EXHIBIT (G)(1)
TRUECROSSING FUNDS
CUSTODIAN AGREEMENT
AGREEMENT made as of the 8th day of December, 1999, by and between
TrueCrossing Funds, a Delaware business trust, with its principal office and
place of business at Two ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Trust")
and Forum Trust, LLC, a Maine limited liability company doing business as a
nondepository trust company with its principal office and place of business at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Forum").
WHEREAS, the Trust is an open-end, management investment company
registered under the Investment Company Act of 1940, as amended ("1940 Act") and
may offer one or more series of shares, each of which shall represent an
interest in a separate portfolio of Securities and Cash (each as hereinafter
defined) (all such existing and additional series now or hereafter listed on
Exhibit A being hereafter referred to individually as a "Portfolio," and
collectively, as the "Portfolios"); and
WHEREAS, Forum has entered into a certain Master Subcustodian Agreement
with Bankers Trust Company ("Bankers Trust") dated as of April 20, 1999 (the
"Master Subcustodian Agreement") under which Bankers Trust provides certain
sub-custody services on behalf of the Portfolios to Forum; and
WHEREAS, Trust wishes to retain Forum to provide certain custodial
services to Trust for the benefit of the Portfolios, and Forum is willing to
provide such services;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
SECTION 1. EMPLOYMENT OF FORUM
Trust, on behalf of each Portfolio, hereby employs Forum as custodian
of all assets of each Portfolio that are delivered to and accepted by Forum or
any Subcustodian (as that term is defined in Section 4) (the "Property")
pursuant to the terms and conditions set forth herein. For purposes of this
Agreement, "delivery" of Property shall include the acquisition by Trust of a
security entitlement (as that term is defined in the New York Uniform Commercial
Code ("UCC")). Without limitation, such Property shall include stocks and other
equity interests of every type, evidences of indebtedness, other instruments
representing same or rights or obligations to receive, purchase, deliver or sell
same and other non-cash investment property of a Portfolio ("Securities") and
cash from any source and in any currency ("Cash"), provided that Forum shall
have the right, in its sole discretion, to refuse to accept as Property any
property of a Portfolio that Forum considers not to be appropriate or in proper
form for deposit for any reason. Forum shall not be responsible for any property
of a Portfolio held or received by Trust or others and not delivered to Forum or
any Subcustodian.
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SECTION 2. MAINTENANCE OF SECURITIES AND CASH AT FORUM AND
SUBCUSTODIAN LOCATIONS
Pursuant to Instructions (as hereinafter defined in Section 15), Trust
shall direct Forum to (a) settle Securities transactions and maintain Cash in
the country or other jurisdiction in which the principal trading market for such
Securities is located, where such Securities are to be presented for payment or
where such Securities are acquired and (b) maintain Cash and cash equivalents in
such countries in amounts reasonably necessary to effect Trust's transactions in
such Securities. Instructions to settle Securities transactions in any country
shall be deemed to authorize the holding of such Securities and Cash in that
country.
SECTION 3. CUSTODY ACCOUNT
Forum agrees to establish and maintain one or more custody accounts on
its books each in the name of Trust on behalf of a Portfolio (each, an
"Account") for any and all Property from time to time received and accepted by
Forum or any Subcustodian for the account of such Portfolio. Upon delivery by
Trust to Forum of any acceptable Property belonging to a Portfolio, Trust shall,
by Instructions, specifically indicate in which Portfolio such Property belongs
or if such Property belongs to more than one Portfolio, shall allocate such
Property to the appropriate Portfolios, and Forum shall allocate such Property
to the Accounts in accordance with the Instructions. Trust, on behalf of each
Portfolio, acknowledges (i) its responsibility as a principal for all of its
obligations to Forum arising under or in connection with this Agreement,
notwithstanding, that it may be acting on behalf of other persons, and (ii)
warrants its authority to deposit in the appropriate Account any Property
received therefor by Forum or a Subcustodian and to give, and authorize others
to give, instructions relative thereto. Forum may deliver securities of the same
class in place of those deposited in the Account.
Forum shall hold, keep safe and protect as custodian for each Account
all Property in such Account and, to the extent such Property constitutes
"financial assets" as defined in the UCC, shall maintain those financial assets
in such Account as security entitlements in favor of the Portfolio in whose name
the Account is maintained. All transactions, including, but not limited to,
foreign exchange transactions, involving the Property shall be executed or
settled solely in accordance with Instructions (which shall specifically
reference the Account for which such transaction is being settled), except that
until Forum receives Instructions to the contrary, Forum will:
(a) Collect all interest and dividends and all other income and payments,
whether paid in cash or in kind, on the Property, as the same become payable and
credit the same to the appropriate Account;
(b) Present for payment all Securities held in an Account that are called,
redeemed or retired or otherwise become payable and all coupons and other income
items that call for payment upon presentation to the extent that Forum or
Subcustodian is actually aware of such opportunities and hold the cash received
in such Account pursuant to this Agreement;
(c) (i) Exchange Securities where the exchange is purely ministerial (including,
without limitation, the exchange of temporary securities for those in definitive
form and the exchange of warrants, or other documents of entitlement to
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securities, for the Securities themselves) and (ii) when notification of a
tender or exchange offer (other than ministerial exchanges described in (i)
above) is received for an Account, endeavor to receive Instructions, provided
that if such Instructions are not received in time for Forum to take timely
action, no action shall be taken with respect thereto;
(d) Whenever notification of a rights entitlement or a fractional interest
resulting from a rights issue, stock dividend or stock split is received for an
Account and such rights entitlement or fractional interest bears an expiration
date, if after endeavoring to obtain Instructions such Instructions are not
received in time for Forum to take timely action or if actual notice of such
actions was received too late to seek Instructions, sell in the discretion of
Forum (which sale Trust hereby authorizes Forum to make) such rights entitlement
or fractional interest and credit the Account with the net proceeds of such
sale;
(e) Execute in Trust's name for an Account, whenever Forum deems it appropriate,
such ownership and other certificates as may be required to obtain the payment
of income from the Property in such Account;
(f) Pay for each Account, any and all taxes and levies in the nature of taxes
imposed on interest, dividends or other similar income on the Property in such
Account by any governmental authority. In the event there is insufficient Cash
available in such Account to pay such taxes and levies, Forum shall notify Trust
of the amount of the shortfall and Trust may, or may cause the Portfolio to, at
its option, deposit additional Cash in such Account or take steps to have
sufficient Cash available. Trust, on behalf of the Portfolios agrees, when and
if requested by Forum and required in connection with the payment of any such
taxes, to cooperate with Forum in furnishing information, executing documents or
otherwise;
(g) Appoint brokers and agents for any of the ministerial transactions involving
the Securities described in (a) - (f), including, without limitation, affiliates
of Forum or any Subcustodian; and
(h) In the event of any loss of Securities or Cash, use its best efforts to
ascertain the circumstances relating to such loss and promptly report the same
to Trust.
