(h)(1)
TRANSFER AGENT AND SHAREHOLDER SERVICES AGREEMENT
THIS AGREEMENT is made as of this 17 th day of Feb, 2005, by and between WM
Trust I, WM Trust II and WM Variable Trust, each a Massachusetts business trust,
and WM Strategic Asset Management Portfolios, LLC, a Massachusetts limited
liability company (the "Trusts") and WM Shareholder Services, Inc. (the
"Transfer Agent"), a Washington corporation.
WHEREAS, each Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, each Trust desires that the Transfer Agent perform certain
transfer agent and shareholder services for each series of each Trust, listed on
Schedule A attached hereto and made part of this Agreement, as such
Schedule A may be amended from time to time (individually referred to herein as
the "Portfolio" and collectively as the "Portfolios"); and
WHEREAS, the Transfer Agent is willing to perform such services on the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. RETENTION OF THE TRANSFER AGENT.
Each Trust hereby retains the Transfer Agent to perform for the Trust
transfer agent services as set forth below. The Transfer Agent also agrees to
perform for each Trust such special services incidental to the performance of
the services enumerated herein as agreed to by the parties from time to time.
The Transfer Agent shall perform such additional services as are provided in an
amendment to this Agreement hereof, in consideration of such fees, if any, as
the parties hereto may agree.
(a) Shareholder Transactions
(i) Process shareholder purchase and redemption orders in
accordance with conditions set forth in each Trust's
prospectus(es) and Statement of Additional Information.
(ii) Set up account information, including address, dividend
option, taxpayer identification numbers and wire
instructions.
(iii) Issue confirmations in compliance with applicable laws
and/or regulations.
(iv) Issue periodic statements for shareholders.
(v) Process transfers and exchanges.
(vi) Act as a service agent and process dividend payments,
including the purchase of new shares, through dividend
reimbursement.
(vii) Record the issuance of shares and maintain pursuant to Rule
17Ad-10(e) of the Securities Exchange Act of 1934, as
amended (the "1934 Act") a record of the total number of
shares of each Portfolio which are authorized, based upon
data provided to it by the Trust, and issued and
outstanding.
(viii) Perform such services as are required to comply with Rules
17a-24 and 17Ad-17 of the 1934 Act (the "Lost Shareholder
Rules").
(ix) Monitor short-term trading in shares of the Portfolios, and
reject any exchange purchase if, in the judgment of the
Transfer Agent the transaction would adversely affect the
Fund or its shareholders, in accordance with the Portfolio's
then-applicable market timing policy and procedures.
(x) Administer and/or perform all other customary services of a
transfer agent.
(b) Shareholder Services
(i) Respond as appropriate to all inquiries and communications
from Shareholders relating to Shareholder accounts.
(ii) Mail to Shareholders of the Portfolios, all reports to
Shareholders, dividend and distribution notices and proxy
material for the Funds' meetings of Shareholders. In
connection with meetings of Shareholders, WMSS will prepare
Shareholder lists, mail and certify as to the mailing of
proxy materials, process and tabulate returned proxy cards,
report on proxies voted prior to meetings, act as inspector
of election at meetings and certify Shares voted at
meetings.
(iii) Maintain all shareholder records for each account in each
Portfolio.
(iv) Produce detailed history of transactions through duplicate
or special order statements upon request.
(v) Record shareholder account information changes.
(vi) Record non-monetary information on shareholder accounts,
including maintenance of correspondence.
(vii) Prepare and distribute appropriate Internal Revenue Service
forms for shareholder income and capital gains, including
issuance of tax withholding reports to the Internal Revenue
Service.
(viii) Issue tax withholding reports to the Internal Revenue
Service.
(c) Compliance Reporting
(i) Maintain reports for tracking rights of accumulation and
purchases made under a letter of intent.
(d) Dealer/Load Processing (if applicable)
(i) Provide reports for tracking rights of accumulation and
purchases made under a letter of intent.
(ii) Account for separation of shareholder investments from
transaction sale charges for purchase of Portfolio shares.
(iii) Calculate fees due under 12b-1 plans for distribution and
marketing expenses.
(iv) Track sales and commission statistics by dealer and provide
for payment of commissions on direct shareholder purchases
on a load Portfolio.
2. SUBCONTRACTING.
The Transfer Agent may, at its expense and upon prior approval from the
Trusts, subcontract with any entity or person concerning the provision of the
services contemplated hereunder; provided, however, that the Transfer Agent
shall not be relieved of any of its obligations under this Agreement by the
appointment of such subcontractor and provided further, that the Transfer Agent
shall be responsible, to the extent provided in Section 7 hereof, for all acts
and omissions of such subcontractor, including any acts or omissions of a
subcontractor that would result in liability of the Transfer Agent under Section
7 hereof if taken or omitted by the Transfer Agent directly, as if such acts or
omissions were its own.
