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EXHIBIT 8(a)
CUSTODY AGREEMENT
between
ARK Funds
and
FMB Trust Company
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TABLE OF CONTENTS
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Article I Certain Definitions............................................................ 1
1.1 Authorized Person..................................................... 1
1.2 Board of Trustees..................................................... 1
1.3 Business day.......................................................... 1
1.4 CFTC.................................................................. 2
1.5 Custody Account....................................................... 2
1.6 DTC................................................................... 2
1.7 NASD.................................................................. 2
1.8 OCC................................................................... 2
1.9 Officer............................................................... 2
1.10 Proper Instructions................................................... 2
1.11 SEC................................................................... 2
1.12 Securities............................................................ 2
1.13 Securities System..................................................... 3
1.14 Shares................................................................ 3
Article II Appointment of Custodian ...................................................... 3
2.1 Appointment........................................................... 3
2.2 Acceptance............................................................ 3
Article III Custody of Cash Securities .................................................... 3
3.1 Segregation........................................................... 3
3.2 Custody Accounts...................................................... 3
3.3 Appointment of Sub-Custodians......................................... 4
3.4 Appointment of Agents................................................. 4
3.5 Delivery of Assets to Custodian....................................... 4
3.6 Securities Systems.................................................... 4
3.7 Collection of Income.................................................. 5
3.8 Disbursement of Moneys from Custody Accounts ......................... 6
3.9 Delivery of Securities from Custody Accounts ......................... 7
3.10 Bank Accounts......................................................... 9
3.11 Payments for Shares................................................... 10
3.12 Availability of Federal Funds......................................... 10
3.13 Actions Not Requiring Proper Instructions ............................ 10
3.14 Ownership Certificates for Tax Purposes............................... 10
3.15 Registration and Transfer of Securities............................... 10
3.16 Records............................................................... 11
3.17 Portfolio Reports by Custodian........................................ 11
3.18 Other Reports by Custodian............................................ 11
3.19 Proxies and Other Materials........................................... 11
3.20 Information on Corporate Actions...................................... 12
3.21 Additional Series..................................................... 12
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Article IV Purchase and Sale of Portfolio Investments .................................... 12
4.1 Purchase of Securities................................................ 12
4.2 Liability for Payment in Advance of Receipt
of Securities Purchased.......................................... 12
4.3 Sale of Securities.................................................... 13
4.4 Payment for Securities Sold........................................... 13
4.5 Advances by Custodian for Settlement.................................. 13
Article V Redemption of Portfolio Shares................................................. 13
5.1 Transfer of Funds..................................................... 13
5.2 No Duty Regarding Paying Banks........................................ 14
Article VI Segregated Accounts ........................................................... 14
Article VII Concerning the Custodian ...................................................... 15
7.1 Standard of Care...................................................... 15
7.2 No Responsibility for Title........................................... 15
7.3 Reliance Upon Documents and Instructions ............................. 15
7.4 Express Duties Only................................................... 15
7.5 Cooperation........................................................... 15
7.6 Force Majeure......................................................... 15
Article VIII Indemnification ............................................................... 16
8.1 Indemnification....................................................... 16
8.2 Indemnity to be Provided.............................................. 16
8.3 Security.............................................................. 16
Article IX Effective Period; Termination ................................................. 16
9.1 Effective Period...................................................... 16
9.2 Termination........................................................... 17
9.3 Successor Custodian................................................... 17
9.4 Continuing Obligations................................................ 17
Article X Compensation of Custodian...................................................... 18
Article XI Limitation of Liability ....................................................... 18
Article XII Notices ....................................................................... 18
Article XIII Miscellaneous.................................................................. 19
13.1 Governing Law......................................................... 19
13.2 References to Custodian............................................... 19
13.3 No Waiver............................................................. 19
13.4 Amendments............................................................ 19
13.5 Counterparts.......................................................... 19
13.6 Severability.......................................................... 20
13.7 Successors and Assigns................................................ 20
13.8 Headings.............................................................. 20
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CUSTODY AGREEMENT
This Agreement is dated as of April 1, 1997, by and between ARK Funds,
a Massachusetts business trust (the "Trust"), and FMB Trust Company, National
Association, a national association organized under the laws of the United
States (the "Custodian").
W I T N E S S E T H:
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), and is authorized to issue shares in separate series, with each such
series representing the beneficial interest in a separate portfolio of
securities and other assets; and
WHEREAS, the Trust desires to retain the Custodian to serve as
custodian for the existing series of the Trust listed in Exhibit A hereto (such
series, together with all other series subsequently established by the Trust and
made subject to this Agreement in accordance with Section 3.21, being
hereinafter referred to as the "Portfolios"); and the Custodian is willing to
furnish such services;
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Whenever used in this Agreement the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
1.1 "Authorized Person" means any officer of the Trust or other person
duly authorized by resolution of the Board of Trustees to give Proper
Instructions on behalf of the Portfolios and named in Exhibit B hereto or in
such resolutions of the Board of Trustees, certified by an officer of the Trust,
as may be received by the Custodian from time to time. The Trust will provide
the Custodian with authenticated specimen signatures of each Authorized Person.
1.2 "Board of Trustees" means the trustees from time to time serving
under the Trust's Agreement and Declaration of Trust, dated March 19, 1993, as
from time to time amended.
1.3 "Business day" means any day recognized as a settlement day by the
New York Stock Exchange, Inc. and any other day for which the Trust computes the
net asset value of a Portfolio.
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1.4 "CFTC" means the U.S. Commodity Futures Trading Commission.
1.5 "Custody Account" means any of the accounts in the name of a
Portfolio which are provided for in Section 3.2.
1.6 "DTC" means The Depository Trust Company.
1.7 "NASD" means the National Association of Securities Dealers, Inc.
1.8 "OCC" means The Options Clearing Corporation.
1.9 "Officer" of the Trust means the Chairman, President, any
Vice-President, the Secretary, any Assistant Secretary, the Treasurer, or any
Assistant Treasurer of the Trust.
