Exhibit (h)(17)
ALLEGIANT FUNDS
ALLEGIANT ADVANTAGE FUND
MARKETING SUPPORT SERVICE AGREEMENT
This AGREEMENT is made as of January 1, 2009 by and among PNC GLOBAL INVESTMENT
SERVICING (U.S.) Inc ("PNC GIS"), PFPC DISTRIBUTORS, INC. ("DISTRIBUTOR" and
together with PNC GIS, collectively referred to herein as "PNC"), ALLEGIANT
ASSET MANAGEMENT COMPANY ("ADVISOR"), ALLEGIANT FUNDS and ALLEGIANT ADVANTAGE
FUND (each a "Fund" and together, the "Funds").
WITNESSETH:
WHEREAS, each Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, each Fund and the Advisor wishes to retain PNC to provide certain
marketing support services to its investment portfolios and PNC wishes to
furnish such services; and
WHEREAS, the Funds and the Advisor wish for Distributor to grant the
Advisor a license to utilize Distributor's Principal Review web portal and
software system ("Principal Review System") to assist in the creation, review
and submission of advertising and sales literature relating to the Funds and
Distributor wishes to provide such access.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and intending to be legally bound hereby the parties hereto
agree as follows:
1. MARKETING SUPPORT SERVICES
PNC GIS will perform the following services on behalf of the Funds:
A. Manage the development and production of creative pieces, as assigned.
B. Support sales efforts by providing services including, but not limited
to, the following:
(i) Assist in the development/updating of collateral (excluding
trinkets) including product and educational brochures, product
sheets, sales ideas, non-fund specific presentations as directed;
and
(ii) Provide source data for sales materials updates and performance
comparisons; supplying select statistics for sales materials and
Ibbotson data.
2. PRINCIPAL REVIEW LICENSE. Distributor hereby grants to the Advisor a
limited, nonexclusive, nontransferable right to access and utilize
Principal Review System and such license shall immediately be terminated
with the termination of this Agreement. No right is granted for use of the
Principal Review System by any third party affiliated with the Advisor
unless such third party is approved in advance by Distributor. Distributor
and its suppliers reserve all rights in the Principal Review System and
related documentation not expressly granted to the Advisor herein.
Distributor and its suppliers will continue to own all of their respective
right, title, and interest in and to the Principal Review System, 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 in connection with the services provided to
the Advisor or the Funds and their respective Intellectual Property Rights
therein. The Advisor or the Funds, as appropriate, will own its respective
right, title, and interest in and to any and all data, information,
records, files, input materials, reports, and forms received, maintained,
computed, stored, processed, created, or generated on or by the Principal
Review System.
3. COMPENSATION.
A. As compensation for services rendered by PNC GIS during the term of
this Agreement for or on behalf of Allegiant Advantage Fund, PNC GIS
shall be entitled to the fees as set forth in Exhibit A.
B. As compensation for services rendered by PNC GIS during the term of
this Agreement for or on behalf of Allegiant Funds, PNC GIS shall be
entitled to the fees as set forth in Exhibit B. Any amounts payable by
Allegiant Funds hereunder shall be paid in accordance with the plan of
distribution adopted by the Fund in accordance with Rule 12b-1 of the
Investment Company Act of 1940, as amended ("12b-1 Plan"). If a
Portfolio's 12b-1 Plan is terminated or there are otherwise
insufficient assets to pay for the services performed by PNC GIS for
or on behalf of Allegiant Funds pursuant to the terms of this
Agreement, Advisor shall be responsible for payment of such fees.
C. As compensation for the license granted by Distributor to the Advisor
during the term of this Agreement, Distributor shall be entitled to be
paid an annual fee $25,000 ("License Fee"), prorated and payable
monthly, for up to twenty-five (25) seat licenses granted by
Distributor to third parties affiliated or otherwise associated with
the Advisor. For each seat license granted by Distributor to the
Advisor (or third parties affiliated with the Advisor) in excess of
twenty-five (25), Distributor shall receive an additional $50. In
addition, Distributor will reimbursed for any out-of-pocket expenses
incurred on the Advisor's or the Funds' behalf, including but not
limited to, postage, telephone, telex, and overnight express charges.
