Exhibit (g)(7)
CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of February 21, 2006 by and between PFPC
TRUST COMPANY, a limited purpose trust company incorporated under the laws of
Delaware ("PFPC Trust"), and ALLEGIANT FUNDS, a Massachusetts business trust
(the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain PFPC Trust to provide custodian
services, and PFPC Trust wishes to furnish custodian services, either directly
or through an affiliate or affiliates, as more fully described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. As used in this Agreement:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as
amended.
(c) "AUTHORIZED PERSON" means any authorized officer of the Fund
and any other person authorized by the Fund to give Oral
Instructions or Written Instructions on behalf of the Fund. An
Authorized Person's scope of authority may be limited by
setting forth such limitation in a written document signed by
both parties hereto.
(d) "BOOK-ENTRY SYSTEM" means the Federal Reserve Treasury
book-entry system for United States and federal agency
securities, its successor or successors, and its nominee or
nominees and any book-entry system registered with the SEC
under the 1934 Act.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "CHANGE OF CONTROL" means a change in ownership or control
(not including transactions between wholly-owned direct or
indirect subsidiaries of a common parent) of 25% or more of
the beneficial ownership of the shares of common stock or
shares of beneficial interest of an entity or its parent(s).
(g) "ORAL INSTRUCTIONS" mean instructions, other than Written
Instructions, actually received by PFPC Trust from an
Authorized Person or from a person reasonably believed by PFPC
Trust to be an Authorized Person. PFPC Trust may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via
electronic mail as Oral Instructions.
(h) "PFPC TRUST" means PFPC Trust Company or a subsidiary or
affiliate of PFPC Trust Company.
(i) "SEC" means the Securities and Exchange Commission.
(j) "SECURITIES LAWS" mean Federal Securities Laws as defined by
Rule 38a-1 under the 1940 Act and the CEA.
(k) "SHARES" mean the shares of beneficial interest of any series
or class of the Fund.
(l) "PROPERTY" means:
(i) any and all securities and other investment items
which the Fund may from time to time deposit, or
cause to be deposited, with PFPC Trust or which PFPC
Trust may from time to time hold for the Fund;
(ii) all income in respect of any of such securities or
other investment items;
(iii) all proceeds of the sale of any of such securities or
investment items; and
(iv) all proceeds of the sale of securities issued by the
Fund, which are received by PFPC Trust from time to
time, from or on behalf of the Fund.
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(m) "WRITTEN INSTRUCTIONS" mean (i) written instructions signed by
two Authorized Persons (or persons reasonably believed by PFPC
Trust to be Authorized Persons) and received by PFPC Trust or
(ii) trade instructions transmitted by means of an electronic
transaction reporting system which requires the use of a
password or other authorized identifier in order to gain
access. The instructions may be delivered electronically or by
hand, mail or facsimile sending device.
2. APPOINTMENT. As of the date first set forth above, the Fund hereby
appoints PFPC Trust to provide custodian services to the Fund as set
forth herein, on behalf of each of its investment portfolios (each, a
"Portfolio") (except with respect to the Fund's International Equity
Fund and Balanced Allocation Fund), and PFPC Trust accepts such
appointment and agrees to furnish such services. Effective as of May 1,
2006, the Fund hereby appoints PFPC Trust to provide custodian services
to the Fund as set forth herein, on behalf of each of the International
Equity Fund and Balanced Allocation Fund (the "International
Portfolios"), and PFPC Trust accepts such appointment and agrees to
furnish such services. For clarification, PFPC Trust has no, nor shall
it deemed to have any, responsibility under this Agreement with respect
to the International Portfolios until May 1, 2006.
3. COMPLIANCE WITH LAWS. PFPC Trust undertakes to comply with material
applicable requirements of the Securities Laws and material laws, rules
and regulations of governmental authorities having jurisdiction with
respect to the duties to be performed by PFPC Trust hereunder. Except
as specifically set forth herein, PFPC Trust assumes no responsibility
for such compliance by the Fund or any other entity.
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4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall
act only upon Oral Instructions or Written Instructions.
(b) PFPC Trust shall be entitled to rely upon any Oral Instruction
or Written Instruction it receives from an Authorized Person
(or from a person reasonably believed by PFPC Trust to be an
Authorized Person) pursuant to this Agreement. PFPC Trust may
assume that any Oral Instructions or Written Instructions
received hereunder are not in any way inconsistent with the
provisions of organizational documents of the Fund or of any
vote, resolution or proceeding of the Fund's Board of Trustees
or of the Fund's shareholders, unless and until PFPC Trust
receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Trust Written Instructions
confirming Oral Instructions (except where such Oral
Instructions are given by PFPC Trust or its affiliates) so
that PFPC Trust receives the Written Instructions by the close
of business on the same day that such Oral Instructions are
received. The fact that such confirming Written Instructions
are not received by PFPC Trust or differ from the Oral
Instructions shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral
Instructions or PFPC Trust's ability to rely upon such Oral
Instructions.
5. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If PFPC Trust is in doubt as to any action
it should or should not take to perform its duties under this
Agreement, PFPC Trust may request directions or advice,
including Oral Instructions or Written Instructions, from the
Fund.
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(b) ADVICE OF COUNSEL. If PFPC Trust shall be in doubt as to any
question of law pertaining to any action it should or should
not take to perform its duties under this Agreement, PFPC
Trust may request advice from counsel of its own choosing (who
may be counsel for the Fund, the Fund's investment adviser or
PFPC Trust, at the option of PFPC Trust).
(c) CONFLICTING ADVICE. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFPC Trust receives from the Fund, and the advice
it receives from counsel, PFPC Trust shall be entitled to rely
upon and follow the advice of counsel.
