AMENDMENT TO SECURITIES LENDING AUTHORIZATION AGREEMENT
EX-99.g.2.i
AMENDMENT TO SECURITIES
LENDING AUTHORIZATION AGREEMENT
This AMENDMENT TO SECURITIES LENDING
AUTHORIZATION AGREEMENT is made and effective as of the _22___ day of
September, 2009 (the “Effective Date”), by and between each investment company
listed on Schedule 1 attached hereto (referred to herein, individually, as a
“Client” and, collectively, as the “Clients”) on behalf of one or more of its
series funds listed below such investment company on Schedule 1 attached hereto
(referred to herein, individually, as a “Fund” and, collectively, as the
“Funds”) and THE BANK OF NEW
YORK MELLON, successor by operation of law to Mellon Bank, N.A (the
"Lending Agent").
WHEREAS, the Client and Mellon Bank,
N.A., have entered into a certain Securities Lending Authorization Agreement
dated as of July 20, 2007 with respect to certain lendable securities held by
each Fund (as amended, modified or supplemented from time to time, the
“Agreement”); and
WHEREAS, The Bank of New York Mellon
has succeeded by operation of law to all right, title and interest of Mellon
Bank, N.A., in, to and under the Agreement; and
WHEREAS,
the Client and the Lending Agent desire to amend the Agreement in certain
respects as hereinafter provided:
NOW, THEREFORE, the parties hereto, each
intending to be legally bound, do hereby agree as follows:
1. From
and after the Effective Date, the Agreement is hereby amended by deleting the
first three sentences of Section 6 (a) (entitled “Collateral Investment”)
therefrom and substituting in lieu thereof the following.
6(a). Collateral Investment. The
Lending Agent is hereby authorized to invest and reinvest, on behalf of each
Fund, any and all Cash Collateral in any Approved Investment as agreed upon by
the Lending Agent and the Client and as set forth in Exhibit B hereto (“Approved
Investments”).
The assets of any Approved Investment
consisting of a collective investment vehicle utilized by the Lending Agent for
the investment of Cash Collateral (each a “Collective Investment Vehicle”) shall
be invested and reinvested in accordance with the Investment Objective and
Policies of such collective investment vehicle. In order to
facilitate the investment of cash Collateral on behalf of each Fund, and as a
condition precedent to the effectiveness of this Amendment, the Client shall, at
the request of the Lending Agent, execute on behalf of the Fund and deliver to
the Lending Agent, a Subscription Agreement for such Approved Investment in the
form attached hereto as Exhibit D or such other form as may be prescribed by the
Approved Investment from time to time.
For
purposes hereof:
“Cash Collateral” shall mean,
collectively,
(i) redemption proceeds of
all units of the Mellon GSL DBT II Collateral Fund, a Series of the Mellon GSL
Reinvestment Trust held by the Lending Agent for the account of each Fund as of
September _22_,
2009; (the “Effective Date”); and
(ii) cash Collateral (or
additional cash Collateral) received by the Lending Agent from and after the
Effective Date; and
(iii) cash proceeds received
for the account of a Fund in respect of Pre-existing Collateral Investments, as
hereinafter defined.
“Pre-existing Collateral Investments”
shall mean (i) any investments of cash Collateral held by the Lending Agent for
the account of a Fund (other than units of the Mellon GSL DBT II Collateral
Fund) as of the Effective Date including, without limitation, units and/or other
interests of the Fund in and to the BNY Xxxxxx XX DBT II Liquidating Fund, and
the Mellon GSL Reinvestment Trust II; and/or (ii) any non-cash assets received
by the Lending Agent from and after the Effective Date for the account of a Fund
as a result of any in-kind redemption or in-kind distribution of or by any
collective investment fund or vehicle in respect of any units/interests thereof
held by the Lending Agent for the account of the Fund including, without
limitation, any such in-kind redemption or in-kind distribution by or from the
BNY Xxxxxx XX DBT II Liquidating Fund, and the Mellon GSL Reinvestment Trust
II.
Notwithstanding any other provision
hereof, it is acknowledged and agreed that the Pre-existing Collateral
Investments held for the account of each Fund shall constitute Approved
Investments as defined herein.
2. From
and after the Effective Date, the Agreement is hereby amended by deleting
Exhibit B therefrom in its entirety and substituting in lieu thereof a new
Exhibit B identical to that which is attached hereto as Attachment
1.
3. From
and after the Effective Date, the Agreement is hereby amended by deleting
Exhibit D therefrom in its entirety and substituting in lieu thereof a new
Exhibit D identical to that which is attached hereto as Attachment
2.
4. Except as expressly amended hereby,
all of the provisions of the Agreement (including, without limitation, those
provisions of Section 6 not expressly hereby amended) shall continue in full
force and effect; and are hereby ratified and confirmed in all
respects. Upon the effectiveness of this Amendment, all references in
the Agreement to “this Agreement” (and all
indirect references such as “herein”,
“hereby”, “hereunder” and “hereof”) shall be deemed to refer to the Agreement as
amended by this Amendment.
IN WITNESS WHEREOF, the parties have
executed this Amendment as of the date set forth above.
THE
BANK OF NEW YORK MELLON
By: /s/ Xxxxx X.
