DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this ___ day of ___________, 2002 by and
between the Alpine Income Trust (the "Trust"), a business trust organized under
the laws of the State of Delaware, and Ambac Securities, Inc. (the
"Distributor"), a corporation organized under the laws of the State of Delaware.
WHEREAS, the Trust is registered as an open-end, diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and is proposing to offer units of beneficial interest
(such units of all series are hereinafter called the "Shares"), representing
interests in those certain additional investment portfolios of the Trust, are
identified on Schedule A hereto (each a "Fund" and collectively, the "Funds"),
and are registered under the Securities Act of 1933 as amended (the "1933 Act")
with the Securities and Exchange Commission ("SEC") pursuant to the Trust's
Registration Statement on Form N-1A, as amended (the "Registration Statement");
and
WHEREAS, the Distributor desires to be retained to serve as the
distributor of Shares of the Funds identified on Schedule A hereto and for such
additional classes or series as the Trust may determine to issue in the future.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein and intending to be legally bound hereby, the parties hereto
enter into this Distribution Agreement and agree as follows:
1. SERVICE AS DISTRIBUTOR
1.1 The Distributor will act on behalf of the Trust for the
distribution of the Shares covered by the Registration Statement under the 1933
Act. The Distributor will have no liability for payment for the purchase of
Shares sold pursuant to this Agreement or with respect to redemptions or
repurchases of Shares.
1.2 The Distributor agrees to use such efforts as is deemed
appropriate by the Distributor to solicit orders for the sale of the Shares and
to undertake such advertising and promotion and other activities as it believes
reasonable in connection with such solicitation. The Trust understands that the
Distributor serves as the distributor of the shares of other investment
companies and series thereof (collectively, the "Companies"), including
Companies having investment objectives similar to those of the Trust. The Trust
further understands that investors and potential investors in the Trust may
invest in shares of such other Companies. The Trust agrees that the
Distributor's duties to such Companies shall not be deemed in conflict with its
duties to the Trust under this paragraph 1.2.
1.3 The Distributor shall, at its own expense, finance
appropriate activities which it deems reasonable which are primarily intended to
result in the sale of the Shares, including, but not limited to, the payment of
compensation to brokers, dealers and other financial institutions which make
shares available to their customers (collectively, "Dealers") and the payment of
compensation to sales personnel of the Distributor.
1.4 All activities by the Distributor and its agents and
employees, as distributor of the Shares, shall comply with all applicable laws,
rules and regulations, including, without limitation, all rules and regulations
made or adopted by the SEC and the National Association of Securities Dealers.
1.5 The Distributor will transmit any orders received by it
for purchase or redemption of the Shares to the transfer agent for the Trust.
1.6 Whenever in its judgment such action is warranted by
unusual market, economic or political conditions, the Trust may decline to
accept any orders for, or make any sales of, the Shares until such time as the
Trust deems it advisable to accept such orders and to make such sales.
1.7 The Trust agrees at its own expense to execute any and all
documents and to furnish any and all information and otherwise to take all
actions that may be reasonably necessary in connection with the qualification of
the Shares for sale in such states as the Distributor may designate.
1.8 The Trust shall furnish from time to time, for use in
connection with the sale of the Shares, such information with respect to the
Trust and the Shares as the Distributor may reasonably request; and the Trust
warrants that the statements contained in any such information shall fairly show
or represent what they purport to show or represent. The Trust shall also
furnish the Distributor upon request with: (a) audited annual statements and
unaudited semi-annual statements of each Fund's books and accounts prepared by
the Trust, (b) quarterly earnings statements prepared by the Trust, (c) a
monthly itemized list of the securities comprising the portfolio of each Fund,
(d) monthly balance sheets as soon as practicable after the end of each month,
and (e) from time to time such additional information regarding the financial
condition of the Trust and the Funds as the Distributor may reasonably request.
