ARK FUNDS
FUND ACCOUNTING AGREEMENT
AGREEMENT made as of the 1st day of January, 2002, by and between ARK
Funds, a Massachusetts business trust, with its principal office and place of
business at Two Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000 (the "Trust"), and Forum
Accounting Services, LLC, a Delaware limited liability company with its
principal office and place of business at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx
00000 ("Forum").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company
and may issue its shares of beneficial interest (the "Shares") in separate
series and classes; and
WHEREAS, the Trust offers Shares in various series as listed in
Appendix A hereto (each such series, together with all other series subsequently
established by the Trust and made subject to this Agreement in accordance with
Section 7, being herein referred to as a "Fund," and collectively as the
"Funds") and the Trust offers Shares of various classes of each Fund as listed
in Appendix A hereto (each such class together with all other classes
subsequently established by the Trust in a Fund being herein referred to as a
"Class," and collectively as the "Classes");
WHEREAS, the Trust desires that Forum perform certain fund accounting
services for each Fund and Class thereof and Forum is willing to provide those
services on the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and Forum hereby agree as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The Trust hereby appoints Forum, and Forum hereby agrees, to act as
fund accountant of the Trust for the period and on the terms set forth in this
Agreement.
(b) In connection therewith, the Trust has delivered to Forum copies
of: (i) the Trust's declaration of trust and bylaws (collectively, as amended
from time to time, "Organic Documents"); (ii) the Trust's registration statement
and all amendments thereto filed with the U.S. Securities and Exchange
Commission ("SEC") pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), or the 1940 Act (the "Registration Statement"); (iii) the
Trust's current prospectus and statement of additional information of each Fund
(collectively, as currently in effect and as amended or supplemented, the
"Prospectus"); (iv) each plan of distribution or similar document adopted by the
Trust under Rule 12b-1 under the 1940 Act ("Plan") and each current shareholder
service plan or similar document adopted by the Trust ("Service Plan"); and (v)
all procedures adopted by the Trust with respect to the Funds (e.g., repurchase
agreement procedures), and shall promptly furnish Forum with all amendments of
or supplements to the foregoing. The Trust shall deliver to Forum a certified
copy of the resolution of the Board of Trustees of the Trust (the "Board")
appointing Forum and authorizing the execution and delivery of this Agreement.
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SECTION 2. DUTIES OF FORUM
(a) Forum and the Trust's sub-administrator, Forum Administrative
Services, LLC (the "Administrator"), may from time to time adopt such procedures
as they agree upon to implement the terms of this section. With respect to each
Fund, Forum shall:
(i) calculate the net asset value per share ("NAV") with the
frequency prescribed in each Fund's then-current Prospectus;
(ii) calculate each item of income, deduction, credit, gain and loss,
if any, and process each Fund's stated expense ratio as required by the
Trust and in conformance with generally accepted accounting practice
("GAAP"), the SEC's Regulation S-X (or any successor regulation) and
the Internal Revenue Code of 1986, as amended (or any successor
laws)(the "Code");
(iii) maintain each Fund's general ledger and record all income, gross
expenses, capital share activity and security transactions of each
Fund;
(iv) calculate the "SEC yield" and money market fund seven-day
yields for each Fund, and each Class thereof, as applicable;
(v) provide the Trust and such other persons as the Administrator may
direct with the following reports: (A) Key Numbers Summary; (B) trial
balance; (C) current security position report by tax lot; (D) security
position report by security identifier; (E) stale pricing; and (F) cash
position and projection report;
(vi) prepare and record once daily, as of the time when the NAV of a
Fund is calculated or at such other time as otherwise directed by the
Trust, either (A) a valuation of the assets of the Fund (unless
otherwise specified in or in accordance with this Agreement, based upon
the use of outside services normally used and engaged for this purpose
by Forum in the case of securities for which information and market
price or yield quotations are readily available and based upon
evaluations conducted in accordance with the Trust's instructions in
the case of all other assets) or (B) a calculation confirming that the
market value of the Fund's assets does not deviate from the amortized
cost value of those assets by more than a specified percentage;
(vii) make such adjustments over such periods as the Administrator
deems necessary to reflect over-accruals or under-accruals of estimated
expenses or income;
(viii) provide appropriate records to assist the Trust's independent
accountants and, upon approval of the Trust or the Administrator, any
regulatory body in any requested review of the Trust's books and