3. COMPENSATION.
The Trusts shall pay for the services to be provided by the Transfer Agent
under this Agreement in accordance with, and in the manner set forth in,
Schedule B attached hereto, as such Schedule may be amended from time to time.
If this Agreement becomes effective subsequent to the first day of a month
or terminates before the last day of a month, the Transfer Agent's compensation
for that part of the month in which the Agreement is in effect shall be prorated
in a manner consistent with the calculation of the fees as set forth above.
Payment of the Transfer Agent's compensation for the preceding month shall be
made promptly upon receipt of invoice from the Transfer Agent.
4. REIMBURSEMENT OF EXPENSES.
In addition to paying the Transfer Agent the fees described in Schedule B
attached hereto, the Trusts agree to reimburse the Transfer Agent for its
reasonable out-of-pocket expenses in providing services hereunder, including
without limitation the following:
(a) All freight and other delivery and bonding charges incurred by the
Transfer Agent in delivering materials to and from the Trust or
shareholders;
(b) All direct telephone, telephone transmission and telecopy or other
electronic transmission expenses incurred by the Transfer Agent in
communication with the Trust or shareholders (including network
connectivity), the Trust's investment adviser or custodian, dealers or
others as required for the Transfer Agent to perform the services to
be provided hereunder;
(c) The cost of microfilm or microfiche, or COOL storage of records or
other materials;
(d) The cost of printing and generating confirmations, statements and
other documents and the cost of mailing such documents to shareholders
and others;
(e) All reasonable fees charged and expenses incurred by the Transfer
Agent in connection with its performance, on behalf of the Trusts, of
the AML Services (as defined in Section 23 hereof);
(f) Any additional expenses reasonably incurred by the Transfer Agent in
the performance of its duties and obligations under this Agreement
other than networking fees, including, but not limited to: bank,
federal wire, and ACH fees, regulatory compliance, escheatment,
disaster recovery, NSCC charges, proxy solicitation, temporary staff
and/or overtime, as deemed necessary by the Transfer Agent.
(g) All expenses incurred in connection with any custom programming or
systems modifications required to provide any special reports or
services requested by the Trusts.
Provided, however, that the out-of-pocket expenses payable hereunder shall not
exceed $5.31 per open account per annum.
5. EFFECTIVE DATE.
This Agreement shall become effective with respect to a Portfolio as of the
date first written above (or, if a particular Portfolio is not in existence on
that date, on the date such Portfolio commences operation) (the "Effective
Date").
6. TERM OF THIS AGREEMENT.
The term of this Agreement shall continue in effect, unless earlier
terminated by either party hereto as provided hereunder, for a period of one
year. Thereafter, unless otherwise terminated as provided herein, this Agreement
shall be renewed automatically for successive one-year periods.
With respect to each Trust, this Agreement may be terminated without the
payment of any penalty by either party upon (180) days' written notice thereof
given by the Trust to the Transfer Agent and upon one hundred eighty (180) days'
written notice thereof given by the Transfer Agent to the Trust(s).
Notwithstanding the foregoing, after such termination for so long as the
Transfer Agent, with the written consent of the Trust(s), in fact continues to
perform any one or more of the services contemplated by this Agreement or any
schedule or exhibit hereto, the provisions of this Agreement, including without
limitation the provisions dealing with indemnification, shall continue in full
force and effect. Compensation due the Transfer Agent and unpaid by the Trust(s)
upon such termination shall be immediately due and payable upon and
notwithstanding such termination. The Transfer Agent shall be entitled to
collect from the Trust(s), in addition to the compensation described in Schedule
B, the amount of all of the Transfer Agent's cash disbursements for services in
connection with the Transfer Agent's activities in effecting such termination,
including without limitation, the delivery to the Trust(s) and/or its designees
of each Trust's property, records, instruments and documents.
7. STANDARD OF CARE.
The duties of the Transfer Agent shall be confined to those expressly set
forth herein, and no implied duties are assumed by or may be asserted against
the Transfer Agent hereunder. The Transfer Agent shall be obligated to exercise
care and diligence in the performance of its duties hereunder and to act in good
faith in performing the services provided for under this Agreement. The Transfer
Agent shall be liable for any damages arising directly or indirectly out of the
Transfer Agent's failure to perform its duties under this Agreement to the
extent such damages arise directly or indirectly out of the Transfer Agent's
willful misfeasance, bad faith, negligence in the performance of its duties, or
reckless disregard of its obligations and duties hereunder. (As used in this
Article 7, the term "the Transfer Agent" shall include directors, officers,
employees and other agents of the Transfer Agent as well as the Transfer Agent
itself.)
