ALPINE INCOME TRUST ADDENDUM TO THE FUND ADMINISTRATION SERVICING AGREEMENT
ADDENDUM
TO THE
THIS
ADDENDUM dated as of this 30th day of
November,
2006, to the Fund Administration Servicing Agreement, dated as of September,
2003, as amended November 1, 2004 (the "Agreement"), is entered by and between
Alpine Income Trust, a Delaware statutory trust (the "Trust")
and U.S. Bancorp Fund Services, LLC, a Wisconsin limited
liability company ("USBFS").
RECITALS
WHEREAS,
the parties have entered into a Fund Administration Servicing Agreement;
and
WHEREAS,
the parties desire to modify said Agreement; and
WHEREAS,
Section 6 of the Agreement allows for its amendment by a written
instrument
executed by the parties.
NOW,
THEREFORE, the parties agree that the following provisions shall be
added following Section 13 of the Agreement:
14.
Additional Services to be provided by USBFS
The
Trust
desires USBFS to provide, and USBFS agrees to provide, the services that are
listed
below (each, a "System"). Each System is described and may be subject to
additional terms and conditions specified in its respective exhibit noted below,
as such may be amended from time to time:
Eagle
Portal (Appendix I)
The
Trust
hereby acknowledges that exhibits are an integral part of this Agreement and,
to
the extent services included in Appendix I are selected by the Trust, such
services shall also be subject to the terms of this Agreement. To the extent
the
terms and conditions of this Agreement conflict with the terms and conditions
included in Appendix I, as applicable, the exhibits shall control. The
provisions of Appendix I, as applicable, shall continue in effect for as long
as
this Agreement remains in effect, unless sooner terminated pursuant to Section
6
hereof.
15.
System Maintenance
The
Trust
understands that USBFS will perform periodic maintenance to the System(s),
which
may
cause temporary service interruptions. To the extent possible, USBFS shall
notify
the Trust of all planned outages and will perform any necessary maintenance
during non-business hours.
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16.
Additional Representations and Warranties
The
parties hereby warrant that neither party shall knowingly insert into any
interface, other
software, or other program provided by such party to the other hereunder, any
"back door," "time bomb," "Trojan Horse," "worm," "drop dead device," "virus"
or
other computer
software code or routines or hardware components designed to disable, damage
or
impair
the operation of any System, program or operation hereunder. For failure to
comply
with this warranty, the non-complying party shall immediately replace all copies
of
the
affected work product, System or software. All costs incurred with replacement
including,
but not limited to, cost of media, shipping, deliveries and installation, shall
be borne
by
such party.
17.
Proprietary Rights
A. The
Trust acknowledges and agrees that by virtue of accessing the System(s), it
shall not
obtain any rights in or to any of the software, templates, screen and file
fonnats, interface
protocols, formats and development tools and instructions, hardware, processes,
trade
secrets, instruction manuals, enrollment authorization, authentication and
other
business
processes, proprietary information or distribution and communication networks
used
to
allow access to the System(s) owned by or licensed to USBFS. Any interface
and
other
software or programs provided to the Trust in order to provide connectivity
to
the System(s)
shall be used by the Trust only for the period during which this Agreement
is in
effect and only in accordance with the terms of this Agreement, and shall not
be
used by the Trust to provide connectivity to or through any other system or
person without USBFS's
prior written approval. The Trust shall not copy, decompile or reverse engineer
any
software or programs provided to the Trust hereunder. The Trust also agrees
not
to take
any
action which would mask, delete or otherwise alter any on-screen disclaimers
and
copyright, trademark and service xxxx notifications, or any "point and click"
features relating
to acknowledgment and acceptance of such disclaimers and
notifications.
B. The
Trust agrees that USBFS would not have an adequate remedy at law in the event
of
the
Trust's breach or threatened breach of its obligations under this Section 19
of
this
Agreement
and that USBFS would suffer irreparable injury and damage as a result of any
such
breach. Accordingly, in the event the Trust breaches or threatens to breach
the
obligations
set forth in this Section of this Agreement, in addition to and not in lieu
of
any legal or other remedies USBFS may pursue hereunder or under applicable
law,
the Trust hereby consents to the granting of equitable relief (including the
issuance of a temporary restraining order, preliminary injunction or permanent
injunction) against it by a court of competent jurisdiction, without the
necessity of proving actual damages or posting any bond or other security
therefore, prohibiting any such breach or threatened breach. In any proceeding
upon a motion for such equitable relief, the Trust's ability to answer in
damages shall not be interposed as a defense to the granting of such equitable
relief. The provisions of this Section relating to equitable relief shall
survive termination of this Agreement.
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C. Each
party acknowledges and agrees that it obtains no rights in or to any of the
software,
hardware, processes, trade secrets, and proprietary information or distribution
and
communication networks of the other hereunder. Except in the normal course
of
business
and in conformity with Federal copyright law or with the other party's consent,
neither
party nor any of its affiliates shall disclose, use, copy, decompile or reverse
engineer
any software or other programs provided to such party by the other in connection
herewith.
18.
Additions to Standard of Care; Indemnification; Limitation of
Liability
A.