Forum shall provide cash management services to Trust as referenced in
the "Instructions Regarding Cash Management Services", dated December 8, 1999,
and as may be amended from time to time.
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SECTION 4. SUBCUSTODIANS AND SECURITIES SYSTEMS
Trust authorizes and instructs Forum to maintain the Property in each
Account directly in one of its United States ("U.S.") branches or indirectly
through custody accounts that have been established by Forum with the following
other securities intermediaries: (a) another U.S. bank or trust company
(including Bankers Trust pursuant to the Master Subcustodian Agreement) or
branch thereof located in the U.S. that is itself qualified under the 1940 Act,
to act as custodian, or a non-U.S. branch of Forum or of any U.S. Subcustodian,
or a U.S. securities depository or clearing agency or system in which Forum or a
U.S. Subcustodian participates (individually, a "U.S. Securities System") or (b)
one of Forum's majority-owned non-U.S. subsidiaries, a majority-owned subsidiary
of a U.S. Subcustodian or a non-U.S. bank or trust company, acting as custodian
(individually, a "non-U.S. Subcustodian"; U.S. Subcustodians and non-U.S.
Subcustodians, collectively, "Subcustodians"), or a non-U.S. depository or
clearing agency or system in which Forum or any Subcustodian participates
(individually, a "non-U.S. Securities System"; U.S. Securities System and
non-U.S. Securities System, collectively, "Securities System"), provided that in
each case in which a U.S. Subcustodian or U.S. Securities System is employed,
Forum shall notify Trust of the appointment of such U.S. Subcustodian or U.S.
Securities System; provided further that in each case in which a non-U.S.
Subcustodian or non-U.S. Securities System is employed, (a) such Subcustodian or
Securities System either is (I) a "qualified U.S. bank" as defined by Rule 17f-5
under the 1940 Act ("Rule 17f-5") or (ii) an "eligible foreign custodian" within
the meaning of Rule 17f-5 or such Subcustodian or Securities System is the
subject of an order granted by the U.S. Securities and Exchange Commission
("SEC") exempting such agent or the subcustody arrangements thereto from all or
part of the provisions of Rule 17f-5, and (b) the identity of the non-U.S.
Subcustodian and the agreement between Forum and such non-U.S. Subcustodian has
been approved by Instructions; it being understood that Forum shall have no
liability or responsibility for determining whether the approval of any
Subcustodian or Securities System by Instructions is proper under the 1940 Act
or any rule or regulation thereunder. Exhibit D attached hereto lists all
Subcustodians and Securities Systems that have been approved by Instructions.
Notwithstanding Section 20 hereof or any other provision hereof to the contrary,
Exhibit D may be amended solely by the delivery to Forum of Instructions
pursuant to Section 15 hereof.
Upon receipt of Instructions from Trust, Forum agrees to cease the
employment of any Subcustodian or Securities System with respect to Trust, and
if desirable and practicable, appoint a replacement Subcustodian or securities
system in accordance with the provisions of this Section. In addition, Forum
may, at any time in its discretion, upon written notification to Trust,
terminate the employment of any Subcustodian or Securities System.
Forum shall deliver to Trust annually a certificate stating: (a) the
identity of each non-U.S. Subcustodian and non-U.S. Securities System then
acting on behalf of Forum and the name and address of the governmental agency or
other regulatory authority that supervises or regulates such non-U.S
Subcustodian and non-U.S. Securities System; (b) the countries in which each
non-U.S. Subcustodian or non-U.S. Securities System is located; and (c) if
requested by Trust's Board of Trustees or if the Board of Trustees responsible
for any Portfolio directly approves its foreign custody arrangements, such other
information relating to such non-U.S. Subcustodians and non-U.S. Securities
Systems as may reasonably be requested by Trust to ensure compliance with Rule
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17f-5. If requested by the Trust's Board of Trustees or if the Board of Trustees
directly approves its foreign custody arrangements, Forum also shall furnish
annually to Forum information concerning such non-U.S. Subcustodians and
non-U.S. Securities Systems similar in kind and scope as that furnished to Trust
in connection with the initial approval of this Agreement. Forum agrees to
promptly notify Trust if, in the normal course of its custodial activities,
Forum learns of a material adverse change in the financial condition of a
non-U.S. Subcustodian or a non-U.S. Securities System suffers a material loss of
Property, or Forum has reason to believe that any non-U.S. Subcustodian or
non-U.S. Securities System has ceased to be a qualified U.S. bank or an eligible
foreign custodian each within the meaning of Rule 17f-5 or has ceased to be
subject to an exemptive order from the SEC.
SECTION 5. USE OF SUBCUSTODIAN
With respect to Property in an Account that is maintained by Forum
through a Subcustodian employed pursuant to Section 4:
(a) Forum will identify on its books as belonging to Trust on behalf of a
Portfolio, any Property maintained through such Subcustodian.
(b) Any Property in the Account held by a Subcustodian will be subject only to
the instructions of Forum or its agents.
(c) Property deposited with a Subcustodian will be maintained in an account
holding only assets for customer of Forum.
(d) Any agreement Forum shall enter into with a non-U.S. Subcustodian with
respect to maintaining Property shall require that (i) the Account will be
adequately indemnified or its losses adequately insured; (ii) the Property so
maintained is not subject to any right, charge, security interest, lien or claim
of any kind in favor of such Subcustodian or its creditors except a claim for
payment in accordance with such agreement for its safe custody or
administration; (iii) beneficial ownership of Securities be freely transferable
without the payment of money or value other than for safe custody or
administration; (iv) adequate records will be maintained identifying the
Property maintained pursuant to such Agreement as belonging to Trust or as being
held by Forum, on behalf of Trust or all its customers; (v) to the extent
permitted by applicable law, officers of or auditors employed by, or other
representatives of or designated by, Forum, including the independent public
accountants of or designated by, Trust be given access to the books and records
of such Subcustodian relating to Property or confirmation of the contents of
those records; and (vi) Forum on behalf of Trust will receive periodic reports
with respect to the safekeeping of the Property, including but not limited to
notification of any transfer of Property into or out of an Account.
