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HomeMy WebLinkAboutVoyageur Asset Management Inc. Subscription and Adoption Agreement for Government Plans (Voyageur International Fund) - 2007 09 30 SUBSCRIPTION AND ADOPTION AGREEMENT FOR GOVERNMENT PLANS VOYAGEUR INTERNATIONAL FUND Agreement made. as of the -30 -b. day of ~ by and between ?tilE C-(7'f OF {,..JtJ\J,EIl ..srft'v~S (the "Participating Trust Signatory") and Voyageur Asset Management Inc (the "Investment Manager"). , .,~ sf>(l.tuc.$ t::Jepuve.a tr6AJ~r:t7 PiA,.,) , WHEREAS, 7f1€ crr,"! Of= w/rJ, (the "Employer") maintains the 71'lt.Jr..,- F",,- 6"""'L~6~J o~ TH &: ''''r''f e>p ;..1IAJTt!:YI. .s,Ote/AI 6S (the "Government Plan"), a governmental plan described in Sections 401 (a )(24) and 818( a)( 6) of the Internal Revenue Code of 1986, as amended (the "Code"), for the benefit of the eligible employees of the Employer and their beneficiaries; WHEREAS, the Participating Trust Signatory desires to cause certain assets of the Government Plan to be invested as part of the group trust fund maintained pursuant to the Agreement of Trust dated as of June 17, 1997, including any amendments thereto (the "Agreement of Trust"), establishing the Voyageur Asset Management Group Trust (the "Group Trust"), pursuant to which State Street Bank and Trust Company, as Trustee, or its successor will perform custodial and recordkeeping services and Voyageur Asset Management Inc, as Investment Manager, or any sub- adviser to the International Fund (defined below) listed on Schedule A attached hereto, or the successor of the Investment Manager or sub-adviser, if any, will perform investment management servIces; WHEREAS, the Group Trust shall consist of such one or more separately managed trusts (the "Investment Funds") as the Investment Manager may from time to time establish; 1 WHEREAS, the Investment Manager has established the Voyageur International Fund (the "International Fund") as an Investment Fund under the Group Trust; and WHEREAS, the Investment Manager consents to the admission of the Government Plan or the Employer, as the case may be, as a Participating Trust (as that term is defined in the Agreement of Trust) (such Participating Trust, the "Trust") in the Group Trust and the investment ofthe assets of the Trust into the International Fund. NOW, THEREFORE, the parties hereby represent and agree as follows: 1. The Participating Trust Signatory represents and agrees that: (a) the Government Plan is a governmental plan described in Sections 401 (a)(24) and 818(a)(6) of the Code; (b) the Agreement of Trust and the Group Trust (including the International Fund as a separate trust under the Group Trust) are adopted as part of the Government Plan; ( c) no provision of any applicable law or regulations or of any document under which the Government Plan is administered prohibits the investment of assets held by or on behalf of the Government Plan in a group trust that meets the requirements of Rev. Rul. 81-100; (d) the Participating Trust Signatory either (i) has authority to appoint the Investment Manager (and any sub-adviser to the International Fund listed on Schedule A) as an investment manager of the Government Plan or (ii) has been properly directed to sign this Subscription and Adoption Agreement by the person referred to in clause (i); ( e) the execution and delivery of this Subscription and Adoption Agreement by the Participating Trust Signatory has been duly authorized, and this Subscription and Adoption Agreement constitutes the valid and binding agreement of the Trust, enforceable against the Trust, in accordance with its terms; (f) the total assets held by or on behalf of the Government Plan exceed $5,000,000; 2 (g) any interests in an Investment Fund (as defined in the Agreement of Trust) acquired at any time by the Government Plan will be acquired solely for investment purposes and not with a view to distribution and the Participating Trust Signatory is aware that such interests are not transferable; (h) it will be the sole beneficial owner (within the meaning of Section 3(c)(1) of the Investment Company Act of 1940, as amended (the "1940 Act")) ofthe Units (as defined below) subscribed for hereby and: (i) it is NOT subject to the attribution rules under Section 3(c)(1) of the 1940 Act, because, as of the date hereof and the date of purchase of units, it is not a registered investment company or a company excluded from registration under the 1940 Act by virtue of Section 3(c)(1) or 3(c)(7) thereunder and (ii) it is NOT a participant directed benefit plan and its governing documents do not permit an equity holder to determine the amount of such equity holder's contribution to any investment made by the undersigned on an investment-by-investment basis, but rather require each equity holder to share in all investments pro rata in accordance with capital (please strike the word "not" in bold above if the undersigned cannot make the applicable representation); and (i) the Government Plan was not established for the purpose of making an investment in the Group Trust (or any Investment Fund thereof, including, but not limited to, the International Fund). The Participating Trust Signatory also makes the representations, warranties and covenants set forth in Schedule D and agrees promptly to notify the Trustee and the Investment Manager in the event that any of the representations set forth in clauses (a) through (i) above or in Schedule D cease to be accurate during the term of this Subscription and Adoption Agreement. Until such notice is given to the Investment Manager, the Investment Manager and the Trustee may rely on the representations contained herein in connection with all matters related to the Group Trust or the International Fund. The Participating Trust Signatory, on behalf of the Trust, will execute, deliver, acknowledge and file any and all further documents and provide any and all further information (including, without limitation, copies of the organizational instruments of the Trust and current financial 3 information) which the Investment Manager may deem necessary or appropriate in connection with the Trust's investment in the International Fund. 2. The Participating Trust Signatory on behalf of the Trust, hereby agrees to be bound by the terms ofthe Agreement of Trust insofar as those terms pertain to the participation of the Trust, as the case may be, in the Group Trust. 