Whitney____________
Title: First
Vice President
BNY Mellon Global Securities
Lending
DELAWARE
GROUP ADVISER FUNDS, on behalf of its Funds identified on Schedule
1
DELAWARE
GROUP EQUITY FUND I, on behalf of its Funds identified on Schedule
1
DELAWARE
GROUP EQUITY FUNDS II, on behalf of its Funds identified on Schedule
1
DELAWARE
GROUP EQUITY FUNDS III, on behalf of its Funds identified on Schedule
1
DELAWARE
GROUP EQUITY FUNDS IV, on behalf of its Funds identified on Schedule
1
DELAWARE
GROUP EQUITY FUNDS V, on behalf of its Funds identified on Schedule
1
DELAWARE
GROUP INCOME FUNDS, on behalf of its Funds identified on Schedule 1
DELAWARE
GROUP TAX-FREE FUND, on behalf of its Funds identified on Schedule
1
DELAWARE
GROUP GLOBAL & INTERNATIONAL FUNDS, on behalf of its Funds identified on
Schedule 1
DELAWARE
GROUP GOVERNMENT FUND, on behalf of its Funds identified on Schedule
1
DELAWARE
GROUP LIMITED-TERM GOVERNMENT FUNDS, on behalf of its Funds identified on
Schedule 1
DELAWARE
POOLED TRUST, on behalf of its Funds identified on Schedule 1
VOYAGEUR
MUTUAL FUNDS III, on behalf of its Funds identified on Schedule 1
DELAWARE
VIP TRUST, on behalf of its Funds identified on Schedule 1
DELAWARE
INVESTMENTS DIVIDEND AND INCOME FUND, INC.
DELAWARE
INVESTMENTS GLOBAL DIVIDEND AND INCOME FUND, INC.
DELAWARE
INVESTMENTS ENHANCED GLOBAL DIVIDEND AND INCOME FUND, INC.
By: _/s/Xxxxxxx
Salus___________
Title: Chief
Financial Officer
ATTACHMENT
1
to
AMENDMENT
TO SECURITIES LENDING AUTHORIZATION AGREEMENT
which
Amendment is made and effective as of September _22__, 2009, by and
between THE BANK OF NEW YORK
MELLON, successor by operation of law to Mellon Bank, (the “Lending
Agent”) and the Clients on behalf of their respective Funds.
EXHIBIT
B
to
dated
July 20, 2007
by and
between
THE BANK OF NEW YORK
MELLON, as
Lending Agent, and the Clients on behalf of their respective Funds. (as amended
from time to time, the “Agreement”)
SECURITIES LENDING CASH
COLLATERAL INVESTMENT GUIDELINES
The
following guidelines shall apply to all Cash Collateral (as defined
in Agreement) received by the Lending Agent for the account of the Funds from
and after September _22__, 2009 (the
“Effective Date”).
APPROVED
INVESTMENTS
In
accordance with Section 6 of the Agreement, from and after the Effective Date,
Cash Collateral received by the Lending Agent on behalf of the Funds shall be
invested and maintained by the Lending Agent in the following Approved
Investments:
BNY
MELLON SECURITIES LENDING OVERNIGHT FUND, a series of the BNY INSTITUTIONAL CASH
RESERVES TRUST
Client
Acknowledges receipt of the Declaration of Trust of the
BNY Institutional Cash Reserves and the Information Brochure
(including Investment Objective
and Policies) for the BNY Mellon Securities lending Overnight
Fund.
Agreed to
and Approved by the Clients:
DELAWARE
GROUP ADVISER FUNDS, on behalf of its Funds identified on Schedule
1
DELAWARE
GROUP EQUITY FUND I, on behalf of its Funds identified on Schedule
1
DELAWARE
GROUP EQUITY FUNDS II, on behalf of its Funds identified on Schedule
1
DELAWARE
GROUP EQUITY FUNDS III, on behalf of its Funds identified on Schedule
1
DELAWARE
GROUP EQUITY FUNDS IV, on behalf of its Funds identified on Schedule
1
DELAWARE
GROUP EQUITY FUNDS V, on behalf of its Funds identified on Schedule
1
DELAWARE
GROUP INCOME FUNDS, on behalf of its Funds identified on Schedule 1
DELAWARE
GROUP TAX-FREE FUND, on behalf of its Funds identified on Schedule
1
DELAWARE
GROUP GLOBAL & INTERNATIONAL FUNDS, on behalf of its Funds identified on
Schedule 1
DELAWARE
GROUP GOVERNMENT FUND, on behalf of its Funds identified on Schedule
1
DELAWARE
GROUP LIMITED-TERM GOVERNMENT FUNDS, on behalf of its Funds identified on
Schedule 1
DELAWARE
POOLED TRUST, on behalf of its Funds identified on Schedule 1
VOYAGEUR
MUTUAL FUNDS III, on behalf of its Funds identified on Schedule 1
DELAWARE
VIP TRUST, on behalf of its Funds identified on Schedule 1
DELAWARE
INVESTMENTS DIVIDEND AND INCOME FUND, INC.
DELAWARE
INVESTMENTS GLOBAL DIVIDEND AND INCOME FUND, INC.
DELAWARE
INVESTMENTS ENHANCED GLOBAL DIVIDEND AND INCOME FUND, INC.
By: _/s/ Xxxxxxx
Salus______________
Title: Chief
Financial Officer
Date: September
_22__,
2009
Agreed to
and Approved by Lending Agent
By:
_/s/ Xxxxx X.
Whitney__________
Title:
_First Vice
President
BNY Mellon
Global Securities Lending
Date:
September _22__,
2009
ATTACHMENT
2
to
AMENDMENT
TO SECURITIES LENDING AUTHORIZATION AGREEMENT
which
Amendment is made and effective as of September _22__, 2009, by and
between THE BANK OF NEW YORK
MELLON, successor by operation of law to Mellon Bank, (the “Lending
Agent”) and the Clients on behalf of their respective Funds.