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SECTION 6. USE OF SECURITIES SYSTEM
With respect to Property in the Account(s) that is maintained by Forum
or any Subcustodian through a Securities System employed pursuant to Section 4:
(a) Forum shall, and the Subcustodian will be required by its agreement with
Forum to, identify on its books such Property as being maintained for the
account of Forum or Subcustodian for its customers.
(b) Any Property maintained through a Securities System for the account of Forum
or a Subcustodian will be subject only to the instructions of Forum or such
Subcustodian, as the case may be.
(c) Property deposited with a Securities System will be maintained in an account
holding only assets for customers of Forum or Subcustodian, as the case may be,
unless precluded by applicable law, rule, or regulation.
(d) Forum shall provide Trust with any report obtained by Forum or Subcustodian
on the Securities System's accounting system, internal accounting control and
procedures for safeguarding securities deposited in the Securities System.
SECTION 7. AGENTS
Forum may at any time or times in its sole discretion appoint (or
remove), as its agent to carry out such of the provisions of this Agreement as
Forum may from time to time direct any other U.S. bank or trust company which is
itself qualified under the 1940 Act to act as custodian, including Bankers
Trust; PROVIDED, however, that the appointment of any agent shall not relieve
Forum of its responsibilities or liabilities hereunder. Forum shall provide
reasonable notice to Trust of the appointment or removal of any agent.
SECTION 8. RECORDS, OWNERSHIP OF PROPERTY, STATEMENTS, OPINIONS
OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
(a) The ownership of the Property, whether maintained directly by Forum or
indirectly through a Subcustodian or a Securities System as authorized herein,
shall be clearly recorded on Forum's books as belonging to the appropriate
Account and not to the Forum. Forum shall keep accurate and detailed accounts of
all investments, receipts, disbursements and other transactions for each
Account. All accounts, books and records of Forum relating thereto shall be open
to inspection and audit at all reasonable times during normal business hours by
any person designated by Trust. All such accounts shall be maintained and
preserved in the form reasonably requested by Trust. Forum will supply to Trust
from time to time, as mutually agreed upon, a statement in respect to any
Property in an Account maintained by Forum or by a Subcustodian. In the absence
of the filing in writing with Forum by Trust of exceptions or objections to any
such statement within sixty (60) days of the mailing thereof, Trust shall be
deemed to have approved such statement and in such case or upon written approval
of Trust of any such statement, such statement shall be presumed to be for all
purposes correct with respect to all information set forth therein.
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(b) Forum shall take all reasonable action as Trust may request to obtain from
year to year favorable opinions from Trust's independent certified public
accountants with respect to Forum's activities hereunder in connection with the
preparation of Trust's registration statement on Form N-1A and Trust's Form
N-SAR or other periodic reports to the SEC and with respect to any other
requirements of the SEC.
(c) At the request of Trust, Forum shall deliver, and shall cause the
Subcustodians to deliver, to Trust a written report prepared by Forum's
independent certified public accountants with respect to the services provided
by Forum under this Agreement, including, without limitation, Forum's accounting
system, internal accounting control and procedures for safeguarding Cash and
Securities, including Cash and Securities deposited and/or maintained in a
securities system or with a Subcustodian. Such report shall be of sufficient
scope and in sufficient detail as may reasonably be required by Trust and as may
reasonably be obtained by Forum.
(d) Trust may elect to participate in any of the electronic on-line service and
communications systems offered by Forum or a Subcustodian that can provide
Trust, on a daily basis, with the ability to view on-line or to print in hard
copy various reports of Account activity and of Securities and/or Cash being
held in any Account. To the extent that such service shall include market values
of Securities in an Account, Trust hereby acknowledges that Forum or such
Subcustodian now obtains and may in the future obtain information on such values
from outside sources that Forum or such Subcustodian considers to be reliable,
and Trust agrees that Forum and such Subcustodian (i) does not verify or
represent or warrant either the reliability of such service nor the accuracy or
completeness of any such information furnished or obtained by or through such
service and (ii) shall be subject to the standard of care set forth in Section
16 of this Agreement in selecting and utilizing such service or furnishing any
information derived therefrom.
SECTION 9. HOLDING OF SECURITIES, NOMINEES, ETC.
Securities in an Account that are maintained by Forum or any
Subcustodian may be held directly by such entity in the name of Trust or in
bearer form or maintained, on behalf of a Portfolio, in Forum's or
Subcustodian's name or in the name of Forum's or Subcustodian's nominee.
Securities that are maintained through a Subcustodian or which are eligible for
deposit in a Securities System as provided above may be maintained with the
Subcustodian or the Securities System in an account for Forum's or
Subcustodian's customers, unless prohibited by law, rule, or regulation. Forum
or Subcustodian, as the case may be, may combine certificates representing
Securities held in an Account with certificates of the same issue held by Forum
or Subcustodian as fiduciary or as a custodian. In the event that any Securities
in the name of Forum or its nominee or held by a Subcustodian and registered in
the name of such Subcustodian or its nominee are called for partial redemption
by the issuer of such Security, Forum may, subject to the rules or regulations
pertaining to allocation of any Securities System in which such Securities have
been deposited, allot, or cause to be allotted, the called portion of the
respective beneficial holders of such class of security in any manner Forum
deems to be fair and equitable. Securities maintained with a Securities System
shall be maintained subject to the rules of that Securities System governing the
rights and obligations among the Securities System and its participants.
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SECTION 10. PROXIES, ETC.
With respect to any proxies, notices, reports or other communications
pertaining to any of the Securities in any Account, Forum shall perform such
services and only such services as are (i) set forth in Section 3 of this
Agreement, (ii) described in the applicable Service Standards (the "Proxy
Service"), and (iii) as may otherwise be agreed upon between Forum and Trust.
The liability and responsibility of Forum in connection with the Proxy Service
referred to in (ii) of the immediately preceding sentence and in connection with
any additional services which Forum and Trust may agree upon as provided in
(iii) of the immediately preceding sentence shall be as set forth in the
description of the Proxy Service and as may be agreed upon by Forum and Trust in
connection with the furnishing of any such additional service and shall not be
affected by any other term of this Agreement. Neither Forum nor its nominees or
agents shall vote upon or in respect of any of the Securities in an Account,
execute any form of proxy to vote thereon, or give any consent or take any
action (except as provided in Section 3) with respect thereto except upon the
receipt of Instructions.