1.10 "Proper Instructions" means:
(i) a writing (including, without limitation, a facsimile
transmission or tested telex) constituting a request, direction,
instruction or certification signed or initiated by or on behalf of a
Portfolio by one or more Authorized Persons or reasonably believed by
the Custodian to have been signed by such Authorized Persons;
(ii) a telephone or other oral communication by one or more
Authorized Persons or reasonably believed by the Custodian to have been
communicated by such Authorized Persons; or
(iii) a communication transmitted electronically through the
Institutional Delivery System (IDS), or any other similar electronic
instruction system acceptable to the Custodian and approved by
resolution of the Board of Trustees, a copy of which, certified by an
officer of the Trust, shall have been delivered to the Custodian.
The Trust shall cause all Proper Instructions in the form of oral
communications to be promptly confirmed in writing, as specified in clause (i)
of this Section 1.10. In the event that an oral communication is not so
confirmed, or in the event that a written confirmation differs from the related
oral communication, the Trust will hold the Custodian harmless and without
liability for any claims or losses in connection with such oral communication.
Proper Instructions may be in the form of standing instructions. In respect of
trades reported on the Trust's behalf through DTC, instructions from DTC
(whether in a DTC report or otherwise) shall constitute Proper Instructions.
1.11 "SEC" means the U.S. Securities and Exchange Commission.
1.12 "Securities" include, without limitation, common and preferred
stocks, bonds, call options, put options, debentures, notes, bank certificates
of deposit, bankers' acceptances, mortgage-backed securities, other money market
instruments or other obligations, and any certificates, receipts, warrants or
other instruments or documents representing rights to receive,
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purchase or subscribe for the same, or evidencing or representing any other
rights or interests therein, or any similar property or assets that the
Custodian has the facilities to clear and to service.
1.13 "Securities System" means (i) any clearing agency registered with
the SEC under Section 17A of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), which acts as a system for the central handling of securities
where all securities of any particular class or series of an issuer deposited
within the system are treated as fungible and may be transferred or pledged by
bookkeeping entry without physical delivery of the Securities; and (ii) the
book-entry system as provided in Subpart O of Treasury Circular ▇▇. ▇▇▇, ▇▇ ▇▇▇
▇▇▇, ▇▇▇▇▇▇▇ ▇ of 31 CFR Part 350, and the book-entry regulations of federal
agencies substantially in the form of Subpart O.
1.14 "Shares" means, with respect to a Portfolio, the units of
beneficial interest in such Portfolio issued by the Trust.
ARTICLE II
APPOINTMENT OF CUSTODIAN
2.1 Appointment. The Trust hereby constitutes and appoints the
Custodian as custodian of the assets of the Portfolios for the term and subject
to the provisions of this Agreement.
2.2 Acceptance. The Custodian hereby accepts appointment as such
custodian and agrees to perform the duties thereof as hereinafter set forth. In
performing the services to be provided to the Trust hereunder, the Custodian
agrees to comply with all relevant provisions of the 1940 Act and the
regulations, including but not limited to Rule 17f-2, promulgated thereunder.
ARTICLE III
CUSTODY OF CASH AND SECURITIES
3.1 Segregation. All securities and non-cash property held by the
Custodian for the account of a Portfolio, except securities maintained in a
Securities System pursuant to Section 3.6, shall be physically segregated from
other securities and non-cash property in the possession of the Custodian
(including the securities and non-cash property of another Portfolio) and shall
be identified as subject to this Agreement.
3.2 Custody Accounts. As to each Portfolio, the Custodian shall open
and maintain in its trust department a custody account or accounts in the name
of the Trust coupled with the name of such Portfolio, subject only to draft or
order of the Custodian, in which the Custodian
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shall enter and carry all securities, cash and other assets of such Portfolio
which are delivered to it.
3.3 Appointment of Sub-Custodians. In its discretion, the Custodian may
appoint, and at any time remove, any bank or trust company which has been
approved by the Board of Trustees and is qualified to act as a custodian under
the 1940 Act, as sub-custodian, to hold securities and cash of the Portfolios
and to carry out such other provisions of this Agreement as it may determine,
and may also open and maintain one or more banking accounts with such a bank or
trust company (any such accounts to be in the name of the Custodian on behalf of
its customers and subject only to its draft or order pursuant to the terms of
this Agreement); provided, however, that the Custodian shall have no more or
less responsibility or liability to the Trust on account of any actions or
omissions of such sub-custodian so employed than any such sub-custodian has to
the Custodian.
3.4 Appointment of Agents. The Custodian may at any time or times in
its discretion appoint (and may at any time remove) any bank or trust company
which is itself qualified under the 1940 Act to act as a custodian, as its agent
to carry out such of the provisions of this Agreement as the Custodian may from
time to time direct; provided, however, that the appointment of any agent shall
not relieve the Custodian of its responsibilities or liabilities hereunder.
3.5 Delivery of Assets to Custodian. The Trust on behalf of the
Portfolios shall deliver, or cause to be delivered, to the Custodian all
securities, cash and other assets of the Portfolios other than securities, cash
or other assets to be delivered to any sub-custodian appointed pursuant to
Section 3.3, including (i) all payments of income, payments of principal or
capital distributions received by the Portfolios with respect to such
securities, cash or other assets owned by the Portfolios at any time during the
period of this Agreement, and (ii) all cash received by the Portfolios for the
issuance, at any time during such period, of Shares. The Custodian shall not be
responsible for such securities, cash or other assets until actually received by
it.
3.6 Securities Systems. The Custodian may deposit and/or maintain
securities of the Portfolios in a Securities System, subject to the following
provisions:
(a) Prior to a deposit of securities of the Portfolios in a
particular Securities System, the Trust shall deliver to the
Custodian a resolution of the Board of Trustees, certified by
an officer of the Trust, specifically approving the use of
such Securities System as a depository for the Portfolios and
authorizing and instructing the Custodian on an ongoing basis
to deposit in such Securities System all securities eligible
for deposit therein and to make use of such Securities System
to the extent possible and practical in connection with its
performance hereunder, including, without limitation, in
connection with settlements of purchases and sales of
securities, loans of securities, and deliveries and returns of
collateral consisting of securities.
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(b) Securities of the Portfolios kept in a Securities System shall
be kept in an account (the "Depository Account") of the
Custodian in such Securities System which includes only assets
held by the Custodian as a fiduciary, custodian or otherwise
for customers.
(c) The records of the Custodian with respect to securities of any
Portfolio which are maintained in a Securities System shall
identify by book-entry those securities belonging to the
Portfolio.
