UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of August 16, 2005, by and between Memorial
Funds (the "Trust"), a Delaware Business Trust, and Citco Mutual Fund
Distributors, Inc., a Delaware corporation ("Underwriter").
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust is authorized by its Certificate of Trust and Trust
Instrument to issue separate Funds of shares representing interests in separate
investment portfolios (the "Funds"), and
WHEREAS, The Trust has authorized the issuance of shares of beneficial
interest ("Shares") in the Funds which are identified on Exhibit A attached
hereto, and
WHEREAS, Underwriter is a broker-dealer registered with the Securities and
Exchange Commission and a member in good standing of the National Association of
Securities Dealers, Inc., (the "NASD"); and
NOW, THEREFORE, in consideration of the promises and agreements of the
parties contained herein, the parties hereto, intending to be legally bound,
agree as follows:
1. Appointment. The Trust hereby appoints Underwriter as exclusive agent for
the distribution of Shares of the Funds listed in Exhibit A hereto which
may be amended from time to time by mutual agreement of the Trust and
Underwriter, and Underwriter hereby accepts such appointment under the
terms of this Agreement,
Notwithstanding any other provision hereof, the Trust may terminate,
suspend or withdraw the offering of Shares of any Fund whenever, in its
sole discretion, it deems such action to be desirable.
2. Sale and Repurchase of Shares.
(a) Underwriter, as agent for the Trust, will sell Shares to the public
against orders therefore at the public offering price, all such
sales to comply with the provisions of the 1940 Act and the rules
and regulations of the Securities and Exchange Commission and other
applicable regulatory authorities promulgated thereunder.
(b) Underwriter will also have the right to take, as agent for the
Trust, all actions, which, in Underwriter's judgment, are reasonably
necessary and proper to carry into effect the distribution of the
Shares, but at no time shall have the authority to bind Fund assets
or settle Trust disputes.
(c) The net asset value of the Shares of each Fund (or Class of Shares
of a Fund) shall be determined in the manner provided in the Trust's
then current Registration Statement, and when determined shall be
applicable to transactions as provided for in the Registration
Statement. The net asset value of the Shares of each Fund (or each
Class of Shares of a Fund) shall be calculated by the Trust or by
another entity on behalf of the Trust. Underwriter shall have no
duty to inquire into nor shall it have any liability for the
accuracy of the net asset value per share as calculated.
On every sale of Shares, the Trust shall receive the applicable net
asset value of the Shares promptly, but in no event later than the
first business day following the date on which Underwriter shall
have received an order for the purchase of the Shares.
(d) Upon receipt of purchase instructions, Underwriter will transmit
such instructions to the Trust or its transfer agent for
registration of the Shares purchased.
(e) Nothing in this Agreement shall prevent Underwriter or any
affiliated person (as defined in the 0000 Xxx) of Underwriter from
acting as underwriter or distributor for any other person, firm or
corporation (including other investment companies) or in any way
limit or restrict Underwriter or any such affiliated person from
buying, selling or trading any securities for its or their own
account or for the accounts of others for whom it or they may be
acting; provided, however, that Underwriter expressly represents
that it will undertake no activities which, in its judgment, will
adversely affect the performance of its obligations to the Trust
under this Agreement or applicable law.
(f) Underwriter, as agent of the Trust and for the account of the
Fund(s), may repurchase the Shares at such prices and upon such
terms and conditions as shall be specified in the Trust's then
current Registration Statement. All accounts shall be handled in an
appropriate manner and at all times in accordance with the
procedures and forms set forth in the respective prospectus. At the
end of each business day, the Underwriter shall notify the Trust and
the Trust's transfer agent of the number of Shares redeemed for each
Fund, and the identity of the shareholders or dealers offering
Shares for repurchase. Upon such notice and acceptance by the Trust,
the Trust shall pay the Underwriter the net asset value of the
redeemed shares in cash or in the form of a credit against monies
due the Trust from the Underwriter as proceeds from the sale of
Shares. The Trust reserves the right to suspend such repurchase
right upon written notice to the Underwriter. The Underwriter
further agrees to act as agent for the Trust to receive and transmit
promptly to the Trust's transfer agent, shareholder and dealer
requests for redemption of Shares in the Fund(s).