SECTION 11. SEGREGATED ACCOUNT
To assist Trust in complying with the requirements of the 1940 Act and
the rules and regulations thereunder, Forum shall, upon receipt of Instructions,
establish and maintain a segregated account or accounts on its books for and on
behalf of a Portfolio.
SECTION 12. SETTLEMENT PROCEDURES
Securities will be transferred, exchanged or delivered by Forum or a
Subcustodian upon receipt by Forum of Instructions that include all information
required by Forum. Settlement and payment for Securities received for an Account
and delivery of Securities out of such Account may be effected in accordance
with the customary or established securities trading or securities processing
practices and procedures in the jurisdiction or market in which the transaction
occurs, including, without limitation, delivering Securities to the purchaser
thereof or to a dealer therefor (or an agent for such purchaser or dealer)
against a receipt with the expectation of receiving later payment for such
Securities from such purchaser or dealer, as such practices and procedures may
be modified or supplemented in accordance with the standard operating procedures
of Forum in effect from time to time for that jurisdiction or market. Forum
shall not be liable for any loss which results from effecting transactions in
accordance with the customary or established securities trading or securities
processing practices and procedures in the applicable jurisdiction or market.
Forum or a Subcustodian may settle purchases and sales against, or
credit income to, an Account, and Forum may, at its sole option upon written
notice to Trust, reverse such credits or debits to the appropriate Account in
the event that the transaction does not settle, or the income is not received in
a timely manner, and Trust agrees to hold Forum harmless from any losses that
may result therefrom. With respect to the activities of Bankers Trust as
Subcustodian under the Master Subcustodian Agreement, such credits and
reversals, if any, shall be on a contractual basis, as outlined in the Bankers
Trust Service Standards, as described below and provided to Trust by Forum.
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The applicable Service Standards mean the Global Guide, the Policies
and Standards Manual, and any other documents issued by the Forum, Bankers Trust
and other Subcustodians from time to time specifying the procedures for
communicating with a Trust, the terms of any additional services to be provided
to a Trust, and such other matters as may be agreed between the parties time to
time. Copies of the current Service Standards have been delivered to Trust.
SECTION 13. CONDITIONAL CREDITS
(a) Notwithstanding any other provision of this Agreement, Forum or a
Subcustodian shall not be required to comply with any Instructions to settle the
purchase of any securities for the Account unless there are sufficient
immediately available funds in the relevant currency in the Account; provided
that, if, after all expenses, debits and withdrawals of Cash in the relevant
currency ("Debits") applicable to the Account have been made and if after all
Conditional Credits, as defined below, applicable to the Account have become
final entries as set forth in (c) below, the amount of immediately available
funds of the relevant currency in such Account is at least equal to the
aggregate purchase price of all securities for which Forum has received
Instructions to settle on that date ("Settlement Date"), Forum, upon settlement,
shall credit the Securities to the Account by making a final entry on its books
and records.
(b) Notwithstanding the foregoing, if after all Debits applicable to the Account
have been made, the amount of immediately available funds in a given currency in
such Account are less than the aggregate purchase price in such currency of all
securities for which Forum has received Instructions to settle on any Settlement
Date, Forum, upon settlement, may credit the securities to the Account by making
a conditional entry on its books and records ("Conditional Credit"), pending
receipt of sufficient immediately available funds in the relevant currency in
the Account.
(c) If, within a reasonable time from the posting of a Conditional Credit and
after all Debits applicable to the Account have been made, immediately available
funds in the relevant currency at least equal to the aggregate purchase price in
such currency of all securities subject to a Conditional Credit on a Settlement
Date are deposited into the Account, Forum shall make the Conditional Credit a
final entry on its books and records. In such case, Trust shall be liable to
Forum only for late charges at a rate that Forum customarily charges for similar
extensions of credit.
(d) If (i) within a reasonable time from the posting of a Conditional Credit,
immediately available funds at least equal to the resultant Debit on a
Settlement Date are not deposited in the Account, or (ii) any Proceeding (as
defined below) shall occur, Forum may sell such of the Securities subject to the
Conditional Credit as it selects in its sole discretion and shall apply the net
proceeds of such sale to cover such Debit, including related late charges, and
any remaining proceeds shall be credited to the Account. If such proceeds are
insufficient to satisfy such Debit in full, Trust shall continue to be liable to
Forum for any shortfall. Forum shall make the Conditional Credit a final entry
on its books as to the Securities not required to be sold to satisfy such Debit.
Pending payment in full by Trust of the purchase price for Securities subject to
a Conditional Credit, and Forum's making a Conditional Credit a final entry on
its books, and, unless consented to by Forum, Trust shall have no right to give
further Instructions in respect of Securities subject to a Conditional Credit.
Forum shall have the sole discretion to determine which Securities shall be
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deemed to have been paid for by Trust out of funds available in the Account. Any
such Conditional Credit may be reversed (and any corresponding Debit shall be
canceled) by Forum unless and until Forum makes a final entry on its books
crediting such Securities to the Account. The term "Proceeding" shall mean any
insolvency, bankruptcy, receivership, reorganization or similar proceeding
relating to Trust, whether voluntary or involuntary.
(e) Trust agrees that it will not use the Account to facilitate the purchase of
securities without sufficient funds in the Account (which funds shall not
include the expected proceeds of the sale of the purchased securities).
SECTION 14. PERMITTED TRANSACTIONS
Trust agrees that it will cause transactions to be made pursuant to
this Agreement only upon Instructions in accordance with Section 15 (but subject
to Section 3) and only for the purposes listed below.
(a) In connection with the purchase or sale of Securities at prices as confirmed
by Instructions.
(b) When Securities are called, redeemed or retired, or otherwise become
payable.
(c) In exchange for or upon conversion into other securities alone or other
securities and cash pursuant to any plan or merger, consolidation,
reorganization, recapitalization or readjustment.
(d) Upon conversion of Securities pursuant to their terms into other securities.
(e) Upon exercise of subscription, purchase or other similar rights represented
by Securities.
(f) For the payment of interest, taxes, management or supervisory fees,
distributions or operating expenses.