(d) If securities purchased by a Portfolio are to be held in a
Securities System, the Custodian shall pay for such securities
upon (i) receipt of advice from the Securities System that
such securities have been transferred to the Depository
Account, and (ii) the making of an entry on the records of the
Custodian to reflect such payment and transfer for the account
of such Portfolio. If securities sold by a Portfolio are held
in a Securities System, the Custodian shall transfer such
securities upon (i) receipt of advice from the Securities
System that payment for such securities has been transferred
to the Depository Account, and (ii) the making of an entry on
the records of the Custodian to reflect such transfer and
payment for the account of such Portfolio.
(e) Upon request, the Custodian shall provide the Trust with
copies of any report (obtained by the Custodian from a
Securities System in which securities of the Portfolios are
kept) on the internal accounting controls and procedures for
safeguarding securities deposited in such Securities System.
(f) Anything to the contrary in this Agreement notwithstanding,
the Custodian shall not be liable to the Trust for any loss or
damage to any Portfolio resulting from the use by the
Custodian of a Securities System, unless such loss or damage
is caused by or results from the negligence or willful
misconduct on the part of the Custodian or its agents or any
of its (or their) employees; provided, however, that in the
event of any such loss or damage the Custodian shall take
reasonable steps to enforce effectively such rights as it may
have against the Securities System. At its election, the Trust
shall be subrogated to the rights of the Custodian with
respect to any claim against a Securities System or any other
person for any loss or damage to the Portfolios arising from
the use of such Securities System, if and to the extent that
the Portfolios have not been made whole for any such loss or
damage.
3.7 Collection of Income. Subject to the provisions of Section 3.15,
the Custodian shall collect on a timely basis all income and other payments with
respect to registered securities held hereunder to which each Portfolio shall be
entitled either by law or pursuant to custom in the securities business, and
shall collect on a timely basis all income and other payments with respect to
bearer securities if, on the date of payment by the issuer, such securities are
held by the Custodian or its agent hereunder and shall credit such income, as
collected, to such Portfolio's
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Custody Account. Without limiting the generality of the foregoing, the Custodian
shall detach and present for payment all coupons and other income items
requiring presentation as and when they become due and shall collect interest
when due on securities held hereunder. The collection of income due the
Portfolios on securities loaned pursuant to the provisions of Section 3.9(j)
shall be the responsibility of the Trust. The Custodian will have no duty or
responsibility in connection therewith, other than to provide the Trust with
such information or data as may be necessary to assist the Trust in arranging
for the timely delivery to the Custodian of the income to which a Portfolio is
properly entitled.
The Custodian shall promptly notify the Trust whenever income due on
securities is not collected in due course and will provide the Trust with
monthly reports of the status of past due income. Except as set forth herein,
the Custodian shall not be required to enforce collection, by legal means or
otherwise, of any money or property due and payable with respect to securities
held for a Portfolio if such securities are in default or payment is not made
after due demand or presentation.
3.8 Disbursement of Moneys from Custody Accounts. Upon receipt of
Proper Instructions from or on behalf of a Portfolio, the Custodian shall
disburse moneys from the Custody Account of the Portfolio, but only in the
following cases:
(a) For the purchase of securities for the account of the
Portfolio but only (i) in the case of securities (other than
options on securities, futures contracts and options on
futures contracts), against the delivery to the Custodian (or
any sub-custodian or agent appointed pursuant to Section 3.3
or Section 3.4, respectively) of such securities to be
registered as provided in Section 3.15 in proper form for
transfer, or if the purchase of such securities is effected
through a Securities System, in accordance with the conditions
set forth in Section 3.6; (ii) in the case of options on
securities, against delivery to the Custodian (or such
sub-custodian) of such receipts as are required by the customs
prevailing among dealers in such options; (iii) in the case of
futures contracts and options on futures contracts, against
delivery to the Custodian (or such sub-custodian) of evidence
of title thereto in favor of the Portfolio or any nominee
referred to in Section 3.15; and (iv) in the case of
repurchase or reverse repurchase agreements entered into by
the Portfolio and any other party, against delivery of the
purchased securities either in certificate form or through an
entry crediting the Custodian's (or such sub-custodian's)
account at a Securities System with such securities;
(b) In connection with the conversion, exchange or surrender of
securities owned by the Portfolio as set forth in Section
3.9(g);
(c) For the payment of any dividends or distributions declared by
the Trust on Shares of the Portfolio;
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(d) In payment of the redemption price of Shares of the Portfolio
as provided in Section 5.1;
(e) For the payment of any expense or liability incurred by the
Portfolio, including but not limited to the following payments
for the account of the Portfolio: interest; taxes; investment
management or advisory, administration, accounting, auditing,
transfer agent, custody, trustees' and legal fees; and other
operating expenses of the Portfolio; in all cases, whether or
not such expenses are to be in whole or part capitalized or
treated as deferred expenses;
(f) For transfer in accordance with the provisions of any
agreement among the Trust on behalf of the Portfolio, the
Custodian and a broker-dealer registered under the 1934 Act
and a member of the NASD, relating to compliance with rules of
the OCC and of any registered national securities exchange (or
of any similar organization or organizations), regarding
escrow or other arrangements in connection with transactions
by the Portfolio;
(g) For transfer in accordance with the provisions of any
agreement among the Trust on behalf of the Portfolio, the
Custodian and a futures commission merchant registered under
the Commodity Exchange Act, relating to compliance with the
rules of the CFTC and/or any contract market (or any similar
organization or organizations), regarding account deposits in
connection with transactions by the Portfolio;
(h) For the funding of any uncertified time deposit or other
interest-bearing account with any banking institution
(including the Custodian), which deposit or account has a term
of one year or less; and
(i) For any other proper purpose, but only upon receipt of, in
addition to Proper Instructions, a copy of a resolution of the
Board of Trustees, certified by an officer of the Trust,
specifying the amount and purpose of such payment, declaring
such purpose to be a proper corporate purpose, and naming the
person or persons to whom such payment is to be made.