(d) PROTECTION OF PFPC TRUST. PFPC Trust shall be indemnified by the Fund
and without liability for any action PFPC Trust takes or does not take
in reliance upon directions or advice or Oral Instructions or Written
Instructions PFPC Trust receives from or on behalf of the Fund or from
counsel and which PFPC Trust believes, in good faith, to be consistent
with those directions or advice or Oral Instructions or Written
Instructions. Nothing in this section shall be construed so as to
impose an obligation upon PFPC Trust (i) to seek such directions or
advice or Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions or
Written Instructions unless, pursuant to other provisions of this
Agreement, the same is a condition of PFPC Trust's properly taking or
not taking such action. Nothing in this subsection shall excuse PFPC
Trust, when an action or omission on the part of PFPC Trust which is
taken in reliance upon directions or advice or Oral Instructions or
Written Instructions constitutes willful misfeasance, bad faith,
negligence or reckless disregard by PFPC Trust of any duties,
obligations or responsibilities set forth in this Agreement.
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6. RECORDS; VISITS. The books and records pertaining to the Fund and any
Portfolio, which are in the possession or under the control of PFPC
Trust, shall be the property of the Fund. Such books and records shall
be prepared and maintained as required by the 1940 Act and other
applicable Securities Laws, and rules and regulations thereunder. The
Fund, Authorized Persons and the Fund's authorized representatives
shall have access to such books and records at all times during PFPC
Trust's normal business hours. Upon the reasonable request of the Fund,
copies of any such books and records shall be provided by PFPC Trust to
the Fund, Authorized Persons, or to an authorized representative of the
Fund, at the Fund's expense.
7. CONFIDENTIALITY.
(a) The parties agree that Confidential Information (defined in
paragraph (c) below) and the contents of this Agreement are
confidential information of the parties and their respective
licensors. The Fund and PFPC Trust shall exercise at least the
same degree of care, but not less than reasonable care, to
safeguard the confidentiality of the Confidential Information
of the other as it would exercise to protect its own
Confidential Information. The Fund and PFPC Trust may use the
Confidential Information only to exercise their respective
rights or perform their respective duties under this
Agreement. Except as required by law and except as disclosed
in the Fund's registration statement or filed as an exhibit
thereto, the Fund and PFPC Trust shall not duplicate, sell or
disclose to others the Confidential Information of the other,
in whole or in part, without the prior written permission of
the other party. The Fund and PFPC Trust may, however,
disclose Confidential Information to their respective
employees who have a need to know the Confidential Information
to perform work for the other, provided that the Fund and PFPC
Trust shall use reasonable efforts to ensure that the
Confidential Information is not duplicated or disclosed by
their respective employees in breach of this Agreement. The
Fund and PFPC Trust may also disclose the Confidential
Information to independent contractors, auditors, and
professional advisors, including legal counsel to the Fund or
PFPC Trust, provided they first agree in writing to be bound
by confidentiality obligations substantially similar to this
Section 7(a). Notwithstanding the previous sentence, in no
event shall either the Fund or PFPC Trust disclose the
Confidential Information to any competitor of the other
without specific, prior written consent.
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(b) Proprietary Information shall include (i) any data or
information that is competitively sensitive material, and not
generally known to the public, including, but not limited to,
information about product plans, marketing strategies,
finances, operations, customer relationships, customer
profiles, customer lists, sales estimates, business plans, and
internal performance results relating to the past, present or
future business activities of the Fund or PFPC Trust, their
respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of them; (ii) any
scientific or technical information, design, process,
procedure, formula, or improvement that is commercially
valuable and secret in the sense that its confidentiality
affords the Fund or PFPC Trust a competitive advantage over
its competitors; (iii) all confidential or proprietary
concepts, documentation, reports, data, specifications,
computer software, source code, object code, flow charts,
databases, inventions, know-how, and trade secrets, whether or
not patentable or copyrightable; and (iv) anything designated
as confidential.
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(c) Confidential Information includes, without limitation,
Proprietary Information (as defined in paragraph (b)) above,
all documents, inventions, substances, engineering and
laboratory notebooks, drawings, diagrams, specifications,
bills of material, equipment, prototypes and models, and any
other tangible manifestations of the foregoing of either party
which now exist or come into the control or possessions of the
other.
(d) Notwithstanding the foregoing, information shall not be
subject to such confidentiality obligations if: (i) it is
already known to the receiving party at the time it is
obtained; (ii) it is or becomes publicly known or available
through no wrongful act of the receiving party; (iii) it is
rightfully received from a third party who, to the best of the
receiving party's knowledge, is not under a duty of
confidentiality; (iv) it is released by the protected party to
a third party without restriction; (v) it is requested or
required to be disclosed by the receiving party pursuant to a
court order, subpoena, governmental or regulatory agency
request or law (provided the receiving party will provide the
other party written notice of the same, to the extent such
notice is permitted); (vi) release of such information by PFPC
Trust is necessary or desirable in connection with the
provision of services under this Agreement; (vii) it is
relevant to the defense of any claim or cause of action
asserted against the receiving party; or (viii) it has been or
is independently developed or obtained by the receiving party.
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8. COOPERATION WITH ACCOUNTANTS. PFPC Trust shall cooperate with the
Fund's independent public accountants and shall take all reasonable
action to make any requested information available to such accountants
as reasonably requested by the Fund.
9. PFPC SYSTEM. PFPC Trust shall retain title to and ownership of any and
all databases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions,
discoveries, patentable or copyrightable matters, concepts, expertise,
patents, copyrights, trade secrets, and other related legal rights
utilized by PFPC Trust in connection with the services provided by PFPC
Trust to the Fund.
10. DISASTER RECOVERY. PFPC Trust shall enter into and shall maintain in
effect with appropriate parties one or more agreements making
reasonable provisions for emergency use of electronic data processing
equipment to the extent appropriate equipment is available. In the
event of equipment failures, PFPC Trust shall, at no additional expense
to the Fund, take reasonable steps to minimize service interruptions.
PFPC Trust shall have no liability with respect to the loss of data or
service interruptions caused by equipment failure provided such loss or
interruption is not caused by PFPC Trust's own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties or
obligations under this Agreement.
11. COMPENSATION. As compensation for custody services rendered by PFPC
Trust during the term of this Agreement, the Fund, on behalf of each of
the Portfolios, will pay to PFPC Trust a fee or fees as may be agreed
to in writing from time to time by the Fund and PFPC Trust. The Fund
acknowledges that PFPC Trust may receive float benefits in connection
with maintaining certain accounts for which it is required to provide
services under this Agreement.
