MEMORIAL FUNDS
SUBADVISORY AGREEMENT
AGREEMENT made as of the 29th day of November, 2002, by and among Memorial
Funds, a Delaware business trust, with its principal office and place of
business at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ 77057(the "Trust"),
Parkway Advisors, L.P., a Texas limited partnership, with its principal office
and place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the
"Adviser"), and PPM America, Inc., a Delaware corporation, with its principal
office and place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Subadviser").
WHEREAS, Adviser has entered into an Investment Advisory Agreement dated
the 1st day of October 2002, ("Advisory Agreement") with the Trust;
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended, (the "1940 Act"), as an open-end, management investment company and
may issue its shares of beneficial interest, no par value (the "Shares"), in
separate series;
WHEREAS, pursuant to the Advisory Agreement, and subject to the direction
and control of the Board of Trustees of the Trust (the "Board"), the Adviser
acts as investment adviser for each series of the Trust listed on Schedule A
hereto (each, a "Fund" and, collectively, the "Funds");
WHEREAS, the Trust and Adviser desire to retain the Subadviser to perform
investment advisory services for the Fund and Subadviser is willing to provide
those services on the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Adviser and the Subadviser hereby agree as
follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The Trust and the Adviser hereby employ Subadviser, subject to the
direction and control of the Board, to manage the investment and reinvestment of
the assets in each Fund and, without limiting the generality of the foregoing,
to provide other services as specified herein. The Subadviser accepts this
employment and agrees to render its services for the compensation set forth
herein.
(b) In connection therewith, the Trust has delivered to the Subadviser
copies of (i) the Trust's Trust Instrument, (ii) the Trust's Registration
Statement and all amendments thereto filed with the U.S. Securities and Exchange
Commission ("SEC") pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), or the 1940 Act (the "Registration Statement"), (iii) the
Trust's current Prospectuses and Statements of Additional Information of each
Fund (collectively, as currently in effect and as amended or supplemented, the
"Prospectus"), and (iv) all procedures adopted by the Trust with respect to any
Fund (i.e., repurchase agreement
Memorial Funds Form N-1A - Exhibit (d)(2) Page 1
procedures), and shall promptly furnish the Subadviser with all amendments of or
supplements to the foregoing. The Trust shall deliver to the Subadviser (x) a
certified copy of the resolution of the Board appointing the Subadviser and
authorizing the execution and delivery of this Agreement, (y) a copy of all
proxy statements and related materials relating to any Fund, and (z) any other
documents, materials or information that the Subadviser shall reasonably request
to enable it to perform its duties pursuant to this Agreement.
(c) The Subadviser has delivered to the Adviser and the Trust (i) a copy of
its Form ADV as most recently filed with the SEC and (ii) a copy of its code of
ethics complying with the requirements of Rule 17j-1 under the 1940 Act (the
"Code"). The Subadviser shall promptly furnish the Adviser and Trust with all
amendments of or supplements to the foregoing at least annually.
SECTION 2. DUTIES OF THE TRUST AND ADVISER
(a) In order for the Subadviser to perform the services required by this
Agreement, the Trust and the Adviser (i) shall, cause all service providers to
the Trust to furnish information relating to any Fund to the Subadviser and
assist the Subadviser as may be required and (ii) shall ensure that the
Subadviser has reasonable access to all records and documents maintained by the
Adviser, the Trust or any service provider to the Trust.
(b) In order for the Subadviser to perform the services required by this
Agreement, the Adviser shall deliver to the Subadviser all material it provides
to the Board in accordance with the Advisory Agreement.
SECTION 3. DUTIES OF THE SUBADVISER
(a) The Subadviser is hereby authorized to make decisions with respect to
all purchases and sales of securities and other investment assets in each Fund.