EXHIBIT
D
to
dated
July 20, 2007
by and
between
THE BANK OF NEW YORK
MELLON, as
Lending Agent, and the Clients on behalf of their respective Funds. (as amended
from time to time, the “Agreement”)
BNY
MELLON SECURITIES LENDING OVERNIGHT FUND
a
series of
BNY
INSTITUTIONAL CASH RESERVES
SUBSCRIPTION
AGREEMENT
The
undersigned (the “Subscriber”) desires
to invest in Units of Beneficial Interest (“Units”) of BNY Mellon
Securities Lending Overnight Fund (the “Portfolio”), a series
of BNY Institutional Cash Reserves (the “Trust”). The Bank of New
York Mellon (the “Trustee”), a banking
company organized under the laws of the State of New York, is the investment
manager, custodian and operating trustee of the
Portfolio. Capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Information Brochure, including the related
Supplemental Information Brochure, each dated May, 2009 (as may be amended,
restated or supplemented from time to time, collectively the “Brochure”).
The
Subscribers of the Units must be defined as “accredited investors” under Rule
501(a)(1) of the Securities Act of 1933, as amended (the “Securities Act”), and
be “qualified purchasers” as that term is defined in Section 2(a)(51) of the
Investment Company Act of 1940, as amended (the “Investment Company
Act”), as a result of the Trust’s reliance upon Section 3(c)(7) of the
Investment Company Act as a basis for an exemption from the registration
requirements thereof.
The
Subscriber irrevocably subscribes for Units of the Portfolio as set forth below,
subject to acceptance by the Trustee in its absolute discretion, and agrees to
be legally bound by the terms of this Subscription Agreement and the Declaration
of Trust establishing the Trust, dated December 31, 2002 (as the same may be
amended, restated or supplemented from time to time, the “Declaration of
Trust”).
The
Subscriber further understands and acknowledges that the Trustee in its complete
discretion may require a Subscriber to withdraw from the Portfolio to avoid the
assets of the Portfolio from being treated as plan assets subject to ERISA or
Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”). Subscribers
who are either (i) Benefit Plan Investors or (ii) investing on behalf of or with
assets of a Benefit Plan Investor must complete Appendix B.
The
Subscriber is furnishing the following information and making the following
representations and warranties to induce the Trust and the Trustee to accept the
Subscriber’s subscription:
1. Identity of Subscriber; Qualification
as Registered Investment Company
The
Subscriber hereby represents and warrants that it is (i) an “accredited
investor” under Rule 501(a)(1) of the Securities Act, and (ii) a “qualified
purchaser” as that term is defined in Section 2(a)(51) of the Investment Company
Act .
2. Receipt of Trust Documents
The
Subscriber acknowledges receipt of a numbered copy of the Brochure and, if
requested, other materials that include, in addition to this Subscription
Agreement, the Declaration of Trust, and hereby adopts, accepts and agrees to be
bound by all the terms and provisions described therein.
3. Representations and
Warranties
Subscribers
who are unable to provide any of the representations and warranties in this
Section III may, depending upon the facts and circumstances, be able to invest
in the Portfolio. A Subscriber who is unable to provide any
representation or warranty should contact the Trustee who will, in consultation
with legal counsel, determine if alternate representations and warranties that
the Subscriber is able to provide will be sufficient. Subscribers
signing this Subscription Agreement without a written amendment or side letter
approved in advance by the Trustee hereby provide all of the following
representations and warranties.
Eligibility
Subscriptions
will be accepted only from persons who “eligible investors” as described in the
Brochure. These are the minimum standards for an investment in the
Portfolio. An investment in the Portfolio should only be made by
investors who have reviewed carefully and understand fully the discussion under
the caption “Risk Factors and Investment Considerations” in the Brochure and who
are able to withstand the loss of their investment. The Subscriber
agrees, represents and warrants to the Trustee for the benefit of the Trust as
follows:
A. Accredited Investor
Status.
The
Subscriber represents and warrants that the Subscriber qualifies as an
“accredited investor” as defined in Rule 501(a) of Regulation D under the
Securities Act (and as generally described in Appendix A). Subscriber
undertakes and agrees, that if requested to do so by the Trustee, Subscriber
shall promptly provide further information with respect to its status as an
“accredited investor”.
B. Qualified
Purchaser.
The
Subscriber represents and warrants that the Subscriber qualifies as a “qualified
purchaser” as defined in Section 2(a)(51) of the Investment Company Act (and as
generally described in Appendix A). Subscriber undertakes and agrees,
that if requested to do so by the Trustee, Subscriber shall promptly provide
further information with respect to its status as a qualified
purchaser.
General
Representations and Warranties
a. C. Ability
to Bear Risk. The Subscriber is able to bear the
economic risk of the proposed investment in the Portfolio.
b. D. Investment
Experience. The Subscriber, in reaching a decision to
subscribe, has such knowledge and experience in financial, tax and business
matters as to enable the Subscriber to evaluate the merits and risks of an
investment in the Portfolio and to make an informed investment decision with
respect thereto.
c. E. Sophistication of
Subscriber. The Subscriber (a) satisfies any special
suitability or other applicable requirements of its jurisdiction of business and
the jurisdiction in which the transaction occurs; and (b) acknowledges that
meeting the criteria to be permitted to invest in the Portfolio in no way
implies that such investment is appropriate for the Subscriber.
d. F. Trustee’s Discretion to
Accept Subscriptions; Effectiveness of Subscription. The
Subscriber understands that the Trustee is not required to accept the
Subscriber’s subscription or the subscription of any other person, that the
Trustee may accept in part and reject in part the Subscriber’s subscription or
the subscription of any other person, and that the offering may be suspended or
terminated at any time. The Subscriber understands that the Trustee
may in its discretion accept subscriptions on other terms and
conditions.