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12. INDEMNIFICATION.
(a) The Fund, on behalf of each Portfolio, agrees to indemnify,
defend and hold harmless PFPC Trust and its affiliates,
including their respective officers, directors, agents and
employees, from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation,
attorneys' fees and disbursements and liabilities arising
under the Securities Laws and any state and foreign securities
and blue sky laws) arising directly or indirectly from any
action or omission to act which PFPC Trust takes in connection
with the provision of services to the Fund under this
Agreement. Neither PFPC Trust, nor any of its affiliates,
shall be indemnified against any liability (or any expenses
incident to such liability) caused by PFPC Trust's or its
affiliates' own willful misfeasance, bad faith, negligence or
reckless disregard in the performance of PFPC Trust's duties
or responsibilities under this Agreement. Subject to paragraph
(b) below, the provisions of this Section 12 shall survive
termination of this Agreement.
(b) A claim by PFPC Trust for indemnification under this Agreement
must be made prior to the earlier of (i) one year after PFPC
Trust becomes aware of the event for which indemnification is
claimed; or (ii) one year after the earlier of termination of
this Agreement or the expiration of the term of this
Agreement.
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(c) Except for remedies that cannot be waived as a matter of law
(and injunctive or professional relief), the provisions of
this Section 12 shall be PFPC Trust's sole and exclusive
remedy for claims or other actions or proceedings to which the
Fund's indemnification obligations pursuant to this Section 12
apply.
13. TRI-PARTY REPURCHASE AGREEMENT TRANSACTIONS. This Section 13 relates to
tri-party repurchase agreement transactions into which the Fund may
enter, pursuant to which the Fund assets are maintained at a tri-party
repurchase agreement custodian (each a "Tri-Party Subcustodian") in
order to facilitate such tri-party repurchase agreement transactions.
(a) Notwithstanding anything in this Agreement to the contrary, (i)
PFPC Trust shall not be deemed to have chosen a Tri-Party Subcustodian
as a sub-custodian of the Fund's assets, (ii) none of the requirements
applicable to sub-custodians under the Agreement shall be applicable to
a Tri-Party Subcustodian, (iii) PFPC Trust shall have no responsibility
or liability for any action or inaction of a Tri-Party Subcustodian,
(iv) the Fund hereby indemnifies and agrees to defend PFPC Trust
(including with respect to payment of attorney fees and any other costs
or charges related to dispute resolution) with respect to any damages,
liabilities, claims or expenses to which PFPC Trust may be subject
(either directly or indirectly) in connection with any arrangement
involving a Tri-Party Subcustodian (provided that the Fund shall not be
required to indemnify and defend PFPC Trust with respect to any such
damages, liabilities, claims or expenses caused by PFPC Trust's own
willful misfeasance, bad faith, gross negligence or reckless disregard
in the performance of PFPC Trust's activities under the Agreement) and
(v) PFPC Trust shall have no responsibility with respect to the form or
content of any agreement entered into by the Fund and a Tri-Party
Subcustodian. The provisions of this Section 13(b) shall survive
termination of this Agreement.
(b) The Fund shall ensure that any agreement entered into by the Fund
and a Tri-Party Subcustodian shall provide that any assets to be
released to the Fund in connection with such agreement shall be
transferred only to the Fund's custodian account at PFPC Trust.
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14. RESPONSIBILITY OF PFPC TRUST.
(a) PFPC Trust shall be under no duty to take any action hereunder
on behalf of the Fund or any Portfolio except as specifically
set forth herein or as may be specifically agreed to by PFPC
Trust and the Fund in a written amendment hereto. PFPC Trust
shall be obligated to exercise care and diligence in the
performance of its duties hereunder and to act in good faith
in performing services provided for under this Agreement. PFPC
Trust shall be liable only for any damages arising out of PFPC
Trust's failure to perform its duties under this Agreement and
only to the extent such damages arise out of PFPC Trust's
willful misfeasance, bad faith, negligence or reckless
disregard of its duties under this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary and
provided that PFPC Trust has acted in accordance with the
standard of care set forth above, (i) PFPC Trust shall not be
liable for losses, delays, failure, errors, interruption or
loss of data occurring directly or indirectly by reason of
circumstances beyond its reasonable control, including without
limitation: acts of God; action or inaction of civil or
military authority; public enemy; war; terrorism; riot; fire;
flood; sabotage; epidemics; labor disputes; civil commotion;
interruption, loss or malfunction of utilities,
transportation, computer or communications capabilities;
insurrection; elements of nature; or non-performance by a
third party; and (ii) PFPC Trust shall not be under any duty
or obligation to inquire into and shall not be liable for the
validity or invalidity, authority or lack thereof, or
truthfulness or accuracy or lack thereof, of any Oral
Instruction, Written Instruction, direction, notice,
instrument or other information which PFPC Trust reasonably
believes to be genuine.
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(c) Notwithstanding anything in this Agreement to the contrary,
neither party nor their affiliates or their directors,
trustees, officers, employees, agents or subcontractors shall
be liable to the other party for any consequential, special or
indirect losses or damages, whether or not the likelihood of
such losses or damages was known by a party.
(d) No party may assert a cause of action against PFPC Trust or
any of its affiliates that allegedly occurred more than 12
months immediately prior to the filing of the suit (or, if
applicable, commencement of arbitration proceedings) alleging
such cause of action.
(e) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
(f) Notwithstanding anything in this Agreement to the contrary
(other than as specifically provided in Section
15(h)(ii)(B)(4) and Section 15(h)(iii)(A) of this Agreement),
the Fund shall be responsible for all filings, tax returns and
reports on any transactions undertaken pursuant to this
Agreement, or in respect of the Property or any collections
undertaken pursuant to this Agreement, which may be requested
by any relevant authority. In addition, the Fund shall be
responsible for the payment of all taxes and similar items
(including without limitation penalties and interest related
thereto).
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(g) The provisions of this Section 14 shall survive termination of
this Agreement.
(h) Notwithstanding anything in this Agreement to the contrary,
PFPC Trust shall have no liability either for any error or
omission of any of its predecessors as servicer on behalf of
the Fund or for any failure to discover any such error or
omission.