3. The Participating Trust Signatory hereby appoints (either directly or indirectly at the direction of the person having such authority) each of the Investment Manager and any sub-adviser(s) identified on Schedule A (attached hereto) with respect to the International Fund as investment manager with respect to those assets of the Government Plan which are invested from time to time as part of the Group Trust (or the International Fund.) 4. Subject to the terms and conditions set forth in this Subscription and Adoption Agreement, the Participating Trust Signatory, on behalf of the Trust, intending to be legally bound, hereby agrees to contribute the amount indicated on Schedule A hereto in payment for units of beneficial interest ("Units") in the International Fund on the terms provided in the Confidential Offering Brochure indicated on Schedule A for the International Fund (the "Brochure"). The Participating Trust Signatory agrees that it may invest additional amounts in the International Fund in exchange for Units of the International Fund in accordance with the terms of the Agreement of Trust by written notice to the Investment Manager and that each representation and warranty set forth herein shall be deemed to be remade and repeated upon the tender of any such notice and as of the date of each investment in the International Fund. The Trust shall become a "Participating Trust" in the Group Trust on the first Valuation Date (as defined in the Agreement of Trust) as of which any assets of the Government Plan are invested in the International Fund. 4 5. The Participating Trust Signatory acknowledges receipt ofthe Brochure, relating to the sale of Units of the International Fund, including as attachments thereto the Agreement of Trust and the current version of Part II of the Form ADV for the Investment Manager and the sub- adviser( s), listed on Schedule A hereto, to the International Fund. The Participating Trust Signatory further acknowledges that the Investment Manager has granted the Participating Trust Signatory access to all information regarding the Group Trust as it has requested and has offered the Participating Trust Signatory access to all further information as the Participating Trust Signatory has deemed relevant to a decision to invest in the Group Trust. 6. The investment objective of the International Fund is described in Schedule C hereto. From time to time, the Investment Manager or sub-adviser may change the investment objective and policies which it follows with respect to the Group Trust or International Fund, provided that the Investment Manager or sub-adviser, shall give notice to the Participating Trust Signatory of such change at least 30 days (or such shorter period as may be agreed to by the Participating Trust Signatory) prior to the effective date of such change. The Investment Manager or sub-adviser, as the case may be, may, without limitation, manage other accounts or pooled funds in such a manner that substantially the same investment decisions are made for those accounts or pooled funds as are made for the International Fund. 7. The Trustee, pursuant to the terms of the Agreement of Trust, will be responsible for the custody and valuation of the securities and other assets of the Group Trust and the International Fund and the delivery and receipt of such securities and other assets. Except as otherwise specifically provided in the Agreement of Trust, or by applicable law, the Trustee shall not be subject to any liability to the Participating Trust Signatory, the Government Plan, the Employer or to any 5 other person, firm or organization (including participants and beneficiaries of the Government Plan) for any investment made at the direction ofthe Investment Manager or sub-adviser, as the case may be, or for any loss or diminution of assets of the Group Trust or the International Fund resulting from any action taken or omitted by the Investment Manager or sub-adviser, as the case may be, or the Trustee at the direction of the Investment Manager or sub-adviser, as the case may be. The Trustee has not participated in the sponsorship of the Group Trust or the formulation of the investment policies to be followed with respect to the International Fund by the Investment Manager or sub- adviser, as the case may be. Except as otherwise specifically provided in the Agreement of Trust, the investment management ofthe assets ofthe Group Trust and the International Fund is the exclusive responsibility of the Investment Manager or sub-adviser, as the case may be. Furthermore, the Trustee has no duty, obligation or intention to review the investment of assets ofthe Group Trust or the International Fund, to advise the Investment Manager or sub-adviser, as the case may be, or to question directions given to it by the Investment Manager or sub-adviser, as the case may be. 8. The Investment Manager shall charge a fee for the services provided to the Trust with respect to the assets of the Government Plan which have been invested in the International Fund by billing the Trust directly at the rates and the