HEALTH SAVINGS ACCOUNT Non-Deposit Investment Addendum This NON-DEPOSIT INVESTMENT ADDENDUM (this "Addendum") adds new provisions to and expands upon existing provisions of the Health Savings Custodial Account Agreement (the Agreement ) between the undersigned depositor ("you" or "Account Owner") and M&T Bank, as the Custodian. The purpose of this Addendum is to expand your Health Savings Account ( HSA ) investment options to include certain non-deposit investment products in addition to the existing, FDIC-insured checking account. As used in this Addendum, the terms we and us may refer individually or collectively to M&T Bank, as Custodian, and Marshall & Ilsley Trust Company N.A. in its role as subcustodian, as described more fully in paragraph four of this Addendum. 1. Subcustodian. As permitted by the Agreement, the Custodian hereby appoints Marshall & Ilsley Trust Company N.A. ("Subcustodian") as its subcontractor and agent solely for the purpose of executing your HSA investment instructions (including transfers out of your HSA Deposit Account, as defined below) and holding your HSA non-deposit investments (including any cash awaiting investment or transfer), all on the express terms set forth in this Addendum. Marshall & Ilsley Trust Company N.A. accepts its appointment as subcustodian under the Agreement, and Account Owner acknowledges such appointment. 2. M&T HSA Investment Account_. Subcustodian will establish a M&T HSA Investment Account subcustody account in your name at Subcustodian to hold any non-deposit investments you may choose to make. We will provide you with a monthly M&T HSA Investment Account statement reflecting the balances and activity in your FDIC-insured HSA checking account (your "HSA Deposit Account") and in your HSA non-deposit investments account (your "HSA Investment Account"). Unless otherwise indicated, references solely to HSA in this Addendum and in your Agreement refer collectively to your HSA Deposit Account and you HSA Investment Account. 3. Non-Deposit Investments. (a) You understand that the investment options for your HSA Investment Account are limited to certain mutual funds. You understand that mutual fund shares are sold by prospectus only. Subcustodian will cause a current prospectus for the mutual funds in which you elect to invest to be delivered to you. You agree that you will read and understand the prospectus for each of the mutual funds you have selected for your HSA Investment Account. (a) Any mutual funds or other securities in which you invest are subject to investment risks, including the possible loss of the principal amount invested. (b) (i) (ii) (iii) Investments in your HSA Investment Account: ARE NOT FDIC-insured; ARE NOT insured or guaranteed by the Custodian or by Subcustodian; and ARE NOT insured or guaranteed by the FDIC or any other government agency or other entity. (c) Custodian may from time to time, in order to maintain the HSA as a marketable product, add or replace mutual funds that are available to you in your HSA Investment Account. Custodian will provide you with reasonable advance notice of any fund deletion, replacement or addition and, in the case of a deletion or replacement, you will have the opportunity to choose to transfer the affected investment: (i) into a replacement fund with a reasonably comparable investment objective, if such a replacement is being offered; or (ii) into any other available investment. If, after being notified of a deletion or replacement of an existing fund, you do not make any investment choice within the prescribed time period, you will have consented to investing in the replacement. In addition, you always have the option of maintaining your funds in your HSA Deposit Account. 4. Certain Conflicts. You understand and agree that actual and potential conflicts of interest exist with respect to your HSA, as follows: (a) In addition to the HSA product fee you pay to Custodian, you pay certain other on-going fees at the mutual fund level, such as investment management, custodial, administrative, distribution-related (12b-1) and shareholder servicing fees ( Fund-Level Fees ), as described in each fund s prospectus. 1
(b) MTB Investment Advisors, Inc., a subsidiary of Custodian, is the investment adviser and co-administrator of the MTB Group of Funds (the "MTB Funds"), and receives Fund-Level Fees for performing these services from the MTB Funds in which you choose to invest, as described in the prospectus for the MTB Funds. Other affiliates of Custodian may be retained to provide, and be compensated for providing, now or in the future, custodial, investment management, administrative or other services for the MTB Funds. (c) Subcustodian and its affiliates provide custodial, investment management, administrative, shareholder and other services to, and receive fees from certain of the mutual funds available to your HSA Investment Account, including the Marshall Prime Money Market Fund. Fees received by Subcustodian or its affiliates from the mutual funds held in your HSA Investment Account for services provided to or on behalf of those mutual funds are in addition to Subcustodian s other fees for services under your Agreement, and are described in the applicable prospectus. Custodian is also paying fees to Subcustodian for its services under this Addendum. (d) Custodian, as part of its compensation for providing services with respect to the HSA, will receive 12b-1 fees from the MTB Funds, as described in the prospectus for the MTB Funds. If mutual funds other than those affiliated with Custodian or Subcustodian are included in the HSA in the future, then Custodian or Subcustodian, or both, and their respective affiliates may provide services to such funds in connection with their inclusion as an investment option in the HSA and receive compensation for providing the services in addition to fees you pay Custodian or Subcustodian directly or indirectly for the HSA. 5. Minimum Balance Requirement. Only those balances in your HSA Deposit Account in excess of $3,000 are eligible for investment in non-deposit investment products. (a) You may invest balances in excess of the Threshold Balance in available non-deposit investment products. When you commence the on-line process to set up your HSA Investment Account and select your investments, you will be informed of any minimums (for example, minimum investment amount, minimum transfer or withdrawal amount) that may apply to your HSA Investment Account. (b) If the balance in your HSA Deposit Account falls below $3,000 balances in the Marshall Prime Money Market Fund within your HSA Investment Account will automatically be swept to replenish the $3,000 minimum balance in your HSA Cash Account. However, other mutual funds and securities in your HSA Investment Account will not automatically be liquidated to replenish your HSA Deposit Account. (c) You remain responsible for maintaining a positive balance in your HSA Deposit Account at all times. 