15. DESCRIPTION OF SERVICES.
(a) DELIVERY OF THE PROPERTY. The Fund will deliver or arrange for
delivery to PFPC Trust, all the Property owned by the
Portfolios, including cash received as a result of the
distribution of Shares, during the term of this Agreement.
PFPC Trust will not be responsible for any assets until actual
receipt.
(b) RECEIPT AND DISBURSEMENT OF MONEY. PFPC Trust, acting upon
Written Instructions, shall open and maintain a separate
account for each separate Portfolio of the Fund (each an
"Account") and shall maintain in the Account of a particular
Portfolio all cash and other assets received from or for the
Fund specifically designated to such Account.
PFPC Trust shall make cash payments from or for the Account of
a Portfolio only for:
(i) purchases of securities in the name of a Portfolio,
PFPC Trust, PFPC Trust's nominee or a sub-custodian or
nominee thereof as provided in sub-section (j) and for
which PFPC Trust has received a copy of the broker's or
dealer's confirmation or payee's invoice, as
appropriate;
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(ii) purchase or redemption of Shares of the Fund delivered
to PFPC Trust;
(iii) payment of, subject to Written Instructions, interest,
taxes (provided that tax which PFPC Trust considers is
required to be deducted or withheld "at source" will be
governed by Section 15(h)(iii)(B) of this Agreement),
administration, accounting, transfer agency,
distribution, advisory, management fees or similar
expenses which are to be borne by a Portfolio;
(iv) payment to, subject to receipt of Written Instructions,
the Fund's transfer agent, as agent for the
shareholders, of an amount equal to the amount of
dividends and distributions stated in the Written
Instructions to be distributed in cash by the transfer
agent to shareholders, or, in lieu of paying the Fund's
transfer agent, PFPC Trust may arrange for the direct
payment of cash dividends and distributions to
shareholders in accordance with procedures mutually
agreed upon from time to time by and among the Fund,
PFPC Trust and the Fund's transfer agent;
(v) payments, upon receipt of Written Instructions, in
connection with the conversion, exchange or surrender
of securities owned or subscribed to by the Fund and
held by or delivered to PFPC Trust;
(vi) payments of the amounts of dividends received with
respect to securities sold short;
(vii) payments to PFPC Trust for its services hereunder;
(viii) payments to a sub-custodian pursuant to provisions in
sub-section (c) of this Section; and
(ix) other payments, upon Written Instructions.
PFPC Trust is hereby authorized to endorse and collect all checks, drafts or
other orders for the payment of money received as custodian for the Accounts.
(c) RECEIPT OF SECURITIES; SUBCUSTODIANS.
(i) PFPC Trust shall hold all securities received by it for
the Accounts in a separate account that physically
segregates such securities from those of any other
persons, firms or corporations, except for securities
held in a Book-Entry System or through a sub-custodian
or depository. All such securities shall be held or
disposed of only upon Written Instructions or otherwise
pursuant to the terms of this Agreement. PFPC Trust
shall have no power or authority to assign, hypothecate,
pledge or otherwise dispose of any such securities or
investment, except upon the express terms of this
Agreement or upon Written Instructions authorizing the
transaction. In no case may any member of the Fund's
Board of Trustees, or any officer, employee or agent of
the Fund withdraw any securities.
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At PFPC Trust's own expense and for its own convenience,
PFPC Trust may enter into sub-custodian agreements with
other banks or trust companies to perform duties
described in this sub-section (c) with respect to
domestic assets. Such bank or trust company shall have
aggregate capital, surplus and undivided profits,
according to its last published report, of at least one
million dollars ($1,000,000), if it is a subsidiary or
affiliate of PFPC Trust, or at least twenty million
dollars ($20,000,000) if such bank or trust company is
not a subsidiary or affiliate of PFPC Trust. In
addition, such bank or trust company must be qualified
to act as custodian and agree to comply with the
relevant provisions of applicable rules and regulations.
Any such arrangement will not be entered into without
prior written notice to the Fund (or as otherwise
provided in the 1940 Act).
In addition, PFPC Trust may enter into arrangements with
sub-custodians with respect to services regarding
foreign assets in accordance with the requirements of
the 1940 Act and the rules and regulations thereunder.
Any such arrangement will not be entered into without
prior written notice to the Fund (or as otherwise
provided in the 1940 Act).
PFPC Trust shall remain responsible for the acts and
omissions of any sub-custodian chosen by PFPC Trust
under the terms of this sub-section (c) to the same
extent that PFPC Trust is responsible for its own acts
and omissions under this Agreement.
(d) TRANSACTIONS REQUIRING INSTRUCTIONS. Upon receipt of Oral
Instructions or Written Instructions and not otherwise, PFPC
Trust shall:
(i) deliver any securities held for a Portfolio against the
receipt of payment for the sale of such securities or
otherwise in accordance with standard market practice;
(ii) execute and deliver to such persons as may be designated
in such Oral Instructions or Written Instructions,
proxies, consents, authorizations, and any other
instruments whereby the authority of a Portfolio as
owner of any securities may be exercised;
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(iii) deliver any securities to the issuer thereof, or its
agent, when such securities are called, redeemed,
retired or otherwise become payable at the option of the
holder; provided that, in any such case, the cash or
other consideration is to be delivered to PFPC Trust;
(iv) deliver any securities held for a Portfolio against
receipt of other securities or cash issued or paid in
connection with the liquidation, reorganization,
refinancing, tender offer, merger, consolidation or
recapitalization of any corporation, or the exercise of
any conversion privilege;
(v) deliver any securities held for a Portfolio to any
protective committee, reorganization committee or other
person in connection with the reorganization,
refinancing, merger, consolidation, recapitalization or
sale of assets of any corporation, and receive and hold
under the terms of this Agreement such certificates of
deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such
delivery;
(vi) make such transfer or exchanges of the assets of the
Portfolios and take such other steps as shall be stated
in said Oral Instructions or Written Instructions to be
for the purpose of effectuating a duly authorized plan
of liquidation, reorganization, merger, consolidation or
recapitalization of the Fund;
(vii) release securities belonging to a Portfolio to any bank
or trust company for the purpose of a pledge or
hypothecation to secure any loan incurred by the Fund on
behalf of that Portfolio; provided, however, that
securities shall be released only upon payment to PFPC
Trust of the monies borrowed, except that in cases where
additional collateral is required to secure a borrowing
already made subject to proper prior authorization,
further securities may be released for that purpose; and
repay such loan upon redelivery to it of the securities
pledged or hypothecated therefor and upon surrender of
the note or notes evidencing the loan;
(viii) release and deliver securities owned by a Portfolio in
connection with any repurchase agreement entered into by
the Fund on behalf of that Portfolio, but only on
receipt of payment therefor; and pay out monies of the
Fund in connection with such repurchase agreements (or
reverse repurchase agreement), but only upon the
delivery of the securities;
(ix) release and deliver or exchange securities owned by a
Portfolio in connection with any conversion of such
securities, pursuant to their terms, into other
securities;
(x) release and deliver securities to a broker in connection
with the broker's custody of margin collateral relating
to futures and options transactions;
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(xi) release and deliver securities owned by a Portfolio for
the purpose of redeeming in kind shares of a Portfolio
upon delivery thereof to PFPC Trust; and
(xii) release and deliver or exchange securities owned by a
Portfolio for other purposes.