(g) In connection with any borrowings by Trust requiring a pledge of Securities,
but only against receipt of amounts borrowed or in order to satisfy requirements
for additional or substitute collateral.
(h) In connection with any loans, but only against receipt of collateral as
specified in Instructions which shall reflect any restrictions applicable to
Trust.
(i) For the purpose of redeeming shares of the capital stock of Trust against
delivery of the shares to be redeemed to Forum, a Subcustodian or Trust's
transfer agent.
(j) For the purpose of redeeming in kind shares of Trust against delivery of the
shares to be redeemed to Forum, a Subcustodian or Trust's transfer agent.
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(k) For delivery in accordance with the provisions of any agreement among Trust,
on behalf of a Portfolio, the Portfolio's investment adviser and a broker-dealer
registered under the Securities Exchange Act of 1934 and a member of the
National Association of Securities Dealers, Inc., relating to compliance with
the rules of The Options Clearing Corporation, the Commodities Futures Trading
Commission or of any registered national securities exchange, or of any similar
organization or organizations, regarding escrow or other arrangements in
connection with transactions by Trust.
(l) For release of Securities to designated brokers under covered call options,
provided, however, that such Securities shall be released only upon payment to
Forum of monies for the premium due and a receipt for the Securities which are
to be held in escrow. Upon exercise of the option, or at expiration, Forum will
receive the Securities previously deposited from broker. Forum will act strictly
in accordance with Instructions in the delivery of Securities to be held in
escrow and will have no responsibility or liability for any such Securities
which are not returned promptly when due other than to make proper request for
such return.
(m) For spot or forward foreign exchange transactions to facilitate security
trading or receipt of income from Securities related transactions.
(n) Upon the termination of this Agreement as set forth in Section 21.
(o) For other proper purposes.
Trust agrees that Forum and any Subcustodian shall have no obligation
to verify the purpose for which a transaction is being effected.
SECTION 15. INSTRUCTIONS
The term "Instructions" means instructions from Trust in respect of any
of Forum's duties hereunder that have been received by Forum at its address set
forth in Section 22 below (i) in writing (including, without limitation,
facsimile transmission) or by tested telex signed or given by such one or more
person or persons as Trust shall have from time to time authorized in writing to
give the particular class of Instructions in question and whose name and (if
applicable) signature and office address have been filed with Forum; or (ii)
which have been transmitted electronically through an electronic on-line service
and communications system offered by Forum or other electronic instruction
system acceptable to Forum; or (iii) a telephonic or oral communication by one
or more persons as Trust shall have from time to time authorized to give the
particular class of Instructions in question and whose name has been filed with
Forum; or (iv) upon receipt of such other form of instructions as Trust may from
time to time authorize in writing and which Forum has agreed in writing to
accept. Instructions in the form of oral communications shall be confirmed by
Trust by tested telex or writing in the manner set forth in clause (I) above,
but the lack of such confirmation shall in no way affect any action taken by
Forum in reliance upon such oral instructions prior to Forum's receipt of such
confirmation. Instructions may relate to specific transactions or to types or
classes of transactions, and may be in the form of standing instructions.
11
Forum shall have the right to assume in the absence of notice to the
contrary from Trust that any person whose name is on file with Forum pursuant to
this Section has been authorized by Trust to give the Instructions in question
and that such authorization has not been revoked. Forum may act upon and
conclusively rely on, without any liability to Trust or any other person or
entity for any losses resulting therefrom, any Instructions reasonably believed
by it to be furnished by the proper person or persons as provided above.
SECTION 16. STANDARD OF CARE
Forum shall be responsible for the performance of only such duties as
are set forth herein or contained in Instructions given to Forum that are not
contrary to the provisions of this Agreement. Forum will use reasonable care and
diligence with respect to the safekeeping of Property in each Account and,
except as otherwise expressly provided herein, in carrying out its obligations
under this Agreement. So long as and to the extent that it has exercised
reasonable care and diligence, Forum shall not be responsible for the title,
validity or genuineness of any Property or other property or evidence of title
thereto received by it or delivered by it pursuant to this Agreement and shall
be held harmless in acting upon, and may conclusively rely on, without liability
for any loss resulting therefrom, any notice, request, consent, certificate or
other instrument reasonably believed by it to be genuine and to be signed or
furnished by the proper party or parties, including, without limitation,
Instructions, and shall be indemnified by Trust for any losses, damages, costs
and expenses (including, without limitation, reasonable fees and expenses of
counsel) incurred by Forum and arising out of action taken or omitted with
reasonable care by Forum hereunder or under any Instructions. Forum shall be
liable to Trust for any act or omission to act of any Subcustodian to the same
extent as if Forum committed such act itself. With respect to a Securities
System, Forum shall only be responsible or liable for losses arising from
employment of such Securities System caused by Forum's own failure to exercise
reasonable care; provided that in the event of any such loss, Forum shall take
all reasonable steps to enforce such claims as it may have against the
Securities System to protect the interests of the Trust.
In the event of any loss to Trust by reason of the failure of Forum or
a Subcustodian to utilize reasonable care, Forum shall be liable to Trust to the
extent of Trust's actual damages at the time such loss was discovered
(including, without limitation, reasonable fees and expenses of counsel) without
reference to any special conditions or circumstances. In no event shall Forum be
liable for any consequential or special damages.
Forum shall be entitled to rely, and may act, on advice of counsel (who
may be counsel for Forum or Trust) on all matters and shall be without liability
for any action reasonably taken or omitted in good faith pursuant to such
advice, provided that with respect to the performance of any action or omission
of any action upon such advice, the Forum shall be required to conform to the
standard of care set forth in this Section 16.
In the event Trust subscribes to an electronic on-line service and
communications system offered by Forum, Trust shall be fully responsible for the
security of its connecting terminal, access thereto and the proper and
authorized use thereof and the initiation and application of continuing
effective safeguards with respect thereto and agrees to defend and indemnify
Forum and hold Forum harmless from and against any and all losses, damages,
costs and expenses (including the fees and expenses of counsel) incurred by
12
Forum as a result of any improper or unauthorized use of such terminal by Trust
or by any others.
All collections of funds or other property paid or distributed in
respect of Securities in an Account, including funds involved in third-party
foreign exchange transactions, shall be made at the risk of Trust.
