CUSTODIAN AGREEMENT
Marquis Funds
This Agreement, dated as of the 17th day of August, 1993 by and
between Marquis Funds (the "Trust"), a business trust operating as an open-end
investment company, duly organized under the laws of the Commonwealth of
Massachusetts and First National Bank of Commerce in New Orleans,
WITNESSETH:
WHEREAS, the Trust desires to deposit part of its cash with First
National Bank of Commerce in New Orleans as custodian; and
WHEREAS, First National Bank of Commerce in New Orleans is qualified
and authorized to act as custodian for the cash of an open-end investment
company and is willing to act in such capacity upon the terms and conditions
herein set forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto, intending to be legally bound,
do hereby agree as follows:
SECTION 1. The terms as defined in this Section wherever used in this
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Agreement, or in any amendment or supplement hereto, shall have meanings herein
specified unless the context otherwise requires.
CUSTODIAN: The term Custodian shall mean First National Bank of Commerce in New
Orleans in its capacity as Custodian under this Agreement.
PROPER INSTRUCTIONS: For purposes of this Agreement the Custodian shall be
deemed to have received Proper Instructions upon receipt of written (including
instructions received by means of computer terminals), telephone or telegraphic
instructions from a person or persons authorized from time to time by the
Trustees of the Trust or by the Board of Directors of an investment adviser for
the Trust to give the particular class of instructions. Telephone or
telegraphic instructions shall be confirmed in writing by such person or persons
as said Trustees or said Board of Directors shall have from time to time
authorized to give the particular class of instructions in question. The
Custodian may act upon telephone or telegraphic instructions without awaiting
receipt of written confirmation, and shall not be liable for the Trust's or such
investment adviser's failure to confirm such instructions in writing.
UNITHOLDERS: The term Unitholders shall mean the registered owners from time to
time of the Units of the Trust in accordance with the registry records
maintained by the
Trust or agents on its behalf.
UNITS: The term Units of the Trust shall mean the units of beneficial interest
of the Trust.
SECTION 2. The Trust shall from time to time file with the Custodian a
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certified copy of each resolution of its Board of Trustees authorizing the
person or persons to give Proper Instructions (as defined in Section 1) and
specifying the class of instructions that may be given by each person to the
Custodian under this Agreement, together with certified signatures of such
persons authorized to sign, which shall constitute conclusive evidence of the
authority of the officers and signatories designated therein to act, and shall
be considered in full force and effect with the Custodian fully protected in
acting in reliance thereon until it receives written notice to the contrary;
provided, however, that if the certifying officer is authorized to give Proper
Instructions, the certification shall be also signed by a second officer of the
Trust.
SECTION 3. The Trust hereby appoints the Custodian as custodian of part of the
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Trust's cash from time to time on deposit hereunder, to be held by the Custodian
and applied as provided in this Agreement. The Custodian hereby accepts such
appointment subject to the terms and conditions hereinafter provided. Such cash
shall, however, be segregated from the assets of others and shall be and remain
the sole property of the Trust and the Custodian shall have only the bare
custody thereof.
SECTION 4. The Trust will make an initial deposit of cash to be held and
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applied by the Custodian hereunder. Thereafter the Trust will cause to be
deposited with the Custodian hereunder the applicable net asset value of Units
sold from time to time whether representing initial issue, other stock or
reinvestments of dividends and/or distributions payable to Unitholders.
SECTION 5. The Custodian is hereby authorized and directed to disburse cash
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from time to time upon receipt of proper instructions.
SECTION 6. The Custodian's compensation shall be paid at an annual rate of .15%
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(15 basis points). Such compensation shall be paid to the Custodian at the end
of each month, and calculated by applying a daily rate, based on the annual
percentage rate of .15% or such other rates as shall be set forth in amendments
to this agreement approved by the Trust and the Custodian. The custodian shall
not be entitled to any transaction charges.
SECTION 7. In connection with its functions under this Agreement, the Custodian
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shall:
(a) render to the Trust a daily report of all monies received or paid on
behalf of the Trust.
(b) create, maintain and retain all records relating to its activities and
obligations
under this Agreement in such manner as will meet the obligations of
the Trust with respect to said Custodian's activities in accordance
with generally accepted accounting principles. All records maintained
by the Custodian in connection with the performance of its duties
under this Agreement will remain the property of the Trust and in the
event of termination of this Agreement will be relinquished to the
Trust.
(c) collect on a timely basis all income and other payments with respect
to United States 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 United States bearer securities if,
on the date of payment by issuer, such securities are held by the
Custodian or its agent and shall credit such income, as collected, to
such Portfolio's custodian account. Without limiting the generality
of the forgoing, 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.
SECTION 8. No liability of any kind shall be attached to or incurred by the
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Custodian by reason of its custody of the trusts or assets held by it from time
to time under this Agreement, or otherwise by reason of its position as
custodian hereunder except only for its own negligence, bad faith, or willful
misconduct in the performance of its duties as specifically set forth in the
Agreement. Without limiting the generality of the foregoing sentence, the
Custodian:
(a) may rely upon the advice of counsel, who may be counsel for the Trust
or for the Custodian, and upon statements of accountants, brokers and
other persons believed by it in good faith to be expert in the matters
upon which they are consulted; and for any action taken or suffered in
good faith based upon such advice or statements the Custodian shall
not be liable to anyone;
(b) shall not be liable for anything done or suffered to be done in good
faith in accordance with any request or advice of, or based upon
information furnished by, the Trust or its authorized officers or
agents;
(c) is authorized to accept a certificate of the Secretary or assistant
Secretary of the Trust, or Proper Instructions, to the effect that a
resolution in the form submitted has been duly adopted by its Board of
Trustees or by the Unitholders, as conclusive evidence that such
resolution has been duly adopted and is in full force and effect;
(d) may rely and shall be protected in acting upon any signature, written
(including telegraph or other mechanical) instructions, request,
letter of transmittal, certificate, opinion of counsel, statement,
instrument, report, notice, consent, order, or other paper or document
reasonably believed by it to be genuine and to have been signed,
forwarded or presented by the purchaser, Trust or other proper party
or parties.