e. G. Review of Offering
Documents. The Subscriber is entering into this Subscription
Agreement relying solely on the terms and conditions of the offering of the
Units set forth in this Subscription Agreement and the Brochure. The
Subscriber received the Brochure and first learned of the Trust in the
jurisdiction listed as the principal place of business address
below. The Subscriber confirms that the Subscriber has carefully read
and understood these materials and has made further investigations as the
Subscriber or the Subscriber’s representatives have deemed
appropriate. Neither the Trustee nor anyone else on the Trust’s
behalf has made any representations or warranties of any kind or nature to
induce the Subscriber to enter into this Subscription Agreement except as
specifically set forth in those documents. The Subscriber is not
relying upon the Trustee for guidance with respect to tax or other legal
considerations; and the Subscriber has been afforded an opportunity to ask
questions of, and receive answers from, the Trustee, or persons authorized to
act on its behalf, concerning the terms and conditions of the purchase of the
Units and has been afforded the opportunity to obtain any additional information
(including the Information Brochure, the Supplemental Information Brochure, the
Declaration of Trust and the Investment Management Agreement) necessary to
verify the accuracy of information otherwise furnished by the
Trustee.
f. H. Non-Registration of
Units. The Subscriber understands that the Units have not been
registered under the Securities Act in reliance upon an exemption from
registration, and that the Trust has not been registered, nor will it be, under
the Investment Company Act. The Subscriber understands that the
Trustee has no intention of registering the Trust, or any of its Units, with the
Securities and Exchange Commission or any state and is under no obligation to
assist the Subscriber in obtaining or complying with any exemption from
registration. The Subscriber understands that no federal or state
agency has passed upon or made any recommendation or endorsement of an
investment in the Trust or the Portfolio.
g. I. Ability to
Invest. This purchase has been duly authorized by all
necessary internal action and will not violate any agreement to which the
Subscriber is a party. The Subscriber further represents and warrants
that the Subscriber has, and will provide promptly upon request, appropriate
evidence of, the authority of the individual executing this Subscription
Agreement to act on behalf of the Subscriber.
J. Taxes.
Investors’
Reliance on U.S. Federal Tax Advice in this Subscription Agreement
The
discussion contained in the Supplemental Information Brochure and this
Subscription Agreement as to U.S. federal tax considerations is not intended or
written to be used, and cannot be used, for the purpose of avoiding
penalties. Such discussion is written to support the promotion or
marketing of the transactions or matters addressed in such
documents. Each taxpayer should seek U.S. federal tax advice based on
the taxpayer’s particular circumstances from an independent tax
advisor.
The
Subscriber certifies under penalty of perjury that
(a) it is
a United States person for U.S. federal income tax purposes (referred to herein
as a “U.S. Holder” and defined below);
(b) the
social security or other U.S. federal taxpayer identification number and taxable
year end provided in this Subscription Agreement are true and
complete;
(c) the
Subscriber has properly executed and furnished herewith an IRS Form W-9
certifying as to the Subscriber’s U.S. status for U.S. federal tax
purposes;
(d) the
Subscriber □ is or X is not tax-exempt under
section 501(a) of the U.S. Internal Revenue Code (check the appropriate box
above), and (e) the Subscriber agrees to notify the Trustee immediately of any
change in the information provided herein.
As used
herein, the term “U.S. Holder” includes a U.S. citizen or resident alien of the
United States (as defined for United States federal income tax purposes); any
entity treated as a partnership or corporation for U.S. tax purposes that is
created or organized in, or under the laws of, the United States or any State
thereof; any other partnership that is treated as a United States person under
U.S. Treasury Department regulations; any estate, the income of which is subject
to U.S. income taxation regardless of source; and any trust over whose
administration a court within the United States has primary supervision and all
substantial decisions of which are under the control of one or more U.S.
fiduciaries. Persons who have lost their U.S. citizenship and who
live outside the United States may nonetheless in some circumstances be treated
as U.S. Holders.
h. K. Investment
Purpose. The Subscriber is not subscribing for the Units as
agent, nominee, or otherwise on behalf of, or for the account of any other
person or entity. The Subscriber is acquiring the Units for the
Subscriber’s own account, does not have any contract, undertaking or arrangement
with any person or entity to sell, transfer or grant the Units, and is not
acquiring the Units of the Trust with a view to or for sale in connection with
any distribution of the Units. No other person or persons other than
the Subscriber will have a beneficial interest in the Units acquired (other than
as a shareholder, partner, member or other beneficial owner of equity interests
in the Subscriber).
i. L. Participation of Subscriber
Shareholders in Investment. If the Subscriber is an entity
engaged primarily in investing or trading securities, the shareholders, members,
partners or other holders of equity or beneficial interests in the Subscriber
have not been provided the opportunity to decide individually whether or not to
participate, or the extent of their participation, in the Subscriber’s
investment in the Trust (i.e., investors in the Subscriber have not been
permitted to determine whether their capital will form part of the specific
capital invested by the Subscriber in the Trust or its Portfolio).
j. M. Size of Investment in Trust
relative to Subscriber’s Other Investments. The value of the
amount of the Subscriber’s subscription to the Trust does will not exceed 40% of
the value of the Subscriber’s total assets.
k. N. True and Correct
Information. The Subscriber represents and warrants that all
information provided to the Trustee and the Trust concerning the Subscriber, its
financial position, and its knowledge of financial and business matters,
including, but not limited to, this Subscription Agreement, is true, correct and
complete as of the date hereof, and if there should be any changes in this
information, the Subscriber will immediately provide the Trustee with that
information in writing. The Subscriber consents to the disclosure of
any information, and any other information furnished to the Trustee or the
Trust, to any governmental authority, self-regulatory organization or, to the
extent required by law, to any other person.
l. O. Reaffirmation of
Representations and Warranties. The Subscriber hereby agrees
that any representation or warranty made hereunder will be deemed to be
reaffirmed by the Subscriber at any time the Subscriber makes an additional
investment in the Trust and the act of making any additional investments will be
evidence of such reaffirmation.