frequency set forth on Schedule B attached hereto. Such schedule may be changed by the Investment Manager from time to time, but only upon thirty (30) days prior written notice of such change to the Participating Trust Signatory. Such fee will be charged to the Participating Trust based on the average of the value of the Participating Trust's interest in the International Fund on each of the month-end Valuation Dates during the quarterly billing period. If deposits and withdrawals have occurred during the quarter, the Investment Manager will pro-rate the fee on an equitable basis. In its sole discretion, the Investment Manager 6 may require the Trust to bear the transaction costs applicable to the purchase or sale of assets in the International Fund necessitated by deposits in or withdrawals from the International Fund by the Trust. The Trustee shall be entitled to receive compensation for services rendered with respect to assets of the Trust invested in the International Fund as provided in the Agreement of Trust and in accordance with the rates and frequency as agreed to by the Trustee and the Investment Manager. Such compensation shall be paid by the Investment Manager and shall be deducted from the fee charged by the Investment Manager ( described above). The sub-adviser(s), as listed on Schedule A, shall be entitled to receive compensation for services rendered with respect to assets of the Trust invested in the International Fund as provided in the Agreement of Trust and in accordance with the rates and frequency as agreed to by the Investment Manager and such sub-adviser(s). Such compensation shall be paid by the Investment Manager and shall be deducted from the fee charged by the Investment Manager ( described above). 9. The Participating Trust Signatory hereby agrees that the Trustee, at the direction of the Investment Manager, may redeem Units ofthe International Fund held by the Trust and disburse the proceeds of such redemption to the Investment Manager in satisfaction of the fee contemplated in Item 8 above. As contemplated in Section 9.1 of the Agreement of Trust, the Trust Signatory hereby agrees that the Investment Manager may automatically redeem units held by the Trust for this purpose ifthe Trust has not paid such fee within thirty (30) days after the distribution of the invoice relating to such fee or under such other circumstances as the Investment Manager and Participating Trust Signatory may agree to in writing. The Investment Manager shall provide a copy of this Subscription and Adoption Agreement as evidence ofwritten authorization from such Participating 7 Trust for such disbursements. The Investment Manager hereby agrees, prior to the disbursement of the proceeds of such redemption, to send to each Participating Trust paying for such fees in this manner an invoice showing the amount of such disbursements, the value of such Participating Trust's assets upon which the disbursement was based and the specific manner in which the amount of the disbursement was calculated. The Investment Manager further agrees that it shall send at the same time to the Trustee (in its capacity as custodian to the Trust) an invoice indicating the name of the Participating Trust and the amount of such disbursement. The Trustee understands and has agreed that at the end of each month it shall prepare and forward to the Trust a statement reflecting all such disbursements relating to the Trust effected during that month. The procedures described in this Item 9 may be modified or discontinued by the Investment Manager, in its sole discretion, upon thirty (30) days prior notice to the Trust. 10. The term ofthis Subscription and Adoption Agreement shall run from the date hereof until the date the Trust ceases to be a Participating Trust in the Group Trust. [The remainder of this page has intentionally been left blank.] 8 IN WITNESS WHEREOF, the parties have executed this Subscription and Adoption Agreement as of the date and year first above written. C. I 7'1 "r WlvTG;L S("II...Iv6S (2.0 ""'\ c.....O vJ. /lite:. L~ 11'\ 0 ~ (Name of Participating Trust Signatory) DA TE:~ 6 vS'"T Zg , 200-, , By: ;f~~t.,/4H1I' ~~ Its: DATE: 1., 1,. ;;;-O() 1 VOYAGEUR ASSET MANAGEMENT INe By: ~u~ (J/kJ Its: 9 SCHEDULE A Initial Contribution Amount Investment Fund Brochure Voyageur International Fund Confidential Offering Brochure dated as of February 21,2007 A-I Sub-Adviser Polaris Capital Management, Inc. Amount Contributed $ Investment Fund Voyageur International Fund Voyageur Asset Management SCHEDULE B Fees B-1 Fee .95% SCHEDULE C Investment Objective The investment objective of the International Fund is to seek long-term growth of capital primarily through a diversified portfolio of foreign equity securities that the sub-adviser, Polaris Capital Management, Inc., believes to be undervalued. The International Fund invests in companies (wherever organized) which do business primarily outside the United States. There can be no assurance that the International Fund will achieve its investment objective. C-l SCHEDULE D Anti-Money Laundering Representations OF AC Status. The Participating Trust Signatory should check the U.S. Treasury Department's Office of Foreign Assets Control ("OFAC") website before making the following representations: The Participating Trust Signatory represents that the amounts contributed by the Governmental Plan to the Group Trust were not and are not directly, or to the Participating Trust Signatory's knowledge indirectly, derived from activities that may contravene federal, state or foreign laws and regulations, including anti-money laundering laws and regulations. Federal regulations and Executive Orders administered by OF AC prohibit, among other things, the engagement in transactions