3. Sales of Shares by the Trust. The Trust reserves the right to issue or
sell Shares of the Fund(s) directly to the public at any time.
4. Basis of Sale of Shares. Underwriter does not agree to sell any specific
number of Shares. Underwriter, as agent for the Trust, undertakes to sell
Shares of the Fund(s) on a best effort basis only against orders
therefore.
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5. Compliance with NASD and Government Rules.
(a) Underwriter will conform to the Rules of Fair Practice of the NASD
and the securities laws of any jurisdiction in which it sells Shares
of the Fund(s).
(b) The Trust agrees to furnish to the Underwriter sufficient copies of
any agreements, plans or other materials it intends to use in
connection with sales of Shares in adequate time for the Underwriter
to file and clear them with the proper authorities before they are
put in use, and not to use them until so filed and cleared.
(c) Underwriter, at its own expense, will qualify as dealer, broker, or
otherwise, under all applicable State or federal laws in order that
Shares may be sold in such States as may be mutually agreed upon by
the parties, except for expenses described in Section 7 hereto,
which will be paid by the Trust or the Adviser to the Trust, as
appropriate.
(d) Underwriter shall not make, in connection with any sale or
solicitation of a sale of the Shares, any representations concerning
the Shares except those contained in the Trust's then current
prospectus and statement of additional information covering the
Shares and in printed information approved by the Trust as
information supplemental to such prospectus and statement of
additional information. Copies of the Trust's then effective
prospectus and statement of additional information and any such
printed supplemental information will be supplied to Underwriter in
reasonable quantities upon request.
6. Records to be Supplied by Trust. The Trust shall furnish to Underwriter
copies of all information, financial statements and other papers which
Underwriter may reasonably request for use in connection with the
distribution of Shares of the Fund(s).
7. Expenses to be Borne by Trust. The Trust will bear the following expenses:
(a) preparation, setting in type, and printing of sufficient copies of
the prospectus and statement of additional information for
distribution to shareholders, and the distribution to shareholders
of the prospectus and statement of additional information;
(b) preparation, printing and distribution of reports and other
communications to shareholders;
(c) registration of the Shares under the federal securities law;
(d) qualification of the Shares for sale in the jurisdictions designated
by Trust and Underwriter;
(e) maintaining facilities for the issue and transfer of the Shares;
(f) supplying information, prices and other data to be furnished by the
Trust under this Agreement; and
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(g) any original issue taxes or transfer taxes applicable to the sale or
delivery of the Shares of certificates therefore.
8. Indemnification.
(a) The Trust agrees to indemnify, defend and hold the Underwriter, its
officers, and Trustees, and any person who controls the Underwriter
within the meaning of Section 15 of the Securities Act of 1933 (the
"1933 Act") or Section 20 of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), free and harmless from and against any and
all claims, demands or liabilities and expenses (including the cost
of investigating or defending such claims, demands or liabilities
and any counsel fees incurred in connection therewith) which the
Underwriter, its officers, Trustees or any such controlling persons
may incur under the 1933 Act, the 1934 Act, or under common law or
otherwise, arising out of or based upon any untrue statement of a
material fact contained in the Trust's Registration Statement or
Prospectus or arising out of or based upon any alleged omission to
state a material fact required to be stated in either thereof or
necessary to make the statements in either thereof not misleading,
except insofar as such claims, demands, liabilities or expenses
arise out of or are based upon any such untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in
conformity with information furnished in writing by the Underwriter
to the Trust for use in the Registration Statement. The Underwriter
agrees to comply with all of the applicable terms and provisions of
the 0000 Xxx.
(b) The Underwriter agrees to indemnify, defend, and hold the Trust, its
officers, Trustees, employees shareholders and agents, and any
person who controls the Trust within the meaning of Section 15 of
the 1933 Act of Section 20 of the 1934 Act, free and harmless from
and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending against such
claims, demands or liabilities and any counsel fees incurred in
connection therewith) which the Trust, its Trustees, officers,
employees, shareholders and agents, or any such controlling person
may incur under the 1933 Act, the 1934 Act or under common law or
otherwise arising out of or based upon Underwriter's failure to
comply with its regulatory obligations in connection with the
offering of shares, any untrue statement of a material fact
contained in information furnished in writing by the Underwriter to
the Trust for use in the Registration Statement, or arising out of
or based upon any omission or alleged omission to state a material
fact in connection with such information required to be stated in
the Registration Statement necessary to make such information not
misleading.