This authority may be modified or revoked, in whole or in part, by the Adviser
upon reasonable notice to the Subadviser, such notice shall not be less than 30
days. To carry out such decisions, the Subadviser is hereby authorized, as agent
and attorney-in-fact for the Trust, for the account of, at the risk of and in
the name of the Trust, to place orders and issue instructions with respect to
those transactions of the Funds. In all purchases, sales and other transactions
in securities and other investments for the Funds, the Subadviser is authorized
to exercise full discretion and act for the Trust in the same manner and with
the same force and effect as the Trust might or could do with respect to such
purchases, sales or other transactions, as well as with respect to all other
things necessary or incidental to the furtherance or conduct of such purchases,
sales or other transactions.
Consistent with Section 28(e) of the Securities Exchange Act of 1934, as
amended, the Subadviser may allocate brokerage on behalf of the Funds to
broker-dealers who provide research services. The Subadviser may aggregate sales
and purchase orders of the assets of the Funds with similar orders being made
simultaneously for other accounts advised by the Subadviser or its affiliates.
Whenever the Subadviser simultaneously places orders to purchase or sell the
same asset on behalf of a Fund and one or more other accounts advised by the
Subadviser, the
Memorial Funds Form N-1A - Exhibit (d)(2) Page 2
Subadviser will allocate the order as to price and amount among all such
accounts in a manner the Subadviser believes to be equitable over time to each
account.
(b) The Subadviser will report to the Board at each meeting thereof as
reasonably requested by the Adviser or the Board all material changes in each
Fund caused by the Subadviser since the prior report, and will also keep the
Board informed of important developments affecting the Trust, the Funds and the
Subadviser, and on its own initiative, will furnish the Board from time to time
with such information as the Subadviser may believe appropriate for this
purpose, whether concerning the individual companies whose securities are
included in the Funds' holdings, the industries in which they engage, the
economic, social or political conditions prevailing in each country in which the
Funds maintain investments, or otherwise. The Subadviser will also furnish the
Board with such statistical and analytical information with respect to
investments of the Funds as the Subadviser may believe appropriate or as the
Board reasonably may request. In making purchases and sales of securities and
other investment assets for the Funds, the Subadviser will bear in mind the
policies set from time to time by the Board as well as the limitations imposed
by the Trust Instrument and Registration Statement, the limitations in the 1940
Act, the Securities Act, the Internal Revenue Code of 1986, as amended, and
other applicable laws and the investment objectives, policies and restrictions
of the Funds.
(c) The Subadviser will from time to time employ or associate with such
persons as the Subadviser believes to be particularly fitted to assist in the
execution of the Subadviser's duties hereunder, the cost of performance of such
duties to be borne and paid by the Subadviser. No obligation may be incurred on
the Trust's or Adviser's behalf in any such respect.
(d) The Subadviser will report to the Board all material matters related to
the Subadviser. On an annual basis, the Subadviser shall report on its
compliance with its Code to the Adviser and to the Board and upon the written
request of the Adviser or the Trust, the Subadviser shall permit the Adviser and
the Trust, or their respective representatives to examine the reports required
to be made to the Subadviser under the Code. The Subadviser will notify the
Adviser and the Trust of any change of control of the Subadviser and any changes
in the key personnel who are either the portfolio manager(s) of the Fund or
senior management of the Subadviser, in each case prior to or promptly after
such change.
(e) The Subadviser will maintain records relating to its portfolio
transactions and placing and allocation of brokerage orders as are required to
be maintained by the Trust under the 1940 Act. The Subadviser shall prepare and
maintain, or cause to be prepared and maintained, in such form, for such periods
and in such locations as may be required by applicable law, all documents and
records relating to the services provided by the Subadviser pursuant to this
Agreement required to be prepared and maintained by the Subadviser or the Trust
pursuant to applicable law. To the extent permitted by law, the books and
records pertaining to the Trust which are in possession of the Subadviser shall
be the property of the Trust. With the consent of the Subadviser, the Adviser
and the Trust, or their respective representatives, may have access to such
books and records during the Subadviser's normal business hours, with such
consent not to be unreasonably withheld. Upon the reasonable request
Memorial Funds Form N-1A - Exhibit (d)(2) Page 3
of the Adviser or the Trust, copies of any such books and records shall be
provided promptly by the Subadviser to the Adviser and the Trust, or their
respective representatives.