records maintained by Forum;
(ix) provide information typically supplied in the investment
company industry to the Fund's transfer agent and Nasdaq;
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(x) transmit the NAVs and dividend factors of all Funds to the
Administrator and to those persons designated by the Administrator in
writing either by internet e-mail or facsimile transmission as
designated by the Administrator;
(xi) provide the Trust or the Administrator with the data
requested by the Trust or the Administrator that is required to
update the Registration Statement;
(xii) provide the Trust or independent accountants the data requested
with respect to the preparation of the Trust's income, excise and other
tax returns;
(xiii) provide the Trust or independent accountants with unadjusted
Fund data directly from Forum's portfolio accounting system for any
Fund business day and other data reasonably requested for the
preparation of the Trust's semi-annual financial statements;
(xiv) process all distributions as directed in writing by the Trust
or the Administrator;
(xv) transmit to and receive from each Fund's transfer agent
appropriate data to reconcile daily Shares outstanding and other data
with the transfer agent;
(xvi) reconcile cash daily and reconcile security identifier, units,
maturities and rates at least monthly with each Fund's custodian;
(xvii) verify investment trade tickets when received from an investment
adviser and maintain individual ledgers and historical tax lots for
each security; and
(xviii) perform such other recordkeeping, reporting and other tasks as
may be specified from time to time by the Trust or the Administrator in
the procedures adopted by the Board pursuant to mutually acceptable
compensation and implementation agreements.
(b) Forum shall prepare and maintain on behalf of the Trust all books
and records of each Fund, and each Class thereof, required to be maintained by
the Trust with respect to portfolio transactions of the Funds pursuant to Rule
31a-1 under the 1940 Act (the "Rule"), including, without limitation:
(i) Journals containing an itemized daily record in detail of all
purchases and sales of securities, all receipts and disbursements of
cash and all other debits and credits, as required by subsection (b)(1)
of the Rule;
(ii) General and auxiliary ledgers reflecting all asset, liability,
reserve, capital, income and expense accounts, as required by
subsection (b)(2) of the Rule;
(iii) A record of each brokerage order given by or on behalf of the
Trust for, or in connection with, the purchase or sale of securities,
whether executed or not, and all other portfolio purchases or sales, as
required by subsections (b)(5) and (b)(6) of the Rule;
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(iv) A record of all options, if any, in which the Trust has any direct
or indirect interest or which the Trust has granted or guaranteed and a
record of any contractual commitments to purchase, sell, receive or
deliver any property, as required by subsection (b)(7) of the Rule; and
(v) A monthly trial balance of all ledger accounts (except shareholder
accounts) as required by subsection (b)(8) of the Rule.
Forum shall maintain under this Agreement such other records as are (1)
(A) required by the Rule or any successor rule or pursuant to interpretations
thereof to be kept by open-end management investment companies and (B) relate to
the portfolio transactions of the Funds, or (2) agreed upon between the parties
hereto.
(c) The books and records prepared and maintained pursuant to Section
2(b) shall be prepared and maintained in such form, for such periods and in such
locations as may be required by the 1940 Act. The books and records pertaining
to the Trust that are in possession of Forum shall be the property of the Trust.
The Trust, the Administrator, or the Trust's or the Administrator's authorized
representatives, shall have access to such books and records at all times during
Forum's normal business hours. Upon the reasonable request of the Trust or the
Administrator, copies of any such books and records shall be provided promptly
by Forum to the Trust or the Trust's authorized representatives at the Trust's
expense. In the event the Trust designates a successor that shall assume any of
Forum's obligations hereunder, Forum shall, at the expense and direction of the
Trust, transfer to such successor all relevant books, records and other data
established or maintained by Forum under this Agreement.
(d) Nothing contained herein shall be construed to require Forum to
perform any service that could cause Forum to be deemed an investment adviser
for purposes of the 1940 Act or the Investment Advisers Act of 1940, as amended,
or that could cause a Fund to act in contravention of the Fund's Prospectus or
any provision of the 1940 Act. Except as otherwise specifically provided herein,
the Trust assumes all responsibility for ensuring that the Trust complies with
all applicable requirements of the Securities Act, the 1940 Act and any laws,
rules and regulations of governmental authorities with jurisdiction over the
Trust. All references to any law in this Agreement shall be deemed to include
reference to the applicable rules and regulations promulgated under authority of
the law and all official interpretations of such law or rules or regulations.