PFPC Trust must also receive a certified resolution
describing the nature of the corporate purpose and the
name and address of the person(s) to whom delivery shall
be made when such action is pursuant to sub-paragraph
(d)(xii).
(e) USE OF BOOK-ENTRY SYSTEM OR OTHER DEPOSITORY. PFPC Trust will
deposit in Book-Entry Systems and other depositories all
securities belonging to the Portfolios eligible for deposit
therein and will utilize Book-Entry Systems and other
depositories to the extent possible in connection with
settlements of purchases and sales of securities by the
Portfolios, and deliveries and returns of securities loaned,
subject to repurchase agreements (or reverse repurchase
agreements) or used as collateral in connection with
borrowings. PFPC Trust shall continue to perform such duties
until it receives Written Instructions or Oral Instructions
authorizing contrary actions. Notwithstanding anything in this
Agreement to the contrary, PFPC Trust's use of a Book-Entry
System shall comply with the requirements of Rule 17f-4 under
the 1940 Act.
PFPC Trust shall administer a Book-Entry System or other depository as
follows:
(i) With respect to securities of each Portfolio which are
maintained in a Book-Entry System or another depository,
the records of PFPC Trust shall identify by book-entry
or otherwise those securities as belonging to each
Portfolio.
(ii) Assets of each Portfolio deposited in a Book-Entry
System or another depository will (to the extent
consistent with applicable law and standard practice) at
all times be segregated from any assets and cash
controlled by PFPC Trust in other than a fiduciary or
custodian capacity but may be commingled with other
assets held in such capacities.
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(iii) Upon the Fund's request, PFPC Trust will provide the
Fund with copies of any reports obtained by PFPC Trust
on the system of internal accounting control of a
Book-Entry system or other depository promptly after
receipt of such a report by PFPC Trust.
PFPC Trust will provide the Fund with such reports on its own
system of internal control as the Fund may reasonably request
from time to time.
(f) REGISTRATION OF SECURITIES. All securities held for a
Portfolio which are issued or issuable only in bearer form,
except such securities maintained in the Book-Entry System or
in another depository, shall be held by PFPC Trust in bearer
form; all other securities held for a Portfolio may be
registered in the name of the Fund on behalf of that
Portfolio, PFPC Trust, a Book-Entry System, another
depository, a sub-custodian, or any duly appointed nominee of
the Fund, PFPC Trust, Book-Entry System, depository or
sub-custodian. The Fund reserves the right to instruct PFPC
Trust as to the method of registration and safekeeping of the
securities of the Fund. The Fund agrees to furnish to PFPC
Trust appropriate instruments to enable PFPC Trust to hold or
deliver in proper form for transfer, or to register in the
name of its nominee or in the name of the Book-Entry System or
in the name of another appropriate entity, any securities
which it may hold for the Accounts. With respect to
uncertificated securities which are registered in the name of
the Fund or a Portfolio (or a nominee thereof), PFPC Trust
will reflect such securities on its records based upon the
holdings information provided to it by the issuer of such
securities, but notwithstanding anything in this Agreement to
the contrary PFPC Trust shall not be obligated to safekeep
such securities or to perform other duties with respect to
such securities other than to make payment for the purchase of
such securities upon receipt of Oral Instructions or Written
Instructions, accept in sale proceeds received by PFPC Trust
upon the sale of such securities of which PFPC Trust is
informed pursuant to Oral Instructions or Written
Instructions, and accept in other distributions received by
PFPC Trust with respect to such securities or reflect on its
records any reinvested distributions with respect to such
securities of which it is informed by the issuer of the
securities.
19
(g) VOTING AND OTHER ACTION. Neither PFPC Trust nor its nominee
shall vote any of the securities held pursuant to this
Agreement by or for the account of a Portfolio, except in
accordance with Written Instructions. PFPC Trust, directly or
through the use of another entity, shall execute in blank and
promptly deliver all notices, proxies and proxy soliciting
materials received by PFPC Trust as custodian of the Property
to the registered holder of such securities. If the registered
holder is not the Fund on behalf of a Portfolio, then Written
Instructions or Oral Instructions must designate the person
who owns such securities.
(h) TRANSACTIONS NOT REQUIRING INSTRUCTIONS. Notwithstanding
anything in this Agreement requiring instructions in order to
take a particular action, in the absence of a contrary Written
Instruction, PFPC Trust is authorized to take the following
actions without the need for instructions:
(i) COLLECTION OF INCOME AND OTHER PAYMENTS.