Any amounts payable to Distributor hereunder shall be paid in
accordance with any plan of distribution adopted by the Funds in
accordance with Rule 12b-1 of
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the Investment Company Act of 1940, as amended ("12b-1 Plan"). If a
Fund has no 12b-1 Plan, the 12b-1 Plan is terminated, or there are
otherwise insufficient assets in the 12b-1 Plan to pay for the License
Fee and out-of-pocket expenses outlined in this Section 3, the Advisor
shall be responsible for payment of such fees and expenses.
4. CONFIDENTIALITY
A. "Confidential Information" means all information provided by either
party (the "Originating Party") and any of its affiliates to the other
party (the "Receiving Party") in connection with this Agreement.
Confidential Information shall include, without limitation: (i)
list(s) of customer names and addresses and other customer-related
information, regardless of whether the Originating Party's
relationship with the customer ceases, including any nonpublic
personal information as defined by federal law, including, but not
limited to, the Xxxxx-Xxxxx-Xxxxxx Act, as it may be amended, any
regulations promulgated thereunder and any other customer information
protected by applicable state law; (ii) 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 PNC their
respective subsidiaries and affiliated companies and the customers,
clients and suppliers of any of them; (iii) 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 PNC a competitive advantage
over its competitors; (iv) 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 (v) anything designated as confidential.
Notwithstanding the foregoing, information shall not be subject to
such confidentiality obligations if it: (i) is already known to the
receiving party at the time it is obtained; (ii) is or becomes
publicly known or available through no wrongful act of the receiving
party; (iii) 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) is released by the protected party to a third
party without restriction; (v) is required to be disclosed by the
receiving party pursuant to a requirement of a court order, subpoena,
governmental or regulatory agency or law (provided the receiving party
will provide the other party written notice of such requirement, to
the extent such notice is permitted); (vi) is relevant to the defense
of any claim or cause of action asserted against the receiving party;
or (vii) has been or is independently developed or obtained by the
receiving party.
B. All Confidential Information shall be held in the strictest confidence
and will not be disclosed by either party or its representatives,
except as specifically permitted by the terms hereof. Each party and
its respective representatives will use the
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Confidential Information solely for the purposes of performing under
and in compliance with the terms of this Agreement, will not use the
Confidential Information for any other purpose, and will not disclose
or communicate the Confidential Information, directly or indirectly,
to any third party except as necessary to carry out the purpose of
this Agreement. Each party further agrees that the Confidential
Information will be disclosed only to such of its representatives who
need to examine the Confidential Information for the purposes
described above. Before being provided with any Confidential
Information, each such representative shall be informed of the
confidential nature of the Confidential Information and shall be
directed to treat the Confidential Information confidentially. Each
party shall in any event be responsible for any breach of this
Agreement by any representative.
C. Each party shall take all steps reasonably necessary to keep
confidential the Confidential Information and shall take all steps
reasonably necessary to assure observation of this Agreement by its
representatives. All Confidential Information shall remain the
exclusive property of the Originating Party or its affiliates, as
applicable. Upon request by the Originating Party, the Receiving Party
shall promptly surrender to the Originating Party any of the
Confidential Information in the Receiving Party's possession, and
shall surrender all Confidential Information to the Originating Party
promptly and without request upon the termination of this Agreement.
The Receiving Party will not retain any copies of the Confidential
Information.
D. In the event that a Receiving Party or any of its representatives is
requested or required (by oral question, interrogatories, requests for
information or documents, subpoenas, civil investigation or similar
process) to disclose any of the Confidential Information, such
Receiving Party will provide the Originating Party and its affiliates
with prompt notice of such requests so that the Originating Party or
its affiliates, as applicable, may seek an appropriate protective
order, or if appropriate, waive compliance with the provisions of this
Agreement. The Receiving Party will use its best efforts to obtain or
assist the Originating Party and its affiliates in obtaining such a
protective order.
