ALTERNATIVE INVESTMENT PARTNERS, LLC AND AIP ALTERNATIVE STRATEGIES FUNDS ADDENDUM TO TRANSFER AGENT SERVICING AGREEMENT
ALTERNATIVE
INVESTMENT PARTNERS, LLC AND
ADDENDUM
TO TRANSFER AGENT SERVICING AGREEMENT
THIS
ADDENDUM dated as of this 17 day of August, 2007 (“Addendum”) to the Transfer
Agent Servicing Agreement, dated as of September 6, 2002, as amended, is entered
by and among ALTERNATIVE
INVESTMENT PARTNERS, LLC, a Delaware limited liability company (the
“Adviser”), AIP ALTERNATIVE
STRATEGIES FUNDS, a Delaware business trust (the “Trust”), and U.S. BANCORP FUND SERVICES,
LLC, a Wisconsin limited liability company (“USBFS”).
WHEREAS,
the parties have entered into a Transfer Agent Servicing Agreement dated as of
September 6, 2002, as previously amended (the “Agreement”); and
WHEREAS,
the parties desire to modify the Agreement; and
WHEREAS,
Section 6 of the Agreement allows for its amendment by mutual written consent of
the parties;
NOW
THEREFORE, the parties agree to add the following provisions:
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A.
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A
new Section 13 shall be added to the Agreement to read as
follows:
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13.
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Additional
Services to be Provided by USBFS
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USBFS shall provide the MARSTM and
data warehouse services set forth in Exhibit E to
this Agreement in the form set forth below, subject to the terms and
conditions specified in Exhibit E, as
the same may be amended from time to
time.
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The
Adviser and the Trust hereby acknowledge that Exhibit E is an integral part
of this Agreement and, to the extent services included in Exhibit E are
selected by the Adviser and the Trust, such services shall also be subject to
the terms and conditions of the Agreement. The provisions of Exhibit E shall
continue in effect for as long as the Agreement remains in effect, unless sooner
terminated pursuant to Section 6 hereof.
The
indemnity and defense provisions set forth in Section 6 of the
Agreement and in Exhibit E, if applicable,
shall indefinitely survive the termination and/or assignment of the
Agreement.
1
Exhibit
E
to
the
Transfer
Agent Servicing Agreement among Alternative Investment Partners, LLC, AIP
Alternative Strategies Funds and U.S. Bancorp Fund Services, LLC
DATA
WAREHOUSE SERVICES
1. Certain
Definitions
Whenever
used in this Exhibit
E, the following words and phrases shall have the meanings set forth
below:
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A.
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“MARSTM”
means the system made available through Sales Focus Solutions, a
subsidiary of Phoenix American Incorporated which allows for analysis of
sales data from the transfer agent or intermediaries by providing details
with respect to omnibus account trades, identifying or reporting
suspicious trading activity and managing compliance related activities and
reporting.
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B.
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“Data Warehouse
Services” means the services which are made available to consenting
end-users (“User,” as defined below) whereby certain Electronic Reports
(as defined below) may be searched, viewed, downloaded and
printed.
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C.
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“User(s)” means
the Adviser, the Trust and their authorized
agents.
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D.
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“Electronic
Reports” means an Electronic Report created with investor
transaction data housed by DST (USBFS’s record keeping system) and
includes but is not limited to: 22c-2 Compliance Reports, Omnibus Account
Reconciliation, Sales Reporting, Platform Reporting and Campaign
Management and Tracking.
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2. Services
Covered
USBFS
shall allow access to MARSTM and
Data Warehouse Services by authorized Users in accordance with the terms of this
Exhibit E.