(A) collect and receive for the account of each
Portfolio, all income, dividends, distributions,
coupons, option premiums, other payments and
similar items, included or to be included in the
Property, and, in addition, promptly advise each
Portfolio of such receipt and credit such income
to each Portfolio's account;
20
(B) endorse and deposit for collection, in the name of
the Fund, checks, drafts, or other orders for the
payment of money;
(C) receive and hold for the account of each Portfolio
all securities received as a distribution on the
Portfolio's securities as a result of a stock
dividend, share split-up or reorganization,
recapitalization, readjustment or other
rearrangement or distribution of rights or similar
securities issued with respect to any securities
belonging to a Portfolio and held by PFPC Trust
hereunder;
(D) present for payment and collect the amount payable
upon all securities which may mature or be called,
redeemed, retired or otherwise become payable (on
a mandatory basis) on the date such securities
become payable; and
(E) take any action which may be necessary and proper
in connection with the collection and receipt of
such income and other payments and the endorsement
for collection of checks, drafts, and other
negotiable instruments.
(ii) MISCELLANEOUS TRANSACTIONS.
(A) PFPC Trust is authorized to deliver or cause to be
delivered Property against payment or other
consideration or written receipt therefor in the
following cases:
(1) for examination by a broker or dealer
selling for the account of a Portfolio in
accordance with street delivery custom;
(2) for the exchange of interim receipts or
temporary securities for definitive
securities; and
(3) for transfer of securities into the name of
the Fund on behalf of a Portfolio or PFPC
Trust or a sub-custodian or a nominee of one
of the foregoing, or for exchange of
securities for a different number of bonds,
certificates, or other evidence,
representing the same aggregate face amount
or number of units bearing the same interest
rate, maturity date and call provisions, if
any; provided that, in any such case, the
new securities are to be delivered to PFPC
Trust.
21
(B) Unless and until PFPC Trust receives Oral
Instructions or Written Instructions to the
contrary, PFPC Trust shall:
(1) pay all income items held by it which call
for payment upon presentation and hold the
cash received by it upon such payment for
the account of each Portfolio;
(2) collect interest and cash dividends
received, with notice to the Fund, to the
account of each Portfolio;
(3) hold for the account of each Portfolio all
stock dividends, rights and similar
securities issued with respect to any
securities held by PFPC Trust; and
(4) subject to receipt of such documentation and
information as PFPC Trust may request,
execute as agent on behalf of the Fund all
necessary ownership certificates required by
a national governmental taxing authority or
under the laws of any U.S. state now or
hereafter in effect, inserting the Fund's
name, on behalf of a Portfolio, on such
certificate as the owner of the securities
covered thereby, to the extent it may
lawfully do so.
(iii) OTHER MATTERS.
(A) Subject to receipt of such documentation and
information as PFPC Trust may request, PFPC Trust
will, in such jurisdictions as PFPC Trust may
agree from time to time, seek to reclaim or obtain
a reduction with respect to any withholdings or
other taxes relating to assets maintained
hereunder (provided that PFPC Trust will not be
liable for failure to obtain any particular relief
in a particular jurisdiction); and
(B) PFPC Trust is authorized to deduct or withhold any
sum in respect of tax which PFPC Trust considers
is required to be deducted or withheld "at source"
by any relevant law or practice.
(i) SEGREGATED ACCOUNTS.
(i) PFPC Trust shall upon receipt of Written Instructions or
Oral Instructions establish and maintain segregated
accounts on its records for and on behalf of each
Portfolio. Such accounts may be used to transfer cash
and securities, including securities in a Book-Entry
System or other depository:
22
(A) for the purposes of compliance by the Fund with
the procedures required by a securities or option
exchange, providing such procedures comply with
the 1940 Act and any releases of the SEC relating
to the maintenance of segregated accounts by
registered investment companies; and
(B) upon receipt of Written Instructions, for other
purposes.
(ii) PFPC Trust shall arrange for the establishment of ▇▇▇
custodian accounts for such shareholders holding Shares
through ▇▇▇ accounts, in accordance with the Fund's
prospectuses, the Internal Revenue Code of 1986, as
amended (including regulations promulgated thereunder),
and with such other procedures as are mutually agreed
upon from time to time by and among the Fund, PFPC Trust
and the Fund's transfer agent.
(j) PURCHASES OF SECURITIES. PFPC Trust shall settle purchased
securities upon receipt of Oral Instructions or Written
Instructions that specify:
(i) the name of the issuer and the title of the securities,
including CUSIP number if applicable;
(ii) the number of shares or the principal amount purchased
and accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase;
(vi) the Portfolio involved; and
(vii) the name of the person from whom or the broker through
whom the purchase was made.
PFPC Trust shall upon receipt of securities purchased by or for a
Portfolio (or otherwise in accordance with standard market practice)
pay out of the monies held for the account of the Portfolio the total
amount payable to the person from whom or the broker through whom the
purchase was made, provided that the same conforms to the total amount
payable as set forth in such Oral Instructions or Written Instructions.
23
(k) SALES OF SECURITIES. PFPC Trust shall settle sold securities
upon receipt of Oral Instructions or Written Instructions that
specify:
(i) the name of the issuer and the title of the security,
including CUSIP number if applicable;
(ii) the number of shares or principal amount sold, and
accrued interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the Fund upon such sale;
(vi) the name of the broker through whom or the person to
whom the sale was made;
(vii) the location to which the security must be delivered
and delivery deadline, if any; and
(viii) the Portfolio involved.
PFPC Trust shall deliver the securities upon receipt of the total
amount payable to the Portfolio upon such sale, provided that the total
amount payable is the same as was set forth in the Oral Instructions or
Written Instructions. Notwithstanding anything to the contrary in this
Agreement, PFPC Trust may accept payment in such form as is consistent
with standard industry practice and may deliver assets and arrange for
payment in accordance with standard market practice.
(l) REPORTS; PROXY MATERIALS.
(i) PFPC Trust shall furnish to the Fund the following
reports:
(A) such periodic and special reports as the Fund may
reasonably request;
(B) a monthly statement summarizing all transactions
and entries for the account of each Portfolio,
listing each portfolio security belonging to each
Portfolio (with the corresponding security
identification number) held at the end of such
month and stating the cash balance of each
Portfolio at the end of such month.
24
(C) the reports required to be furnished to the Fund
pursuant to Rule 17f-4 under the 1940 Act; and
(D) such other information as may be agreed upon from
time to time between the Fund and PFPC Trust.