USBFS
shall not be liable for any loss or damages resulting from fraudulent,
unauthorized,
or otherwise improper use of any identification or security codes or systems
access mechanisms assigned by USBFS in connection with access to the System(s),
except a loss or damages arising out of or relating to the USBFS' refusal or
failure to comply with the terms of this Agreement or from its bad faith, gross
negligence, or willful misconduct in the performance of its duties under this
Agreement.
B.
The
Trust understands that certain services made available through the System(s)
are
provided
through the use of the equipment, software, and other related services
pursuant
to
certain contracts between various vendors and USBFS. The Trust agrees to release
and hold
harmless USBFS against any and all claims, demands, losses, expenses and
liabilities of any and every nature (including reasonable attorneys' fees)
(collectively, "Liabilities") which may arise from or by reason of the Trust's
use of such equipment, software or services provided by such vendors to USBFS,
except Liabilities arising out of or relating to the USBFS' refusal or failure
to comply with the terms of this Agreement or from its bad faith, gross
negligence, or willful misconduct in the performance of its duties under this
Agreement.
C.
USBFS
CANNOT AND DOES NOT GUARANTEE AVAILABILITY OF THE SYSTEM@).
Accordingly, USBFS' sole liability to the Trust or any third party (including
end users) for any claims, notwithstanding the form of such claims (e.g.,
contract,
negligence, or otherwise), arising out of the delay of or interruption in the
System(s)
to be provided by USBFS hereunder shall be to use its best reasonable efforts
to
commence or resume the System(s) as promptly as is reasonably
possible.
D.
Because the ability of USBFS to deliver the System(s) is dependent upon the
Internet and
equipment, software, systems, data and services provided by various
telecommunications carriers, equipment manufacturers, firewall providers and
encryption system
developers and other vendors and third parties, USBFS shall not be liable for
delays or failures to perform its obligations hereunder to the extent that
such
delays or failures are attributable to circumstances beyond its reasonable
control which interfere with
the
delivery of the System(s) by means of the Internet or any of the equipment,
software
and services which support the Internet provided by such third parties. USBFS
shall
also not be liable for the actions or omissions of any third party wrongdoers
(i.e., hackers
not employed by USBFS or its affiliates) or of any third parties involved in
the
System(s)
and shall not be liable for the selection of any such third party, unless USBFS
selected
the third party in bad faith or in a grossly negligent manner.
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19.
Warranties
The
Trust
acknowledges that it is responsible for determining the suitability and accuracy
of the information provided through its access to the System@). USBFS MAKES
NO
WARRANTIES
OR REPRESENTATIONS, EXPRESSED OR IMPLIED, WITH RESPECT TO THE
SUITABILITY AND ACCURACY OF THE SYSTEM@). However, USBFS will assist the Trust
in verifying the accuracy of any of the information available to the Trust
through the System(s).
20.
Addition to File Security and Retention; Confidentiality
USBFS
and
its agents will provide reasonable security to ensure that unauthorized third
parties
do not have access to the Trust's databases, files, and other information
provided by
the
Trust to USBFS for use with the System(s), the names of end users or end user
transaction
or account data (collectively, "Trust Files''). USBFS' security provisions
with
respect
to the System(s), or the Trust's web site(s) and the Trust Files will be no
less
protected
than USBFS' security provisions with respect to its own proprietary information.
USBFS agrees that any and all Trust Files maintained by USBFS for the
Trust
hereunder shall be available for inspection by the Trust's regulatory
authorities during
regular business hours, upon reasonable prior written notice to USBFS, and
will
be maintained and retained in accordance with applicable requirements of the
1940 Act. USBFS
will not use, or permit the use of, names of end users for the purpose of
soliciting any
business, product, or service whatsoever except where the communication is
necessary
and appropriate for USBFS' delivery of the System(s).
Appendix
I
Eagle
Portal (a/k/a "Advisor Information Source", or "AIS") for Alpine Equity
Trust
USBFS
utilizes the Eagle Portal, a web-based report delivery system that
generates
holdings,
position, and tax reports. Data from IDC, CPORT, S&P, and GICs populate the
data warehouse from which reports are generated. Reports can be customer run
or
scheduled for automatic delivery to a portal inbox. This is an internal software
application which is maintained and monitored by internal staff.
Duties
and Responsibilities of USBFS
USBFS
shall:
A.
Provide access to the System 24 hours a day, 7 days a week, subject to scheduled
maintenance
and events outside of USBFS's reasonable control. Unless an emergency
is
encountered, no routine maintenance will occur during the hours of 8:00 a.m.
to
3:00
p.m.
Central Time.
B.
Supply
necessary software to access the System, if necessary.
C.
Provide training and connectivity support as outlined in the standard pricing
model included
herein.
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D.
Maintain and support the System, which shall include providing error
corrections, minor
enhancements and interim upgrades to the System and providing help desk
support
to provide assistance to the Trust's employees and agents with their use of
the
System.
Maintenance and support, as used herein, shall not include (i) access to or
use
of
any
substantial added functionality, new interfaces, new architecture, new
platforms, new versions or major development efforts, unless made generally
available by USBFS to System customers, as determined solely by USBFS or (ii)
maintenance of customized features.