SECTION 3. STANDARD OF CARE; LIMITATION OF LIABILITY; INDEMNIFICATION
(a) Forum shall be under no duty to take any action except as
specifically set forth herein or as may be specifically agreed to by Forum in
writing. Forum shall use its best judgment and efforts in rendering the services
described in this Agreement. Forum shall not be liable to the Trust or any of
the Trust's shareholders for any action or inaction of Forum relating to any
event whatsoever in the absence of bad faith, willful misfeasance or gross
negligence in the performance of Forum's duties or obligations under this
Agreement or by reason of Forum's reckless disregard of its duties and
obligations under this Agreement.
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(b) The Trust agrees to indemnify and hold harmless Forum, its
employees, agents, directors, officers and managers and any person who controls
Forum within the meaning of section 15 of the Securities Act or section 20 of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), ("Forum
Indemnitees"), against and from any and all claims, demands, actions, suits,
judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees
and other expenses of every nature and character arising out of or in any way
related to Forum's actions taken or failures to act with respect to a Fund that
are taken (or not taken, as the case may be) in the absence of bad faith,
willful malfeasance and negligence or based, if applicable, on good faith
reliance upon an item described in Section 3(d) (a "Forum Claim"). The Trust
shall not be required to indemnify any Forum Indemnitee if, prior to confessing
any Forum Claim against the Forum Indemnitee, Forum or the Forum Indemnitee does
not give the Trust written notice of and reasonable opportunity to defend
against the Forum Claim in its own name or in the name of the Forum Indemnitee.
(c) Forum agrees to indemnify and hold harmless the Trust, its
employees, agents, trustees, officers and managers ("Trust Indemnitees"),
against and from any and all claims, demands, actions, suits, judgments,
liabilities, losses, damages, costs, charges, reasonable counsel fees and other
expenses of every nature and character arising out of or in any way related to
(i) Forum's actions taken or failures to act with respect to a Fund that are not
consistent with the standard of care set forth in Section 3(a), or (ii) any
breach of Forum's representation set forth in Section 4 (a "Trust Claim"). Forum
shall not be required to indemnify any Trust Indemnitee if, prior to confessing
any Trust Claim against the Trust Indemnitee, the Trust or the Trust Indemnitee
does not give Forum written notice of and reasonable opportunity to defend
against the Trust Claim in its own name or in the name of the Trust Indemnitee.
(d) Forum shall not be liable for any action taken or failure to
act in good faith reliance upon:
(i) the advice of the Trust or of counsel, who may be counsel to
the Trust or counsel to Forum;
(ii) any oral or electronic instruction which it receives and which it
reasonably believes in good faith was transmitted by a person or
persons authorized by the Board to give such oral instruction. Provided
that Forum has such reasonable belief, Forum shall have no duty or
obligation to make any inquiry or effort of certification of such
instruction;
(iii) any written instruction of the Trust or persons authorized by the
Board to give such oral instruction or any certified copy of any
resolution of the Board, and Forum may rely upon the genuineness of any
such document or copy thereof reasonably believed in good faith by
Forum to have been validly executed; or
(iv) any signature, instruction, request, letter of transmittal,
certificate, opinion of counsel, statement, instrument, report, notice,
consent, order, or other document
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reasonably believed in good faith by Forum to be genuine and to have
been signed or presented by the Trust or other proper party or
parties;
and no Forum Indemnitee shall be under any duty or obligation to inquire into
the validity or invalidity or authority or lack thereof of any statement, oral,
electronic or written instruction, resolution, signature, request, letter of
transmittal, certificate, opinion of counsel, instrument, report, notice,
consent, order, or any other document or instrument which Forum reasonably
believes in good faith to be genuine.
(e) Forum shall not be liable for the errors of other service providers
to the Trust or their systems, including the errors of pricing services (other
than to monitor the accuracy of prices provided by pricing services and to
pursue all reasonable claims against the pricing service based on the pricing
services' standard contracts entered into by Forum) and errors in information
provided by an investment adviser (including prices and pricing formulas and the
untimely transmission of trade information), custodian or transfer agent to the
Trust.