Subject to the exercise of reasonable care, Forum shall have no
liability for any loss occasioned by delay in the actual receipt of notice by
Forum or by a Subcustodian of any payment, redemption or other transaction
regarding Securities in each Account in respect of which Forum has agreed to
take action as provided in Section 3 hereof. Forum shall not be liable for any
loss resulting from, or caused by, or resulting from acts of governmental
authorities (whether de jure or de facto), including, without limitation,
nationalization, expropriation, and the imposition of currency restrictions;
devaluations of or fluctuations in the value of currencies; changes in laws and
regulations applicable to the banking or securities industry; market conditions
that prevent the orderly execution of securities transactions or affect the
value of Property; acts of war, terrorism, insurrection or revolution; strikes
or work stoppages; the inability of a local clearing and settlement system to
settle transactions for reasons beyond the control of Forum; hurricane, cyclone,
earthquake, volcanic eruption, nuclear fusion, fission or radioactivity, or
other acts of God.
Forum shall have no liability in respect of any loss, damage or expense
suffered by Trust, insofar as such loss, damage or expense arises from the
performance of Forum's duties hereunder by reason of Forum's reliance upon
records that were maintained for Trust by entities other than Forum prior to
Forum's employment under this Agreement.
If Forum does not exercise reasonable care, Forum shall indemnify Trust
for any losses, damages, costs and expenses (including, without limitation, the
fees and expenses of counsel) incurred by Trust and arising out of action taken
or omitted without reasonable care by Forum hereunder or under any Instructions.
SECTION 17. INVESTMENT LIMITATIONS AND LEGAL OR CONTRACTUAL
RESTRICTIONS OR REGULATIONS
Neither Forum nor any Subcustodians shall be liable to Trust or a
Portfolio and Trust agrees to indemnify Forum, all Subcustodians and their
nominees, for any loss, damage or expense suffered or incurred by Forum, any
Subcustodian or their nominees arising out of any violation of any investment
restriction or other restriction or limitation applicable to Trust or any
Portfolio pursuant to any contract or any law or regulation.
SECTION 18. FEES AND EXPENSES
Trust agrees to pay to Forum such compensation for its services
pursuant to this Agreement as may be mutually agreed upon in writing from time
to time and Forum's reasonable out-of-pocket or incidental expenses in
connection with the performance of this Agreement, including (but without
limitation) reasonable legal fees as described herein and/or deemed necessary in
the judgment of Forum to keep safe or protect the Property in the Account. The
initial fee schedule is attached hereto as Exhibit B. Such fees will not be
13
abated by, nor shall Forum be required to account for, any profits or
commissions received by Forum in connection with its provision of custody
services under this agreement. Trust hereby agrees to hold Forum harmless from
any liability or loss resulting from any taxes or other governmental charges,
and any expense related thereto, which may be imposed, or assessed with respect
to any Property in an Account and also agree to hold Forum, its Subcustodians,
and their respective nominees harmless from any liability as a record holder of
Property in such Account. Forum is authorized to charge the applicable Account
for such items, and Forum shall have a lien on the Property in the applicable
Account for any amount payable to Forum under this Agreement, including but not
limited to amounts payable pursuant to Section 13 and pursuant to indemnities
granted by Trust under this Agreement.
SECTION 19. TAX RECLAIMS
With respect to withholding taxes deducted and which may be deducted
from any income received from any Property in an Account, Forum shall perform
such services with respect thereto as are described in the applicable Service
Standards and shall in connection therewith be subject to the standard of care
set forth in such Service Standards. Such standard of care shall not be affected
by any other term of this Agreement.
SECTION 20. AMENDMENT, MODIFICATIONS, ETC.
No provision of this Agreement may be amended, modified or waived
except in a writing signed by the parties hereto (except that Exhibit D may be
amended as provided in Section 4 hereof and Exhibit B may be amended as provided
for therein). In addition, any amendment to Sections 8(c), 8(d), 16, 17, 24, 27
and 28 of this Agreement shall require the written consent of Bankers Trust. No
waiver of any provision hereto shall be deemed a continuing waiver unless it is
so designated. No failure or delay on the part of either party in exercising any
power or right under this Agreement operates as a waiver, nor does any single or
partial exercise of any power or right preclude any other or further exercise
thereof or the exercise of any other power or right.
SECTION 21. TERMINATION
(a) This Agreement may be terminated by Trust or Forum by ninety (90) days'
written notice to the other; provided that notice by Trust shall specify the
names of the persons to whom Forum shall deliver the Securities in each Account
and to whom the Cash in such Account shall be paid. If notice of termination is
given by Forum, Trust shall, within ninety (90) days following the giving of
such notice, deliver to Forum a written notice specifying the names of the
persons to whom Forum shall deliver the Securities in each Account and to whom
the Cash in such Account shall be paid. In either case, Forum will deliver such
Property to the persons so specified, after deducting therefrom any amounts that
Forum determines to be owed to it hereunder. In addition, Forum may in its
discretion withhold from such delivery such Property as may be necessary to
settle transactions pending at the time of such delivery. Trust grants to Forum
a lien and right of setoff against the Account and all Property held therein
from time to time in the full amount of the foregoing obligations. If within
ninety (90) days following the giving of a notice of termination by Forum, Forum
does not receive the aforementioned written notice specifying the names of the
persons to whom Forum shall deliver the Securities in each Account and to whom
the Cash in such Account shall be paid, Forum, at its election, may deliver such
14
Securities and pay such Cash to a bank or trust company doing business in the
State of New York to be held and disposed of pursuant to the provisions of this
Agreement, or may continue to hold such Securities and Cash until a written
notice as aforesaid is delivered to Forum, provided that from and after the
ninetieth day Forum's obligations shall be limited to safekeeping.
(b) This Agreement may be terminated by Trust or Forum as to one or more
Portfolios (but less than all of the Portfolios) by delivery of an amended
Exhibit A deleting such Portfolios, in which case termination as to such deleted
Portfolios shall take effect ninety (90) days after the date of such delivery,
or such earlier time as mutually agreed. The execution and delivery of an
amended Exhibit A that deletes one or more Portfolios shall constitute a
termination of this Agreement only with respect to such deleted Portfolio(s),
shall be governed by Section 21(a) as to the identification of a successor
custodian and the delivery of Cash and Securities of the Portfolio(s) so deleted
to such successor custodian, and shall not affect the obligations of Forum and
Trust hereunder with respect to the other Portfolios set forth in Exhibit A, as
amended from time to time.
