AMENDMENT TO SERVICES AGREEMENT
This Amendment ("Amendment") is made as of May 10, 2002, by and between
Xxxxxxx Xxxxxx & Co., Inc. ("Schwab"), a California corporation, each registered
investment company ("Fund Company") executing this Amendment on its own behalf
and on behalf of its series or classes of shares ("Fund(s)") listed on Schedule
I hereto, and Tocqueville Asset Management, L.P. ("Fund Affiliate"), and amends
the Services Agreement made as of April 11, 1997, as amended thereafter
("Services Agreement"). All capitalized terms used in the Amendment and not
defined herein shall have the meaning ascribed to them in the Services
Agreement.
WHEREAS, the parties wish to amend Exhibit B to the Services Agreement to
modify certain Fee payment obligations; and
WHEREAS, the parties wish to amend Schedule I to the Services Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
set forth below, the parties agree as follows:
1. Section 5 of Exhibit B to the Services Agreement shall be deleted in its
entirety and the following Section 5 shall be inserted in lieu thereof:
5. The Fee is due and payable by Fund Parties upon receipt of the
invoice setting forth such Fee. Payment shall be made by wire transfer.
Such wire transfer shall be separate from wire transfers of redemption
proceeds or distributions under the Operating Agreement. The Fee shall
accrue interest on any outstanding amount from the date of the invoice,
and Schwab shall be entitled to charge Fund Parties the accrued interest
in the event that Schwab has not received full payment by the last
Business Day of the month in which the invoice is rendered. The rate of
interest shall be the Federal Funds "offered" rate for each day as
published in The Wall Street Journal on the last Business Day of each
month during which any amount of the Fee remains outstanding. Schwab shall
not be entitled to charge Fund Parties the accrued interest on any amount
for which Schwab has received payment by the last Business Day of the
month in which the invoice is rendered.
2. Sections 16(b) and (c) to the Services Agreement shall be deleted in their
entirety and the following Sections 16(b), (c) and (d) shall be inserted in lieu
thereof:
16. b. This Agreement may be terminated as to a Fund (i) by any
party upon ninety (90) days' written notice to the other parties or (ii)
by any party upon such shorter notice as is required by law, order, or
instruction by a court of competent jurisdiction or a regulatory body or
self-regulatory organization with jurisdiction over such terminating party
or (iii) by Fund Parties, upon notice to Schwab of the termination of any
Rule 12b-1 Plan as to any Fund that had such Rule 12b-1 Plan in effect as
of its effective date on this Agreement, provided that a portion of the
Fee is paid pursuant to the Rule 12b-1 Plan.
c. Notwithstanding any termination, Fund Parties will remain
obligated to pay Schwab the Fee as to each share of the Fund that
was considered in the calculation of the Fee as of the date of
termination, and as to each share of the Fund which results from
reinvesting the
dividends or capital gains distributed on such shares (each a
"Pre-Termination Share"), for so long as such Pre-Termination
Share is held in any of the Account(s) (as defined in
the Operating Agreement) and Schwab continues to perform
substantially all of the Services as to such Pre-Termination Share.
Further, for so long as Schwab continues to perform the Services as
to any Pre-Termination Shares, this Agreement will otherwise remain
in full force and effect as to such Pre-Termination Shares. Fund
Parties shall reimburse Schwab promptly for any reasonable expenses
Schwab incurs in effecting any termination of this Agreement,
including delivery to a Fund Party of any records, instruments, or
documents reasonably requested by the Fund Party.
d. In the event a Fund merges or is subject to some other form
of business reorganization such that shareholders of the Fund
receive shares of an entity not listed on Schedule I to this
Agreement (each share a "Reorganized Share"), each such Reorganized
Share shall be deemed to be a Pre-Termination Share and Fund Parties
will remain obligated to pay Schwab the Fee as to each Reorganized
Share for so long as such Reorganized Share is held in any Schwab
account, unless such Reorganized Share is subject to a services
agreement with Schwab other than this services agreement.
3. Schedule I to the Services Agreement shall be deleted in its entirety and
Schedule I attached hereto shall be inserted in lieu thereof.
4. Except as specifically set forth herein, all other provisions of the Services
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
XXXXXXX XXXXXX & CO., INC.
By: By:
------------------------------ ------------------------
Xxxxxxx X. Xxxxxx
Senior Vice President Name:
Mutual Funds ------------------------
as of
------------------------
Date: (Title)
------------------------------
each Fund Company listed on Schedule I
TOCQUEVILLE ASSET MANAGEMENT, L.P. hereto, on behalf of each such Fund
Company and on behalf of each Fund
By:
------------------------------
Its General Partner
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
Date:
------------------------------
SCHEDULE I
TO THE SERVICES AGREEMENT
Fund Company/ /Funds Effective Date
-------------------- --------------
The Tacqueville Alexis Trust
The Tocqueville Alexis Fund 5/10/02
The Tocqueville Trust
The Tocqueville Fund 4/11/97
The Tocqueville Gold Fund 9/1/98
The Tocqueville International Value Fund 4/11/97
The Tocqueville Small Cap Value Fund 4/11/97
Accepted by:
XXXXXXX XXXXXX & CO., INC.