3. Duties
and Responsibilities of USBFS
USBFS
will provide the following implementation support:
(1) Project
Management Assistance
(2) Setup
and Testing of System Interfaces
(3) Conversion
of Historical Data from the Adviser and/or the Trust
(4) Assist
with Sales Channel and Sales Territory Setup
(5) Assist
with Clearing/Executing Firm Relationships
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(6) Assist
with Compliance Rule Setup
(7) Database
Setup (User Defined Fields)
(8) Training
(additional fee)
USBFS will provide the following
support services after implementation:
(1) Assist
with Project Management
(2) Dedicated
Client Service team
(3) Weekly
status calls (if needed)
(4) Setup
and testing of requests from the Adviser and the Trust
(5) Duplicate
Data Identification
(6) Assistance
with System File Imports
(7) Custom
Report Programming (at Programming rates)
(8) Enhanced
support available at a designated fee (such as database query reports,
compliance report review and analysis, compliance workflow
assistance)
4. Duties
and Responsibilities of the Adviser and the Trust
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The
Adviser and the Trust shall:
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A.
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Assume
exclusive responsibility for the Adviser’s, the Trust’s or the User’s
failure to properly access the Data Warehouse Services in the manner
prescribed by USBFS, and for the Adviser’s or the Trust’s failure to
supply accurate information to
USBFS.
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B.
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Comply,
and instruct Users to comply, with all the User enrollment instructions
and authorization procedures.
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5. System
Maintenance
The
Adviser and the Trust understand that USBFS will have to perform periodic
maintenance to the hardware and software used to provide MARSTM and
Data Warehouse Services, which may cause temporary service
interruptions. USBFS shall notify the Adviser and the Trust of all
planned outages of its own hardware and software and, to the extent possible,
will perform any necessary maintenance during non-business hours.
6. Additional
Representation and Warranty
The
parties hereby warrant that no party shall knowingly insert into any interface,
software, or program provided by a party to any other party, 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 non-complying party.
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7. Proprietary
Rights
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A.
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The
Adviser and the Trust acknowledge and agree that by virtue of subscribing
to MARSTM
and Data Warehouse Services through USBFS, it shall not obtain any rights
in or to any of the software, templates, screen and file formats,
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 provide
MARSTM and
Data Warehouse Services owned by Sales Focus Solutions and licensed to
USBFS. Any interfaces and software provided to the Adviser and
the Trust in order to provide connectivity to MARSTM
and Data Warehouse Services through USBFS shall be used by the Adviser,
the Trust and the Users only for the period during which this Exhibit E is in
effect and only in accordance with the terms of this Exhibit E, and
shall not be used by the Adviser or the Trust to provide connectivity to
or through any other system or person without USBFS’ prior written
approval. The Adviser and the Trust shall not copy, decompile
or reverse engineer any software or programs provided to the Adviser or
the Trust hereunder. The Adviser and the Trust also agree not
to take any action which would mask, delete or otherwise alter any
on-screen disclaimers and copyright, trademark and service ▇▇▇▇
notifications, or any “point and click” features relating to User
acknowledgment and acceptance of such disclaimers and
notifications.
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B.
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The
MARSTM
or Data Warehouse Services site may contain certain intellectual property,
including, but not limited to, rights in copyrighted works, trademarks and
trade dress that is the property of the Adviser and the
Trust. The Adviser and the Trust retain all rights in such
intellectual property that may reside on the MARSTM
or Data Warehouse Services site, not including any software and processes
provided by USBFS. To the extent the intellectual property of
the Adviser or the Trust is cached to expedite communication, the Adviser
and the Trust grant to USBFS a limited, non-exclusive, non-transferable
license to such intellectual property for a period of time no longer than
that reasonably necessary for the communication. To the extent
that the intellectual property of the Adviser or the Trust is duplicated
within the MARSTM
or Data Warehouse Services site to replicate the “look and feel,” “trade
dress” or other aspect of the appearance or functionality of the Trust’s
web site(s), the Adviser and the Trust grant to USBFS a limited,
non-exclusive, non-transferable license to such intellectual property for
the period during which this Exhibit E is in
effect. This license is limited to the intellectual property
needed to replicate the appearance of the Trust’s web site(s) and does not
extend to any other intellectual property owned by the Adviser or the
Trust. The Adviser and the Trust warrant that they have
sufficient right, title and interest in and to their web site(s) and their
intellectual property to enter into these obligations, and that to their
knowledge, the license hereby granted to USBFS does not and will not
infringe on any U.S. patent, copyright or other proprietary right of a
third party.
