Exhibit (h)(5)
RED FLAG SERVICES AMENDMENT
This Red Flags Services Amendment ("Amendment") is being entered into
as of May 1, 2009 ("Effective Date"), by and between PNC Global Investment
Servicing (U.S.) Inc. (formerly known as PFPC Inc.) ("PNC") and the Allegiant
Funds and the Allegiant Advantage Fund (each a "Fund" and together, the "Funds")
and amends the agreement between PNC and the Funds pursuant to which PNC
provides transfer agency services to the Funds, as amended to date ("Existing
Agreement").
IN CONSIDERATION of the mutual covenants made herein and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties,
intending to be legally bound, hereby agree to amend the Existing Agreement as
follows:
1. MODIFICATIONS TO EXISTING AGREEMENT. The Existing Agreement shall be modified
as follows:
(a) The term "PFPC Inc." shall be replaced each place it may occur with "PNC
Global Investment Servicing (U.S.) Inc." and the defined term "PFPC" shall be
replaced each place it may occur with "PNC".
(b) A new section which reads in its entirety as follows shall be added to the
end of the Existing Agreement:
RED FLAG SERVICES (THE "RED FLAG SECTION").
(a) PNC agrees to provide each Fund with the "Red Flag Services", which is
hereby defined to mean the following services:
(i) PNC will maintain written controls reasonably designed to detect
the occurrence of Red Flags (as defined below) in connection with (i)
account opening and other account activities and transactions conducted
directly through PNC with respect to Direct Accounts (as defined
below), and (ii) transactions effected directly through PNC by Covered
Persons (as defined below) in Covered Accounts (as defined below). Such
controls, as they may be revised from time to time hereunder, are
referred to herein as the "Controls". Solely for purposes of the Red
Flag Section, the capitalized terms below will have the respective
meaning ascribed to each:
(A) "Red Flag" means a pattern, practice, or specific activity or
a combination of patterns, practices or specific activities which
may indicate the possible existence of Identity Theft (as defined
below) affecting a Registered Owner (as defined below) or a
Covered Person.
(B) "Identity Theft" means a fraud committed or attempted using
the identifying information of another person without authority.
(C) "Registered Owner" means a natural person who is the owner of
record of a Direct Account on the books and records of the Fund
maintained by PNC as registrar of the Fund (the "Fund Registry").
(D) "Covered Person" means a natural person who is the owner of
record of a Covered Account on the Fund Registry.
(E) "Direct Account" means an account holding Fund shares
established directly with and through PNC by a natural person as a
registered account on the Fund Registry and through which the
owner of record has the ability to directly conduct account and
transactional activity with and through PNC.
(F) "Covered Account" means an account holding Fund shares
established by a financial intermediary for a natural person as
the owner of record on the Fund Registry and through which such
owner of record has the ability to conduct transactions in Fund
shares directly with and through PNC.
(ii) PNC will provide each Fund with a printed copy of or Internet
viewing access to the Controls.
(iii) PNC will notify a Fund of Red Flags which it detects and
reasonably determines to indicate a significant risk of Identity Theft
to a Registered Owner or a Covered Person ("Possible Identity Theft")
and assist the relevant Fund in determining the appropriate response of
the Fund to the Possible Identity Theft.
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(iv) PNC will (A) engage an independent auditing firm or other similar
firm of independent examiners to conduct an annual testing of the
Controls and issue a report on the results of the testing (the "Audit
Report"), and (B) furnish a copy of the Audit Report to the Funds; and
(v) Upon Fund request, issue a certification in a form determined to be
appropriate by PNC in its reasonable discretion, certifying to PNC's
continuing compliance with the Controls after the date of the most
recent Audit Report.
(b) Each Fund agrees it is responsible for complying with and determining
the applicability to the Fund of Section 114 of the Fair and Accurate
Credit Transaction Act of 2003 and regulations promulgated thereunder by
the Federal Trade Commission (the "Red Flag Requirements"), for determining
the extent to which the Red Flag Services assist the Fund in complying with
the Red Flag Requirements, and for furnishing any supplementation or
augmentation to the Red Flag Services it determines to be appropriate, and
that PNC has given no advice and makes no representations with respect to
such matters. This Red Flag Section shall not be interpreted in any manner
which imposes a duty on PNC to act on behalf of a Fund or otherwise,
including any duty to take any action upon the occurrence of a Red Flag,
other than as expressly provided for in this Red Flag Section. The Controls
and the Red Flag Services may be changed at any time and from time to time
by PNC in its reasonable sole discretion to include commercially reasonable
provisions appropriate to the Red Flag Requirements, as they may be
constituted from time to time. Each Fund shall be obligated to pay, and PNC
shall be entitled to receive, the fee for Red Flag Services as established
by PNC from time to time by written notice. Other than the initial fee
which shall be payable as of the Effective Date, each Fund shall be
obligated to pay any revised fee commencing thirty (30) days after the
Fund's receipt of such written notice. A Fund's sole remedy in the event it
does not agree to a revised fee is to terminate the Red Flag Services.
(c) Notwithstanding any other provision of the Agreement:
(i) PNC shall not be liable for any consequential, special or indirect
losses or damages, whether or not the likelihood of such losses or
damages was known by PNC or its affiliates. PNC's cumulative, aggregate
liability to the Funds for any and all losses, claims, suits,
controversies, breaches or damages ("claims") for any cause whatsoever
related to the terms of this Red Flags Section and regardless of the
form of action or legal theory shall not exceed the greater of (i)
$25,000, or (ii) fees received by PNC for the Red Flag Services under
this Red Flags Section during the six (6) months immediately prior to
the date of the last such claim, up to a maximum of $50,000.
(ii) In the event of a material breach of this Red Flag Section by PNC,
the Funds shall be entitled exclusively to terminate the Red Flag
Services by complying with the notice and cure period provisions in the
Agreement applicable to a material breach of the Agreement, but shall
not be entitled to terminate the Agreement.
2. REMAINDER OF EXISTING AGREEMENT; GOVERNING LAW. Except as specifically
modified by this Amendment, all terms and conditions of the Existing Agreement
shall remain in full force and effect. The governing law of the Agreement shall
be the governing law of this Amendment.
3. ENTIRE AGREEMENT; FACSIMILE SIGNATURES; COUNTERPARTS. This Amendment
constitutes the final, complete, exclusive and fully integrated record of the
agreement of the parties with respect to the subject matter herein and the
amendment of the Existing Agreement with respect to such subject matter. This
Amendment may be executed in one or more counterparts; such execution of
counterparts may occur by manual signature, facsimile signature, manual
signature transmitted by means of facsimile transmission or manual signature
contained in an imaged document attached to an email transmission; and each such
counterpart executed in accordance with the foregoing shall be deemed an
original, with all such counterparts together constituting one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers, as of the day and year first above
written.
PNC Global Investment Servicing (U.S.) Inc. Allegiant Funds and Allegiant
Advantage Fund
By: /s/ Xxxxxxx XxXxxxxx By: /s/ Xxxx Xxxxxx
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Name: Xxxxxxx XxXxxxxx Name: Xxxx Xxxxxx
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Title: Executive Vice President, Senior Managing Director Title: Treasurer
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