4. P. Is
the Subscriber a person (including an entity) that has discretionary authority
or control with respect to the assets of the Portfolio or a person who provides
investment advice with respect to the assets of the Portfolio or an "affiliate"
of such a person? For purposes of this representation, an "affiliate"
is any person controlling, controlled by or under common control with any such
person, including by reason of having the power to exercise a controlling
influence over the management or policies of such person.
Yes ____ No _X___
Benefit
Plan Representations and Warranties
(Applicable
ONLY to
Subscribers which are, or are acting on behalf of or with assets of a Benefit
Plan Investor)
a. Q. The
undersigned, on behalf of the Subscriber, has read and understands the Brochure,
including but not limited to the sections entitled “Risk Factors and Investment
Considerations” and “Employee Benefit Plan Considerations,” and, if the
Subscriber is subject to ERISA or Section 4975 of the Code, has concluded that,
as applicable, the subscription to invest in the Portfolio and the purchase and
holding of Units contemplated thereby is (i) consistent with its fiduciary
responsibilities, including the diversification and prudence requirements, under
ERISA, and (ii) in accordance with all requirements under the Subscriber’s
governing instruments and under ERISA and the Code.
b. R. The
undersigned, on behalf of the Subscriber, further understands and agrees that in
order to prevent the assets of the Trust from being treated as plan assets under
ERISA, it is the intention of the Trustee to prohibit the acquisition of Units
in the Trust by any investor, whether or not a Benefit Plan Investor, unless,
after giving effect to that acquisition, Benefit Plan Investors own less than
twenty-five percent (25%) of the outstanding Units in the
Portfolio. The Trustee in its complete discretion may also require an
investor to withdraw from the Portfolio to avoid the assets of the Portfolio
from being treated as plan assets subject to ERISA or Section 4975 of the
Code. In addition, the Trustee reserves the right to request from any
investor or potential investor in the Portfolio such information as the Trustee
deems necessary to monitor Plan investments for this purpose.
c. S. The
undersigned is independent of the Trustee and any of its
affiliates.
d. T. The
undersigned has the authority and the sole and absolute discretion to make
investment decisions on behalf of the Subscriber and assumes full responsibility
for these investment decisions and, in making these decisions, has not relied
on, and is not relying on, the investment advice of the Trustee or any of its
affiliates with respect to the decision to invest in the Portfolio.
U. The
undersigned represents and warrants that the Subscriber’s acquisition and
holding of Units of the Portfolio does not and will not constitute or result in
a non-exempt prohibited transaction under ERISA or Code Section 4975, or a
violation of similar law.
e. V. If
the undersigned is acquiring the Units on behalf of a Subscriber that is
tax-exempt, it is aware that the Subscriber may be subject to federal income tax
on any unrelated business taxable income (“UBTI”) from its investment, and has
consulted with counsel to the extent it deems necessary concerning the propriety
of making an investment in the Portfolio and the appropriateness of the
investment under ERISA and the Code, and the tax filing requirements in
connection therewith.
5. Indemnification and Additional
Provisions
Indemnification. The Subscriber agrees to
indemnify, hold harmless and reimburse the Trust, the Trustee, their beneficial
owners, shareholders, and their respective directors, officers, employees and
agents for any loss, damage, expense, liability, demand, charge or claim, of any
kind or nature whatsoever, asserted by any third party against the Trust or the
Trustee with respect to the acts, omissions, transactions, duties, obligations
or responsibilities of the Subscriber, its officers, directors, managers,
trustees, employees, agents, shareholders, members, beneficiaries, or partners
concerning this Subscription Agreement and the purchase of the Units pursuant
hereto, including without limitation those resulting from any inaccuracy in any
of its representations or breach of any of its warranties or representations
contained in this Subscription Agreement or any failure by the Subscriber to
fulfill any of the covenants or agreements set forth herein. Except
as otherwise provided under applicable law, including, without limitation, the
Investment Advisers Act of 1940, as amended, and any other applicable federal
and state securities laws, the Subscriber shall indemnify and hold harmless the
Trust and the Trustee from and against all losses or liabilities (including,
without limitation, reasonable attorneys’ fees) asserted by, or on behalf of,
the Subscriber or any beneficiary thereof against the Trust, the Trustee, their
beneficial owners,
shareholders, or any of their officers, directors, employees, shareholders,
agents or controlling persons, in connection with this Subscription Agreement,
for any act taken or omitted in good faith in discharging their obligations
hereunder to the extent that such act or omission does not involve willful
misconduct, reckless disregard of their duties, negligence or violation of
applicable law.
a. Payment for
Units. Pursuant to the power of attorney granted to the
Trustee by the Subscriber in Section IV.C below, the Trustee, as securities
lending agent, will cause the collateral received by the Subscriber in
securities lending transactions arranged by the Trustee to be invested in the
Portfolio.