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C.
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Each
party agrees that the nonbreaching party would not have an adequate remedy
at law in the event of the other party’s breach or threatened breach of
its obligations under this Section 7 of this Exhibit E and
that the nonbreaching party would suffer irreparable injury and damage as
a result of any such breach. Accordingly, in the event either
party breaches or threatens to breach the obligations set forth in this
Section of this Exhibit E, in
addition to and not in lieu of any legal or other remedies a party may
pursue hereunder or under applicable law, each party 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 therefor, prohibiting
any such breach or threatened breach. In any proceeding upon a
motion for such equitable relief, a party’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 7 C. relating to
equitable relief shall survive termination of the provision of services
set forth in this Exhibit
E
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8. Compensation
The
Adviser and the Trust shall compensate USBFS for providing MARSTM or Data
Warehouse Services to the Adviser and the Trust, respectively, and their
authorized agents in accordance with the fee schedule set forth in Appendix I to this
Exhibit E (as
the same may be amended in writing from time to time).
9. Additional
Indemnification; Limitation of Liability
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A.
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USBFS
CANNOT AND DOES NOT GUARANTEE AVAILABILITY OF MARSTM
AND DATA WAREHOUSE SERVICES. Accordingly, USBFS’s sole
liability to the Adviser and the Trust or any third party (including
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 MARSTM
or Data Warehouse Services to be provided by USBFS hereunder shall be to
use its best efforts to commence or resume MARSTM
or Data Warehouse Services as promptly as is reasonably
possible.
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B.
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USBFS
shall, at its sole cost and expense, defend, indemnify, and hold harmless
the Adviser and the Trust and their respective trustees, directors,
officers and employees from and against any and all claims, demands,
losses, expenses, damages or liabilities of any and every nature,
including reasonable attorneys’ fees, arising out of or relating to (a)
any infringement, or claim of infringement, of any United States patent,
trademark, copyright, trade secret, or other proprietary rights based on
the use or potential use of MARSTM
or Data Warehouse Services and (b) the provision of the Trust
Files (as defined below) or Confidential Information (as defined below) to
a person other than a person to whom such information may be properly
disclosed hereunder.
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C.
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If
an injunction is issued against the Adviser, the Trust and/or User with
respect to: use of MARSTM
or Data Warehouse Services by reason of infringement of a patent,
copyright, trademark, or other proprietary rights of a third party, USBFS
shall, at its own option and expense, either (i) procure for the Adviser
and the Trust and Users the right to continue to use MARSTM
or Data Warehouse Services on substantially the same terms and conditions
as specified hereunder, or (ii) after notification to the Adviser or the
Trust, replace or modify MARSTM
or Data Warehouse Services so that they become non-infringing, provided
that, in the Adviser’s and the Trust’s judgment, such replacement or
modification does not materially and adversely affect the performance of
MARSTM
or Data Warehouse Services or significantly lessen their utility to the
Adviser, the Trust and/or Users. If in the Adviser’s or Trust’s
judgment, such replacement or modification does materially adversely
affect the performance of MARSTM
or Data Warehouse Services or significantly lessen their utility to the
Adviser, the Trust and/or Users, the Adviser or the Trust may terminate
all rights and responsibilities under this Exhibit E
immediately on written notice to
USBFS.
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D.
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Because
the ability of USBFS to deliver MARSTM
and Data Warehouse Services 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,
including Sales Focus Solutions, USBFS shall not be liable for delays or
failures to perform its obligations hereunder to the extent such delays or
failures are attributable to circumstances beyond its reasonable control
which interfere with the delivery of MARSTM
and Data Warehouse Services 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 with
MARSTM
and Data Warehouse Services.
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E.
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The
Adviser, the Trust and Users are responsible for verifying the accuracy
and receipt of all data or information made available via MARSTM
and Data Warehouse Services. The Adviser and the Trust are
responsible for advising Users of their responsibilities to promptly
notify USBFS of any errors or inaccuracies relating to data or other
information made available via MARSTM
and Data Warehouse Services with respect to the Trust’s
shareholders.
