EXHIBIT 99.B5(c)
INVESTMENT ADVISORY AGREEMENT
MARQUIS FUNDS
AGREEMENT made this 31st day of May, 1996, by and between Marquis
Funds, a Massachusetts business trust (the "Trust"), and First National Bank of
Commerce in New Orleans, (the "Adviser").
WHEREAS, the Trust is an open-end, management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), consisting of several series of shares, each having its own investment
policies; and
WHEREAS, the Trust has retained SEI Financial Management Corporation
(the "Administrator") to provide administration of the Trust's operations,
subject to the supervision of the Board of Trustees;
WHEREAS, the Trust desires to retain the Adviser to render investment
management services with respect to its Tax Exempt Money Market Fund and such
other portfolios as the Trust and the Adviser may agree upon from time to time
(the "Portfolios"), and the Adviser is willing to render such services;
WHEREAS, the Adviser, with the approval of the Board of Trustees, may
appoint one or more sub-advisers for the Portfolios;
NOW, THEREFORE, in consideration of mutual covenants herein contained,
the parties hereto agree as follows:
1. Duties of the Adviser. The Trust employs the Adviser to manage
the investment and reinvestment of the assets, to supervise and
monitor the investment activities of any sub-advisers appointed
for the Portfolios by the Board of Trustees, and to continuously
review, supervise, and administer the investment program of the
Portfolios, to determine in its discretion the securities to be
purchased or sold, to provide the Administrator and the Trust
with records concerning the Adviser's activities which the Trust
is required to maintain, and to render regular reports to the
Administrator and to the Trust's Officers and Trustees concerning
the Adviser's discharge of the foregoing responsibilities. The
retention of a sub-adviser by the Adviser shall not relieve the
Adviser of its responsibilities under this Agreement.
The Adviser shall discharge the foregoing responsibilities
subject to the control of the Board of Trustees of the Trust and
in compliance with such policies as the Trustees may from time to
time establish, and in compliance with the objectives, policies,
and limitations for each such Portfolio set forth in the Trust's
prospectus and statement of additional information as amended
from time to time, and applicable laws and regulations.
The Adviser accepts such employment and agrees, at its own
expense, to render the services and to provide the office space,
furnishings and equipment and the personnel required by it to
perform the services on the terms and for the compensation
provided herein.
2. Portfolio Transactions. The Adviser is authorized to select the
brokers or dealers that will execute the purchases and sales of
portfolio securities for the Portfolios and is directed to use
its best efforts to obtain the best net results as described in
the Trust's prospectus and statement of additional information
from time to time. The Adviser will promptly communicate to the
Administrator and to the officers and the Trustees of the Trust
such information relating to portfolio transactions as they may
reasonably request.
It is understood that the Adviser will not be deemed to have
acted unlawfully, or to have breached a fiduciary duty to the
Trust or be in breach of any obligation owing to the Trust under
this Agreement, or otherwise, solely by reason of its having
directed a securities transaction on behalf of the Trust to a
broker-dealer in compliance with the provisions of Section 28(e)
of the Securities Exchange Act of 1934, as amended.
3. Compensation of the Adviser. For the services to be rendered by
the Adviser as provided in Sections 1 and 2 of this Agreement,
the Trust shall pay to the Adviser compensation at the rate
specified in the Schedule(s) which are attached hereto and made a
part of this Agreement. Such compensation shall be paid to the
Adviser at the end of each month, and calculated by applying a
daily rate, based on the annual percentage rates as specified in
the attached Schedule(s), to the assets. The fee shall be based
on the average daily net assets for the month involved.
All rights of compensation under this Agreement for services
performed as of the termination date shall survive the
termination of this Agreement.
4. Other Expenses. The Adviser shall pay all compensation, if any,
of officers or trustees of the Trust who are affiliated persons
of the Adviser or any affiliated corporation of the Adviser, all
expenses of preparing (including typesetting), printing and
mailing reports, prospectuses, statements of additional
information, and sales literature to prospective clients to the
extent these expenses are not borne by the Trust under a
distribution plan adopted pursuant to Rule 12b-1.