(f) The Subadviser will cooperate with each Fund's independent public
accountants and shall take reasonable action to make all necessary information
available to the accountants for the performance of the accountants' duties.
(g) The Subadviser will provide the Funds' custodian and fund accountant on
each business day with such information relating to all transactions concerning
the Funds' assets under the Subadviser's control as the custodian and fund
accountant may reasonably require. In accordance with procedures adopted by the
Board, the Subadviser is responsible for assisting in the fair valuation of all
Fund assets and will use its reasonable efforts to arrange for the provision of
prices from parties who are not affiliated persons of the Subadviser for each
asset for which the Funds' fund accountant does not obtain prices in the
ordinary course of business.
(h) The Subadviser shall authorize and permit any of its directors,
officers and employees who may be elected as Trustees or officers of the Trust
to serve in the capacities in which they are elected.
(i) Except as otherwise agreed to by the Trust, the Adviser and the
Subadviser, during any period in which a Fund invests all (or substantially all)
of its investment assets in a registered, open-end management investment
company, or separate series thereof, in accordance with Section 12(d)(1)(E)
under the 1940 Act, the Subadviser shall have no duties or obligations pursuant
to this Agreement with respect to the Fund.
SECTION 4. COMPENSATION; EXPENSES
(a) In consideration of the foregoing, the Adviser shall pay the
Subadviser, with respect to each Fund, a fee at an annual rate as listed in
Appendix A hereto. Such fees shall be accrued by the Adviser daily and shall be
payable monthly in arrears on the first day of each calendar month for services
performed hereunder during the prior calendar month. If fees begin to accrue in
the middle of a month or if this Agreement terminates before the end of any
month, all fees for the period from that date to the end of that month or from
the beginning of that month to the date of termination, as the case may be,
shall be prorated according to the proportion that the period bears to the full
month in which the effectiveness or termination occurs. Upon the termination of
this Agreement with respect to a Fund, the Adviser shall pay to the Subadviser
such compensation as shall be payable prior to the effective date of
termination.
(b) The Subadviser may agree to waive all or part of its fees by separate
agreement.
Memorial Funds Form N-1A - Exhibit (d)(2) Page 4
(c) No fee shall be payable hereunder with respect to a Fund during any
period in which the Fund invests all (or substantially all) of its investment
assets in a registered, open-end, management investment company, or separate
series thereof, in accordance with Section 12(d)(1)(E) under the 1940 Act.
(d) The Subadviser will bear its own costs of providing services hereunder.
Other than as specifically indicated herein, the Subadviser shall not be
responsible for the Trust's or the Adviser's expenses, including, without
limitation: the expenses of organizing the Trust or any Fund and continuing its
existence; fees and expenses of Trustees and officers of the Trust; fees for
investment advisory services and administrative personnel and services; expenses
incurred in the distribution of its shares, including expenses of administrative
support services, fees and expenses of preparing and printing its Registration
Statements under the Securities Act of 1933 and the 1940 Act, and any amendments
thereto; expenses of registering and qualifying the Trust, the Fund and shares
of the Fund under federal and state laws and regulation; expenses of preparing,
printing and distributing prospectuses (and any amendments thereto) to
shareholders; interest expense, taxes, fees and commissions of every kind;
expenses of issue (including cost of share certificates), purchase, repurchase
and redemption of shares including expenses attributable to a program of
periodic issue; charges and expenses of custodians, transfer agents, dividend
disbursing agents, shareholder servicing agents and registrars; printing and
mailing costs; auditing, accounting and legal expenses; reports to shareholders
and governmental officers and commissions; expenses of meetings of Trustees and
shareholders and proxy solicitations in connection with such meetings; insurance
expenses; association membership dues and such nonrecurring items as may arise,
including all losses and liabilities incurred in administrating the Trust and
the Fund. The Trust or the Adviser, as the case may be, shall reimburse the
Subadviser for any such expenses or other expenses of the Fund or the Adviser,
as may be reasonably incurred with prior notice by the Subadviser on behalf of
the Fund or the Adviser. The Subadviser shall keep and supply to the Trust and
the Adviser adequate records of all such expenses.