with, and the provision of services to, certain foreign countries, territories, entities and individuals.1 The lists of OF AC prohibited countries, territories, persons and entities can be found on the OF AC web site at www.treas.gov/ofac.In addition, the programs administered by OF AC ("OF AC Programs") prohibit dealing with individuals or entities in certain countries regardless of whether such individuals or entities appear on the OF AC lists. The Participating Trust Signatory represents and warrants to, and agrees and covenants with, the Group Trust and the Investment Manager, as ofthe date hereof and as of each date of investment of additional amounts in the Group Trust by the Governmental Plan that, to the best of its knowledge, none of: (a) the Governmental Plan; (b) any person controlling or controlled by the Governmental Plan; (c) if the Governmental Plan is a privately held entity, any person having beneficial interest in the Governmental Plan; or (d) any person for which the Governmental Plan is acting as agent or nominee in connection with this investment is a country, territory, individual or entity named on the OF AC lists, nor is any such person or entity prohibited from investing in the Group Trust under the OF AC Programs. Please be advised that the Group Trust may not accept any amounts from the 1 These individuals include specially designated nationals, specially designated narcotics traffickers and other parties subject to OFAC sanctions and embargo programs. D-l Governmental Plan if it cannot make the representations and warranties set forth in the preceding paragraph. If an existing investor in the Group Trust becomes unable to make these representations and warranties, the Group Trust may require the redemption of all amounts held by such investor in the Group Trust. The Participating Trust Signatory agrees promptly to notify the Investment Manager should it become aware of any change in the information set forth herein. The Participating Trust Signatory is advised that, by law, the Group Trust may be obligated to "freeze the account" of the Governmental Plan, either by prohibiting additional investments from the Governmental Plan, declining any redemption requests and/or segregating the assets in the account in compliance with government regulations, and the Group Trust may also be required to report such action and to disclose the Governmental Plan's identity to OFAC. The Participating Trust Signatory further acknowledges that the Group Trust may, by written notice to the Governmental Plan, suspend the payment of any redemption proceeds to the Governmental Plan if the Group Trust reasonably deems it necessary to do so to comply with anti -money laundering regulations applicable to the Group Trust, the Investment Manager or any other providers of services to the Group Trust. Foreign Political Figure Status. The Participating Trust Signatory represents and warrants to, and agrees and covenants with, the Group Trust and the Investment Manager, as of the date hereof and as of each date of investment of additional amounts in the Group Trust by the Governmental Plan that, to the best of its knowledge, none of: (a) any person controlling or controlled by the Governmental Plan; (b) if the Governmental Plan is a privately held entity, any person having beneficial interest in the Governmental Plan; or (c) any person for which the Governmental Plan is acting as agent or nominee in connection with this investment is a senior foreign political figure,2 or an immediate family member,3 or close associate 4 of a 2 A "senior foreign political figure" is defmed as a senior official in the executive, legislative, administrative, military or judicial branches of a non-U.S. government (whether elected or not), a senior official of a major non-U.S. political party, or a senior executive of a non-U.S. government-owned-corporation. In addition, a "senior foreign political figure" includes any corporation, business or other entity that has been formed by, or for the benefit of, a senior foreign political figure. 3 "Immediate family" of a senior foreign political figure typically includes the senior foreign political figure's parents, siblings, spouse, children and in-laws. 4 A "close associate" of a senior foreign political figure is a person who is widely and publicly known to maintain an unusually close relationship with the senior foreign political figure, and includes a person who is in a position to conduct substantial U. S. and non-U. S. fmancial transactions on behalf of the senior foreign political figure. D-2 senior foreign political figure. Foreign Bank Status. Ifthe Governmental Plan is a non-U.S. banking institution (a "Foreign Bank") or if the Governmental Plan receives deposits from, makes payment on behalf of, or handles other financial transactions related to a Foreign Bank, the Participating Trust Signatory represents and warrants to, and agrees and covenants with, the Group Trust and the Investment Manager, as of the date hereof and as of each date of investment of additional amounts in the Group Trust by the Governmental Plan that: (a) the Foreign Bank has a fixed address, other than solely an electronic address, in a country in which the Foreign Bank is authorized to conduct banking activities; (b) the Foreign Bank employs one or more individuals on a full-time basis; (c) the Foreign Bank maintains operating records relating to its banking activities; (d) the Foreign Bank is subject to inspection by the banking authority that licensed the Foreign Bank to conduct banking activities; and (e) the Foreign Bank does not provide banking services to any other Foreign Bank that does not have a physical presence in any country and that is not a regulated affiliate. ***** D-3