(ii) PFPC Trust shall transmit promptly to the Fund any proxy
statement, proxy material, notice of a call or
conversion or similar communication received by it as
custodian of the Property. PFPC Trust shall be under no
other obligation to inform the Fund as to such actions
or events. For clarification, upon termination of this
Agreement PFPC Trust shall have no responsibility to
transmit such material or to inform the Fund or any
other person of such actions or events.
25
(m) CREDITING OF ACCOUNTS. PFPC Trust may in its sole discretion
credit an Account with respect to income, dividends,
distributions, coupons, option premiums, other payments or
similar items prior to PFPC Trust's actual receipt thereof,
and in addition PFPC Trust may in its sole discretion credit
or debit the assets in an Account on a contractual settlement
date with respect to any sale, exchange or purchase applicable
to the Account; provided that nothing herein or otherwise
shall require PFPC Trust to make any advances or to credit any
amounts until PFPC Trust's actual receipt thereof. If PFPC
Trust credits an Account with respect to (a) income,
dividends, distributions, coupons, option premiums, other
payments or similar items on a contractual payment date or
otherwise in advance of PFPC Trust's actual receipt of the
amount due, (b) the proceeds of any sale or other disposition
of assets on the contractual settlement date or otherwise in
advance of PFPC Trust's actual receipt of the amount due or
(c) provisional crediting of any amounts due, and (i) PFPC
Trust is subsequently unable to collect full and final payment
for the amounts so credited within a reasonable time period
using reasonable efforts or (ii) pursuant to standard industry
practice, law or regulation PFPC Trust is required to repay to
a third party such amounts so credited, or if any Property has
been incorrectly credited, PFPC Trust shall have the absolute
right in its sole discretion without demand to reverse any
such credit or payment, to debit or deduct the amount of such
credit or payment from the Account, and to otherwise pursue
recovery of any such amounts so credited from the Fund. The
Fund hereby grants to PFPC Trust and to each sub-custodian
utilized by PFPC Trust in connection with providing services
to the Fund a first priority contractual possessory security
interest in and a right of setoff against the assets
maintained in an Account hereunder in the amount necessary to
secure the return and payment to PFPC Trust and to each such
sub-custodian of any advance or credit made by PFPC Trust
and/or by such sub-custodian (including charges related
thereto) to such Account. Notwithstanding anything in this
Agreement to the contrary, PFPC Trust shall be entitled to
assign any rights it has under this sub-section (m) to any
sub-custodian utilized by PFPC Trust in connection with
providing services to the Fund which sub-custodian makes any
credits or advances with respect to the Fund.
(n) COLLECTIONS. All collections of monies or other property in
respect, or which are to become part, of the Property (but not
the safekeeping thereof upon receipt by PFPC Trust) shall be
at the sole risk of the Fund. If payment is not received by
PFPC Trust within a reasonable time after proper demands have
been made, PFPC Trust shall notify the Fund in writing,
including copies of all demand letters, any written responses
and memoranda of all oral responses and shall await
instructions from the Fund. PFPC Trust shall not be obliged to
take legal action for collection unless and until reasonably
indemnified to its satisfaction. PFPC Trust shall also notify
the Fund as soon as reasonably practicable whenever income due
on securities is not collected in due course and shall provide
the Fund with periodic status reports of such income collected
after a reasonable time.
(o) FOREIGN EXCHANGE. PFPC Trust and/or sub-custodians may enter
into or arrange foreign exchange transactions (at such rates
as they may consider appropriate) in order to facilitate
transactions under this Agreement, and such entities and/or
their affiliates may receive compensation in connection with
such foreign exchange transactions.
26
(p) EXCESS CASH SWEEP. PFPC Trust will, consistent with applicable
law, sweep any net excess cash balances daily into an
investment vehicle or other instrument designated in Written
Instructions, so long as the investment vehicle or instrument
is acceptable to PFPC Trust, subject to a fee, paid to PFPC
Trust for such service, to be agreed between the parties. Such
investment vehicle or instrument may be offered by an
affiliate of PFPC Trust or by a PFPC Trust client and PFPC
Trust may receive compensation therefrom.
16. DURATION AND TERMINATION. This Agreement shall be effective on the
date first above written and shall continue until August 31, 2009 (the
"Initial Term"). Thereafter, this Agreement shall continue
automatically for successive terms of one (1) year (each, a "Renewal
Term"); provided however, that this Agreement may be terminated at the
end of the Initial Term or any subsequent date by the Fund or by PFPC
on ninety (90) days' prior written notice to the other party.
27
If a party hereto fails in any material respect to perform its
duties and obligations hereunder (a "Defaulting Party"), the other
party (the "Non-Defaulting Party") may give written notice thereof to
the Defaulting Party, and if such material breach shall not have been
remedied within thirty (30) days after such written notice is given,
then the Non-Defaulting Party may terminate this Agreement by giving
thirty (30) days written notice of such termination to the Defaulting
Party. Termination of this Agreement by the Non-Defaulting Party shall
not constitute a waiver of any other rights or remedies with respect to
obligations of the parties prior to such termination or rights of PFPC
to be reimbursed for out-of-pocket expenses. In all cases, termination
by the Non-Defaulting Party shall not constitute a waiver by the
Non-Defaulting Party of any other rights it might have under this
Agreement or otherwise against the Defaulting Party.
In the event this Agreement is terminated (pending appointment
of a successor to PFPC Trust or vote of the shareholders of the Fund to
dissolve or to function without a custodian of its cash, securities or
other property), PFPC Trust shall not deliver cash, securities or other
property of the Portfolios to the Fund. If, after the effective date of
the termination of this Agreement, the Fund has not appointed a
successor custodian, PFPC Trust may deliver the Fund's cash, securities
and other property to a bank or trust company of PFPC Trust's choice,
having aggregate capital, surplus and undivided profits, as shown by
its last published report, of not less than twenty million dollars
($20,000,000), as a custodian for the Fund to be held under terms
similar to those of this Agreement. PFPC Trust shall not be required to
make any delivery or payment of assets upon termination until full
payment shall have been made to PFPC Trust of all of its fees,
compensation, costs and expenses (including without limitation fees and
expenses associated with deconversion or conversion to another service
provider and other trailing expenses incurred by PFPC Trust). PFPC
Trust shall have a first priority contractual possessory security
interest in and shall have a right of setoff against the Property as
security for the payment of such fees, compensation, costs and
expenses.