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F.
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USBFS
shall not be responsible for the accuracy of input material from Users and
the Adviser’s or the Trust’s record-keeping systems maintained by third
parties nor the resultant output derived from inaccurate
input. The accuracy of input and output shall be judged as
received at USBFS’s data center as determined by the records maintained by
USBFS.
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10. File
Security and Retention; Confidentiality
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A.
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USBFS
and its agents will provide reasonable security provisions to ensure that
unauthorized third parties do not have access to the Adviser’s or the
Trust’s data bases, files, and other information provided by the Adviser
or the Trust to USBFS for use with MARSTM
and Data Warehouse Services, (collectively, “Trust
Files”). USBFS’s security provisions with respect to MARSTM
and Data Warehouse Services and the Trust Files will be no less than
USBFS’s security provisions with respect to its own proprietary
information. USBFS agrees that any and all Trust Files
maintained by USBFS hereunder shall be available for inspection by the
Adviser’s, the Trust’s or User’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
Investment Company Act of 1940, as amended. In addition, USBFS
will not use, or permit the use of, names of Users for the purpose of
soliciting any business, product, or service whatsoever except where the
communication is necessary and appropriate for USBFS’s delivery of
MARSTM
and Data Warehouse Services.
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B.
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USBFS
shall treat as confidential and not disclose or otherwise make available
any of the Adviser’s or the Trust’s lists, information, trade secrets,
processes, proprietary data, information or documentation (collectively,
the “Confidential Information”), in any form, to any person other than
agents, employees or consultants of USBFS. USBFS will instruct
its agents, employees and consultants who have access to the Confidential
Information to keep such information confidential by using the same care
and discretion that USBFS uses with respect to its own confidential
property and trade secrets. Upon termination of the rights and
responsibilities described in this Exhibit E for
any reason and upon the Adviser’s or the Trust’s request, USBFS shall
return to the Adviser or the Trust, or destroy and certify that it has
destroyed, any and all copies of the Confidential Information which are in
its possession.
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C.
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Notwithstanding
the above, USBFS will not have an obligation of confidentiality under this
Section with regard to information that (1) was known to it through legal
means prior to disclosure hereunder (2) is or becomes publicly available
other than as a result of a breach hereof, (3) is disclosed to it by a
third party not subject to a duty of confidentiality, or (4) is required
to be disclosed under law or by order of court or governmental
agency.
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11. Warranties
EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED IN THIS EXHIBIT, MARSTM AND
DATA WAREHOUSE SERVICES AND ALL EQUIPMENT, SOFTWARE AND SYSTEMS DESCRIBED IN
THIS EXHIBIT ARE PROVIDED “AS IS” ON AN “AS AVAILABLE” BASIS, AND USBFS
HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS
OR IMPLIED, REGARDING MARSTM OR DATA
WAREHOUSE SERVICES PROVIDED HEREUNDER, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
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12. Termination
of MARSTM
Except as
otherwise specifically noted in this Exhibit E, the
MARSTM System
may be terminated by either party upon giving 90 days prior written notice to
the other party. The MARSTM System
will not be interrupted during the 90 day period and USBFS will cooperate in the
reasonable transfer of duties to another provider.
13. Duties
in the Event of Termination
In the
event of termination of the services provided pursuant to this Exhibit E, (i) the
Adviser, the Trust and Users will immediately end their access to MARSTM and
Data Warehouse Services and (ii) the Adviser and the Trust will return all
codes, system access mechanisms, programs, manuals, confidential or proprietary
information and other written information provided to it by USBFS in connection
with the services provided hereunder, and shall destroy or erase all such
information on any diskettes or other storage medium.
