondence (Separate Quote)*
Telemarketing (Separate Quote)*
TIER 4 (over 500 orders per month) Customized Services (Separate Quote)*
Account Management $ 2,000/month
First 500 orders NC
Per order over 500 $ 3.00/order *Dependent upon client requirements
E-mail/internet Lead Origination - $2.50 per All fees are billed monthly plus out-of-pocket
request expenses, including, but not limited to:
Customized reporting development ($150.00/hour)
Service includes account management, lead Postage, stationery
reporting, call servicing, database management, Programming, special reports
kit assembly and mailing (excluding postage and Retention of records
materials). File transmission charges
Legal expenses
All other out-of-pocket expenses
Inbound Teleservicing (only)
----------------------------
Account Management $100/month
Call Servicing $.99/minute
Base Reporting Services Included.
Assumes that client is responsible for costs
associated with order delivery.
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