b. Power of
Attorney. The Subscriber hereby irrevocably constitutes and
empowers the Trustee in its capacity as securities lending agent to act alone as
the Subscriber’s attorney-in-fact with full power of substitution and with full
power and authority to execute, acknowledge and swear to the Declaration of
Trust and all instruments and file all documents requisite to carry out the
intention and purpose of this Subscription Agreement, including, without
limitation, all business certificates and other certificates and amendments
thereto to be executed and/or filed from time to time in accordance with
applicable laws. The foregoing appointment shall be deemed to be a
power coupled with an interest in recognition of the fact that the Subscriber
and the Trustee will be relying upon the power of the Trustee to act as
contemplated by this Subscription Agreement and the Declaration of Trust in such
filing and other action by the Trustee on behalf of the
Subscriber. The foregoing power of attorney shall be irrevocable and
shall survive the bankruptcy, insolvency, dissolution, or termination of the
Subscriber.
c. Expenses. Each
party hereto shall pay its own separate expenses relating to this Subscription
Agreement and the purchase of the Units.
d. Binding Effect and
Assignability. This Subscription Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors, legal representatives and
assigns. The Subscriber agrees not to transfer or assign this
Subscription Agreement, or any of the Subscriber’s interest herein.
e. Valid and Binding
Agreement. This Subscription Agreement shall be valid and
binding against the Subscriber and enforceable against it in accordance with its
terms.
f. General. This
Subscription Agreement: (a) shall be governed, construed and enforced in
accordance with the substantive law of New York, without regard to the conflicts
of law principles thereof; (b) shall survive the initial subscription for the
Units; (c) may be executed by the Subscriber and accepted by the Trustee in two
or more counterparts, each of which shall be an original and all of which
together shall constitute one instrument.
g. Headings. The
headings in this Subscription Agreement are for convenience of reference only,
and shall not limit or otherwise affect the meaning hereof.
h. Scope of Agreement; Entire
Agreement. The Trustee’s services hereunder relate only to the
Subscriber’s investment in the Portfolio of cash collateral received in
connection with securities lending transactions arranged by the Trustee on
behalf of the Subscriber pursuant to separate and distinct securities lending
agreements, and do not contemplate a full review, nor assumption, of
responsibility for the Subscriber’s financial affairs. This
Subscription Agreement constitutes the entire agreement between the parties
hereto with respect to the Subscriber’s investment in the Trust and no
amendment, alteration or modification of this Subscription Agreement shall be
valid unless expressed in a written instrument duly executed by the Subscriber
and the Trustee. If any of the provisions contained herein shall be
deemed to be unenforceable for any reason, the parties hereto agree that the
court shall read this Subscription Agreement to be enforceable to the greatest
extent possible.
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IN WITNESS WHEREOF, the
parties hereto have executed this Subscription Agreement as of the __22__ day of
September, 2009.
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SUBSCRIBER
Name:
Delaware Investments Family of Funds, on behalf of the series funds listed on
Schedule 1
By: /s/ Xxxxxxx
Xxxxx
Name: Xxxxxxx Xxxxx
Title: Chief Financial
Officer
Mailing
Address:1 0000
Xxxxxx
Xxxxxx ___________________
Xxxxxxxxxxxx, XX
00000 ___________________
Telephone: ___________________
Facsimile: ___________________
E-mail
(optional): ___________________
Year of
organization: ___________________
Place of
organization and tax domicile: See Attachment
1
Employee
Identification Number (“EIN”): See Attachment
1
Taxable
year-end: See Attachment
1
ACCEPTED BY:
BNY
INSTITUTIONAL CASH RESERVES, on behalf of its series:
BNY
MELLON SECURITIES LENDING OVERNIGHT FUND
By: THE
BANK OF NEW YORK MELLON, as Trustee
By: /s/ Xxxxx X.
Xxxxxxx
Name: Xxxxx
X. Xxxxxxx
Title: First
Vice President
BNY Mellon Global Securities
Lending
Subscription
Agreement
Appendix
A
DEFINITIONS
1. Accredited
Investor. Subscriber will generally qualify as an “accredited
investor” if Subscriber falls within one or more of the following
categories:
(a) The
Subscriber is a natural person who had an income in excess of $200,000 in each
of the two most recent years (or joint income with his or her spouse in excess
of $300,000 in each of those years) and has a reasonable expectation of reaching
the same income level in the current year.
(b) The
Subscriber is a personal (non-business) trust other than an employee benefit
trust (i) with total assets in excess of $5,000,000, (ii) that was not formed
for the purpose of investing in one or more of the Funds, and (iii) the person
responsible for directing the investment of assets of the trust in the Fund(s)
has such knowledge and experience in financial and business matters that he or
she is capable of evaluating the merits and risks of the prospective
investment.
(c) The
Subscriber is an entity with total assets in excess of $5,000,000 which was not
formed for the purpose of investing in one or more of the Funds and which is one
of the following: a corporation; or a partnership; or a limited
liability company; or a Massachusetts or similar business trust; or an
organization described in Section 501(c)(3) of the Code.
(d) The
Subscriber is licensed, or subject to supervision, by U.S. federal or state
examining authorities as a “bank,” “savings and loan association,” “insurance
company,” or “small business investment company” (as such terms are used and
defined in 17 C.F.R. § 230.501(a)) or is an account for which a bank or savings
and loan association is subscribing in a fiduciary capacity.
(e) The
Subscriber is registered with the Securities and Exchange Commission as a broker
or dealer under the Securities Exchange Act of 1934 (the “Exchange Act”) or an
investment company registered under the Investment Company Act or has elected to
be treated or qualifies as a “business development company” (within the meaning
of Section 2(a)(48) of the Investment Company Act, or Section 202(a)(22) of the
Investment Advisers Act of 1940, as amended (the “Advisers Act”)).