(c) Sections 16, 17, 18, 27 and 30 shall survive the termination of this
Agreement as to one or more or all Portfolios.
SECTION 22. NOTICES
Except as otherwise provided in this Agreement, all requests, demands
or other communications between the parties or notices in connection herewith
(a) shall be in writing, hand delivered or sent by registered mail, telex or
facsimile addressed to such other address as shall have been furnished by the
receiving party pursuant to the provisions hereof and (b) shall be deemed
effective when received, or, in the case of a telex, when sent to the proper
number and acknowledged by a proper answerback.
SECTION 23. SEVERAL OBLIGATIONS OF THE PORTFOLIOS
With respect to any obligations of Trust on behalf of each Portfolio
and each of its related Accounts arising out of this Agreement, Forum shall look
for payment or satisfaction of any obligation solely to the assets and property
of the Portfolio and such Accounts to which such obligation relates as though
Trust had separately contracted with Forum by separate written instrument with
respect to each Portfolio and its related Accounts.
SECTION 24. SECURITY FOR PAYMENT
To secure payment of all obligations due hereunder, Trust hereby grants
to Forum a continuing security interest in and right of setoff against each
Account and all Property held therein from time to time in the full amount of
such obligations; provided that, if there is more than one Account and the
obligations secured pursuant to this Section can be allocated to a specific
Account or the Portfolio related to such Account, such security interest and
right of setoff will be limited to Property held for that Account only and its
related Portfolio. Should Trust fail to pay promptly any amounts owed hereunder,
Forum shall be entitled to use available Cash in the Account or applicable
Account, as the case may be, and to dispose of Securities in the Account or such
applicable Account as is necessary. In any such case and without limiting the
15
foregoing, Forum shall be entitled to take such other actions or exercise such
other options, powers and rights as Forum now or hereafter has as a secured
creditor under the UCC or any other applicable law, including, without
limitation, granting to any Subcustodian a security interest in such Accounts on
terms similar to those set forth in this Section 24.
SECTION 25. REPRESENTATIONS AND WARRANTIES
(a) Trust hereby represents and warrants to Forum that:
(b) the employment of Forum and the allocation of fees, expenses and other
charges to any Account as herein provided, is not prohibited by law or any
governing documents or contracts to which it is subject;
(c) the terms of this Agreement do not violate any obligation by which Trust is
bound, whether arising by contract, operation of law or otherwise;
(d) this Agreement has been duly authorized by appropriate action and when
executed and delivered will be binding upon Trust and each Portfolio in
accordance with its terms; and
(e) it will deliver to Forum a duly executed Secretary's Certificate in the form
of Exhibit C hereto or such other evidence of such authorization as Forum may
reasonably require, whether by way of a certified resolution or otherwise.
(f) Forum hereby represents and warrants to Trust that:
(g) the terms of this Agreement do not violate any obligation by which Forum is
bound, whether arising by contract, operation of law or otherwise;
(h) this Agreement has been duly authorized by appropriate action and when
executed and delivered will be binding upon Forum in accordance with its terms;
(i) it will deliver to Trust such evidence of such authorization as Trust may
reasonably require, whether by way of a certified resolution or otherwise;
(j) it is qualified as a custodian under Section 26(a) of the 1940 Act and that
it will remain so qualified or upon ceasing to be so qualified shall promptly
notify Trust in writing; and
(k) it is taking steps (a) believed by it in good faith to be reasonably
designed to address the risk that critical computer systems and equipment
containing the embedded microchips that it uses relating to its operations (the
"Systems") may be unable to process properly and calculate date-related
information and data from and after January 1, 2000 (the "Year 2000 Problem"),
and (b) to obtain assurances deemed reasonable by Forum that its material
service providers, including each Subcustodian, Securities System, agent or
other financial institution employed by Forum to provide services to Trust under
this Agreement, are taking reasonable steps to address the Year 2000 Problem.
16
Forum reasonably expects that the effects of the Year 2000 Problem should not
result in a material adverse effect on the business, financial condition or
ability to timely perform any of its material obligations under this Agreement
(a "Material Adverse Effect"). In addition, Forum agrees to notify Trust
promptly if it has reason to believe that a Material Adverse Effect is likely to
result from a Year 2000 Problem with respect to Forum or its material service
providers.
SECTION 26. GOVERNING LAW AND SUCCESSORS AND ASSIGNS
This Agreement shall be governed by the law of the State of New York
and shall not be assignable by either party, but shall bind the successors in
interest of Trust and Forum.
SECTION 27. THIRD-PARTY BENEFICIARY
Trust hereby acknowledges and agrees that with respect to the Accounts:
(a) Forum is authorized to and, unless otherwise notified, shall appoint Bankers
Trust as a master Subcustodian pursuant to the Master Subcustodian Agreement.
(b) As an inducement to Bankers Trust to act as a master Subcustodian, Trust
authorizes the Forum to bind the Trust to those terms of the Master Subcustodian
Agreement, including Section 23 thereof, which will obligate the Trust to pay
obligations of each Portfolio for Property custodied pursuant to the Master
Subcustodian Agreement.
(c) Bankers Trust may rely, as fully as if it were a party hereto and named as
"Custodian" herein, on the representations, warranties, covenants and
indemnities of Trust set forth in Sections 8(d), 16, 17, 24 and 28 of this
Agreement.
SECTION 28. REPRESENTATIVE CAPACITY AND BINDING OBLIGATION
A copy of the Declaration of Trust of Trust is on file with the
Secretary of State of the State of Delaware (and a copy of the Trust Instrument
of Trust is on file with Trust's secretary). Notice is hereby given that this
Agreement is not executed on behalf of the Trustees of Trust as individuals, and
the obligations of this Agreement are not binding upon any of the Trustees,
officers or shareholders of Trust individually but are binding only upon the
assets and property of the Portfolios.
17
SECTION 29. SUBMISSION TO JURISDICTION
Any suit, action or proceeding arising out of this Agreement may be
instituted in any State or Federal court sitting in the City of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, and Forum and Trust each irrevocably
submits to the non-exclusive jurisdiction of any such court in any such suit,
action or proceeding and waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding brought in such a court and any claim that such suit,
action or proceeding was brought in an inconvenient forum.