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Appendix
I to Exhibit E
Fee
Schedule
Alternative
Investment Partners, LLC and AIP Alternative Strategies Funds
Current
Pricing – 08 03 2007
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System
Implementation Cost
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$[_____]
- $[_____]
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Includes
TA 2000 Data and Standard Data Interfaces*
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*Additional
NSCC Transaction Charges not included
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MARS Training (per day
as needed)
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$[_____]
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Discovery-RIA™ Implementation
Fee (optional)
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$[_____]
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Blackberry Handheld
Implementation Fee (optional)
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$[_____]
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Service
Level
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Monthly
Fee
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MARS
System Monthly Base Fee
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$[_____]
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Enhanced
Support Services (optional)
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$[_____]
-$[_____]
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Includes
All Basic Support Components
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Data
Scrubbing - Cleaning of Firm, Branch and Rep Info
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Database
Query Requests
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Compliance
Report Monitoring/Review/Analysis
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Compliance
Workflow Assistance
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Business
Requirements Analysis
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Appendix
I to Exhibit E (continued)
Fee
Schedule
Alternative
Investment Partners, LLC and AIP Alternative Strategies Funds
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The
MARS Product Suite
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Fee
Per User Per Month
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MARS Sales and Asset Reporting
Module
Firm/Branch/Rep
Profiles, Sales & Asset Reports with Sales Views,
Data
Cleaning Functionality, Query Analytics, Executive Information
Summary,
Executive
Trend Reporting
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$[_____]
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MARS Core CRM
Module
Firm/Branch/Rep
Profiles, Activity Management, Calendar, Tickler,
Channel
& Territory Manager, Security & Administration, Rep
Import
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$[_____]
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Optional
Modules
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–
Channel/Territory Manager (included with CRM module)
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$[_____]
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–
Customer / Account Module (included with Compliance
module)
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$[_____]
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–
MARS Omnibus Reconciliation Manager
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$[_____]
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–
Supermarket Platform Reporting Module
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$[_____]
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–
Data Quality Module (only one license needed)
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$[_____]
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–
Handheld Module
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$[_____]
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–
Mapping Integration Module (Microsoft MapPoint required)
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$[_____]
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– Discovery-RIA™
Integration
(only
one user license needed if client does not already have Discovery
license)
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$[_____]
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–
Discovery-RIA™
License Fee Per User
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$[_____]
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Compliance
Reporting and Workflow Management
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MARS 22c-2 Compliance
Module
22c-2
Rules Definition, Workflow Process Management, Data Request
Manager,
Customer/Account
Module
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$[_____]
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Software
or Report Customization
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Business Line
Personnel
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Hourly
Rate
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DBA
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$[_____]
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Programmer
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$[_____]
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Technical
Design
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$[_____]
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QA
Engineer
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$[_____]
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Implementation
Engineer
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$[_____]
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Business
Analyst
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$[_____]
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Project
Manager
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$[_____]
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System
Administrator
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$[_____]
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Network
Engineer
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$[_____]
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Appendix
I to Exhibit E (continued)
Fee
Schedule
Alternative
Investment Partners, LLC and AIP Alternative Strategies Funds
Current Known Intermediary
Charges
NSCC
Separate
NSCC SDR Fees
Line
maintenance fee $[_____]
per month
Line use
fee $[_____] per
hour
Transaction
fee $[_____] per [_____] records
▇▇▇▇▇▇▇
▇▇▇▇▇
Separate
22c-2 Data Processing Fees
$[_____] per month
*These
fees may be subject to change by the intermediaries at any time. Any
new or additional fees from different intermediaries will be brought forth to
the client when these fees become known.
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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.
ALTERNATIVE
INVESTMENT PARTNERS, LLC
By:__/s/ ▇▇▇▇▇▇▇▇
Labermeier____________
Name:__Kristina
Labermeier____________
Title:___Chief Compliance
Officer_______
By:__/s/ ▇▇▇▇▇▇▇▇
Labermeier____________
Name:_Kristina
Labermeier_____________
Title:___CCO,
Secretary________________
U.S
BANCORP FUND SERVICES, LLC
By:___/s/ ▇▇▇▇▇▇▇ ▇.
McVoy___________
Name:__Michael R.
McVoy____________
Title:__Senior Vice
President____________
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