(f) The
Subscriber is a Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
(g) The
Subscriber is a private business development company as defined in Section
202(a)(22) of the Advisers Act.
(h) The
Subscriber is an employee benefit plan as defined in Section 3(3) of ERISA
(other than a participant directed plan), established and maintained by a state,
its political subdivisions, or any agency or instrumentality of a state or its
political subdivisions, with total assets in excess of $5,000,000.
(i) The
Subscriber is an employee benefit plan as defined in Section 3(3) of ERISA
(other than a participant directed plan) and either (a) the investment decision
is made by a plan fiduciary (as defined in Section 3(21) of ERISA) which is a
bank, savings and loan association, insurance company, or registered investment
adviser, or (b) the employee benefit plan has assets in excess of
$5,000,000.
(j) The
Subscriber is an entity in which all of the equity owners are
persons described above (including a participant-directed XXX or employee
benefit plan within the meaning of ERISA in which all participants are
accredited investors).
2. Benefit
Plan Investor. The term “Benefit Plan Investor” is used as
defined in U.S. Department of Labor (“DOL”) regulation
C.F.R. Section 2510.3-101 and Section 3(42) of ERISA (collectively, the “Plan Asset Rule”),
and includes (i) any employee benefit plan subject to the fiduciary
responsibility provisions of Title I of ERISA; (ii) any plan to which Code
Section 4975 applies (which includes a trust described in Code Section 401(a)
that is exempt from tax under Code Section 501(a), a plan described in Code
Section 403(a), an individual retirement account or annuity described in Code
Section 408 or 408A, a medical savings account described in Code Section 220(d),
a health savings account described in Code Section 223(d) and an education
savings account described in Code Section 530); and (iii) any entity whose
underlying assets include plan assets by reason of a plan’s investment in the
entity (generally because 25% or more of a class of equity interests in the
entity is owned by plans). An entity described in (iii) immediately
above will be considered to hold plan assets only to the extent of the
percentage of the equity interests in the entity held by Benefit Plan
Investors. Benefit Plan Investors also include that portion of any
insurance company’s general account assets that are considered “plan assets” and
(except if the entity is an investment company registered under the 0000 Xxx)
also include assets of any insurance company separate account or bank common or
collective trust in which plans invest.
3. Investments. For
the purposes of determining “qualified purchaser” status, the term “Investments”
means all of the following:
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(i)
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Securities
(as defined by Section 2(a)(1) of the Securities Act), other than securities
of an issuer that controls, is controlled by, or is under common control
with, the undersigned, unless the issuer of
such securities is any of the
following:
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(A)
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An
investment company, a company that would be an investment company under
the Company Act but for the exclusions provided by Sections 3(c)(1)
through 3(c)(9) of the Company Act or the exemptions provided by Rules
3a-6 or 3a-7, thereunder, or a commodity
pool;
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(B)
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A
company that files reports pursuant to Section 13 or Section 15(d) of the
Exchange Act or that has a class of securities that are listed on a
“designated offshore securities market” as that term is defined by
Regulation S under the Securities Act;
or
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(C)
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A
company with shareholders’ equity of not less than $50 million (determined
in accordance with generally accepted accounting principles) as reflected
on the company’s most recent financial statements, provided that such
financial statements present the information as of a date within 16 months
preceding the date on which the undersigned invests in the
Trust.
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(ii)
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Real
estate held for “Investment Purposes,” as described
below.
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(iii)
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“Commodity
Interests” held for Investment Purposes, as described below. “Commodity
Interests” means commodity futures contracts, options on commodity futures
contracts, and options on physical commodities traded on or subject to the
rules of:
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(A)
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Any
contract market designated for trading such transactions under the CEA and
the rules thereunder; or
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(B)
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Any
board of trade or exchange outside the United States, as contemplated in
Part 30 of the rules under the CEA.
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(iv)
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“Physical
Commodities” held for Investment Purposes, as described
below. “Physical Commodity” means any physical commodity with
respect to which a Commodity Interest is traded on a market specified in
(iii)(A) or (B) immediately above.
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(v)
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To
the extent not securities, “Financial Contracts” entered into for
Investment Purposes, as described below. “Financial Contracts”
means any arrangement that:
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(A)
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Takes
the form of an individually negotiated contract, agreement, or option to
buy, sell, lend, swap, or repurchase, or other similar individually
negotiated transaction commonly entered into by participants in the
financial markets;
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(B)
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Is
in respect of securities, commodities, currencies, interest or other
rates, other measures of value, or any other financial or economic
interest similar in purpose or function to any of the foregoing;
and
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(C)
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Is
entered into in response to a request from a counterparty for a quotation,
or is otherwise entered into and structured to accommodate the objectives
of the counterparty to such
arrangement.
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(vi)
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If
the undersigned is a company that would be an investment company but for
the exclusions provided by Section 3(c)(7) of the Company Act or a
commodity pool, any amounts payable to the undersigned pursuant to a firm
agreement or similar binding commitment pursuant to which a person has
agreed to acquire an interest in, or make capital contributions to, the
undersigned upon demand of the undersigned;
and
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(vii)
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Cash
and cash equivalents (including foreign currencies) held for Investment
Purposes, as described below,
including:
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(A)
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Bank
deposits, certificates of deposit, bankers acceptances and similar bank
instruments held for Investment Purposes;
and
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(B)
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The
net cash surrender value of an insurance
policy.