5. Excess Expenses. If the expenses for any Portfolio for any
fiscal year (including fees and other amounts payable to the
Adviser, but excluding interest, taxes, brokerage costs,
litigation, and other extraordinary costs) as calculated every
business day would exceed the expense limitations imposed on
investment companies by any applicable statute or regulatory
authority of any jurisdiction in
which Shares are qualified for offer and sale, the Adviser shall
bear such excess cost.
However, the Adviser will not bear expenses of the Trust or any
Portfolio which would result in the Trust's inability to qualify
as a regulated investment company under provisions of the
Internal Revenue Code. Payment of expenses by the Adviser
pursuant to this Section 5 shall be settled on a monthly basis
(subject to fiscal year end reconciliation) by a reduction in the
fee payable to the Adviser for such month pursuant to Section 3
and, if such reduction shall be insufficient to offset such
expenses, by reimbursing the Trust.
6. Reports. The Trust and the Adviser agree to furnish to each
other, if applicable, current prospectuses, proxy statements,
reports to shareholders, certified copies of their financial
statements, and such other information with regard to their
affairs as each may reasonably request.
7. Status of the Adviser. The services of the Adviser to the Trust
are not to be deemed exclusive, and the Adviser shall be free to
render similar services to others so long as its services to the
Trust are not impaired thereby. The Adviser shall be deemed to be
an independent contractor and shall, unless otherwise expressly
provided or authorized, have no authority to act for or represent
the Trust in any way or otherwise be deemed an agent of the
Trust.
8. Certain Records. Any records required to be maintained and
preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2
promulgated under the 1940 Act which are prepared or maintained
by the Adviser on behalf of the Trust are the property of the
Trust and will be surrendered promptly to the Trust on request.
9. Limitation of Liability of the Adviser. The duties of the
Adviser shall be confined to those expressly set forth herein,
and no implied duties are assumed by or may be asserted against
the Adviser hereunder. The Adviser shall not be liable for any
error of judgment or mistake of law or for any loss arising out
of any investment or for any act or omission in carrying out its
duties hereunder, except a loss resulting from willful
misfeasance, bad faith or gross negligence in the performance of
its duties, or by reason of reckless disregard of its obligations
and duties hereunder, except as may otherwise be provided under
provisions of applicable state law which cannot be waived or
modified hereby. (As used in this Paragraph 9, the term "Adviser"
shall include directors, officers, employees and other corporate
agents of the Adviser as well as that corporation itself).
So long as the Adviser acts in good faith and with due diligence
and without gross negligence or willful misconduct, the Trust
assumes full responsibility and agrees to and hereby does
indemnify the Adviser and hold it harmless from and against any
and all actions, suits and claims, whether groundless or
otherwise, and from and against any and all losses, damages,
costs, charges, reasonable counsel fees
and disbursements, payments, expenses and liabilities (including
reasonable investigation expenses) arising directly or indirectly
out of said advisory relationship to the Trust or any other
service rendered to the Trust hereunder. The indemnity and
defense provisions set forth herein shall indefinitely survive
the termination of this Agreement.
The Adviser's rights hereunder shall include the right to
reasonable advances of defense expenses in the event of any
pending or threatened litigation with respect to which
indemnification hereunder may ultimately be merited if a majority
of the disinterested Trustees or independent legal counsel
determines that there is a reasonable belief that indemnification
ultimately will be permissible. However, if it is ultimately
determined that the Adviser is not entitled to indemnification,
all funds advanced must be returned to the Trust.