3.9 Delivery of Securities from Custody Accounts. Upon receipt of
Proper Instructions from or on behalf a Portfolio, the Custodian shall release
and deliver securities from the Custody Account of the Portfolio, but only in
the following cases:
(a) Upon the sale of securities for the account of the Portfolio
but only against receipt of payment therefor;
(b) In the case of a sale effected through a Securities System, in
accordance with the provisions of Section 3.6;
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(c) To the depositary agent in connection with tender or other
similar offers for securities of the Portfolio;
(d) To the issuer thereof or its agent when such securities are
called, redeemed, retired, or otherwise become payable;
provided that, in any such case, the cash or other
consideration is to be delivered to the Custodian;
(e) To the issuer thereof or its agent (i) for transfer into the
name of the Portfolio, the Custodian or any sub-custodian or
agent appointed pursuant to Section 3.3 or Section 3.4,
respectively, or any nominee or nominees of any of the
foregoing, or (ii) for exchange for a different number of
certificates or other evidence representing the same aggregate
face amount or number of units; provided that, in any such
case, the new securities are to be delivered to the Custodian;
(f) To the broker selling securities or its clearing agent, for
examination in accordance with the "street delivery" custom;
provided that, in any such case, the Custodian shall have no
responsibility or liability for any loss arising from the
delivery of such securities prior to receiving payment for
such securities except as may arise from the Custodian's own
negligence or willful misconduct;
(g) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or
readjustment of the securities or the issuer of such
securities, or pursuant provisions for conversion contained in
such securities, or pursuant to any deposit agreement,
including surrender or receipt of underlying securities in
connection with the issuance or cancellation of depositary
receipts; provided that, in any such case, the new securities
and cash, if any, are to be delivered to the Custodian;
(h) Upon receipt of payment therefor pursuant to any repurchase or
reverse repurchase agreement related to such securities
entered into by the Portfolio;
(i) In the case of warrants, rights or similar securities, upon
the exercise thereof, the surrender thereof in the exercise of
such warrants, rights or similar securities or the surrender
of interim receipts or temporary securities for definitive
securities; provided that, in any such case, the new
securities and cash, if any, are to be delivered to the
Custodian;
(j) For delivery in connection with any loans of securities of the
Portfolio, but only against receipt by the Custodian of such
collateral as shall have specified to the Custodian in Proper
Instructions, except that in connection with any loans for
which collateral is to be credited to the Custodian's account
in the book-entry system authorized by the U.S. Department of
the Treasury, the Custodian will not be held liable or
responsible for the delivery of securities owned by the
Portfolio prior to the receipt of such collateral;
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(k) For delivery as security in connection with any borrowings by
the Portfolio requiring a pledge of assets, but only against
receipt by the Custodian of the amounts borrowed;
(l) Pursuant to any authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of
the Portfolio or the Trust;
(m) For delivery in accordance with the provisions of any
agreement among the Trust on behalf of the Portfolio, the
Custodian and a broker-dealer registered under the 1934 Act
and a member of the NASD, relating to compliance with the
rules of the OCC and of any registered national securities
exchange (or of any similar organization or organizations),
regarding escrow or other arrangements in connection with
transactions by the Portfolio;
(n) For delivery in accordance with the provisions of any
agreement among the Trust on behalf of the Portfolio, the
Custodian and a futures commission merchant registered under
the Commodity Exchange Act, relating to compliance with the
rules of the CFTC and/or any contract market (or any similar
organization or organizations), regarding account deposits in
connection with transactions by the Portfolio;
(o) Upon receipt of instructions from the transfer agent for the
Trust, for delivery to such transfer agent or to the holders
of Shares of the Portfolio in connection with distributions in
kind, in satisfaction of requests by such holders for
repurchase or redemption; and
(p) For any other proper purpose, but only upon receipt of, in
addition to Proper Instructions, a copy of a resolution of the
Board of Trustees, certified by an officer of the Trust,
specifying the securities to be delivered and the purpose for
which such delivery is to be made, declaring such purpose to
be a proper corporate purpose, and naming the person or
persons to whom delivery of such securities shall be made.
3.10 Bank Accounts. The Custodian may open and maintain a separate bank
account or accounts in the name of each Portfolio, subject only to draft or
order by the Custodian acting pursuant to the terms of this Agreement, and shall
hold in such account or accounts, subject to the provisions hereof, all cash
received by it from or for the account of the Portfolio, other than cash
maintained in a joint repurchase account with other affiliated Portfolios or in
a bank account established and used in accordance with Rule 17f-3 under the 1940
Act. Funds held by the Custodian for a Portfolio may be deposited by it to its
credit as Custodian in the banking department of the Custodian or in such other
banks or trust companies as it may in its discretion deem necessary or
desirable; provided, however, that every such bank or trust company shall be
qualified to act as a custodian under the 1940 Act and that each such bank or
trust company and the funds to be deposited with each such bank or trust company
shall be approved by the vote of
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a majority of the Board of Trustees of the Trust. Such funds shall be deposited
by the Custodian in its capacity as custodian and shall be withdrawable by the
Custodian only in that capacity. If requested by the Trust, the Custodian shall
furnish the Trust, not later than twenty (20) days after the last business day
of each month, an internal reconciliation of the closing balance as of that day
in all accounts described in this section to the balance shown on the daily cash
report for that day rendered to the Trust.
3.11 Payments for Shares. The Custodian shall make such arrangements
with the transfer agent for the Trust, as will enable the Custodian to receive
the cash consideration due to each Portfolio and will deposit into the Custody
Account of the Portfolio such payments as are received from the transfer agent.
The Custodian will provide timely notification to the Trust and the transfer
agent of any receipt by it of payments for Shares of the Portfolios.
3.12 Availability of Federal Funds. Upon mutual agreement between the
Trust and the Custodian, the Custodian shall make federal funds available to the
Portfolios as of specified times agreed upon from time to time by the Trust and
the Custodian in the amount of checks, clearing house funds, and other
non-federal funds received in payment for Shares of the Portfolios which are
deposited into the Custody Accounts.
3.13 Actions Not Requiring Proper Instructions. The Custodian may in
its discretion, without express authority from or on behalf of a Portfolio:
(a) Make payments to itself or others for minor expenses of
handling securities or other similar items relating to its
duties under this Agreement, provided that all such payments
shall be accounted for to the Portfolio;
(b) Endorse for collection, in the name of the Portfolio, checks,
drafts and other negotiable instruments;
(c) Surrender interim receipts or securities in temporary form for
securities in definitive form; and
(d) In general, and except as otherwise directed in Proper
Instructions, attend to all non-discretionary details in
connection with the sale, exchange, substitution, purchase,
transfer and other dealings with the securities and assets of
the Portfolio.