1.9 The Trust represents to the Distributor that all
Registration Statements and prospectuses filed by the Trust with the SEC under
the 1933 Act with respect to the Shares have been prepared in conformity with
the requirements of the 1933 Act and the rules and regulations of the SEC
thereunder. As used in this Agreement, the term "Registration Statement" shall
mean any Registration Statement and any prospectus and any statement of
additional information relating to the Trust filed with the SEC and any
amendments or supplements thereto at any time filed with the SEC. Except as to
information included in the Registration Statement in reliance upon information
provided to the Trust by the Distributor or any affiliate of the Distributor,
the Trust represents and warrants to the Distributor that: any Registration
Statement, when such Registration Statement becomes effective, will contain
statements required to be stated therein in conformity with the 1933 Act and the
rules and regulations of the SEC thereunder; all statements of fact contained in
any such Registration Statement will be true and correct when such Registration
Statement becomes effective; and no Registration Statement when such
Registration Statement becomes effective will include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading to a purchaser of the
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Shares. The Trust may but shall not be obligated to propose from time to time
such amendment or amendments to any Registration Statement and such supplement
or supplements to any prospectus as, in the light of future developments, may,
in the opinion of the Trust's counsel, be necessary or advisable. The Trust
shall promptly notify the Distributor of any advice given to it by its counsel
regarding the necessity or advisability of amending or supplementing such
Registration Statement. If the Trust shall not propose such amendment or
amendments and/or supplement or supplements within fifteen days after receipt by
the Trust of a written request from the Distributor to do so, the Distributor
may, at its option, terminate this Agreement. The Trust shall not file any
amendment to any Registration Statement or supplement to any prospectus without
giving the Distributor reasonable notice thereof in advance; provided, however,
that nothing contained in this Agreement shall in any way limit the Trust's
right to file at any time such amendments to any Registration Statements and/or
supplements to any prospectus, of whatever character, as the Trust may deem
advisable, such right being in all respects absolute and unconditional.
1.10 The Trust authorizes the Distributor and Dealers to use
the then effective prospectus or statement of additional information of the
Funds in the form furnished by the Trust in connection with the sale of the
Shares. The Trust agrees to indemnify and hold harmless the Distributor, its
officers, directors, and employees, and any person who controls the Distributor
within the meaning of Section 15 of the 1933 Act, free and harmless from and
against any and all claims, demands, liabilities and expenses (including the
cost of investigating or defending such claims, demands or liabilities and any
legal fees incurred in connection therewith) which the Distributor, its
officers, directors, employees or any such controlling person may incur under
the 1933 Act, under any other statute, at common law or otherwise, arising out
of or based upon:
(a) any untrue statement, or alleged untrue statement, of a
material fact contained in the Registration Statement, prospectus, statement of
additional information, or sales literature (including amendments and
supplements thereto), or
(b) any omission, or alleged omission, to state a material
fact required to be stated in the Registration Statement, prospectus, statement
of additional information or sales literature (including amendments or
supplements thereto), necessary to make the statements therein not misleading,
provided, however, that insofar as losses, claims, damages, liabilities or
expenses arise out of or are based upon any such untrue statement or omission or
alleged untrue statement or omission made in reliance on and in conformity with
information furnished to the Trust by the Distributor or its affiliated persons
for use in the Registration Statement, prospectus, or statement of additional
information or sales literature (including amendments or supplements thereto),
such indemnification is not applicable.
The Distributor, its officers, directors, and employees, and
any such controlling person, as aforesaid, shall notify the Trust of any action
brought against the Distributor, its officers, directors or employees, or any
such controlling person, such notification to be given by letter or by telegram
addressed to the Trust and sent to the Trust by the person against whom such
action is brought, within 10 days after the summons or other first legal process
shall have been served. The failure to notify the Trust of any such action shall
not relieve the Trust from any liability which the Trust may have to the person
against whom such action is brought by reason of any such untrue, or allegedly
untrue, statement or omission, or alleged omission, otherwise than on account of
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the Trust's indemnity agreement contained in this paragraph 1.10. The Trust will
be entitled to assume the defense of any suit brought to enforce any such claim,
demand or liability, but, in such case, such defense shall be conducted by
counsel of good standing chosen by the Trust and approved by the Distributor,
which approval shall not unreasonably be withheld. In the event the Trust elects
to assume the defense of any such suit and retain counsel of good standing
approved by the Distributor, the defendant or defendants in such suit shall bear
the fees and expenses of any additional counsel retained by any of them; but in
case the Trust does not elect to assume the defense of any such suit, or in case
the Distributor reasonably does not approve of counsel chosen by the Trust, or
in case there is a conflict of interest between the Trust or the Distributor,
the Trust will reimburse the Distributor, its officers, directors and employees,
or the controlling person or persons named as defendant or defendants in such
suit, for the fees and expenses of any counsel retained by the Distributor or
them. The Trust's indemnification agreement contained in this paragraph 1.10 and
the Trust's representations and warranties in this Agreement shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Distributor, its officers, directors and employees, or any
controlling person, and shall survive the delivery of any Shares. This agreement
of indemnity will inure exclusively to the Distributor's benefit, to the benefit
of its several officers, directors and employees, and their respective estates,
and to the benefit of the controlling persons and their successors. The Trust
agrees promptly to notify the Distributor of the commencement of any litigation
or proceedings against the Trust or any of its officers or trustees in
connection with the issue and sale of any Shares.