SECTION 9. The Trust, its successors and assigns hereby indemnify and hold
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harmless the Custodian, its successors and assigns, of and from any and all
liability whatsoever arising out of or in connection with the Custodian's
status, acts, or omissions under this Agreement, except only for liability
arising out of the Custodian's own negligence, bad faith, or willful misconduct
in the performance of its duties specifically set forth in this Agreement.
Without limiting the generality of the foregoing, the Trust, its successors and
assigns do hereby fully indemnify and hold harmless the Custodian its successors
and assigns, from any and all loss, liability, claims, demand, actions, suits
and expenses of any nature as the same may arise from the failure of the Trust
to comply with any law, rule, regulation or order of the United States, any
State or any other jurisdiction, governmental authority, body, or board relating
to the sale, registration, qualification of units of beneficial interest in the
Trust, or from the failure of the Trust to perform any duty or obligation under
this Agreement.
Upon written request of the Custodian, the Trust shall assume the entire defense
of any claim subject to the foregoing indemnity, or the joint defense with the
Custodian of such claim, as the Custodian shall request. The indemnities and
defense provisions of this Section 9 shall indefinitely survive termination of
this Agreement.
SECTION 10. This agreement may be amended from time to time without notice to
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or approval of the Unitholders by a supplemental agreement executed by the Trust
and the Custodian and amending and supplementing this Agreement in the manner
mutually agreed.
SECTION 11. Either the Trust or the Custodian may give one hundred twenty (120)
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days' written notice to the other of the termination of this Agreement, such
termination to take effect at the time specified in the notice. In case such
notice of termination is given either by the Trust or by the Custodian, the
Trustees of the Trust shall, by resolution duly adopted, promptly appoint a
Successor Custodian which Successor Custodian shall be a bank, trust company, or
a bank and trust company in good standing, with legal capacity to accept custody
of the cash of a mutual fund. Upon receipt of written notice from the Trust of
the appointment of such successor and upon receipt of Proper Instructions, the
Custodian shall deliver such cash as it may then be holding hereunder directly
and only to the Successor Custodian. Unless or until a Successor Custodian has
been appointed as above provided, the Custodian then acting shall continue to
act as Custodian under this Agreement.
Every Successor Custodian appointed hereunder shall execute and deliver an
appropriate written acceptance of its appointment and shall thereupon become
vested with the rights, powers, obligations and custody of its predecessor
Custodian. The Custodian ceasing to act shall nevertheless, upon request of the
Trust and the Successor Custodian and upon payment of its charges and
disbursements, execute an instrument in form approved by its counsel
transferring to the Successor Custodian all the predecessor Custodian's rights,
duties, obligations and custody.
In case the Custodian shall consolidate with or merge into any other
corporation, the corporation remaining after or resulting from such
consolidation or merger shall ipso facto without the execution of filing of any
papers or other documents, succeed to and be substituted for the Custodian with
like effect as though originally named as such.
SECTION 12. This Agreement shall take effect when assets of the Trust are first
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delivered to the Custodian.
SECTION 13. This Agreement may be executed in two or more counterparts, each of
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which when so executed shall be deemed to be an original, but such counterparts
shall together constitute but one and the same instrument.
SECTION 14. A copy of the Declaration of Trust of the Trust is on file with the
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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 not individually and that the obligations of this instrument are not binding
upon any of the Trustees, officers or unitholders of the Trust individually, but
binding only upon the assets and property of the Trust.
SECTION 15. The Custodian shall create and maintain all records relating to its
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activities and obligations under this Agreement in such manner as will meet the
obligations of the Trust under the Investment Company Act of 1940, with
particular attention to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder,
applicable Federal and state tax laws and any other law or administrative rules
or procedures which may be applicable to the Trust.
Subject to security requirements of the Custodian applicable to its own
employees having access to similar records within the Custodian and such
regulations as to the conduct of such monitors as may be reasonably imposed by
the Custodian after prior consultation with an officer of the Trust the books
and records of the Custodian pertaining to its actions under this Agreement
shall be open to inspection and audit at any reasonable times by officers of,
attorneys for, and auditors employed by, the Trust.
SECTION 16. Nothing contained in this Agreement is intended to or shall require
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the Custodian in any capacity hereunder to perform any functions or duties on
any holiday or
other day of special observance on which the Custodian is closed. Functions or
duties normally scheduled to be performed on such days shall be performed on,
and as of, the next business day the Custodian is open.
SECTION 17. This Agreement shall extend to and shall be binding upon the
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parties hereto and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by the Trust without the written
consent of the Custodian, or by the Custodian without the written consent of the
Trust, authorized or approved by a resolution of its Board of Trustees.
IN WITNESS WHEREOF, the Trust and the Custodian have caused this Agreement to be
signed by their respective officers as of the day and year first above written.
Marquis Funds
By: /s/
First National Bank of Commerce in New Orleans
By: /s/