3.14 Ownership Certificates for Tax Purposes. The Custodian shall
execute any necessary declarations or certificates of ownership under the
federal income tax laws or the laws or regulations of any other taxing authority
now or hereafter in effect, and prepare and submit reports to the Internal
Revenue Service and to the Trust at such time, in such manner and containing
such information as is prescribed by the Internal Revenue Service.
3.15 Registration and Transfer of Securities. All securities held for a
Portfolio that are issued or issuable only in bearer form shall be held by the
Custodian in that form, provided that
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any such securities shall be held in a Securities System if eligible therefor.
All other securities held for a Portfolio may be registered in the name of such
Portfolio, the Custodian, or any sub-custodian or agent appointed pursuant to
Section 3.3 or Section 3.4, respectively, or in the name of any nominee of any
of them, or in the name of a Securities System or any nominee thereof. All
securities accepted by the Custodian on behalf of a Portfolio under the terms of
this Agreement shall be in "street name" or other good delivery form. If,
however, the Custodian is directed to maintain securities of a Portfolio in
"street name", the Custodian shall utilize its best efforts only timely to
collect income due the Portfolio on such securities and to notify the Portfolio
on a best efforts basis only of relevant corporate actions including, without
limitation, pendency of calls, maturities, tender or exchange offers. The Trust
shall furnish to the Custodian appropriate instruments to enable the Custodian
to hold or deliver in proper form for transfer, or to register in the name of
any of the nominees hereinabove referred to or in the name of a Securities
System, any securities registered in the name of a Portfolio.
3.16 Records. The Custodian shall create and maintain all records
relating to its activities and obligations under this Agreement in such manner
as will meet the obligations of the Trust under the 1940 Act, with particular
attention to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder. All such
records shall be the property of the Trust and shall at all times during the
regular business hours of the Custodian be open for inspection by duly
authorized officers, employees or agents of the Trust and employees and agents
of the SEC. The Custodian shall, at the Trust's request, supply the Trust with a
tabulation of securities owned by each Portfolio and held by the Custodian and
shall, when requested to do so by the Trust and for such compensation as shall
be agreed upon between the Trust and the Custodian, include certificate numbers
in such tabulations.
3.17 Portfolio Reports by Custodian. The Custodian shall furnish the
Trust with a daily activity statement by Portfolio and a summary of all
transfers to or from each Portfolio's Custody Account on the day following such
transfers. At least monthly and from time to time, the Custodian shall furnish
the Trust with a detailed statement, by Portfolio, of the securities and moneys
held for each Portfolio under this Agreement.
3.18 Other Reports by Custodian. The Custodian shall provide the Trust,
at such times as the Trust may reasonably require, with reports by independent
public accountants on the accounting system, internal accounting control and
procedures for safeguarding securities, futures contracts and options on futures
contracts, including securities deposited and/or maintained in a Securities
System, relating to the services provided by the Custodian under this Agreement;
such reports shall be of sufficient scope and in sufficient detail as may
reasonably be required by the Trust to provide reasonable assurance that any
material inadequacies would be disclosed by such examination, and, if there are
no such inadequacies, the reports shall so state.
3.19 Proxies and Other Materials. The Custodian shall cause all proxies
relating to securities which are not registered in the name of a Portfolio to be
promptly executed by the registered holder, without indication of the manner in
which such proxies are to be voted, and
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15
shall promptly deliver to the Trust such proxies, all proxy soliciting materials
and all notices to such securities.
3.20 Information on Corporate Actions. Subject to the provisions of
Section 3.15, the Custodian shall transmit promptly to the Trust for each
Portfolio all written information (including, without limitation, pendency of
calls and maturities of securities and expirations of rights in connection
therewith and notices of exercise of call and put options written by the Trust
on behalf of a Portfolio and the maturity of futures contracts purchased or sold
by the Trust on behalf of a Portfolio) received by the Custodian from issuers of
the securities being held for the Portfolio. With respect to tender or exchange
offers, the Custodian shall transmit promptly to the Trust all written
information received by the Custodian from the issuers of securities whose
tender or exchange offer is sought from the party (or his agents) making the
tender or exchange offer. If the Trust desires to take action on behalf of a
Portfolio with respect to any tender offer, exchange offer, or any other similar
transaction, the Trust shall notify the Custodian at least three (3) business
days prior to the date on which the Custodian is to take such action.
3.21 Additional Series. In the event that the Trust establishes one or
more additional series and desires to have the Custodian render services as
custodian to such series under the terms set forth in this Agreement, it shall
so notify the Custodian in writing, and if the Custodian shall agree in writing
to provide such services, such series shall become a Portfolio hereunder,
subject to such fees as the parties may agree upon in writing.
ARTICLE IV
PURCHASE AND SALE OF PORTFOLIO INVESTMENTS
4.1 Purchase of Securities. Promptly upon each purchase of securities
for a Portfolio, Proper Instructions shall be delivered to the Custodian,
specifying (i) the Portfolio for which the purchase was made, (ii) the name of
the issuer or writer of such securities, and the title or other description
thereof, (iii) the number of shares, principal amount (and accrued interest, if
any) or other units purchased, (iv) the date of purchase and settlement, (v) the
purchase price per unit, (vi) the total amount payable upon such purchase, and
(vii) the name of the person to whom such amount is payable. The Custodian
shall, upon receipt of such securities purchased by a Portfolio, pay out of the
moneys held in the Custody Account of such Portfolio the total amount specified
in such Proper Instructions to the person named therein. The Custodian shall not
be under any obligation to pay out moneys to cover the cost of a purchase of
securities for a Portfolio, if there is insufficient cash available in the
Custody Account of the Portfolio for which such purchase was made.
4.2 Liability for Payment in Advance of Receipt of Securities
Purchased. Except as provided in this Agreement, in any and every case where
payment for the purchase of securities for a Portfolio is made by the Custodian
in advance of receipt of the securities purchased but in the absence of Proper
Instructions so to pay in advance, the Custodian shall be liable to the
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16
Portfolio for such securities to the same extent as if the securities had been
received by the Custodian.