6. Agents Only. Custodian, in its capacity as the custodian of your HSA, is your agent. Subcustodian, in its capacity as the sub-custodian of your HSA, is an agent of Custodian and of you. Notwithstanding Custodian's delegation of certain duties to Subcustodian, Custodian shall remain liable for the performance of those duties in accordance with the standard of care set forth in the Agreement and this Addendum. You acknowledge and agree that nothing in this Addendum or in the Agreement shall be construed as conferring fiduciary status upon Subcustodian or the Custodian in their roles as such. You further acknowledge and agree that Custodian and Subcustodian have only the duties expressly given to them under the Agreement and this Addendum, and that no other duties or obligations will be implied or construed against them. Neither Subcustodian nor the Custodian shall be required to perform any additional services unless specifically agreed to under the terms and conditions of this Addendum or the Agreement. 7. Custody of Assets Only. Subcustodian will sell and purchase shares of mutual funds and other securities and otherwise invest available funds and take investment action only as instructed by you or another party that you designate in writing to provide such instructions. All investment directions must be in a format or manner acceptable to us. You have exclusive responsibility for and control over the investment of your HSA. We will not initiate any investment action or provide investment advice and you agree that we have no duty to do so. In addition, we assume no responsibility for any of your investment decisions, nor will we offer any opinion or judgment to you on matters concerning the value or suitability of any investment or proposed investment for your HSA. We shall not be liable for any loss resulting from any direction or instruction or absence of direction or instruction from you. By signing this Addendum, you are specifically indemnifying us and any of our affiliates against any loss, damage and expense in carrying out our duties under this Agreement, provided such loss, damage or expense is not due to our willful misconduct. Any brokerage commissions or transaction costs attributable to the assets in your HSA will be charged to your HSA Deposit Account. 2
8. Powers of Subcustodian. (a) Subject to your investment directions, Subcustodian shall have the power to do any and all acts which it deems necessary or advisable for the proper administration of your has, including the following: (i) To hold securities or other investments under the Agreement in the name of Subcustodian, in the name of a nominee or in bearer form; (ii) To make, execute, acknowledge and deliver any and all documents of transfer and conveyance and any and all instruments that may be necessary or appropriate to carry out your instructions; (iii) To sign certificates and declarations that may be necessary or convenient for the collection of coupons, registered interest or income on any securities or mutual funds in your HSA Investment Account; (iv) (v) To employ suitable agents, attorneys or other persons; and To distribute any beneficial interest in cash; (b) If Subcustodian or the Custodian are notified that you are unable to administer the assets in your HSA by reason of illness or mental or physical disability, your HSA will be held pursuant to your previous investment direction until further direction from your attorney-in-fact or legal guardian is received. Subcustodian and Custodian will again take direction from you when notified by you, your attorney-in-fact or legally appointed guardian that your illness or disability no longer exists; and (c) You direct Subcustodian: (i) to invest your cash in the Marshall Prime Money Market Account during the time between any transfer to or from your HSA Deposit Account and the investment or withdrawal of funds from your HSA Investment Account; or (ii) to hold your cash, in such amounts as reasonable and appropriate, pending reinvestment, distribution or payment of expenses, in a segregated, non-interest bearing account at Subcustodian without accrual of interest to the HSA, and to earn interest on your cash balances, and you agree that Subcustodian may retain the benefit of any such interest earned as partial compensation for the transaction processing services its provides under this Addendum. (d) All of the foregoing notwithstanding, Subcustodian s powers shall be subject to any and all restrictions or limitations, direct or indirect, which are imposed by its charter, articles of incorporation, or bylaws; any and all applicable federal and state laws and regulations; the rules, regulations, customs and usages of any exchange, market or clearing house where the transaction is executed, Subcustodian s policies or practices, and the Agreement. 9. Instructions. You authorize Subcustodian and Custodian to act upon instructions (by phone, in writing, via e- mail, the Internet or other means) believed to be genuine and in accordance with the procedures described herein and in your Agreement. You agree that neither Subcustodian nor the Custodian will be liable for any loss, cost or expense for acting on such instructions, provided such entities employ reasonable procedures to confirm that instructions communicated are genuine. For this reason, you agree and understand that Subcustodian, Custodian and individual mutual funds reserve the right to refuse any instructions if the authenticity of such instructions in reasonably in doubt or conflicting instructions have been received. 10. Entire Agreement. Except as expressly amended by this Addendum, the Agreement is hereby confirmed and shall remain in full force and effect without impairment or modification. This Addendum and the Agreement constitute the entire agreement between Custodian and you with respect to your HSA Investment Account. If any provision herein is determined to conflict with the terms and conditions in the Agreement, the terms of this Addendum shall prevail. 3
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