(f) Forum shall reimburse each applicable Fund for any net losses to
the Fund during each NAV Error Period resulting from an NAV Difference that is
at least 1/10 of 1% but that is less than 1/2 of 1%. Forum shall reimburse the
Fund on its own behalf and on behalf of each Fund shareholder for any losses
experienced by the Fund or any Fund shareholder, as applicable, during each NAV
Error Period resulting from an NAV Difference that is at least 1/2 of 1%;
provided, however, that Forum shall not be responsible for reimbursing any Fund
shareholder account that experiences an aggregate loss during any NAV Error
Period of less than $10.
(g) For purposes of this Agreement: (i) the NAV Difference shall mean
the difference between the NAV at which a shareholder purchase or redemption
should have been effected ("Recalculated NAV") and the NAV at which the purchase
or redemption is effected divided by Recalculated NAV; (ii) NAV Error Period
shall mean any Fund business day or series of two or more consecutive Fund
business days during which an NAV Difference of 1/10 of 1% or more exists; (iii)
NAV Differences and any Forum liability therefrom are to be calculated each time
a Fund's (or Class's) NAV is calculated; (iv) in calculating any amount for
which Forum would otherwise be liable under this Agreement for a particular NAV
error, Fund (or Class) losses and gains shall be netted; and (v) in calculating
any amount for which Forum would otherwise be liable under this Agreement for a
particular NAV error that continues for a period covering more than one NAV
determination, Fund (or Class) losses and gains for the period shall be netted.
SECTION 4. REPRESENTATIONS AND WARRANTIES
(a) Forum represents and warrants to the Trust that:
(i) It is a limited liability company duly organized and
existing and in good standing under the laws of the State of Delaware;
(ii) It is duly qualified to carry on its business;
(iii) It is empowered under applicable laws and by its Operating
Agreement to enter
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into this Agreement and perform its duties under this Agreement;
(iv) All requisite corporate proceedings have been taken to authorize
it to enter into this Agreement and perform its duties under this
Agreement;
(v) It has access to the necessary facilities, equipment, and
personnel to perform its duties and obligations under this Agreement;
and
(vi) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of Forum, enforceable against Forum
in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties.
(b) The Trust represents and warrants to Forum that:
(i) It is a business trust duly organized and existing and in
good standing under the laws of the Commonwealth of Massachusetts;
(ii) It is empowered under applicable laws and by its Organic Documents
to enter into this Agreement and perform its duties under this
Agreement;
(iii) All requisite corporate proceedings have been taken to authorize
it to enter into this Agreement and perform its duties under this
Agreement;
(iv) It is an open-end management investment company registered
under the 1940 Act; and
(v) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of the Trust, enforceable against
the Trust in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured
parties.
SECTION 5. COMPENSATION AND EXPENSES
(a) In consideration of the services provided by Forum pursuant to this
Agreement, the Trust shall pay Forum, with respect to each Fund, the fees set
forth in Appendix B hereto.
All fees payable hereunder shall be accrued daily by the Trust. The
fees shall be payable monthly in advance on the first business day of each
calendar month for services to be performed during the following calendar month.
As applicable, fees shall be estimated based on current information and
adjustments for estimates of prior month fees shall be made the next month.
Reimbursements as described in Section 5(b) shall be payable monthly in arrears
on the first day of each calendar month for services performed during the prior
calendar month. If fees payable for the services listed in clause (i) begin to
accrue in the middle of a month or if this Agreement terminates before the end
of any month, all fees for the period from that date to the end of that month or
from the beginning of that month to the date of termination, as the case may be,
shall be prorated according to the proportion that the period bears to the full
month in which the effectiveness or termination occurs. Upon the termination of
this Agreement with respect to a Fund, the Trust shall pay to Forum such
compensation as shall be payable prior to the effective date of termination.
(b) In connection with the services provided by Forum pursuant to this
Agreement, the Trust, on behalf of each Fund, agrees to reimburse Forum for the
expenses set forth in clause (iii) of Appendix B hereto. In addition, the Trust,
on behalf of the applicable Fund, shall reimburse Forum for all reasonably
incurred expenses and employee time attributable to any review of the Trust's
accounts and records by the Trust's independent accountants or any regulatory
body outside of routine and normal periodic reviews. Should the Trust exercise
its right to terminate this Agreement, the Trust, on behalf of the applicable
Fund, shall reimburse Forum for all reasonably incurred out-of-pocket expenses
and employee time associated with the copying and movement of records and
material to any successor person and providing assistance to any successor
person in the establishment of the accounts and records necessary to carry out
the successor's responsibilities.