E. Each of the parties agree that any breach or threatened breach of the
provisions of this Section 3 shall cause immediate and irreparable
injury to the other party for which there exists no adequate remedy at
law. Accordingly, the parties hereby grant each other the right to
appear at any time in any court of law and to obtain an order
enjoining and/or restraining the Receiving Party from using and/or
disclosing such Confidential Information except as such disclosure is
permitted in this Agreement. The parties shall be bound by all
provisions of such protective order and/or any determination of a
court of competent jurisdiction.
F. The provisions of this Section 3 shall survive termination of this
Agreement.
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5. INDEMNIFICATION.
A. Each Fund, on behalf of its Portfolios, and the Advisor, severally,
agrees to indemnify, defend and hold harmless PNC and its affiliates,
including its respective officers, directors, agents and employees
from all taxes, charges, expenses, assessments, claims and liabilities
(including, reasonable 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 (i) any action or omission to act which PNC takes in connection
with the provision of services to the relevant Fund; (2) breach of the
terms of this Agreement; or (iii) the use of Principal Review system
by the Advisor and its affiliates, including their respective
officers, directors, agents and employees. , provided that the Fund
shall not be obligated to indemnify any such person against any
liability (or any expenses incident to such liability) caused by PNC
or its affiliates' own willful misfeasance, bad faith, negligence or
reckless disregard in the performance of its activities under this
Agreement Neither the Funds nor the Advisor shall be obligated to
indemnify any such person against any liability (or any expenses
incident to such liability) caused by PNC's or its affiliates' own
willful misfeasance, bad faith, negligence or reckless disregard in
the performance of its activities under this Agreement. Any amounts
payable by a Fund hereunder shall be satisfied only against the
relevant Portfolio's assets and not against the assets of any other
investment portfolio of the Fund. The provisions of this Section 5
shall survive termination of this Agreement.
6. DURATION AND TERMINATION.
A. This Agreement shall be effective on the date first above written.
Either party may terminate this Agreement on ninety (90) days' written
notice to the other parties.
B. 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
PNC GIS 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.
7. NOTICES. Notices shall be addressed (a) if to PNC, at 000 Xxxxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to a Fund or the
Advisor, at 000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx Xxxx 00000, Attention
Xxxxxxxx X. Xxxx, with a copy to
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Xxxxxx X. Xxxxxx, Esquire, Drinker Xxxxxx & Xxxxx, LLP, One Xxxxx Square,
00xx & Xxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000; 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 telegram, cable, telex 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 three 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.
8. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
9. ASSIGNMENT. PNC may assign its rights hereunder to any majority-owned
direct or indirect subsidiary of PNC or of The PNC Financial Services
Group, Inc., provided that (i) PNC gives the Fund and Advisor 30 days'
prior written notice of such assignment, (ii) the assignee or delegate
agrees to comply with the relevant provisions of the 1940 Act, and (iii)
PNC and such assignee or delegate promptly provides such information as the
Funds or Advisor may reasonably request and respond to such questions as
the Funds or Advisor may reasonably ask, relative to the assignment or
delegation (including, without limitation, the capabilities of the assignee
or delegate).
10. 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.
11. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
12. MISCELLANEOUS.
A. Except as expressly provided in this Agreement, PNC 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. PNC
disclaims any warranty of title or non-infringement except as
otherwise set forth in this Agreement.
B. This Agreement embodies the entire agreement and understanding between
the parties relating to the services described herein and supersedes
all prior agreements and understandings relating to the services
hereof, provided that the parties may embody in one or more separate
documents their agreement, if any, with respect to delegated duties
and fees.
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C. 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.
D. Notwithstanding any provision hereof, the services of PNC are not, nor
shall they be, construed as constituting legal advice or the provision
of legal services for or on behalf of the Fund or any other person.
E. 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.
F. 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.
G. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted
assigns.
H. The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such party.
I. 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. Certain of PNC's
affiliates are financial institutions, and PNC may, as a matter of
policy, 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. PNC may also ask (and may have already asked)
for additional identifying information, and PNC may take steps (and
may have already taken steps) to verify the authenticity and accuracy
of these data elements.