By: By:
------------------------------ ------------------------
Xxxxxxx X. Xxxxxx
Senior Vice President Name:
------------------------
Mutual Funds
as of
------------------------
Date: (Title)
------------------------------
each Fund Company listed on this
Acknowledged by: Schedule I, on behalf of each such
TOCQUEVILLE ASSET MANAGEMENT, L.P. Fund Company and on behalf of each
Fund
By: Date:
------------------------------ ------------------------
Its General Partner
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
Date:
------------------------------
AMENDMENT TO OPERATING AGREEMENT
This Amendment ("Amendment') is made as of May 10, 2002, by and between
Xxxxxxx Xxxxxx & Co., Inc. ("Schwab"), a California corporation, and each
registered investment company ("Fund Company") executing this Amendment on its
own behalf and on behalf of each of its series or classes of shares ("Fund(s)")
listed on Schedule I hereto, and amends the Operating Agreement between the
parties, made as of April 11, 1997, as amended thereafter ("Operating
Agreement"). All capitalized terms used in the Amendment and not defined herein
shall have the meaning ascribed to them in the Operating Agreement.
WHEREAS, the parties wish to amend Schedule I to the Operating Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
set forth below, the parties agree as follows:
1. Schedule I to the Operating Agreement shall be deleted in its entirety
and the Schedule I attached hereto shall be inserted in lieu thereof.
2. Except as specifically set forth herein, all other provisions of the
Operating Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
XXXXXXX XXXXXX & CO., INC.
By: By:
------------------------------ ------------------------
Xxxx Xxxxx
Vice President/Mutual Funds Name:
Operations Administration ------------------------
as of
-------------------------
Date: (Title)
------------------------------
each Fund Company listed on
Schedule I hereto, on behalf of each
such Fund Company and on behalf of
each Fund
Date:
------------------------
SCHEDULE I
TO THE OPERATING AGREEMENT
Fund Company/Funds Effective Date
------------------ --------------
The Tocqueville Alexis Trust NL
The Tocqueville Alexis Fund FEE 1 5/10/02
The Tocqueville Trust NL
The Tocqueville Fund FEE 1 4/11/97
The Tocqueville Gold Fund FEE 1 9/1/98
The Tocqueville International Value Fund FEE 1 4/11/97
The Tocqueville Small Cap Value Fund FEE 1 4/11/97
NL Indicates that Fund Company is a "no-load" or "no sales charge" Fund
Company as defined in Rule 2830 of the Conduct Rules of the National
Association of Securities Dealers Regulation, Inc. ("NASDR"), as amended
from time to time ("Rule 2830").
* Indicates that Fund has no sales charge, as that term is defined in Rule
2830, and, if such Fund has a distribution or shareholder servicing plan
maintained or adopted pursuant to Rule 12b-1 under the 1940 Act ("Rule
12b-1 Plan"), such Fund's Rule 12b-1 Plan does not exceed 25 basis
points per annum.
SI Indicates that Fund is available only to MFMP investors:
(i) who are investment advisors, investment consultants or
financial planners who place trades for their own accounts
or the accounts of their clients and who charge a management
consulting or other fee for their services and clients of
such investment advisors, investment consultants or financial
planners who place trades for their own accounts if the
accounts are linked to the master account of such investment
advisor, investment consultant or financial planner on
Xxxxxx'x system;
(ii) who are customers of financial institutions clearing
transactions through Schwab; and
(iii) who are participants (including personal choice retirement
accounts or otherwise) in retirement and deferred compensation
plans and trusts used to fund those plans, including, but not
limited to, those defined in Section 401(a), 403(b), or 457 of
the Internal Revenue Code and "rabbi trusts" for which (a)
Schwab acts as broker-dealer, (b) The Xxxxxxx Xxxxxx Trust
Company acts as trustee of the trust funds under the Plans,
and/or (c) Schwab Retirement Plan Services, Inc. or another
entity acts as record-keeper.
FEE 1 Indicates that Fund is subject to Account Establishment and
Maintenance Fees and the terms thereof as set forth on Schedule II.
Accepted by:
XXXXXXX XXXXXX & CO., INC.
By: By:
------------------------------ ------------------------
Xxxx Xxxxx
Vice President/Mutual Funds Name:
Operations Administration ------------------------
as of
------------------------
Date: (Title)
------------------------------
each Fund Company listed on this
Schedule I, on behalf of each such
Fund Company and on behalf of each
Fund
Date:
------------------------
AMENDMENT TO THE RETIREMENT PLAN ORDER PROCESSING AMENDMENT TO THE OPERATING
AGREEMENT
This Amendment is made as of May 10, 2002, by and between Xxxxxxx Xxxxxx &
Co., Inc. ("Schwab"), a California corporation; The Xxxxxxx Xxxxxx Trust Company
("CSTC"), a California banking corporation; and each registered investment
company ("Fund Company") listed on Schedule I hereto, on its own behalf and on
behalf of each of its series or classes of shares ("Fund(s)") which are parties
to an Operating Agreement, made as of April 11, 1997, and amends the Retirement
Plan Order Processing Amendment to the Operating Agreement, made as of April 11,
1997 ("RPOP Amendment"). All capitalized terms used in the Amendment and not
defined herein shall have the meaning ascribed to them in the RPOP Amendment.
WHEREAS, the parties wish to amend Schedule I to the RPOP Amendment;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
set forth below, the parties agree as follows:
1. Schedule I of the RPOP Amendment shall be deleted in its entirety and
the Schedule I attached hereto shall be inserted in lieu thereof.
2. Except as specifically set forth herein, all other provisions of the RPOP
Amendment shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
XXXXXXX XXXXXX & CO., INC.