(c) Forum may, with respect to questions of law relating to its
services hereunder, apply to and obtain the advice and opinion of counsel to the
Trust or counsel to Forum; provided, however, that Forum shall in all cases
first reasonably attempt to apply to and obtain the advice and opinion of
in-house counsel to Forum Administrative Services, LLC, the sub-administrator of
the Trust. The costs of any such advice or opinion of counsel to the Trust shall
be borne by the Trust.
SECTION 6. EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT
(a) This Agreement shall become effective on the date hereof and, with
respect to each new Fund and Class referred to in Section 7, on the earlier of
the date on which the Trust's Registration Statement relating to the Shares of
such Fund or Class becomes effective or the date of the commencement of
operations of the Fund or Class.
(b) This Agreement shall continue in effect with respect to each Fund
and Class until December 31, 2002 (the "Initial Term") and shall continue in
effect thereafter for successive one-year periods unless earlier terminated in
accordance with this section or until the Fund or Class ceases operations.
(c) In the event that the Trust elects to terminate this Agreement
prior to December 31, 2004, pursuant to this Section 6, the Trust shall pay
Forum twelve (the "multiplier") times the monthly average fees due to Forum
under this Agreement ("Termination Fee") (calculated based on the last three
months prior to the date of termination). The multiplier shall be reduced
one-twelfth for each full calendar quarter after December 31, 2001 that expires.
The Termination Fee shall be due as of the last day this Agreement is effective.
An amendment of this Agreement that eliminates a portion of the services that
Forum provides to the Trust and associated fees to Forum (as agreed by the
parties), wherein Allfirst Trust Company N.A or its
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affiliates contemporaneously become responsible for delivering similar services
to the Trust, shall not be deemed to be a termination.
(d) This Agreement may be terminated with respect to any or all Funds
at any time after the date that is 90 days prior to the expiration of the
Initial Term, (i) by the Board on 90 days' written notice to Forum or (ii) by
Forum on 90 days' written notice to the Trust. If the Trust terminates the
Agreement prior to December 31, 2004, the Trust shall pay Forum a Termination
Fee as calculated in Section 6(c).
(e) This Agreement and the rights and duties under this Agreement may
not be assigned by either Forum or the Trust except by the specific written
consent of the other party. Notwithstanding anything in this Agreement to the
contrary, the transfer of ownership of all or part the equity interests in Forum
to Forum's employees or the heirs or devisees of Xxxx Xxxxxx shall not be deemed
to be an assignment. All terms and provisions of this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto.
(f) The provisions of Sections 2(c), 3, 5, 6(d), 6(e), 8, 9, 10, 12,
and 13 shall survive any termination of this Agreement.
SECTION 7. ADDITIONAL FUNDS AND CLASSES
In the event that the Trust establishes one or more series of Shares or
one or more classes of Shares after the effectiveness of this Agreement, such
series of Shares or classes of Shares, as the case may be, automatically shall
become Funds and Classes under this Agreement and the fees applicable to the new
Funds and Classes as provided on Appendix B shall apply. Forum or the Trust may
elect not to make any such series or classes subject to this Agreement.
SECTION 8. CONFIDENTIALITY
Forum agrees to treat all records and other information related to the
Trust as proprietary information of the Trust and, on behalf of itself and its
employees, to keep confidential all such information, except that Forum may
(a) prepare or assist in the preparation of periodic reports to
shareholders and regulatory bodies such as the SEC;
(b) provide information typically supplied in the investment company
industry to companies that track or report price, performance or other
information regarding investment companies; and
(c) release such other information as approved by the Trust, which
approval shall not be unreasonably withheld and may not be withheld where Forum
is advised by counsel that it may be exposed to civil or criminal contempt
proceedings for failure to release the information (provided, however, that
Forum shall seek the approval of the Trust as promptly as possible so as
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to enable the Trust to pursue such legal or other action as it may desire to
prevent the release of such information) or when so requested by the Trust.