In order that the indemnification provision contained herein
shall apply, however, it is understood that if in any case the
Trust may be asked to indemnify or hold the Adviser harmless, a
determination must be made either by a vote of a majority of the
disinterested Trustees or by opinion of independent legal counsel
that indemnification is available. In addition, the Trust shall
be fully and promptly advised of all pertinent facts concerning
the situation in question, and it is further understood that the
Adviser will use all reasonable care to identify and notify the
Trust promptly concerning any situation which presents or appears
likely to present the probability of such a claim for
indemnification against the Trust, but failure to do so in good
faith shall not affect the Adviser's rights hereunder.
10. Permissible Interests. Trustees, agents, and shareholders of the
Trust are or may be interested in the Adviser (or any successor
thereof) as directors, partners, officers, or shareholders, or
otherwise; directors, partners, officers, agents, and
shareholders of the Adviser are or may be interested in the Trust
as Trustees, shareholders or otherwise; and the Adviser (or any
successor) is or may be interested in the Trust as a shareholder
or otherwise. In addition, brokerage transactions for the Trust
may be effected through affiliates of the Adviser or any sub-
adviser if approved by the Board of Trustees, subject to the
rules and regulations of the Securities and Exchange Commission.
11. Duration and Termination. This Agreement, unless sooner
terminated as provided herein, shall remain in effect until two
years from date of execution, and thereafter, for periods of one
year so long as such continuance thereafter is specifically
approved at least annually (a) by the vote of a majority of those
Trustees of the Trust who are not parties to this Agreement or
interested persons of any such party, cast in person at a meeting
called for the purpose of voting on such approval, and (b) by the
Trustees of the Trust or by vote of a majority of the outstanding
voting securities of each Portfolio; provided, however, that if
the shareholders of any Portfolio fail to approve the Agreement
as provided herein, the Adviser may continue to serve hereunder
in the manner and to the extent permitted
by the 1940 Act and rules and regulations thereunder. The
foregoing requirement that continuance of this Agreement be
"specifically approved at least annually" shall be construed in a
manner consistent with the 1940 Act and the rules and regulations
thereunder.
This Agreement may be terminated as to any Portfolio at any time,
without the payment of any penalty by vote of a majority of the
Trustees of the Trust or by vote of a majority of the outstanding
voting securities of the Portfolio on not less than 30 days nor
more than 60 days written notice to the Adviser, or by the
Adviser at any time without the payment of any penalty, on 90
days written notice to the Trust. This Agreement will
automatically and immediately terminate in the event of its
assignment. Any notice under this Agreement shall be given in
writing, addressed and delivered, or mailed postpaid, to the
other party at any office of such party.
As used in this Section 11, the terms "assignment", "interested
persons", and a "vote of a majority of the outstanding voting
securities" shall have the respective meanings set forth in the
1940 Act and the rules and regulations thereunder; subject to
such exemptions as may be granted by the Securities and Exchange
Commission under said Act.
12. Notice. Any notice required or permitted to be given by either
party to the other shall be deemed sufficient if sent by
registered or certified mail, postage prepaid, addressed by the
party giving notice to the other party at the last address
furnished by the other party to the party giving notice: if to
the Trust, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇, and if to the Adviser at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
13. Severability. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise,
the remainder of this Agreement shall not be affected thereby.
A copy of the Agreement and Declaration of Trust of the Trust is on file with
the Secretary of The Commonwealth of Massachusetts, and notice is hereby given
that this instrument is executed on behalf of the Trustees of the Trust as
Trustees, and are not binding upon any of the Trustees, officers, or
shareholders of the Trust individually but binding only upon the assets and
property of the Trust.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of the day and year first written above.
Marquis Funds First National Bank of Commerce in
New Orleans
By: /s/ ▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇
Attest: [SIGNATURE ILLEGIBLE] Attest: [SIGNATURE ILLEGIBLE]
Schedule A
to the
Investment Advisory Agreement
between
Marquis Funds
and
First National Bank of Commerce in New Orleans
Pursuant to Article 3, the Trust shall pay the Adviser compensation at an annual
rate as follows:
Portfolio Fee
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Tax Exempt Money Market Fund .45%