By: By:
------------------------------ --------------------------
Xxxx Xxxxx
Vice President/Mutual Funds Name:
Operations Administration -------------------------
as of
------------------------
(Title)
each Fund Company listed on Schedule
I hereto, on behalf of each Fund
Company and on behalf of each Fund
THE XXXXXXX XXXXXX TRUST COMPANY
By:
------------------------------
Xxxxxxx Xxxxxx Date:
Vice President ------------------------
Date:
------------------------------
SCHEDULE I
TO THE RETIREMENT PLAN ORDER PROCESSING AMENDMENT TO THE OPERATING AGREEMENT
FUND COMPANIES
--------------------
The Tocqueville Alexis Trust
The Tocqueville Trust
OPERATING AGREEMENT
This Agreement is made as of April 11, 1997, between Xxxxxxx Xxxxxx & Co.,
Inc. ("Schwab"), a California corporation, and each registered investment
company executing this Agreement ("Fund Company"), on its own behalf and on
behalf of each of its series or classes of shares listed on Schedule I, as
amended from time to time (such series of classes being referred to as
"Fund(s)"). In the event there are no series or classes of shares listed on
Schedule I, then the term "Fund(s)" shall mean "Fund Company ".
WHEREAS Fund Company wishes to have shares of the Fund(s) available for
purchase and redemption by Xxxxxx'x brokerage customers through Xxxxxx'x Mutual
Fund Marketplace@ ("MFMP");
WHEREAS certain policies, procedures and information are necessary to
enable the Fund(s) to participate in the MFMP; and
WHEREAS Schwab is willing to permit the Fund(s) to participate in its MFMP
pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
set forth below, the parties agree as follows:
1. Operating Procedures
--------------------
Schwab will open as omnibus account (the "Account") with each Fund
through which it will purchase and redeem shares, settle transactions, reconcile
transactions, obtain pricing, reinvest distributions and maintain records in
accordance with the Operating Procedures set forth in Exhibit A hereto. In
addition, the parties agree to transfer accounts, communicate with Fund
shareholders and perform other obligations in accordance with the Operating
Procedures.
2. Qualification Requirements
--------------------------
x. Xxxxxx will only place purchase orders for shares of a Fund on behalf of a
customer whose account address recorded to Xxxxxx'x books is in a state or other
jurisdiction in which Fund Company has advised Schwab that such Fund has
qualified its shares for sale under applicable law. Fund Company shall advise
Schwab immediately if any such qualification is terminated or if it wishes
Schwab not to place purchase orders for a Fund on behalf of its customers who
reside in a particular state or other jurisdiction.
x. Xxxxxx will, upon request, (i) furnish Fund Company with monthly written
statements of the number of shares of each Fund purchased on behalf of Schwab
customers resident in one or more states, or other jurisdictions indicated by
Fund Company or (ii) on a daily basis, transmit to an electronic database
provider with whom Schwab has established effective systems interfaces
information regarding the number of shares of each Fund sold in each state for
retrieval by Fund Company. Fund Company shall be responsible for all reasonable
fees and other reasonable charges of such database provider to connection with
Xxxxxx'x transmission of such information to and Fund Company's retrieval of
such information from such database provider.
c. Fund Company agrees that any rescission offer that is made to shareholders
who own shares directly with a Fund will also be made to Schwab customers who
would be entitled to such rescission offer if they owned shares directly with
the Fund. Fund Company will provide Schwab with a letter on Fund Company
letterhead containing the terms of any such rescission offer, and Schwab may
send this writing, or any derivation thereof, to the affected Schwab customers.
To assist Fund Company in effecting any such rescission offer, Schwab agrees to
provide Fund Company with relevant information regarding any affected Schwab
customer, including the account number, the number of shares purchased and
redeemed, if any, the dates of the purchase(s) and redemption(s), if any, and
the dollar amount of such transactions.
3. Compliance Responsibilities
---------------------------
a. Fund Company is responsible for (i) the compliance of each prospectus,
registration statement, annual or other periodic report, proxy statement and
item of advertising or marketing material of or relating to each Fund with all
applicable laws, rules and regulations (except for advertising or marketing
material prepared by Schwab that was not published or provided to Schwab by or
on behalf of Fund Company or any Affiliate (defined below) or accurately derived
from information published or provided by or on behalf of Fund Company or any
Affiliate), (ii) the distribution and tabulation of proxies in accordance wish
all applicable laws, rules and regulations (except for such proxy related
services provided by Xxxxxx'x mailing agent), (iii) the registration or
qualification of the shares of each Fund under all applicable laws, rules and
regulations, and (iv) the compliance by Fund Company and each Affiliate of Fund
Company, as that term is defined below, with all applicable laws, rules and
regulations (including the Investment Company Act of 1940, as amended (the "1940
Act"), and the Investment Advisers Act of 1940, as amended), and the rules and
regulations of each self-regulatory organization with jurisdiction over Fund
Company or Affiliate, except to the extent that the failure to so comply by Fund
Company or any Affiliate is caused by Xxxxxx'x breach of this Agreement. An
"Affiliate" of a person means (i) any person directly or indirectly controlling,
controlled by, or under common control with, such person, (ii) any officer,
director, partner, corporation, or employee of such person, and (iii) if such
person is an investment company, any investment advisor thereof or any member of
the advisory board thereof.
b. In the event that the Account holds five percent (5%) or more of the
outstanding Fund shares, Fund Company will be responsible for requesting Schwab
to confirm its status as shareholder of record and to confirm whether any Schwab
customer beneficially owns five percent (5%) or more of the outstanding Fund
shares through its Schwab brokerage account. For this purpose, Fund Company
shall indicate in its inquiry the number of Fund shares that equal five percent
(5%) of outstanding Fund shares. Schwab shall promptly reply to any such
inquiries.
x. Xxxxxx is responsible for Xxxxxx'x compliance with all applicable laws, rules
and regulations governing Xxxxxx'x performance under this Agreement, except to
the extent that Xxxxxx'x failure to comply with any law, rule or regulation is
caused by Fund Company's breach of this Agreement, or its willful misconduct or
negligence in the performance of failure to perform its obligations under this
Agreement.