(c) A party seeking indemnification hereunder (the "Indemnitee") shall
give prompt written notice to the party from whom indemnification is
sought ("Indemnitor") of a written assertion or claim of any
threatened or pending legal proceeding which may be subject to
indemnity under this Section; provided, however, that failure to
notify the Indemnitor of such written assertion or claim shall not
relieve the indemnitor of any liability arising from this Section.
The Indemnitor shall be entitled, if it so elects, to assume the
defense of any suit brought to enforce a claim subject to this
Agreement and such defense shall be conducted by counsel chosen by
the Indemnitor and satisfactory to the Indemnitee; provided,
however, that if the defendants include both the Indemnitee and the
Indemnitor, and the Indemnitee shall have reasonably concluded that
there may be one or more legal defenses available to it which are
different from or additional to those available to the Indemnitor
("conflict of interest"), the Indemnitor shall have the right to
select separate counsel to defend such claim on behalf of the
Indemnitee. In the event that the Indemnitor elects to assume the
defense of any suit pursuant to the preceding sentence and retains
counsel satisfactory to the Indemnitee, the Indemnitee shall bear
the fees and expenses of additional counsel retained by it except
for reasonable investigation costs which shall be borne by the
Indemnitor.
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(d) It is understood that indemnification may be limited by
interpretations under the 1933 Act, 1934 Act and other laws. It is
also understood that the obligation to indemnify pursuant to this
section does not extend to situations where the Indemnitee has been
found to or has engaged in wrongful conduct.
9 Termination and Amendment of this Agreement. This Agreement shall
automatically terminate, without the payment of any penalty, in the event
of its assignment. This Agreement may be amended only if such amendment is
approved (i) by Underwriter, (ii) either by action of the Board of
Trustees of the Trust or at a meeting of the Shareholders of the Trust by
the affirmative vote of a majority of the outstanding Shares, and (iii) by
a majority of the Trustees of the Trust who are not interested persons of
the Trust or of Underwriter, by vote cast in person at a meeting called
for the purpose of voting on such approval. Either the Trust or
Underwriter may terminate this Agreement at any time on thirty (30) days'
written notice delivered via facsimile or overnight courier or mailed by
registered mail, postage prepaid, to the other party.
10. Effective Period of This Agreement. Unless terminated automatically as set
forth in Section 9 of this Agreement, this Agreement shall take effect
upon its execution and shall remain in full force and effect for a period
of one (1) year from that date, and shall remain in full force and effect
from year to year thereafter, subject to annual approval (i) by
Underwriter, (ii) by the Board of Trustees of the Trust or by vote of a
majority of the outstanding Shares, and in either case (iii) by a majority
of the Trustees of the Trust who are not interested persons of the Trust
or of Underwriter, by vote cast in person at a meeting called for the
purpose of voting on such approval.
11. Limitation of Trust's Liability. The Term "Memorial Trusts" means and
refers to the Trustees and officers from time to time serving under the
Trust's Certificate of Trust and Trust Instrument as the same may
subsequently thereto have been, or subsequently hereto be, amended. 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 bind only the property of the
Trust, as provided in Trust's Master Trust Agreement and Trust Agreement.
The execution and delivery of this Agreement have been authorized by the
Trustees of the Trust and signed by the officers of the Trust, acting as
such, and neither such authorization by such Trustees, nor such execution
and delivery by such officers shall be deemed to have been made by any of
them individually or to impose any liability on them personally, but shall
bind only the property of the Trust as provided in its Master Trust
Agreement. A copy of the Certificate of Trust of the Trust is on file with
the Secretary of State of Delaware.
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12. Successor Investment Company. Unless this Agreement has been terminated in
accordance with Paragraphs 9 or 10, the terms and provisions of this
Agreement shall become automatically applicable to any investment company
which is a successor to the Trust as a result of a reorganization,
recapitalization or change of domicile.