SECTION 9. FORCE MAJEURE
Forum shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical or other breakdown of the
securities markets, flood or catastrophe, acts of God, insurrection, war,
terrorism, riots or failure of the mails, transportation, communication or power
supply. In addition, to the extent Forum's obligations hereunder are to oversee
or monitor the activities of third parties, Forum shall not be liable for any
failure or delay in the performance of Forum's duties caused, directly or
indirectly, by the failure or delay of such third parties in performing their
respective duties or cooperating reasonably and in a timely manner with Forum.
SECTION 10. DISASTER RECOVERY
Forum shall enter into and shall maintain in effect with appropriate
parties one or more agreements making reasonable provisions for periodic backup
of computer files and data with respect to the Trust and emergency use of
electronic data processing equipment. In the event of equipment failures, Forum
shall, at no additional expense to the Trust, take reasonable steps to minimize
service interruptions. Forum shall have no liability with respect to the loss of
data or service interruptions caused by equipment failure, provided such loss or
interruption is not caused by Forum's own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties or obligations under this
Agreement and provided further that Forum has complied with the provisions of
this Section 10.
SECTION 11. ACTIVITIES OF FORUM
(a) Except to the extent necessary to perform Forum's obligations under
this Agreement, nothing herein shall be deemed to limit or restrict Forum's
right, or the right of any of Forum's managers, officers or employees who also
may be a Trustee, officer or employee of the Trust, or persons who are otherwise
affiliated persons of the Trust, to engage in any other business or to devote
time and attention to the management or other aspects of any other business,
whether of a similar or dissimilar nature, or to render services of any kind to
any other corporation, trust, firm, individual or association.
(b) Forum may subcontract any or all of its functions or
responsibilities pursuant to this Agreement to one or more persons, which may be
affiliated persons of Forum, who agree to comply with the terms of this
Agreement; provided, that any such subcontracting shall not relieve Forum of its
responsibilities hereunder. Forum may pay those persons for their services, but
no such payment will increase Forum's compensation or reimbursement of expenses
from the Trust.
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SECTION 12. COOPERATION WITH INDEPENDENT ACCOUNTANTS
Forum shall cooperate, if applicable, with each Fund's independent
public accountants and shall take reasonable action to make all necessary
information available to the accountants for the performance of the accountants'
duties.
SECTION 13. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The trustees, officers, employees and agents of the Trust and the
shareholders of each Fund shall not be liable for any obligations of the Trust
or of the Funds 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 Fund to which its rights or claims relate in
settlement of such rights or claims, and not to the trustees, officers,
employees and agents of the Trust or the shareholders of the Funds.
SECTION 14. MISCELLANEOUS
(a) Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement, even if such
party is advised of the possibility of such damages.
(b) Except for Appendix A to add new Funds and Classes in accordance
with Section 7, no provisions of this Agreement may be amended or modified in
any manner except by a written agreement properly authorized and executed by
both parties hereto.
(c) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with, the
laws of the State of Delaware.
(d) This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof, whether oral or written.
(e) This Agreement may be executed by the parties hereto on any number
of counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(f) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid. This Agreement shall be construed as if drafted jointly by both parties
and no presumptions shall arise favoring any party by virtue of authorship of
any provision of this Agreement.
(g) Section headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
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(h) Notices, requests, instructions and communications received by the
parties at their respective principal places of business, or at such other
address as a party may have designated in writing, shall be deemed to have been
properly given.
(i) Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each Fund of the Trust are separate and
distinct from the assets and liabilities of each other Fund and that no Fund
shall be liable or shall be charged for any debt, obligation or liability of any
other Fund, whether arising under this Agreement or otherwise.
(j) Nothing contained in this Agreement is intended to or shall require
Forum, in any capacity hereunder, to perform any functions or duties on any day
other than a Fund business day. Functions or duties normally scheduled to be
performed on any day which is not a Fund business day shall be performed on, and
as of, the next Fund business day, unless otherwise required by law.
(k) No employee, agent, director, officer or manager of Forum shall be
liable at law or in equity for Forum's obligations under this Agreement.