d. Except as set forth in this Agreement or as otherwise agreed upon in writing
by the patties, any communication, instruction or notice made pursuant to this
Agreement shall be made orally, provided that such oral communication is on a
recorded telephone line or is promptly confirmed in writing by facsimile
transmission. Schwab is entitled to rely on any communications, instructions or
notices which it reasonably believes were provided to it by Fund Company, any
Affiliate or their agents authorized to provide such communications,
instructions or notices to Schwab, and on communications, instructions or
notices provided to it by its
customers. Fund Company is entitled to rely on any communications, instructions
or notices it reasonably believes were provided to it Schwab, or its agents
authorized to provide such communications, instructions or notices to Fund
company.
e. Except to the extent otherwise expressly provided in this Agreement, neither
party assumes any responsibility hereunder, or will be liable to the other, for
any damage, loss of data, delay or any other loss whatsoever caused by events
beyond its reasonable control.
f. Fund Company and each Fund shall indemnify and hold harmless Schwab and each
director, officer, employee and agent of Schwab from and against any and all
losses, claims, liabilities and expenses (including reasonable attorney's fees)
("Losses") incurred by any of them arising out of (i) any untrue statement of
material fact at any omission of a material fact necessary in order to make the
statements made, in light of the circumstances under which they were made, not
misleading in any prospectus, registration statement, annual or other periodic
report or proxy statement of the Fund or in any advertising or promotional
material published or provided to Schwab by or on behalf of Fund Company or any
Affiliate or accurately derived from information published or provided by or on
behalf of Fund Company or any Affiliate, (ii) any violation of any law, rule or
regulation relating to the registration or qualification of shares of the Fund,
(iii) any breach by Fund Company of any representation, warranty or agreement
contained in this Agreement, or (iv) any willful misconduct or negligence by
Fund Company or a Fund in the performance of, or failure to perform, its
obligations under this Agreement, except to the extent such Losses are caused by
Xxxxxx'x breach of this Agreement or its willful misconduct or negligence in the
performance, or failure to perform, its obligations under this Agreement This
Section 3(f) shall survive termination of this Agreement.
4. Account Establishment and Maintenance Fees
------------------------------------------
Fund Company shall pay to Schwab such fees as are set forth on
Schedule II hereto to reimburse Schwab for its costs in establishing and
maintaining Account(s) for each Fund. Fees attributable to establishment of the
Account(s) for a Fund shall be paid prior to establishment of the Account(s) for
the Fund. Fees attributable to maintaining the Account(s) for each Fund shall be
billed on an annual basis on December 31 and paid promptly, in no event later
than thirty (30) days after billing. Such payment shall be by wire transfer.
Such wire transfers shall be separate from wire transfers of redemption proceeds
or distributions under this Agreement.
5. Representations and Warranties
------------------------------
a. Fund Company represents and warrants to Schwab that each Fund is in
compliance with the conditions and qualifications set forth in Rule 2830 of the
Conduct Rules of the National Association of Securities Dealers, Inc. ("NASD"),
as amended from time to time ("Rule 2830"), which enable an NASD member to offer
or sell shares in the Fund. Fund Company represents and warrants that each Fund
marked with an asterisk on Schedule I is a "no load" or "no sales charge" Fund
as defined in Rule 2830. If a Fund, for any reason, fails to satisfy the terms
and conditions of Rule 2830, Fund Company will notify Schwab immediately of the
Fund's disqualification and the reason therefor.
x. Xxxxxx represents and warrants that Schwab is a member of the NASD.
6. Use of Parties' Names
---------------------
a. Without Xxxxxx'x prior written consent Fund Company will not cause or permit
the use, description, or reference to Schwab, or to the relationship
contemplated by this Agreement in any advertisement or promotional materials or
activities.
b. Fund Company authorizes Schwab to use the names or other identifying marks of
Fund Company and Fund in connection with the operation of the MFMP. Fund Company
may withdraw this authorization as to any particular use of any such name or
identifying marks at any time (i) upon Fund Company's reasonable determination
that such use would have a material adverse effect on the reputation or
marketing efforts of Fund Company or such Fund, or (ii) if any of the Funds
cease to be available through the MFMP; provided, however, that Schwab may, in
its discretion, continue to use materials prepared or printed prior to the
withdrawal of such authorization or in the process of being prepared or printed
at the time of such withdrawal.
7. Proprietary Information
-----------------------
Each parry hereto acknowledges that the identities of the other
party's customers, information maintained by such other party regarding those
customers, and all computer programs and procedures developed by such other
party or such other party's Affiliates or agents in connection with such other
party's performance of its duties hereunder constitute the valuable property of
such other party. Each party agrees that should it come into possession of any
list or compilation of the identities of or other information about the other
party's customers, or any other property of such party, pursuant to this
Agreement or any other agreement related to services under this Agreement, the
party who acquired such information or property shall use its best efforts to
hold such information or property in confidence and refrain from using,
disclosing, or distributing any of such information or other property, except
(i) with the other party's prior written consent, or (ii) as required by law or
judicial process. Each party acknowledges that any breach of the foregoing
agreements as to another party would result in immediate and irreparable harm to
such other party, for which there would be no adequate remedy at law and agrees
that in the event of such a breach such other party will be entitled to
equitable relief by way of temporary and permanent injunctions, as well as such
other relief as any court of competent jurisdiction deems appropriate.
8. Assignability
-------------
This Agreement is not assignable by either party without the other
party's prior written consent, and any attempted assignment in contravention
hereof shall be null and void and not merely voidable; provided, however, that
Schwab may, without the consent of Fund Company, assign its rights and
obligations under this Agreement to any Affiliate.