13. Severability. In the event any provision of this Agreement is determined
to be void or unenforceable, such determination shall not affect the
remainder of this Agreement, which shall remain in full force and effect.
14. Questions of Interpretation.
(a) This Agreement shall be governed by the laws of the State of
Delaware.
(b) Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a term
or provision of the 1933 Act, 1934 Act or 1940 Acts shall be
resolved by reference to such term or provision of these Acts and
interpretation thereof, if any, by the United States courts; or in
the absence of any controlling decision of any such court, by rules,
regulations or orders of the Securities and Exchange Commission
issued pursuant to said Act. In addition, where the effect of a
requirement of these Acts, reflected in any provision of this
Agreement is revised by rule, regulation or order of the Securities
and Exchange Commission, such provision shall be deemed to
incorporate the effect of such rule, regulation or order.
15. Notices. Any notices under this Agreement shall be in writing, addressed
and delivered or mailed postage paid to the other party at such address as
such other party may designate for the receipt of such notice. Until
further notice to the other party, it is agreed that for this purpose the
address of the Trust is 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxx, 00000,
Attn: Xxxx X. Xxxxxxxx, and of the Underwriter shall be 00 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx, XX 00000, Attn: President.
16. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
17. Binding Effect. Each of the undersigned expressly warrants and represents
that he has the full power and authority to sign this Agreement on behalf
of the party indicated, and that his signature will operate to bind the
party indicated to the foregoing terms.
18. Force Majeure. If a party shall be delayed in the performance of its
services or prevented entirely or in part from performing services due to
causes or events beyond its control, including and without limitation,
acts of God, interruption of power or other utility, transportation or
communication services, acts of civil or military authority, sabotages,
national emergencies, explosion, flood, accident, earthquake or other
catastrophe, fire, strike or other labor problems, legal action, present
or future law, governmental order, rule or regulation, or shortages of
suitable parts, materials, labor or transportation, such delay or
non-performance shall be excused and a reasonable time, subject to
restrictions and requirements of performance as may be established by
federal or state law.
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19. Compensation. The Trust shall pay for the services to be provided by
Underwriter under this Agreement in accordance with, and in the manner set
forth in, Schedule B attached hereto, as such Schedule B may be amended
from time to time by agreement of the parties.
If this Agreement becomes effective subsequent to the first day of a month
or terminates before the last day of a month, Underwriter's compensation
for that part of the month in which this Agreement is in effect shall be
prorated in a manner consistent with the calculation of the fees as set
forth above. Payment of Underwriter's compensation for the preceding month
shall be made promptly.
IN WITNESS WHEREOF, the Trust and Underwriter have each caused this
Agreement to be signed on its behalf, all as of the day and year first above
written.
ATTEST: MEMORIAL FUNDS
__________________________________ By: _________________________________
Name: Xxxx X. Xxxxxxx, Esq. Name: Xxxx X. Xxxxxxxx
Title: Secretary Title: President
ATTEST CITCO MUTUAL FUND DISTRIBUTORS, INC.
__________________________________ By: _________________________________
Name: Xxxxxx X. Xxxxxxxxxxx, Esq. Name: Xxxx X. Xxxxxxx
Title: Secretary Title: Chief Operating Officer/FINOP
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UNDERWRITING AGREEMENT
EXHIBIT A
The following Funds and share classes thereof are hereby made subject to
the underwriting Agreement dated August 16, 2005, with Citco Mutual Fund
Distributors, Inc. ("Underwriter") and Memorial Funds (the "Trust"), and each
agree to be bound by all the terms and conditions contained in said Agreement:
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FUNDS Class A Class B No-Load
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Government Bond Fund X
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Growth Equity Fund X
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Value Equity Fund X
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UNDERWRITING AGREEMENT
EXHIBIT B
The following fees are hereby made subject to the underwriting Agreement
dated August 16, 2005, with Citco Mutual Fund Distributors, Inc. ("Underwriter")
and Memorial Funds (the "Trust"), and each agree to be bound by all the terms
and conditions contained in said Agreement:
Underwriter shall receive an annual fee of $5,000 as full compensation for
underwriting services provided for Funds of the Trust. Should the Trust
determine to offer load shares or to use a 12b-1 fee to enhance distribution
options, the Parties will renegotiate the compensation due to underwriter.
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