E.
Provide monthly invoices of fees as stated in the standard pricing model or
the
fee schedule.
F.
Establish systems to guide assist and permit End Users (as defined below) who
access the
System from the Trust's web site(s) to electronically perform inquiries and
create and
transmit transaction requests to USBFS.
G.
Address and mail, at the Trust's expense, notification and promotional mailings
and other
communications provided by the Trust to shareholders regarding the availability
of
the
System.
H.
Issue
to each shareholder, financial adviser or other person or entity who desires
to
make
inquiries concerning the Trust or perform transactions in accounts with the
Trust using
the
System (the "End User") a unique user ID and password for authentication
purposes,
which may be changed upon an End User's reasonable request in accordance
with
policies to be determined by USBFS and the Trust. USBFS will require the End
User
to
use his/her user ID and password in order to access the System.
I.
Utilize encryption and secure transport protocols intended to prevent fraud
and
ensure confidentiality
of End User accounts and transactions. In no event shall USBFS use encryption
weaker than a 40-bit RC4 Stream. USBFS will take reasonable actions,
including
periodic scans of Internet interfaces and the System, to protect the Internet
web
site
that provides the System and related network, against viruses, worms and
other
data corruption or disabling devices, and unauthorized, fraudulent or illegal
use, by
using
appropriate virus detection and destructive software and by adopting such
other
security procedures as may be necessary.
J.
Establish and provide to the Trust written procedures, which may be amended
from
time
to
time by USBFS with the written consent of the Trust, regarding End User
access
to
the System. Such written procedures shall establish security standards for
the
System, including, without limitation:
(1)
Encryption/secure transport protocols.
(2)
End
User lockout standards (e.g., lockout after three unsuccessful attempts
to
gain
access to the System).
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(3)
User
ID and password issuance and reissuance standards,
(4)
Access standards, including limits on access to End Users whose accounts
are
coded
for
privilege.
(5)
Automatic logoff standards (e.g., if the session is inactive for longer than
15
minutes).
K.
Ensure
that the HTTPS Server is accessible via the Internet.
Duties
and Responsibilities of the Trust
The
Trust
shall:
A.
Provide and maintain, at its own expense, one or more personal conlputers for
accessing
the System that will accommodate and be compatible with the software
provided
by USBFS.
B.
Follow
any and all procedures necessary to access the System as may be set forth in
any
user
guide or instruction manual provided and which may be amended or supplemented
from time to time.
C.
Provide for the security of all codes and system access mechanisms relating
to
the System
and implement such security procedures and/or devices to ensure the integrity
of
the
System when accessed by the Trust from its principal place of
business.
D.
The
Trust hereby acknowledges that all programs, software, manuals and other written
information
relating to the System shall remain the exclusive property of USBFS at
all
times.
E.
The
Trust acknowledges that it is responsible for determining the suitability and
accuracy
of the information obtained through its access to the System. USBFS MAKES
NO
WARRANTIES OR REPRESENTATIONS, EXPRESSED OR IMPLIED,
WITH RESPECT TO THE SUITABILITY AND ACCURACY OF FUND DATA,
SYSTEMS, INDUSTRY INFORMATION AND PROCESSES ACCESSED THROUGH
THE SYSTEM. However, USBFS will assist the Trust in verifying the accuracy
of any of the information made available to the Trust through the System and
covered
by this Agreement.
F.
In the
event of termination of this Agreement, the Trust shall immediately end its
access
to
the System and return all codes, system access mechanisms, programs,
manuals
and other written information to USBFS, and shall destroy or erase all such
information
on any diskettes or other storage medium, unless such access continues to
he
permitted pursuant to a separate agreement between the Trust and USBFS that
is
in effect.
G.
Assume
exclusive responsibility for the consequences of any instructions it may give
to
USBFS
or the Trust's or End Users' failure to properly access the System in the manner
prescribed by USBFS, and for the Trust's failure to supply accurate information
to USBFS.
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H.
Promptly notify USBFS of any problems or errors with the System of which the
Trust becomes
aware or any changes in policies or procedures of the Trust requiring changes
to
the
System.
I.
Comply, and instruct End Users to comply, with all the End User enrollment
and
authorization
procedures.
J.
Obtain
and pay for connectivity to the HTTPS Server.
K.
Have
the proper equipment and software to enable End Users to access the HTTPS
Server
and download the files and obtain all related maintenance, including support
in
the
event
of download problems.
FEES:
No additional fees for the Advisor Information Service
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Except
to
the extent supplemented hereby, the Agreement shall remain in full force and
effect.
IN
WITNESS WHEREOF, the parties hereto have caused this Addendum to be
executed
by a duly authorized officer on one or more counterparts as of the date and
year
first written above.
| ALPINE INCOME TRUST | U.S. BANCORP FUND SERVICES, LLC |
| By: /s/ Xxxxxxx X. Xxxxx | By: /s/ Xxxxxxx X. XxXxx |
| Name: Xxxxxxx X. Xxxxx | Name: Xxxxxxx X. XxXxx |
| Title: Vice President | Title: Sr. Vice President |
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