9. Exhibits and Schedules; Entire Agreement
----------------------------------------
All Exhibits and Schedules to this Agreement, as they may be amended
from time to time, are by this reference incorporated into and made a part of
this Agreement. This Agreement (including the Exhibits and Schedule hereto)
constitutes the entire agreement between the parties as to the subject matter
hereof and supersedes any and all agreements, representations and warranties,
written or oral, regarding such subject matter made prior to the date on which
this Agreement has been executed and delivered by Schwab and Fund Company.
10. Amendment
---------
This Agreement may be amended only by a writing executed by each
party hereto that is to be bound by such amendment, except as provided in this
Section 10. Exhibit A and Schedule II may each be amended by Schwab on forty
(40) days' written notice to Fund Company or such earlier time as shall be
agreed to by the parties. Exhibits B and C shall be amended by Fund Company in
the event of any change to the information contained therein.
11. Governing Law
-------------
This Agreement shall be governed by and interpreted under the laws
of the State of California, applicable to contracts between California residents
entered into and to be performed entirely within the state.
12. Counterparts
------------
This Agreement may be executed in one or more counterparts, each of
which will be deemed an original, but all of which together shall constitute one
and the same instrument.
13. Effectiveness and Termination
-----------------------------
a. Upon Xxxxxx'x acceptance of Schedule I, as amended from time to time, the
effective date of this Agreement as to any Fund shall be the later of the date
or which this Agreement is made or the date set forth opposite the name of the
Fund on Schedule I.
b. This Agreement may be terminated as to any Fund by Schwab immediately upon
written notice to fluid Company- This Agreement maybe terminated as to any Fund
by Fund Company upon thirty (30) days' written notice to Schwab.
c. Upon the termination date for any Fund, Schwab will no longer make the
fund shares available for purchase by Xxxxxx'x customers through the MFMP.
Schwab reserves the right to transfer the Fund shares of its customers out of
the Account. If Schwab continues to hold the Fund shares on behalf of its
customers in the Account, the parties agree to be obligated under, and act in
accordance with, the terms and conditions of this Agreement with respect to such
shares.
IN WITNESS WHEREOF, this Agreement has been executed by a duly
authorized representative of the parties hereto.
XXXXXXX XXXXXX & CO., INC. THE TOCQUEVILLE TRUST, on
its own behalf and on behalf of
each Fund listed on Schedule I
By: hereto, as amended from time to time
------------------------------
Xxxx Xxxxx
Vice President/Mutual Funds
Operations Administration By:
------------------------
Date: Name:
------------------------------ ------------------------
Title:
------------------------
Date:
------------------------
SCHEDULE I
TO THE OPERATING AGREEMENT
Fund Company(ies)/Fund(s) Effective Date
------------------------ --------------
The Tocqueville Trust
The Tocqueville Fund SI 4/11/97
The Tocqueville Small Cap Value Fund SI 4/11/97
The Tocqueville International Value Fund SI 4/11/97
The Tocqueville Government Fund SI 4/11/97
* Indicates that Fund is a "no-load" or "no sales charge" Fund as defined in
Rule 2830 of the Conduct Rules of National Association of Securities Dealers,
Inc.
SI Indicates that Fund is available only to Schwab Institutional customers.
THE TOCQUEVILLE TRUST, on its
own behalf and on behalf of each
Fund listed on this Schedule I, as
Accepted by: amended from time to time
XXXXXXX XXXXXX & CO., INC.
By:
------------------------
By:
------------------------------
Xxxx Xxxxx Name:
Vice President/Mutual Funds ------------------------
Operations Administration
Title:
-----------------------
Date: Date:
------------------------------ ------------------------
SCHEDULE II
TO THE OPERATING AGREEMENT
FEES TO ESTABLISH AND MAINTAIN ACCOUNT(S) FOR A FUND
ESTABLISHMENT FEES
The Establishment Fee shall be $12,000 for the Account(s) for the initial
Fund established on Xxxxxx'x system, and $4,500 for the Account(s) for each
additional Fund, whether added at the same time or subsequent to the initial
Fund,
MAINTENANCE FEE
a. The Maintenance Fee as to the Account(s) for each Fund shall be charged
in advance, annually, on December 31 ("Assessment Date") commencing on the first
Assessment Date after the establishment of the Account(s) for the Fund on the
Schwab system. The Maintenance Fee as to the Account(s) of a Fund shall not be
prorated in the event of termination of this Agreement as to such Fund prior to
the end of a calendar year for which such Maintenance Fee has been charged,
b. The Maintenance Fees as to the Account(s) for each Fund shall be
determined based on the aggregate value of all shares of a Fund contained in all
Account(s) as the Fund on the Assessment Date. The Maintenance Fees are as
follows:
Aggregate Value of All Shares Maintenance Fee
----------------------------- ---------------
Up to arid including $2.5 million $4,500
Over $2.5 million and up to and $3,000
including $5 million
Over $5 million $0
c. For purposes of this calculation, the value of the shares of each Fund
will be thenet asset value reported by such Fund to the National Association of
Securities Dealers, Inc. Automated Quotation System. No adjustments will be made
to the net asset values to correct errors in the net asset values so reported
for any Assessment Date unless such error is corrected and the corrected net
asset value per share is reported to Schwab before 5 o'clock, p.m., San
Francisco time, on the next business day after the Assessment Date to which the
error relates.
EXHIBIT A
OPERATING PROCEDURES
1. The Account
-----------
x. Xxxxxx will open an Account with each Fund. The Account shall
be registered:
Xxxxxxx Xxxxxx & Co., Inc.