4.3 Sale of Securities. Promptly upon each sale of securities by a
Portfolio, Proper Instructions shall be delivered to the Custodian, specifying
(i) the Portfolio for which the sale was made, (ii) the name of the issuer or
writer of such securities, and the title or other description thereof, (iii) the
number of shares, principal amount (and accrued interest, if any) or other units
sold, (iv) the date of sale and settlement, (v) the sale price per unit, (vi)
the total amount payable upon such sale, and (vii) the person to whom such
securities are to be delivered. Upon receipt of the total amount payable to the
Portfolio as specified in such Proper Instructions, the Custodian shall deliver
such securities to the person specified in such Proper Instructions. Subject to
the foregoing, the Custodian may accept payment in such form as shall be
satisfactory to it, and may deliver securities and arrange for payment in
accordance with the customs prevailing among dealers in securities.
4.4 Payment for Securities Sold. In its sole discretion and from time
to time, the Custodian may credit the Custody Account of a Portfolio, prior to
actual receipt of final payment thereof, with (i) proceeds from the sale of
securities which it has been instructed to deliver against payment, (ii)
proceeds from the redemption of securities or other assets of the Portfolio, and
(iii) income from cash, securities or other assets of the Portfolio. Any such
credit shall be conditional upon actual receipt by the Custodian of final
payment and may be reversed if final payment is not actually received in full.
The Custodian may, in its sole discretion and from time to time, permit a
Portfolio to use funds so credited to its Custody Account in anticipation of
actual receipt of final payment. Any such funds shall be repayable immediately
upon demand made by the Custodian at any time prior to the actual receipt of all
final payments in anticipation of which funds were credited to the Custody
Account.
4.5 Advances by Custodian for Settlement. The Custodian may, in its
sole discretion and from time to time, advance funds to a Portfolio to
facilitate the settlement of transactions in its Custody Account. Any such
advance shall be repayable immediately upon demand by the Custodian.
ARTICLE V
REDEMPTION OF PORTFOLIO SHARES
5.1 Transfer of Funds. From such funds as may be available for the
purpose in the Custody Account of a Portfolio, and upon receipt of Proper
Instructions specifying that the funds are required to redeem Shares of the
Portfolio, the Custodian shall wire each amount specified in such Proper
Instructions to or through such bank as may be designated with respect to such
amount in such Proper Instructions.
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17
5.2 No Duty Regarding Paying Banks. The Custodian shall not be under
any obligation to effect payment or distribution by any bank designated in
Proper Instructions given pursuant to Section 5.1 of any amount paid by the
Custodian to such bank in accordance with such Proper Instructions.
ARTICLE VI
SEGREGATED ACCOUNTS
Upon receipt of Proper Instructions, the Custodian shall establish and
maintain a segregated account or accounts for and on behalf of a Portfolio, into
which account or accounts may be transferred cash and/or securities, including
securities maintained in a Depository Account:
(a) In accordance with the provisions of any agreement among the
Trust on behalf of the Portfolio, the Custodian and a
broker-dealer registered under the 1934 Act and a member of
the NASD (or any futures commission merchant registered under
the Commodity Exchange Act), relating to compliance with the
rules of the OCC and of any registered national securities
exchange (or the CFTC or any registered contract market), or
of any similar organization or organizations, regarding escrow
or other arrangements in connection with transactions by the
Portfolio;
(b) For purposes of segregating cash or securities in connection
with options purchased, sold or written by the Portfolio, or
in connection with futures contracts (or options thereon)
purchased or sold by the Portfolio;
(c) Which constitute collateral for loans of securities made by
the Portfolio;
(d) For purposes of compliance by the Trust with requirements
under the 1940 Act for the maintenance of segregated accounts
by registered investment companies in connection with reverse
repurchase agreements, and when-issued, delayed delivery and
firm commitment transactions, and other similar transactions;
and
(e) For any other proper purpose, but only upon receipt of, in
addition to Proper Instructions, a certified copy of a
resolution of the Board of Trustees, certified by an officer
of the Trust, specifying the purpose of such segregated
account and declaring such purpose to be a proper corporate
purpose.
Each segregated account established under this Article VI shall be
established and maintained for a single Portfolio only. All Proper Instructions
relating to a segregated account shall specify the Portfolio involved.
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ARTICLE VII
CONCERNING THE CUSTODIAN
7.1 Standard of Care. The Custodian shall be held to a standard of
reasonable care in carrying out the provisions of this Agreement. The Custodian
shall be entitled to rely on and may act upon advice of counsel (who may be
counsel for the Trust) on all matters, and shall be without liability for any
action reasonably taken or omitted pursuant to such advice. Subject to the
limitations set forth in this Agreement, the Custodian shall be kept indemnified
by and shall be without liability to the Trust for any action taken or omitted
by it in good faith without negligence.
7.2 No Responsibility for Title. So long as and to the extent that it
is in the exercise of reasonable care, the Custodian shall not be responsible
for the title, validity or genuineness of any property or evidence of title
thereto received or delivered by it pursuant to this Agreement.
7.3 Reliance Upon Documents and Instructions. The Custodian shall be
entitled to rely upon any certificate, notice or other instrument in writing
received by it and reasonably believed by it to be genuine. The Custodian shall
be entitled to rely upon any Proper Instructions actually received by it
pursuant to this Agreement.
7.4 Express Duties Only. The Custodian shall have no duties or
obligations whatsoever except such duties and obligations as are specifically
set forth in this Agreement, and no covenant or obligation shall be implied in
this Agreement against the Custodian.
7.5 Cooperation. The Custodian shall cooperate with and supply
necessary information, by Portfolio, to the entity or entities appointed by the
Trust to keep the books of account of the Portfolios and/or compute the net
asset value of the Portfolios. The Custodian shall take all such reasonable
actions as the Trust may from time to time request to enable the Trust to
obtain, from year to year, favorable opinions from the Trust's independent
accountants with respect to the Custodian's activities hereunder in connection
with (i) the preparation of amendments to the Trust's registration statement on
Form N-1A and of the Trust's reports on Form N-SAR and any other reports
required by the SEC, and (ii) the fulfillment by the Trust of any other
requirements of the SEC.