1.11 The Distributor agrees to indemnify and hold harmless the
Trust, its several officers and trustees and each person, if any, who controls
the Trust or a Fund within the meaning of Section 15 of the 1933 Act against any
loss, claims, damages, liabilities and expenses (including the cost of any
reasonable legal fees incurred in connection therewith) which the Trust, its
officers, trustees or any such controlling person may incur under the 1933 Act,
under any other statute, at common law or otherwise, but only to the extent that
such liability or expense incurred by the Trust, its officers or trustees, or
any controlling person resulting from such claims or demands arose out of the
acquisition of any Shares by any person which may be based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, prospectus or statement of additional information
(including amendments and supplements thereto), or any omission, or alleged
omission, to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, if such statement or omission was
made in reliance upon information furnished or confirmed in writing to the Trust
by the Distributor or its affiliated persons (as defined in the 1940 Act).
The agreement of the Distributor to indemnify the Trust, its
officers and trustees, and any such controlling person, as aforesaid, is
expressly conditioned upon the Distributor being notified of any action brought
against the Trust, its officers or trustees, or any such controlling person,
such notification to be given by letter or telegram addressed to the Distributor
at its principal office, and sent to the Distributor by the person against whom
such action is brought, within 10 days after the summons or other first legal
process shall have been served. The Distributor shall have the right of first
control of the defense of such action, with counsel of its own choosing,
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satisfactory to the Trust, if such action is based solely upon such alleged
misstatement or omission on the Distributor's part, and in any other event the
Trust, its officers or trustees or such controlling person shall each have the
right to participate in the defense or preparation of the defense of any such
action. The failure to so notify the Distributor of any such action shall not
relieve the Distributor from any liability that the Distributor may have to the
Trust, its officers or trustees, or to such controlling person by reason of any
such untrue, or alleged untrue, statement or omission, or alleged omission,
otherwise than on account of the Distributor's indemnity agreement contained in
this paragraph 1.11.
1.12 No Shares shall be offered by either the Distributor or
the Trust under any of the provisions of this Agreement and no orders for the
purchase or sale of Shares hereunder shall be accepted by the Trust if and so
long as effectiveness of the Registration Statement then in effect or any
necessary amendments thereto shall be suspended under any of the provisions of
the 1933 Act, or if and so long as a current prospectus as required by Section
5(b)(2) of the 1933 Act is not on file with the SEC; provided, however, that
nothing contained in this paragraph 1.12 shall in any way restrict or have any
application to or bearing upon the Trust's obligation to redeem Shares tendered
for redemption by any shareholder in accordance with the provisions of the
Registration Statement, Declaration of Trust (as defined below) or bylaws of the
Trust.
1.13 The Trust agrees to advise the Distributor as soon as
reasonably practical by a notice in writing delivered to the Distributor:
(a) of any request by the SEC for amendments to the
Registration Statement, prospectus or statement of additional information then
in effect or for additional information;
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement, prospectus or
statement of additional information then in effect or the initiation by service
of process on the Trust of any proceeding for that purpose;
(c) of the happening of any event that makes untrue any
statement of a material fact made in the Registration Statement, prospectus or
statement of additional information then in effect or that requires the making
of a change in such Registration Statement, prospectus or statement of
additional information in order to make the statements therein not misleading;
and
(d) of all actions of the SEC with respect to any amendments
to any Registration Statement, prospectus or statement of additional information
which may from time to time be field with the SEC.
For purposes of this Section, informal requests by or acts of
the Staff of the SEC shall not be deemed actions of or requests by the SEC.
1.14 The Distributor may enter into selling agreements with
Dealers with respect to the offering of the Shares to the public. Each such
selling agreement will provide (a) that all payments for purchases of Shares
will be sent directly from the Dealer to the Funds' transfer agent and (b) that,
if payment is not made with respect to purchases of Shares at the customary or
required time for settlement of the transaction, the Distributor will have the
right to cancel the sale of the Shares ordered by the Dealer, in which case the
Dealer will be responsible for any loss suffered by any Fund or the Distributor
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resulting from such cancellation. The Distributor may also act as disclosed
agent for a Fund and sell Shares of that Fund to individual investors. The
Distributor shall enter into selling agreements only with Dealers that are
either members in good standing of the National Association of Securities
Dealers, Inc. or entities that are not required to be such members. All selling
agreements shall be in such form as is approved by the President of the Trust.
2. TERM
This Agreement shall be in effect until October 30, 2004. This
Agreement shall continue in effect from year to year thereafter, provided that
such continuance is specifically approved at least annually by (i) the Trust's
Board of Trustees or (ii) by a vote of a majority (as defined in the 1940 Act
and Rule 18f-2 thereunder) of the outstanding voting securities of the Trust,
and further provided that in either event the continuance is also approved by a
majority of the Trustees who are not parties to this Agreement and who are not
interested persons (as defined in the ▇▇▇▇ ▇▇▇) of any party to this Agreement,
by vote cast in person at a meeting called for the purpose of voting on such
approval. This Agreement is terminable without penalty, on at least sixty days'
written notice, by the Trust's Board of Trustees, by vote of a majority (as
defined in the 1940 Act and Rule 18f-2 thereunder) of the outstanding voting
securities of the Trust, or by the Distributor. This Agreement shall terminate
automatically in the event of its assignment (as defined in the 1940 Act and the
rules thereunder).