SECTION 5. STANDARD OF CARE
(a) The Trust and Adviser shall expect of the Subadviser, and the
Subadviser will give the Trust and Adviser the benefit of, the Subadviser's
reasonable best efforts in rendering its services hereunder. The Subadviser
shall not be liable to the Adviser, the Trust, any shareholder of the Trust, or
to any person, firm or organization for any mistake of judgment or any act or
omission in the course of, or connected with the rendering of its services
hereunder, except for lack of good faith, provided that nothing herein shall be
deemed to protect, or purport to protect, the Subadviser against any liability
to the Adviser, the Trust, any shareholder of the Trust, or to any person, firm
or organization to which the Subadviser would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of the
Subadviser's duties hereunder, or by reason of the Subadviser's reckless
disregard of its obligations and duties hereunder.
(b) The Subadviser shall not be liable to the Adviser or the Trust for any
action taken or failure to act in good faith reliance upon: (i) information,
instructions or requests, whether oral or written, with respect to a Fund that
the Subadviser reasonably believes were made by a duly
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authorized officer of the Adviser or the Trust, (ii) the advice of counsel to
the Subadviser, and (iii) any written instruction or certified copy of any
resolution of the Board.
(c) The Subadviser shall not be responsible or liable for any failure or
delay in performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties (other than those related to the Subadviser's
employees), fire, mechanical breakdowns, flood or catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation, communication
or power supply.
SECTION 6. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect to a Fund
immediately upon the later of approval by a majority of the Trust's trustees who
are not parties to this Agreement or interested persons of any such party (other
than as trustees of the Trust) and, if required by applicable law, by a vote of
a majority of the outstanding voting securities of the Fund.
(b) This Agreement shall remain in effect with respect to a Fund for a
period of two (2) years from the date of its effectiveness and may only continue
in effect for successive annual periods with respect to the Fund under such
separate Agreement; provided that such continuance is specifically approved (i)
by the Board or by the vote of a majority of the outstanding voting securities
of the Fund, and, in either case, (ii) by a majority of the Trust's trustees who
are not parties to this Agreement or interested persons of any such party (other
than as trustees of the Trust); provided further, however, that if new Agreement
is not approved as to a Fund, the Subadviser may continue to render to that Fund
the services described herein in the manner and to the extent permitted by the
1940 Act and the rules and regulations thereunder.
(c) This Agreement may be terminated with respect to a Fund at any time,
without the payment of any penalty, (i) by the Board, by a vote of a majority of
the outstanding voting securities of the Fund or by the Adviser on 60 days'
written notice to the Subadviser or (ii) by the Subadviser on 60 days' written
notice to the Trust. This Agreement shall terminate immediately (x) upon its
assignment or (y) upon termination of the Advisory Agreement.
SECTION 7. ACTIVITIES OF THE SUBADVISER
Except to the extent necessary to perform its obligations hereunder,
nothing herein shall be deemed to limit or restrict the Subadviser's right, or
the right of any of the Subadviser's directors, officers or employees to engage
in any other business or to devote time and attention to the management or other
aspects of any other business, whether of a similar or dissimilar nature, or to
render services of any kind to any other corporation, trust, firm, individual or
association. In the performance of its duties hereunder, the Subadviser is and
shall be an independent contractor and unless otherwise expressly provided
herein or otherwise authorized in writing, shall have no authority to act for or
represent the Trust in any way or otherwise be deemed to be an agent of the
Trust or of the Adviser.