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Investment
Purposes. For purposes of determining if an asset is held for
Investment Purposes, the following applies. Real estate is not
considered to be held for Investment Purposes by the undersigned if it is used
by the undersigned or a Related Person, as described below, for personal
purposes or as a place of business, or in connection with the conduct of the
trade or business of the undersigned or a Related Person, provided that real estate
owned by the undersigned who is engaged primarily in the business of investing,
trading or developing real estate in connection with such business may be deemed
to be held for Investment Purposes. Residential real estate is not
deemed to be used for personal purposes if deductions with respect to such real
estate are not disallowed by Section 280A of the Code. A Commodity
Interest or Physical Commodity owned, or a financial contract entered into, by
the undersigned who is engaged primarily in the business of investing,
reinvesting, or trading in Commodity Interests, Physical Commodities or
financial contracts in connection with such business may be deemed to be held
for Investment Purposes. The term “Related Person” means a person who is related
to the undersigned as a sibling, spouse or former spouse, or is a
direct lineal descendant or ancestor by birth or adoption of the undersigned, or
is a spouse of such descendant or ancestor, provided that, in the case of
a Family Company, a Related Person includes any owner of the Family Company and
any person who is a Related Person of such owner.
Valuation. For
purposes of determining whether the undersigned is a qualified purchaser, the
aggregate amount of Investments owned and invested on a discretionary basis by
the undersigned shall be the Investments’ fair market value on the most recent
practicable date or their cost, provided that: in the case of
Commodity Interests, the amount of Investments shall be the value of the initial
margin or option premium deposited in connection with such Commodity Interests;
and, in each case, certain deductions (described below) from the amount of
Investments owned by the undersigned must be made. In determining
whether any person is a qualified purchaser there is deducted from the amount of
such person’s Investments the amount of any outstanding indebtedness incurred to
acquire or for the purpose of acquiring the Investments owned by such
person. In determining whether a Family Company is a qualified
purchaser, additionally there shall be deducted from the value of such Family
Company’s Investments any outstanding indebtedness incurred by an owner of the
Family Company to acquire such Investments.
Investments by
Subsidiaries. For purposes of determining the amount of
Investments owned by a company under Question 3.1(b)(2) and (4) above, there may
be included Investments owned by majority-owned subsidiaries of the company and
Investments owned by a company (“Parent Company”) of which the company is a
majority-owned subsidiary, or by a majority-owned subsidiary of the company and
other majority-owned subsidiaries of the Parent Company.
4. Qualified
Purchaser. Subscriber will generally qualify as a “qualified
purchaser” if Subscriber falls within one or more of the following
categories:
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(a)
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The
Subscriber is a natural person (including any person who will hold a
joint, community property, or other similar shared ownership interest in
the Fund with that person’s qualified purchaser spouse) who owns at least
$5,000,000 in Investments (as defined
above).
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(b)
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The
Subscriber is a company (a corporation, a partnership, an association, a
joint-stock company, a trust or a fund) that owns not less than $5,000,000
in investments and that is owned directly or indirectly by or for two or
more natural persons who are related as siblings or spouse (including
former spouses), or direct lineal descendants by birth or adoption,
spouses of such persons, the estates of such persons, or family
foundations, family charitable organizations, or family trusts established
by or for the benefit of such
persons.
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(c)
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The
Subscriber is a trust that was not formed for the specific purpose of
acquiring the securities offered, as to which the trustee or other persons
authorized to make decisions with respect to the trust, and each settlor
or other person who has contributed assets to the trust, is a “qualified
purchaser”.
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(d)
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The
Subscriber is a person (including a company), acting for its own account
or the accounts of other qualified purchasers, who in the aggregate owns
and invests on a discretionary basis not less than $25,000,000 in
Investments.
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(e)
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The
Subscriber is a company (a corporation, a partnership, an association, a
joint-stock company, a trust or a fund), regardless of the amount of its
Investments (as defined above), each of the beneficial owners (including
participants in a participant-directed XXX or employee benefit plan within
the meaning of ERISA) of which is an entity or person described in
sub-item (a), (b), or (c) above.
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Appendix
B
ADDITIONAL
EMPLOYEE BENEFIT PLAN REPRESENTATIONS
Subscribers
who are Benefit Plan Investors are required to answer the following questions
and make the following representations. Any Benefit Plan Investor who
cannot make one or more of the following representations should contact the
Trustee.
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1.
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Is
the Subscriber, or is the Subscriber acting on behalf of, a plan that is
subject to the fiduciary responsibility provisions of Title I of the
Employee Retirement Income Security Act of 1974, as amended
(“ERISA”)?
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oyes o no
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2.
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Is
the Subscriber, or is the Subscriber acting on behalf of, a plan to which
Section 4975 of the Internal Revenue Code of 1986, as amended (“Code”)
applies?
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o yes o no
3. Is
the Subscriber an insurance company general account?
o yes o no
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If
the answer to the above question is "yes", please indicate the maximum
percentage (if any) of the Subscriber's assets that it anticipates might
constitute Benefit Plan Investor assets during the period of its
investment:
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_____ %
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4.
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Is
the Subscriber an entity whose underlying assets include plan assets by
reason of a plan’s investment in the
entity?
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o yes o no
If the
answer to the above question is “yes”, please indicate the maximum percentage
(if any) of the Subscriber’s assets that it anticipates might constitute Benefit
Plan Investor assets during the period of its investment:
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______%
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a. 6. If the Subscriber is subscribing as a
trustee or custodian for an Individual Retirement Account (“XXX”), is the Subscriber a
qualified XXX custodian or trustee?
b. o yes o no
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7.
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Is
the Subscriber a participant-directed plan (i.e., a tax-qualified
defined contribution plan in which a participant may exercise control over
the investment of assets credited to his or her account and the decision
to invest is made by those participants
investing)?
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c. o yes o no
(If the
answer this question is yes, please contact the Trustee).