13. XXXXXXXX-XXXXX CERTIFICATIONS. PNC acknowledges that it may from time to
time provide certain information that is necessary to complete a report or
other filing that is required to be certified by certain of the Fund's
officers pursuant to Section 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002
(the "Act") and rules and regulations promulgated from time to time
thereunder (each such report or other filing, a "Certified Report"). PNC
agrees that any information PNC provides that is necessary to complete a
Certified Report, to its best knowledge, will be true and complete when
given. PNC further agrees that any written representation or certification
it provides to the Fund and/or the officers of the Fund in support of a
certification by them to the SEC pursuant to the Act and/or any rules and
regulations issued from time to time thereunder, to its best knowledge,
will be true and correct and complete when given. This covenant shall
survive termination of this Agreement.
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14. BUSINESS TRUST. The names "Allegiant Funds" and "Allegiant Advantage Fund"
and of any investment portfolio thereof, and any reference to the
"Trustees" of Allegiant Funds and Allegiant Advantage Fund, refer
respectively to the Trusts created and the Trustees, as trustees but not
individually or personally, acting from time to time under the Declarations
of Trust which are hereby referred to and copies of which is on file at the
office of the State Secretary of the Commonwealth of Massachusetts and at
the principal offices of the Trusts. The obligations of Allegiant Funds and
Allegiant Advantage Fund entered into in its name, or on behalf of any of
its investment portfolios, 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 respective Trust personally, but bind only the
relevant Trust's property, and all persons dealing with any class of shares
of a Trust must look solely to that Trust property belonging to such class
for the enforcement of any claims against that Trust.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have set their hands by their duly
authorized representatives as of the year and date first above indicated.
PNC GLOBAL INVESTMENT SERVICING ALLEGIANT ASSET MANAGEMENT COMPANY
(U.S.) INC.
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxxxx X. Xxxx
---------------------------------- -------------------------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxxxxxx X. Xxxx
-------------------------------- -----------------------------------
Title: Vice President, Marketing Title: Chief Administrative Officer
------------------------------- ----------------------------------
ALLEGIANT FUNDS ALLEGIANT ADVANTAGE FUND
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
---------------------------------- -------------------------------------
Name: Xxxx Xxxxxx Name: Xxxx Xxxxxx
-------------------------------- -----------------------------------
Title: Treasurer Title: Treasuer
------------------------------- ----------------------------------
PFPC DISTRIBUTORS, INC.
By: /s/ Xxxxx XxXxxxxxx
----------------------------------
Name: Xxxxx XxXxxxxxx
--------------------------------
Title: Vice President
-------------------------------
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EXHIBIT A
ALLEGIANT ADVANTAGE FUND
FEES FOR MARKETING SUPPORT SERVICES
THIS EXHIBIT A, dated as of March 1, 2009 is Exhibit A to that certain Marketing
Support Services Agreement dated as of January 1, 2009 among PNC Global
Investment Servicing (U.S.) Inc. ("PNC GIS"), PFPC Distributors, Inc., Allegiant
Asset Management Company ("Advisor"), Allegiant Funds and Allegiant Advantage
Fund. Between January 1, 2009 and March 1, 2009, the fees paid by the Allegiant
Advantage Fund and/or the Advisor relating to the marketing support services
provided by PNC GIS were governed by the terms of the fee letter agreement
effective September 1, 2006 to which Allegiant Advantage Fund and PNC GIS were
parties. This letter supersedes all previous agreements between the parties with
respect to the fees set forth herein relating to marketing support services
provided by PNC GIS to Allegiant Advantage Fund.
A. ASSET BASED FEES:
The following annual fee will be calculated based upon Allegiant
Advantage's average aggregate net assets and paid monthly:
.0005% of average net assets.
MONTHLY MINIMUM FEE: The minimum monthly fee will be $959, excluding and
out-of-pocket expenses.
MONTHLY MAXIMUM FEE: The maximum monthly fee for the Allegiant Advantage
Fund will not exceed $1,244, excluding out-of-pocket expenses.