3. LIMITATION OF LIABILITY
(a) The Distributor shall not indemnify the Trust for any
error of judgment or mistake of law or for any loss suffered by the Trust in
connection with the performance of its obligations and duties under this
Agreement, except for a loss resulting from the Distributor's willful
misfeasance, bad faith or gross negligence in the performance of such
obligations and duties, or by reason of its reckless disregard thereof. The
Trust will indemnify the Distributor against and hold it harmless from any and
all losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any claim, demand, action or suit not
resulting from the willful misfeasance, bad faith or negligence of the
Distributor in the performance of such obligations and duties or by reason of
its reckless disregard thereof.
(b) In no event and under no circumstances shall either party
to this Agreement be liable to the other party for consequential or indirect
loss of profits, reputation or business or any other special damages under any
provision of this Agreement.
4. PROPRIETARY AND CONFIDENTIAL INFORMATION.
The Distributor 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 Trust, which approval shall
not be unreasonably withheld and may not be withheld where the Distributor 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.
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Further, the Distributor will adhere to the privacy policies
adopted by the Trust pursuant to Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, as may
be modified from time to time (the "Act"). Notwithstanding the foregoing, the
Distributor 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. NOTICES
All notices and other communications (collectively referred to
as a "Notice" or "Notices" in this paragraph) hereunder shall be given in
writing or by telegram, cable, telex or facsimile sending device.
Notices shall be addressed to:
The Distributor:
Ambac Securities, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Legal/Compliance
The Trust:
Alpine Income Trust
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
The Notice may be sent by first-class mail, in which case it shall be
deemed to have been given three days after it is sent, or if sent by telegram,
cable, telex or facsimile sending device, it shall be deemed to have been given
immediately. Either party hereto may change the address to which Notices to it
shall be sent by giving Notice of such change to the other party.
6. FURTHER ACTIONS
Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
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7. AMENDMENTS
This Agreement or any part hereof may be changed or waived
only by an instrument in writing signed by the party against which enforcement
of such change or waiver is sought.
8. GOVERNING LAW
This Agreement shall be governed by and its provisions shall
be construed in accordance with the laws of the State of New York and the
applicable provisions of the 1940 Act. To the extent the provisions of New York
law conflict with the 1940 Act, the latter shall control.
9. MATTERS RELATING TO THE TRUST AS A DELAWARE BUSINESS TRUST
The names "Alpine Income Trust" and "Trustees of Alpine Income
Trust" refer respectively to the Trust created and the trustees of the Trust, as
trustees but not individually or personally, acting from time to time under a
Declaration of Trust dated as of September 23, 2002 (the "Declaration of
Trust"), to which reference is hereby made and the Trust's Certificate of Trust,
a copy of which is on file at the office of the Secretary of the State of
Delaware, and to any and all amendments to such documents. The obligations of
the "Alpine Income Trust" entered into in the name or on behalf thereof by any
of its trustees, representatives or agents are made not individually, but in
such capacities, and are not binding upon any of the trustees, shareholders or
representatives of the Trust personally, but bind only the assets of the Trust,
and all persons dealing with the Trust must look solely to the assets of the
Trust for the enforcement of any claims against the Trust.
10. MISCELLANEOUS
This Agreement embodies the entire agreement and understanding
between the parties hereto, and supersedes all prior agreements and
understandings relating to the subject matter thereof. The captions in this
Agreement are included for convenience of reference only and in no way define or
delimit any of the provisions hereof or otherwise affect their construction or
effect. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby. This Agreement shall be binding and shall inure
to the benefit of the parties hereto and their respective successors.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed all as of the day and year first above written.
AMBAC SECURITIES, INC.
Dated: __________, 2002 By:_________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman, President
& CEO
ALPINE INCOME TRUST
Dated: __________, 2002 By:_________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
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SCHEDULE A
(As of ______________, 2002)
The Distribution Agreement shall be applicable to the following series of the
Trust:
Alpine Municipal Money Market Fund
Alpine Tax Optimized Income Fund
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SCHEDULE B
FEE SCHEDULE FOR FUND DISTRIBUTION SERVICES
(As of _________________, 2002)
The ALPINE MUNICIPAL MONEY MARKET FUND pays the Distributor [ ]
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The ALPINE TAX OPTIMIZED INCOME FUND pays the Distributor [ ]
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