7.6 Force Majeure. The Custodian shall not be responsible or liable for
any failure or delay in the 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 God, earthquakes,
fires, floods, wars, civil or military disturbances, sabotage, epidemics, riots,
loss or malfunctions of utilities, transportation, computer (hardware or
software) or communications service, labor disputes, acts of civil or military
authority, governmental, judicial or regulatory actions or inability to obtain
labor, material, equipment or transportation.
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ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification. The Trust shall indemnify and hold harmless the
Custodian and its duly appointed sub-custodians and agents, and any nominee
thereof, from and against any loss, damage, cost, expense (including attorneys'
fees and disbursements), liability (including, without limitation, liability
arising under the Securities Act of 1933, as amended, the 1934 Act, the 1940
Act, and any state securities or banking laws) or claim arising, directly or
indirectly, (i) from any action or inaction pursuant to Proper Instructions or
otherwise taken at the request or direction of or in reliance on the advice of
the Trust, or (ii) from the fact that securities are registered in the name of
any such nominee, or (iii) generally, from the performance of its or their
obligations under this Agreement or any sub-custody agreement; provided,
however, that neither the Custodian nor any sub-custodian or agent shall be
indemnified and held harmless from and against any such loss, damage, cost,
expense, liability or claim arising from the failure to act in accordance with
the standard of reasonable care set forth in Section 7.1.
8.2 Indemnity to be Provided. If the Trust requests the Custodian to
take any action with respect to securities, which action involves the payment of
money or which action may, in the opinion of the Custodian, result in the
Custodian or its nominee becoming liable for the payment of money or incurring
liability of some other form, the Custodian shall not be required to take such
action until the Trust shall have provided indemnity therefor to the Custodian
in an amount and form satisfactory to the Custodian.
8.3 Security. If the Custodian advances cash or securities to a
Portfolio for any purpose, either at the Trust's request or as otherwise
contemplated in this Agreement, or in the event that the Custodian or its
nominee incurs, in connection with its performance under this Agreement, any
loss, damage, cost, expense (including attorneys' fees and disbursements),
liability or claim (except such as may arise from its or its nominee's
negligence or willful misconduct), then, in such event, any property at any time
held for the account of such Portfolio shall be security therefor, and should
such Portfolio fail promptly to repay or indemnify the Custodian, the Custodian
shall be entitled to utilize available cash of such Portfolio and to dispose of
other assets of such Portfolio to the extent necessary to obtain reimbursement
or indemnification.
ARTICLE IX
EFFECTIVE PERIOD; TERMINATION
9.1 Effective Period. This Agreement shall become effective as of its
execution and shall continue in full force and effect until terminated as
hereinafter provided.
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9.2 Termination. Either party hereto may terminate this Agreement, with
respect to one or more Portfolios, by giving to the other party a notice in
writing specifying the date of such termination, which shall be not less than
sixty (60) days after the date of the giving of such notice. The notice shall
specify the Portfolios to which the termination relates (the "Terminated
Portfolios"). The Trust may at any time immediately terminate this Agreement in
the event of the appointment of a conservator or receiver for the Custodian by
regulatory authorities or upon the happening of a like event at the direction of
an appropriate regulatory agency or court of competent jurisdiction.
9.3 Successor Custodian. If a successor custodian for one or more
Terminated Portfolios shall have been appointed by the Board of Trustees, the
Custodian shall, upon receipt of a notice of acceptance by the successor
custodian, on such specified date of termination (i) deliver directly to the
successor custodian all securities (other than securities held in a Securities
System) and cash then owned by the benefit of the Terminated Portfolios and held
by the Custodian as custodian, and (ii) transfer any securities held in a
Securities System to an account of or for the Terminated Portfolios at the
successor custodian, provided that the Trust on behalf of the Terminated
Portfolios shall have paid to the Custodian all fees, expenses and other amounts
to the payment or reimbursement of which it shall then be entitled. Upon such
delivery and transfer, the Custodian shall be relieved of all obligations under
this Agreement with respect to the Terminated Portfolios. If a successor
custodian is not designated by the Trust on or before the date of termination
specified pursuant to Section 9.2, then the Custodian shall have the right to
deliver to a bank or trust company of its own selection, which (i) is a "bank"
as defined in the 1940 Act, (ii) has aggregate capital, surplus and undivided
profits as shown on its then most recent public report of not less than $25
million, and (iii) is doing business in New York, New York, all securities, cash
and other property held by the Custodian under this Agreement and to transfer to
an account of or for the benefit of the Terminated Portfolios at such bank or
trust company all securities of the Terminated Portfolios held in a Securities
System. Upon such delivery and transfer, such bank or trust company shall be the
successor custodian for the Terminated Portfolios under this Agreement and the
Custodian shall be relieved of all obligations with respect to the Terminated
Portfolios under this Agreement. If, after reasonable inquiry, the Custodian
cannot find a successor custodian as contemplated in this Section 9.3, then the
Custodian shall have the right to deliver to the Trust all securities and cash
of the Terminated Portfolios and to transfer any securities held in a Securities
System to an account of or for the benefit of the Trust. Thereafter, the Trust
shall be deemed to be its own custodian with respect to the securities, cash and
other assets of the Terminated Portfolios and the Custodian shall be relieved of
all obligations with respect to the Terminated Portfolios under this Agreement.
9.4 Continuing Obligations. Nothing contained in this Article IX shall
be construed to excuse the Trust from payment of all charges due and payable to
the Custodian. The provisions of Section 13.2, "References to Custodian",
Article VII, "Concerning the Custodian" and Article VIII, "Indemnification"
shall survive the termination or expiration of this Agreement for any reason.
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ARTICLE X
COMPENSATION OF CUSTODIAN
The Custodian shall be entitled to compensation as agreed upon from
time to time by the Trust and the Custodian. The fees and other charges in
effect on the date hereof and applicable to the Portfolios are set forth in
Exhibit C hereto.