Special Custody Account for the Exclusive Benefit of Customers
Attention: Mutual Funds
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
The Account will be set up for the reinvestment of capital gains and dividend
distributions.
b. The Fund shall designate the Account with account numbers.
Account numbers will be the means of identification when the parties are
transacting in the Account.
c. The parties acknowledge that the Account is an omnibus
account in Xxxxxx'x name with shares held by any number of beneficial owners.
Schwab represents that the shares in the Account are customer securities and are
segregated from Xxxxxx'x own assets. Fund Company represents that the shares in
the Account are carried free of any charge, lien or payment of any kind in favor
of the Fund or any person claiming through the Fund.
d. The Account shall be kept open on the Fund's books regardless
of a lack of activity or small position size, except to the extent that Schwab
takes specific action to close the Account, or to the extent the Fund's
prospectus reserves the right to close accounts that are inactive. In the latter
case, Fund Company will give prior notice to Schwab before closing any Account.
x. Xxxxxx has the right to open additional accounts from time to
time to accommodate other investment options and features, and to consolidate
existing accounts if and when appropriate to meet the needs of the MFMP. In the
event that it is necessarily for Schwab to open an account with a Fund for the
payment of distributions in cash, the term "Account" shall mean both the account
for the reinvestment of capital gains and dividend distributions and the account
for the payment of distributions in cash.
x. Xxxxxx reserves the right to issue instructions to each Fund
to move shares between the Account and any other account Schwab may open.
2. Purchase and Redemption Orders
------------------------------
For each day on which any Schwab customer places with Schwab a purchase or
redemption order for shares of a Fund, Schwab shall aggregate all such purchase
orders and aggregate all such redemption orders and communicate to the Fund an
aggregate purchase order and an aggregate redemption order. Schwab will accept
orders to purchase and redeem Fund shares from its customers no later than 4:00
p.m. Eastern Time (market close). Schwab will communicate the order to the Fund
prior to a mutually agreed upon time.
3. Settlement of Transactions
--------------------------
x. Xxxxxx will transmit the purchase price of the aggregate
purchase order to the Fund by wire transfer on the next business day after the
trade date. For purposes of this Agreement, a "business day" is any day the New
York Stock Exchange is open for trading.
b. For each business day on which Schwab places a redemption
order for a Fund within the time designated by the Fund, Fund Company will cause
the Fund(s) to send to Schwab the aggregate proceeds of all redemption orders
for the Fund(s) placed by Schwab on that day. Such redemption proceeds will be
sent by wire transfer on the next business day following the trade date for the
redemption orders; provided that Fund Company in its discretion, send such
proceeds by check if the aggregate amount is less than $250. Wire transfer of
redemption proceeds shall be separate from wire transfers for other purposes.
c. Each wire transfer of redemption proceeds shall indicate,
on the Fed Funds wire system, the amount thereof attributable to each Fund;
provided, however, that if the number of entries would be too great to be
transmitted through the Fed Fund wire system, Fund Company shall, on the day the
wire is sent, notify Schwab of such entries. The cost of the wire transfer is
the responsibility of the party sending the wire. The interest cost associated
with any delayed wire is the responsibility of the party sending the wire.
d. Should a Fund need to extend settlement on a trade, Fund
Company must contact Schwab on trade date to discuss the extension. For purposes
of determining the length of settlement, Fund Company agrees to treat
shareholders that hold Fund shares through the Account the same as it treats
shareholders that hold Fund shares directly with the Fund.
e. In the event that a Fund cannot verify redemption proceeds,
Fund Company will settle trades and forward redemption proceeds in accordance
with this Agreement based on the information provided by Schwab. Schwab will be
responsible for the accuracy of all trade information provided by it.
f. Fund Company represents that each Fund that has reserved the
right to redeem in kind has filed Form N-18F-1 with the Securities and Exchange
Commission. For purposes of complying with the Fund's election on Form N-18F-1,
Fund Company agrees that it will treat as a "shareholder" each shareholder that
holds Fund shares through the Account, provided that Schwab provides to Fund
Company, upon request, the name or account number, number of Fund shares and
other relevant information for each such shareholder. Fund Company acknowledges
that treatment of Schwab as the sole shareholder of Fund shares held in the
Account for purposes of applying the limits in Rule 18f-1 under the 1940 Act
would be inconsistent with the intent of Rule 18f-1 and the Fund's election on
Form N-18F-1 and could unfairly prejudice shareholders that hold Fund shares
through the Account.
4. Account Reconstruction Requirements
-----------------------------------
x. Xxxxxx shall verify, on a next day basis, orders placed for
the Account with each Fund. All activity in the Account must be reflected.
Therefore, any Use of activity must be shown with its corresponding "as of"
dates.
x. Xxxxxx must receive statements on or before the eighth
business day of each month, even if there has been no activity in the Account
during the period, unless Schwab can verify transaction by direct or indirect
systems access.
c. The parties agree to notify each other and correct any error
in the Account with any Fund upon discovery. If an error is not corrected by the
day following discovery, each party agrees to make best efforts to avoid this
from hindering any routine daily operational activity.
5. Pricing
-------
Every business day on which there is a transaction in the Account and for
each month-end business day, Fund Company will provide to Schwab prior to 7:00
p.m., Eastern Time, each Fund's closing net asset value and public offering
price (if applicable] for that day and/or notification of no price for that day.
Fund Company shall provide such information on a best efforts basis taking into
consideration any extraordinary circumstances arising at the Fund (e.g. natural
disasters, etc.).