(l) The term "affiliated person" shall have the meaning ascribed
thereto in the 1940 Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
ARK FUNDS
By: /S/ XXXXXXX XXXXXX
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
FORUM ACCOUNTING SERVICES, LLC
By: /S/ XXXXXX X. XXXX
-----------------------------------------
Xxxxxx X. Xxxx
Director
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ARK FUNDS
FUND ACCOUNTING AGREEMENT
APPENDIX A
INCEPTION INCEPTION INCEPTION INCEPTION
DATE INSTITUTIONAL DATE RETAIL A DATE RETAIL B DATE
INSTITUTIONAL II
Money Market Port. X 6/14/93 X 7/21/95 X 3/2/94 X* 9/1/98
Govt. Money Market X 6/14/93 X 7/28/95 X 7/7/97
U.S.Treas. Money MKT. X 6/14/93 X 7/28/95 X 12/15/95
Tax-Free Money MKT. X 6/14/93 X 7/28/95 X 3/15/94
Pennsylvania Tax-Free Money X 5/1/01 X 5/1/01
MKT.
Short-Term X 3/20/96 X 9/9/96
Treasury
Short-Term Bond X 3/31/96
U.S. Gov't Bond X 3/31/96 X 4/1/98
Interm. Fixed Income X 11/15/96
Income X 7/16/93 X 4/12/94 X 9/1/98
Maryland Tax -Free X 11/15/96 X 1/2/97 X 9/1/99
Pennsylvania Tax-Free X 3/31/96 X 3/23/98 X 9/1/99
Balanced X 7/16/93 X 3/9/94 X 9/1/98
Equity Income X 11/15/96 X 5/9/97
Value Equity X 3/31/96 X 4/1/98 X 9/1/99
Equity X 10/1/97 X 11/3/97
Index
Blue Chip Equity X 4/1/96 X 5/16/96 X 7/1/98
Capital Growth X 7/16/93 X 3/9/94 X 9/1/98
Mid-Cap Equity X 11/15/96 X 9/1/99
Small-Cap Equity X 7/13/95 X 5/16/96 X 2/19/01
Int'l Equity X 3/31/97 X 4/1/98
Emerging Markets X 1/7/92
Social Issues Intermediate X 5/1/01
Fixed Income
Social Issues Blue Chip X 5/1/01
Equity
Social Issues Capital Growth X 5/1/01
Social Issues Small Cap X 5/1/01
Equity
TOTAL 25 5 19 9
* For exchange purposes only
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CASH MANAGEMENT FUNDS
INCEPTION INCEPTION INCEPTION
CORPORATE DATE CORPORATE II DATE CORPORATE DATE
III
U.S. Government Cash X 10/19/00 X 6/1/00 X 6/6/00
Management Money Market
U.S. Prime Cash Management X 7/28/00 X 6/5/00 X 8/16/00
Money Market
U.S. Treasury Cash X 7/21/00 X 10/6/00
Management Money Market
Tax-Free Cash Management X 6/23/00
Money Market
TOTAL 2 3 4
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ARK FUNDS
FUND ACCOUNTING AGREEMENT
APPENDIX B
FEES AND EXPENSES
(I) BASE FEE
Standard Fee
Fee per Fund.......................................... $3,000/month
Fee per New Fund......................................$1,500/month*
Fee per International Fund............................ $5,000/month
Fee for each additional Class of the Fund above one... $500/month
(II) ASSET CHARGE (FEE AS A % OF THE ANNUAL AVERAGE DAILY NET ASSETS OF A
FUND)
Fee per Fund 0.01%
(III) OUT-OF-POCKET AND RELATED EXPENSES:
The Trust, on behalf of the applicable Fund, shall reimburse Forum for
all out-of-pocket and ancillary expenses in providing the services
described in this Agreement, including but not limited to the cost of
(or appropriate share of the cost of): (i) pricing, paydown, corporate
action, credit and other reporting services, (ii) taxes, (iii) postage
and delivery services, (iv) telephone services, (v) electronic or
facsimile transmission services, (vi) reproduction, (vii) printing and
distributing financial statements, (viii) microfilm and microfiche and
(ix) Trust record storage and retention fees. In addition, any other
expenses incurred by Forum at the request or with the consent of the
Trust, will be reimbursed by the Trust on behalf of the applicable
Fund.
* For the first calendar year of each New Fund. Thereafter, the Base
Fee would be the same as that of an Existing Fund (i.e., $3,000 per
month). The ARK Social Issues Intermediate Fixed Income Portfolio, the
ARK Social Issues Blue Chip Equity Portfolio, the ARK Social Issues
Capital Growth Portfolio, and the ARK Social Issues Small-Cap Equity
Portfolio shall each be considered a New fund for calendar year 2002.
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