ARTICLE XI
LIMITATION OF LIABILITY
It is expressly agreed that the obligations of the Trust hereunder
shall not be binding upon any of the trustees, shareholders, nominees, officers,
agents or employees of the Trust personally, but shall bind only the trust
property of the Trust as provided in the Trust's Agreement and Declaration of
Trust, dated March 19, 1993, as from time to time amended. The execution and
delivery of this Agreement have been authorized by the trustees of the Trust,
and this Agreement has been signed and delivered by an authorized officer of the
Trust, acting as such, and neither such authorization by the trustees nor such
execution and delivery by such officer shall be deemed to have been made by any
of them individually or to impose any liability on any of them personally, but
shall bind only the trust property of the Trust as provided in the
above-mentioned Agreement and Declaration of Trust.
ARTICLE XII
NOTICES
Unless otherwise specified herein, all demands, notices, instructions
and other communications to be given hereunder shall be in writing and shall be
sent or delivered to the recipient at the address set forth after its name
herein below:
If to the Trust:
ARK Funds
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
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If to the Custodian:
FMB Trust Company, National Association
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as either party shall have provided to the other by
notice given in accordance with this Article XII. Writing shall include
transmission by or through teletype, facsimile, central processing unit
connection, on-line terminal and magnetic tape.
ARTICLE XIII
MISCELLANEOUS
13.1 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Maryland.
13.2 References to Custodian. The Trust shall not circulate any printed
matter which contains any reference to the Custodian without the prior written
approval of the Custodian, excepting printed matter contained in any prospectus
or statement of additional information for the Portfolios and such other printed
matter as merely identifies the Custodian as custodian for the Portfolios. The
Trust shall submit printed matter requiring approval to the Custodian in draft
form, allowing sufficient time for review by the Custodian and its counsel prior
to any deadline for printing.
13.3 No Waiver. No failure by either party hereto to exercise, and no
delay by such party in exercising, any right hereunder shall operate as a waiver
thereof. The exercise by either party hereto of any right hereunder shall not
preclude the exercise of any other right, and the remedies provided herein are
cumulative and not exclusive of any remedies provided at law or in equity.
13.4 Amendments. This Agreement cannot be changed orally and no
amendment to this Agreement shall be effective unless evidenced by an instrument
in writing executed by the parties hereto.
13.5 Counterparts. This Agreement may be executed in one or more
counterparts, and by the parties hereto on separate counterparts, each of which
shall be deemed an original but all of which together shall constitute but one
and the same instrument.
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13.6 Severability. If any provision of this Agreement shall be invalid,
illegal or unenforceable in any respect under any applicable law, the validity,
legality and enforceability of the remaining provisions shall not be affected or
impaired thereby.
13.7 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns; provided, however, that this Agreement shall not be assignable by
either party without the written consent of the other.
13.8 Headings. The headings of sections in this Agreement are for
convenience of reference only and shall not affect the meaning or construction
of any provision of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered in its name and on its behalf by its
representatives thereunto duly authorized, all as of the day and year first
above written.
ATTEST: ARK FUNDS
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- --------------------------------
Secretary ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
ATTEST: FMB TRUST COMPANY, NATIONAL
ASSOCIATION
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------- --------------------------------
Vice President ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
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Exhibit A
to the
Custody Agreement
The Trust is retaining the Custodian to serve as custodian for the
following series of the Trust:
U.S. Treasury Money Market Portfolio
U.S. Government Money Market Portfolio
Money Market Portfolio
Tax-Free Money Market Portfolio
Short-Term Treasury Portfolio
Intermediate Fixed Income Portfolio
Income Portfolio
Maryland Tax-Free Portfolio
Pennsylvania Tax-Free Portfolio
Balanced Portfolio
Equity Income Portfolio
Equity Index Portfolio
Blue Chip Equity Portfolio
Large-Cap Value Portfolio
Mid-Cap Equity Portfolio
Stock Portfolio
Capital Growth Portfolio
Special Equity Portfolio
International Equity Portfolio
Dated: April 1, 1997
DD initials
------
KJ initials
------
25
Exhibit B
to the
Custody Agreement
The undersigned certifies that the following persons have been duly
authorized by resolution of the Board of Trustees of the Fund to give Proper
Instructions on behalf of the Fund to the Custodian:
NAME, TITLE: SIGNATURE:
------------ ----------
Trust Officers:
-----------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Other Persons Authorized to Give Proper Instructions
U.S. Treasury Money Market Portfolio
U.S. Government Money Market Portfolio
Money Market Portfolio
Tax-Free Money Market Portfolio
Income Portfolio
Maryland Tax-Free Portfolio
Short-Term Treasury Portfolio
Intermediate Fixed Income Portfolio
Pennsylvania Tax-Free Portfolio
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
26
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Special Equity Portfolio
Capital Growth Portfolio
Mid-Cap Equity Portfolio
Equity Income Portfolio
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇. ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇. ▇▇▇▇▇ Knight
-----------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇ /s/ ▇▇▇▇ ▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------
Balanced Portfolio
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇. ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇. ▇▇▇▇▇ Knight
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
-----------------------------------
▇-▇
▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇ /s/ ▇▇▇▇ ▇▇▇
-----------------------------------
Blue Chip Equity Portfolio
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇. ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇. ▇▇▇▇▇ Knight
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇ /s/ ▇▇▇▇ ▇▇▇
-----------------------------------
Stock Portfolio
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇. ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇. ▇▇▇▇▇ Knight
-----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇ /s/ ▇▇▇▇ ▇▇▇
-----------------------------------
ARK FUNDS
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
and Secretary
Dated: June 20, 1997
B-3
28
Exhibit C
to the
Custody Agreement
Annual Fee
For the services to be provided to the Trust pursuant to the Custody
Agreement, the Trust shall pay the Custodian a fee at the annual rate of 1.5
basis points of the market value of the assets of the Portfolios. Such fee shall
be computed and paid monthly at one-twelfth of the annual rate.
Transaction Fees
Security transactions initiated by the investment adviser, including market
executions, subscriptions, tenders, redemptions, maturities, receipts,
deliveries, and mortgage-backed principal pay-downs, shall be computed as
follows:
$15 per book-entry security transaction
$25 per physical security transaction
$75 per EuroClear transaction
$5 per principal pay-down
$15 per wire transfer (outgoing wires only)
Expenses
Out-of-pocket expenses including telephone, legal, postage and
insurance, telex, telecopier, supplies, stationery and forms.
Dated: April 1, 1997
DD initials
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KJ initials
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