6. Distributions
-------------
a. Fund Company shall provide distribution information to Schwab
in a timely manner to enable Schwab to pay distributions to its customers on or
as close to payable date as practicable. As to each Fund, Fund Company or such
Fund shall provide Schwab with (i) the record date, exdividend date, and payable
date with respect to a Fund as soon as practicable after it is announced, but no
later than three (3) business days prior to record date, (ii) the record date
share balance in the Account and the distribution rate per share on the first
business day after record date, and (iii) the reinvest price per share as soon
as it is available. Other distribution information required by Schwab from time
to time for payment of distributions to its customers shall be provided by Fund
Company on such dates as are agreed upon between Schwab and Fund Company, but no
later than payable date.
b. For purposes of effecting cash distributions for customers
who have elected to receive their capital gains distributions and/or dividends
in cash, prior to 10:00 a.m., Eastern Time, on the next business day following
receipt of the reinvest price per share as provided in paragraph 6(a)(iii)
above, Schwab shall notify Fund Company of the aggregate number of Fund shares
with respect to which the purchase is required to be voided. Fund Company agrees
that the purchase of such aggregate number of Fund shares may be voided. Fund
Company or such Fund shall wire the proceeds of such voided transaction from the
Fund to Schwab on the same business day. Schwab shall use such voided
transaction proceeds to pay the distribution in cash to Schwab customers who
have elected to receive such distributions in cash.
c. For each Fund that pays daily dividends, Fund Company shall
provide on a daily basis, the following record date information: daily rate,
account share balance, account accrual dividend amount (for that day), account
accrual dividend amount (for period to date), and amount transfers and period-
to-date accrual amounts.
d. In the event that Schwab maintains an Account with a Fund for
the payment of distributions in cash, Fund Company shall wire, on payable date,
any cash distribution from the Fund to Schwab.
e. For each Fund that pays daily dividends, each Fund shall
accrue dividends, commencing on the settlement date for the purchase of Fund
shares and terminating on the trade date for the redemption of Fund shares.
f. For annual tax reporting purposes, Fund Company shall inform
Schwab of the portion of each Fund's distributions that include any of the
following: foreign source income, tax exempt income by state of origin or return
of capital.
g. In conformance with its status as a broker/dealer holding its
customers securities in street name, Schwab shall prepare and file with the
appropriate governmental agencies such information, returns and reports as are
required to be so filed for reporting (i) dividends and other distributions
made, (ii) amounts withheld on dividends arid other distributions and payments
under applicable federal and state laws, rules and regulations and (iii) gross
proceeds of sales transactions as required.
h. Upon notice from Fund Company, Schwab shall effect mergers,
splits and other reorganization activities of a Fund for its customers.
7. Price and Distribution Rate Errors
----------------------------------
a. In the event adjustments are required to correct any error in
the computation of the net asset value or public offering price of a Fund's
shares or in the distribution rate for a Fund's shares, Fund Company shall
notify Schwab upon discovering the need for such adjustment. Notification can
be made orally, but must be confirmed in writing.
x. Xxxxxx and Fund Company shall agree promptly and in good
faith to a resolution of the error, and no adjustment for the error shall be
taken in the Account until such agreement is reached. Following resolution, upon
request by Schwab, Fund Company shall provide Schwab with written notification
of the resolution. The letter shall be written on Fund Company letterhead and
must state for each day on which an error occurred the incorrect price or rate,
the correct price or rate, and the reason for the price or rate change. Fund
Company agrees that Schwab may send this writing, or derivation thereof, to
Xxxxxx'x customers whose accounts are affected by the price or rate change.
c. If a Schwab customer has received cash in excess of what he
is entitled, Schwab will, when requested by Fund Company, and to the extent
practicable and permitted by law, debit the customer's brokerage account in the
amount of such excess, but only to the extent of any cash in the account, and
repay it to the Fund. In no event, however, shall Schwab be liable to Fund
Company or the Fund for any such amounts. Upon the request of Fund Company,
Schwab shall provide Fund Company with the name of Xxxxxx'x customer and other
relevant information concerning the customer's brokerage account to assist Fund
Company in the collection from Xxxxxx'x customer of any such excess amount not
repaid to the Fund.
d. If adjustment is necessary to correct an error which has
Xxxxxx'x Xxxxxx'x customers to receive dollars or shares less than that to which
they are entitled, the Fund shall, as appropriate and as mutually agreed by the
parties pursuant to 7(b) above, make all necessary adjustments to the number of
shares owned in the Account and/or distribute to Schwab any and all amounts of
the underpayment. Schwab will credit the appropriate amount of such shares or
payment to each Schwab customer.
e. For purposes of making adjustments, including the collection
of overpayments, Fund Company agrees to treat shareholders that hold Fund shares
through the Account the same as it treats shareholders that hold Fund shares
directly with the Fund. When making adjustments for an error, a Fund shall not
net transactions for that day in the Account.
8. Record Maintenance
------------------
x. Xxxxxx shall maintain records for each of its customers who
holds Fund shares through the Account, which records shall include:
i. Number of shares;
ii. Date, price and amount of purchases and redemptions
(including dividend reinvestments) and date and amounts of dividends
paid for at least the current year to date;
iii. Name and address of each of its customers, including zip
codes and social security numbers of taxpayer identification numbers;
iv. Records of distributions and dividend payments;
v. Any transfers of shares; and
vi. Overall control records.
x. Xxxxxx will be responsible for accurately posting
transactions in Fund shares to its customers' brokerage accounts.