SECTION 30. CONFIDENTIALITY
The parties hereto agree that each shall treat confidentially the terms
and conditions of this Agreement and all information provided by each party to
the other regarding its business and operations. All confidential information
provided by a party hereto shall be used by any other party hereto solely for
the purpose of rendering services pursuant to this Agreement and, except as may
be required in carrying out this Agreement, shall not be disclosed to any third
party without the prior consent of such providing party. The foregoing shall not
be applicable to any information that is publicly available when provided or
thereafter becomes publicly available other than through a breach of this
Agreement, or that is required or requested to be disclosed by any bank or other
regulatory examiner of Forum, Trust, or any Subcustodian, any auditor of the
parties hereto, by judicial or administrative process or otherwise by applicable
law or regulation.
SECTION 31. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The trustees of the Trust and the shareholders of each Portfolio shall
not be liable for any obligations of the Trust or of the Portfolios under this
Agreement, and Forum agrees that, in asserting any rights or claims under this
Agreement, it shall look only to the assets and property of the Trust or the
Portfolio to which Forum's rights or claims relate in settlement of such rights
or claims, and not to the trustees of the Trust or the shareholders of the
Portfolios.
SECTION 32. SEVERABILITY
If any provision of this Agreement is determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other provision of this Agreement.
SECTION 33. ENTIRE AGREEMENT
This Agreement together with its Exhibits, contains the entire
agreement between the parties relating to the subject matter hereof and
supersedes any oral statements and prior writings with respect thereto.
SECTION 34. HEADINGS
The headings of the sections hereof are included for convenience of
reference only and do not form a part of this Agreement.
SECTION 35. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original. This Agreement shall become effective when
one or more counterparts have been signed and delivered by each of the parties
hereto.
IN WITNESS WHEREOF, each of the parties has caused its duly authorized
signatories to execute this Agreement as of the date first written above.
TRUECROSSING FUNDS
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Chairman
FORUM TRUST, LLC
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
President
19
TRUECROSSING FUNDS
CUSTODIAN AGREEMENT
EXHIBIT A
LIST OF PORTFOLIOS
TrueCrossing Growth Fund
TRUECROSSING FUNDS
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Chairman
FORUM TRUST, LLC
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
President
-A1-
TRUECROSSING FUNDS
CUSTODIAN AGREEMENT
EXHIBIT B
FEE SCHEDULE
This Exhibit B shall be amended upon delivery by Forum of a new Exhibit B to
Trust and acceptance thereof by Trust and shall be effective as of the date of
acceptance by Trust or a date agreed upon between Forum and Trust.
1.ACCOUNT MAINTENANCE FEES
Domestic Custody Accounts $3,600 per account per year
2.DOMESTIC CUSTODY FEES
1.SAFEKEEPING CHARGES
Fee as an annualized % of Portfolio assets: 0.0100% of the first $1 billion in
assets
0.0075% of the next $1 billion in
assets
0.0050% thereafter
2. TRANSACTION CHARGES
COST PER
TRANSACTION TYPE TRANSACTION
---------------- -----------
DTC $12
Federal Book Entry $10
PTC $10
Physicals $25
Maturities (Depository) $10
Maturities (Physical) $25
P&I Payments (Book Entry) $3
P&I Payments (Physical) $10
Fed Wires (from Custody account) $8
SHE (Shares Held Elsewhere) Trades $25
Forum Money Market Funds $3
-B1-
3. NOTES
The standard custody service includes: (i) asset safekeeping, (ii)
trade settlement, (iii) income collection, (iv) corporate action
processing (including proxy voting) and (v) tax reclaims (where
applicable.)
Accounts utilize actual settlement and are subject to the guidelines
indicated in the Bankers Trust POLICIES AND STANDARDS manual.
Out-of-pocket expenses are borne by Trust. Out-of-pocket expenses
include, but are not limited to, postage and legal fees. These charges
are passed on at cost.
-B2-
TRUECROSSING FUNDS
CUSTODIAN AGREEMENT
EXHIBIT C
FORM OF SECRETARY'S CERTIFICATE
I, [Name], hereby certify that I am the Secretary of TrueCrossing
Funds, a business trust organized under the laws of the State of Delaware (the
"Company"), and as such I am duly authorized to, and do hereby, certify that:
1. ORGANIZATIONAL DOCUMENTS. The Company's organizational documents, and all
amendments thereto, have been filed with the appropriate governmental
officials of Delaware, the Company continues to be in existence and is in
good standing, and no action has been taken to repeal such organizational
documents, the same being in full force and effect on the date hereof.
2. BYLAWS. The Company's Bylaws have been duly adopted and no action has been
taken to repeal such Bylaws, the same being in full force and effect.
3. RESOLUTIONS. Resolutions have been duly adopted on behalf of the Company,
which resolutions (i) have not in any way been revoked or rescinded, (ii)
have been in full force and effect since their adoption, to and including
the date hereof, and are now in full force and effect, and (iii) are the
only corporate proceedings of the Company now in force relating to or
affecting the matters referred to therein, including, without limitation,
confirming that the Company is duly authorized to enter into a certain
custody agreement with Forum Trust, LLC (the "Agreement"), and that certain
designated officers, including those identified in paragraph 4 of this
Certificate, are authorized to execute said Agreement on behalf of the
Company, in conformity with the requirements of the Company's
organizational documents, Bylaws, and other pertinent documents to which
the Company may be bound.
4. INCUMBENCY. The following named individuals are duly elected (or
appointed), qualified, and acting officers of the Company holding those
offices set forth opposite their respective names as of the date hereof,
each having full authority, acting individually, to bind the Company, as a
legal matter, with respect to all matters pertaining to the Agreement, and
to execute and deliver said Agreement on behalf of the Company, and the
signatures set forth opposite the respective names and titles of said
officers are their true, authentic signatures:
NAME TITLE SIGNATURE
[Name] [Position]
[Name] [Position]
[Name] [Position]
-C1-
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
_______, 19__.
TrueCrossing Funds
By:
Name:
Title: Secretary
I, [Name of Confirming Officer], [Title] of the Company, hereby certify
that on this ___ day of ________, 19__, [Name of Secretary] is the duly elected
Secretary of the Company and that the signature above is his genuine signature.
TrueCrossing Funds
By:
Name:
Title:
-C2-
TRUECROSSING FUNDS
CUSTODIAN AGREEMENT
EXHIBIT D
APPROVED SUBCUSTODIANS AND SECURITIES SYSTEMS
Bankers Trust Company
-D1-