B. MARKETING AND PRODUCT DISTRIBUTION OUT-OF-POCKET AND MISCELLANEOUS
EXPENSES:
PNC GIS shall be entitled to reimbursement for travel for training, travel
expenses for monthly on-site meetings, retaining and procuring consultants and
in-depth research at the Fund or Advisor's request, registration, attendance and
related expenses (i.e., board meetings and other events as approved by the Fund
or Advisor), duplicating services, courier services, travel and expenses as
approved by the Fund or Advisor, publications and purchase of selected research
reports outside current inventory (i.e., Morningstar Research) and as approved
by the Fund or Advisor, other miscellaneous expenses reasonably incurred by PNC
GIS in performing its services under the Agreement.
C. MISCELLANEOUS:
After the one year anniversary of the effective date of this letter, PNC
GIS may adjust the fees described in the above sections once per calendar year,
as agreed to in writing by both parties in an amount not to exceed the
cumulative percentage increase in the Consumer Price Index for All Urban
Consumers (CPI-U) U.S. City Average, All items (unadjusted) - (1982-
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84=100), published by the U.S. Department of Labor since the last such
adjustment in the Funds' monthly fees (or the effective date of this letter
absent a prior such adjustment).
Any fee or out-of-pocket expenses not paid within 30 days of the date of
the original invoice will be charged a late payment fee of 1% per month until
payment of the fees are received by PNC.
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EXHIBIT B
ALLEGIANT FUNDS
FEES FOR MARKETING SUPPORT SERVICES
THIS EXHIBIT B, dated as of March 1, 2009 is Exhibit B to that certain Marketing
Support Services Agreement dated as of January 1, 2009 among PNC Global
Investment Servicing (U.S.) Inc. ("PNC GIS"), PFPC Distributors, Inc., Allegiant
Asset Management Company ("Advisor"), Allegiant Funds and Allegiant Advantage
Fund. Between January 1, 2009 and March 1, 2009, the fees paid by Allegiant
Funds and/or the Advisor relating to the marketing support services provided by
PNC GIS to Allegiant Funds were governed by the terms of the fee letter
agreement effective September 1, 2006 to which the Allegiant Funds and PNC GIS
were parties. This letter supersedes all previous agreements between the parties
with respect to the fees set forth herein relating to marketing support services
provided by PNC GIS to Allegiant Funds.
A. ASSET BASED FEES:
The following annual fee will be calculated based upon Allegiant Fund's
average aggregate net assets and paid monthly:
.0017% of Allegiant's first $17 billion of average aggregate net assets;
and
.0015% of Allegiant's average aggregate net assets in excess of $17
billion.
MONTHLY MINIMUM FEE: The minimum monthly fee will be $12,458, excluding and
out-of-pocket expenses.
MONTHLY MAXIMUM FEE: The maximum monthly fee for the Allegiant Funds will
not exceed $16,156, excluding out-of-pocket expenses.
B. MARKETING AND PRODUCT DISTRIBUTION OUT-OF-POCKET AND MISCELLANEOUS
EXPENSES:
PNC GIS shall be entitled to reimbursement for travel for training, travel
expenses for monthly on-site meetings, retaining and procuring consultants and
in-depth research at the Fund or Advisor's request, registration, attendance and
related expenses (i.e., board meetings and other events as approved by the Fund
or Advisor), duplicating services, courier services, travel and expenses as
approved by the Fund or Advisor, publications and purchase of selected research
reports outside current inventory (i.e., Morningstar Research) and as approved
by the Fund or Advisor, other miscellaneous expenses reasonably incurred by PNC
GIS in performing its services under the Agreement.
C. MISCELLANEOUS:
After the one year anniversary of the effective date of this letter, PNC
GIS may adjust the fees described in the above sections once per calendar year,
as agreed to in writing by both parties in an amount not to exceed the
cumulative percentage increase in the Consumer Price Index for All Urban
Consumers (CPI-U) U.S. City Average, All items (unadjusted) - (1982-
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84=100), published by the U.S. Department of Labor since the last such
adjustment in the Funds' monthly fees (or the effective date of this letter
absent a prior such adjustment).
Any fee or out-of-pocket expenses not paid within 30 days of the date of
the original invoice will be charged a late payment fee of 1% per month until
payment of the fees are received by PNC GIS.
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