9. Transfer of Accounts
--------------------
a. Fund Company agrees to transfer shares between accounts for
Schwab customers or other street name brokers held directly with a Fund and the
Account on the Fund's records. For the purpose of expediting direct transfers
from accounts for Schwab customers, Fund Company will accept by facsimile
transmission a summary sheet of information ("Summary Sheet") indicating the
customers' names, account numbers, :the Fund affected and the number of shares
to be re-registered. For record keeping purposes, actual copies of transfer
forms will be forwarded to a Fund upon its request for such forms.
x. Xxxxxx represents and warrants that for each transfer
indicated in the Summary Sheet, it holds each underlying instruction for
re-registration signed by its customer, and that its customer's signature on
such instruction is signature guaranteed by Schwab pursuant to the New York
Stock Exchange's Medallion Signature Program. Schwab will retain these documents
for the period required by any applicable law, rule or regulation.
x. Xxxxxx agrees to indemnify and hold harmless Fund Company,
the Fund and each director, officer, employee and agent of Fund Company
("indemnified person") from and against any and all Losses incurred by any of
them arising out of the impropriety of any transfer effected by the Fund in
reliance on the Summary Sheet to the same extent as provided under the New York
Stock Exchange's Medallion Signature Program, except to the extent such Losses
arise out of the failure of any indemnified person to comply with the
instructions on the summary sheet of information.
d. Fund Company shall process all transfer requests into the
appropriate Account. Schwab as custodian is qualified to accept in the Accounts
shares from Fund XXX, Xxxxx or 401(k) accounts. At no time shall any Fund
establish separate accounts registered to Schwab for the benefit of individual
shareholders. In the event any such account is mistakenly opened, Schwab
reserves the right to instruct such Fund to move Fund shares to the Account.
e. Fund Company must confirm to Schwab the completion of each
transfer an the day it occurs. The confirming information shall include the
number of shares, date ("as of"
date if unavoidable delay), transaction date, account number of the customer and
the Account, registration, accrued dividends and account type (i.e., XXX,
Xxxxx, 401(k), etc.).
f. Transfer processing after record date but prior to payable
date will include all accrued dividends. Each Fund is responsible for monitoring
all completed full transfers for "trailing" dividends. Should a "trailing"
dividend appear in an account, a Fund shall send such dividend to Schwab within
five (5) business days, along with a specific written notification thereof.
Notification shall include details of the dividend and customer, including the
customer's social security number or taxpayer identification number, and/or the
account number for the Account to which the transfer was made.
g. If Schwab customers submit share certificates for transfer
into their Schwab brokerage accounts, Schwab will send such certificates,
properly endorsed to the applicable Fund, for transfer into the Account with
such Fund. Upon Xxxxxx'x request, Fund Company agrees to provide the status of
said certificates and book share balances.
10. Shareholder Communication
-------------------------
a. Fund Company shall arrange with Schwab, or a mailing agent designated or
approved by Schwab, for the distribution of the materials listed below to all of
Xxxxxx'x customers who hold Fund shares, which distribution shall be so arranged
by Fund Company as to occur immediately upon the effective date of the
materials:
i. All proxy or information statements prepared for circulation to
shareholders of record of such Fund;
ii. Annual reports;
iii. Semi-annual reports;
iv. Quarterly reports (if applicable); and
v. All updated prospectuses, supplements and amendments thereto.
Fund Company shall be responsible for providing the materials and for Schwab or
the mailing agent's fees in connection with this service as well as for timely
distribution. Fund Company agrees to have Schwab or the mailing agent
consolidate mailings of material to shareholders of more than one Fund if the
mailing is identical for all Funds in the Fund Company family.
b. In addition to the materials listed above, Fund Company
agrees to provide directly to Schwab all prospectuses, statements of additional
information and supplements and amendments thereto, and annual and other
periodic reports for each Fund in amounts reasonably requested by Schwab for
distribution to its customers. Fund Company is obligated to supply these
materials to Schwab in a timely manner so as to allow Schwab, at its own
expense, to send current prospectuses and statements of additional information
and periodic reports, immediately upon their effective dates, to customers and
prospective customers requesting them through Schwab. Schwab will also send a
current Fund prospectus with purchase trade confirmations for the initial
purchase of a Fund. Fund Company shall notify Schwab immediately of any change
to a Fund's prospectus.
c. If Schwab acts as clearing broker in an omnibus relationship
with a correspondent bank or broker ("Correspondent"), upon the request of
Schwab, Fund Company shall also provide to Schwab, in a timely manner,
sufficient supplies of Fund materials identified in Sections 10(a) and 10(b) for
Schwab to give to Correspondent for the distribution of such materials to
Correspondent's customers who hold Fund shares.
d. Fund Company shall ensure that the prospectus of each of its
Funds discloses that a broker may charge transaction fees on the purchase and/or
sale of Fund shares. Fund Company shall also ensure that either the prospectus,
or the statement of additional information if the statement of additional
information is incorporated in the prospectus, of each of its Funds discloses
(i) that the performance of the Fund may be compared in publications to the
performance of various indices and investments for which reliable performance
data is available, (ii) that the performance of the Fund may be compared in
publications to averages, performance rankings, or other information prepared by
recognized mutual fund statistical services, and (iii) that the annual report
contains additional performance information and will be made available to
investors upon request and without charge.
x. Xxxxxx shall mail statements to its customers on a monthly
basis (or as to accounts in which there has been no activity in a particular
month, no less frequently than quarterly) showing, among other things, the
number of shares of each Fund owned by such customer and the net asset value of
each such Fund as of a recent date.
x. Xxxxxx shall respond to customer inquiries regarding, among
other things, share prices, account balances, dividend amounts and dividend
payment dates. With respect to Fund shares purchased by customers after the
effective date of this Agreement, Schwab shall provide average cost basis
reporting to assist customers in the preparation of income tax returns.
11. New Processing Systems
----------------------
Fund Company agrees to cooperate to the extent possible with Schwab as
Schwab develops and seeks to implement new processing systems for the MFMP.