28
Notwithstanding anything contained in this Agreement to the
contrary, if the Fund is liquidated (a "LIQUIDATION") or the Fund's or
one or more Portfolio(s)' assets are merged or purchased or the like
with or by another entity that does not use the services of PFPC Trust
(a "REORGANIZATION") after the first year of this Agreement, the Fund
may terminate this Agreement with respect to the Fund or such
Portfolio(s), as applicable, at any time after the occurrence of such
Liquidation or Reorganization event by the Board of the Fund on 90
days' written notice to PFPC Trust. In such case, if the Fund elects to
terminate this Agreement as a result of a Liquidation or with respect
to such Portfolio(s) involved in a Reorganization, the Fund shall pay
PFPC Trust an amount equal to a "multiplier" times the greater of (x)
the monthly average fees due to PFPC Trust under this Agreement during
the last three whole months prior to the Liquidation or Reorganization,
as applicable, for providing services to the terminating Portfolio(s)
or (y) the monthly average fees paid to PFPC Trust for providing
services to the terminating Portfolio(s) during the last three whole
months prior to delivery of the notice of termination. The "Multiplier"
will equal the number of months remaining in the Agreement at the time
that PFPC Trust is no longer providing services to the terminating
Portfolio(s) under this Agreement divided by three.
29
For clarification, if this Agreement is terminated with
respect to less than all of the Portfolios, this Agreement will remain
in full force and effect with respect to all of the remaining
Portfolios.
17. NOTICES. Notices shall be addressed (a) if to PFPC Trust at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇; (b) if to the Fund, at Allegiant Fund Group,
c/o NATIONAL CITY BANK, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇, WITH A COPY TO ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
DRINKER ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ONE ▇▇▇▇▇ SQUARE, ▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇; or (c) if to neither of the
foregoing, at such other address as shall have been given by like
notice to the sender of any such notice or other communication by the
other party. If notice is sent by confirming electronic delivery, hand
or facsimile sending device, it shall be deemed to have been given
immediately. If notice is sent by first-class mail, it shall be deemed
to have been given five days after it has been mailed. If notice is
sent by messenger, it shall be deemed to have been given on the day it
is delivered.
18. AMENDMENTS. This Agreement, or any term hereof, may be changed or
waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
19. DELEGATION; ASSIGNMENT. This Agreement, its benefits and obligations
shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. This Agreement
may not be assigned or otherwise transferred by either party hereto,
without the prior written consent of the other party, which consent
shall not be unreasonably withheld; provided, however, that PFPC Trust
may, upon 30 days' prior written notice to the Fund, in its sole
discretion, assign all its right, title and interest in this Agreement
to an affiliate, parent or subsidiary, provided that, in its reasonable
judgment the Board of Trustees of the Fund, acting in its sole
discretion, determines that: (i) the financial capacity of such
assignee is not materially less than that of PFPC Trust; (ii) the
nature and quality of the services to be provided hereunder are not
materially adversely affected by such assignment; and (iii) the quality
and capacity of the personnel and facilities of the assignee are not
materially less than those of PFPC Trust.
30
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
21. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
hereof, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties.
(b) NO REPRESENTATIONS OR WARRANTIES. Except as expressly provided
in this Agreement, PFPC Trust hereby disclaims all
representations and warranties, express or implied, made to
the Fund or any other person, including, without limitation,
any warranties regarding quality, suitability,
merchantability, fitness for a particular purpose or otherwise
(irrespective of any course of dealing, custom or usage of
trade), of any services or any goods provided incidental to
services provided under this Agreement. PFPC Trust disclaims
any warranty of title or non-infringement except as otherwise
set forth in this Agreement.
31
(c) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees
not to make any modifications to its registration statement or
adopt any policies which would affect materially the
obligations or responsibilities of PFPC Trust hereunder
without the prior written approval of PFPC Trust, which
approval shall not be unreasonably withheld or delayed.
(d) CAPTIONS. 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.
(e) INFORMATION. The Fund will provide such information and
documentation as PFPC Trust may reasonably request in
connection with services provided by PFPC Trust to the Fund.
(f) GOVERNING LAW. This Agreement shall be deemed to be a contract
made in Delaware and governed by Delaware law, without regard
to principles of conflicts of law.
(g) PARTIAL INVALIDITY. 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.
(h) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
32
(i) FACSIMILE SIGNATURES. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
(j) CUSTOMER IDENTIFICATION PROGRAM NOTICE. To help the U.S.
government fight the funding of terrorism and money laundering
activities, U.S. Federal law requires each financial
institution to obtain, verify, and record certain information
that identifies each person who initially opens an account
with that financial institution on or after October 1, 2003.
Consistent with this requirement, PFPC Trust may request (or
may have already requested) the Fund's name, address and
taxpayer identification number or other government-issued
identification number, and, if such party is a natural person,
that party's date of birth. PFPC Trust may also ask (and may
have already asked) for additional identifying information,
and PFPC Trust may take steps (and may have already taken
steps) to verify the authenticity and accuracy of these data
elements.
(k) BUSINESS TRUST. The name Allegiant Funds and of any investment
portfolio thereof, and any reference to the "Trustees" of
Allegiant Funds, refer respectively to the trust created and
the Trustees, as trustees but not individually or personally,
acting from time to time under the Declaration of Trust which
is hereby referred to and a copy of which is on file at the
office of the State Secretary of the Commonwealth of
Massachusetts and at the principal office of the Fund. The
obligations of the Fund entered into in its name, or on behalf
of any of its investment portfolios, or on behalf thereof by
any of the 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
Fund personally, but bind only the Fund property, and all
persons dealing with any class of shares of the Fund must look
solely to the Fund property belonging to such class for the
enforcement of any claims against the Fund.
33
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
--------------------------------
Title: VICE PRESIDENT
-----------------------------
ALLEGIANT FUNDS
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Title: CHIEF ADMINISTRATIVE OFFICER
------------------------------
34