Memorial Funds Form N-1A - Exhibit (d)(2) Page 8
SECTION 8. REPRESENTATIONS OF SUBADVISER AND ADVISER
(a) The Subadviser represents and warrants that (i) it is either registered
as an investment adviser under the Investment Advisers Act of 1940, as amended
("Advisers Act") (and will continue to be so registered for so long as this
Agreement remains in effect) or exempt from registration under the Advisers Act,
(ii) is not prohibited by the 1940 Act or the Advisers Act from performing the
services contemplated by this Agreement, (iii) has met, and will seek to
continue to meet for so long as this Agreement remains in effect, any other
applicable federal or state requirements, or the applicable requirements of any
self-regulatory agency, necessary to be met in order to perform the services
contemplated by this Agreement, and (iv) will promptly notify the Adviser and
the Trust of the occurrence of any event that would disqualify the Subadviser
from serving as an investment adviser of an investment company pursuant to
Section 9(a) of the 1940 Act or otherwise.
(b) The Adviser represents and warrants that (i) it is registered as an
investment adviser under the Advisers Act (and will continue to be so registered
for so long as this Agreement remains in effect), (ii) is not prohibited by the
1940 Act or the Advisers Act from performing the services contemplated by this
Agreement, and (iii) has met, and will seek to continue to meet for so long as
this Agreement remains in effect, any other applicable federal or state
requirements, or the applicable requirements of any self-regulatory agency,
necessary to be met in order to perform the services contemplated by this
Agreement.
SECTION 9. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The Trustees of the Trust and the shareholders of each Fund shall not be
liable for any obligations of the Trust or of the Funds under this Agreement,
and the Subadviser agrees that, in asserting any rights or claims under this
Agreement, it shall look only to the assets and property of the Trust or the
Fund to which the Subadviser's rights or claims relate in settlement of such
rights or claims, and not to the Trustees of the Trust or the shareholders of
the Funds.
SECTION 10. MISCELLANEOUS
(a) No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by both
parties hereto and approved by the Trust in the manner set forth in Section 6(b)
hereof.
(b) No amendment to this Agreement or the termination of this Agreement
with respect to a Fund shall effect this Agreement as it pertains to any other
Fund, nor shall any such amendment require the vote of the shareholders of any
other Fund.
(c) Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement.
(d) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with, the
laws of the State of Delaware.
(e) This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof, whether oral or written.
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(f) This Agreement may be executed by the parties hereto on any number of
counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(g) If any part, term or provision of this Agreement is held to be illegal,
in conflict with any law or otherwise invalid, the remaining portion or portions
shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid.
(h) Section headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
(i) Notices, requests, instructions and communications received by the
parties at their respective principal places of business, or at such other
address as a party may have designated in writing, shall be deemed to have been
properly given.
(j) Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each Fund are separate and distinct
from the assets and liabilities of any other series of the Trust and that no
Fund or other series of the Trust shall be liable or shall be charged for any
debt, obligation or liability of any other Fund or series, whether arising under
this Agreement or otherwise.
(k) No affiliated person, employee, agent, director, officer or manager of
the Subadviser shall be liable at law or in equity for the Subadviser's
obligations under this Agreement.
(l) The terms "vote of a majority of the outstanding voting securities",
"interested person", "affiliated person," "control" and "assignment" shall have
the meanings ascribed thereto in the 1940 Act.
(m) Each of the undersigned warrants and represents that they have full
power and authority to sign this Agreement on behalf of the party indicated and
that their signature will bind the party indicated to the terms hereof and each
party hereto warrants and represents that this Agreement, when executed and
delivered, will constitute a legal, valid and binding obligation of the party,
enforceable against the party in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
MEMORIAL FUNDS
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Vice President
PARKWAY ADVISORS, L.P.
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
CEO
PPM AMERICA, INC.
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Operating Officer
Memorial Funds Form N-1A - Exhibit (d)(2) Page 9
MEMORIAL FUNDS
SUBADVISORY AGREEMENT
Appendix A
PERCENTAGE OF THE AVERAGE ANNUAL DAILY NET ASSETS OF
FUNDS OF THE TRUST THE FUND REPRESENTED BY SHARES OWNED BY INVESTORS FOR
WHICH SUBADVISER PROVIDES SERVICES PURSUANT TO THIS
AGREEMENT
Value Equity Fund .30%
Memorial Funds Form N-1A - Exhibit (d)(2) Page 10