Without limiting the generality of the foregoing or any other provision of
this Agreement, (i) the Transfer Agent shall not be liable for losses beyond its
reasonable control, provided that the Transfer Agent has acted in accordance
with the standard of care set forth above; and (ii) the Transfer Agent shall not
be liable for the validity or invalidity or authority or lack thereof of any
instruction, notice or other instrument that the Transfer Agent reasonably
believes to be genuine and to have been signed or presented by a duly authorized
representative of the Trust (other than an employee or other affiliated persons
of the Transfer Agent who may otherwise be named as an authorized representative
of the Trust for certain purposes).
The Transfer Agent may apply to the Trusts at any time for instructions and
may consult with counsel for the Trusts or its own counsel and with accountants
and other experts with respect to any matter arising in connection with the
Transfer Agent's duties hereunder, and the Transfer Agent shall not be liable or
accountable for any action taken or omitted by it in good faith in accordance
with such instruction or with the reasonable opinion of such counsel,
accountants or other experts qualified to render such opinion.
8. INDEMNIFICATION.
The Trusts agree to indemnify and hold harmless the Transfer Agent from and
against any and all actions, suits, claims, losses, damages, costs, charges,
reasonable counsel fees and disbursements, payments, expenses and liabilities
(including reasonable investigation expenses) (collectively, "Losses") arising
directly or indirectly out of any action or omission to act which the Transfer
Agent takes (i) at any request or on the direction of or in reliance on the
reasonable advice of the Trust, (ii) upon any instruction, notice or other
instrument that the Transfer Agent reasonably believes to be genuine and to have
been signed or presented by a duly authorized representative of the Trust (other
than an employee or other affiliated person of the Transfer Agent who may
otherwise be named as an authorized representative of the Trust for certain
purposes) or (iii) on its own initiative, in good faith and in accordance with
the standard of care set forth herein, in connection with the performance of its
duties or obligations hereunder; provided, however that the Trust shall have no
obligation to indemnify or reimburse the Transfer Agent under this Article 8 to
the extent that the Transfer Agent is entitled to reimbursement or
indemnification for such Losses under any liability insurance policy described
in this Agreement or otherwise.
The Transfer Agent shall not be indemnified against or held harmless from
any Losses arising directly or indirectly out of the Transfer Agent's own
willful misfeasance, bad faith, negligence in the performance of its duties, or
reckless disregard of its obligations and duties hereunder. (As used in this
Article 8, the term "the Transfer Agent" shall include directors, officers,
employees, subcontractors and other agents of the Transfer Agent as well as the
Transfer Agent itself.)
The Transfer Agent further agrees to indemnify and hold harmless the Trusts
against any Losses arising directly or indirectly out of (i) the Transfer
Agent's own willful misfeasance, bad faith, negligence in the performance of its
duties, or reckless disregard of its obligations and duties hereunder, (ii) any
breach by the Transfer Agent of any material provision of this Agreement, or
(iii) any breach by the Transfer Agent of a representation, warranty or covenant
made in this Agreement. This indemnity agreement shall be in addition to any
liability which the Transfer Agent may otherwise have. (As used in this Article
8, the term "Trusts" shall include trustees, directors, officers, employees and
other agents of each Trust, respectively, as well as the Trusts themselves.)
9. RECORD RETENTION AND CONFIDENTIALITY.
The Transfer Agent shall keep and maintain on behalf of the Trusts all
books and records which the Trusts and the Transfer Agent are, or may be,
required to keep and maintain pursuant to any applicable statutes, rules and
regulations, including without limitation Rules 31a-1 and 31a-2 under the 1940
Act, relating to the maintenance of books and records in connection with the
services to be provided hereunder. The Transfer Agent further agrees that all
such books and records shall be the property of the Trusts and to make such
books and records available for inspection by the Trusts or by the SEC at
reasonable times and otherwise to keep confidential all books and records and
other information relative to the Trusts and its shareholders.
Without limiting the foregoing, the Transfer Agent expressly agrees that:
(a) "nonpublic personal information" relating to "consumers" and
"customers" of the Trust (as those terms are defined in Regulation
S-P) provided by or at the direction of the Trusts to the Transfer
Agent, or collected or retained by the Transfer Agent in the course of
performing its duties as administrator will be kept confidential. The
Transfer Agent will not use, disclose, sell or in any way transfer
such nonpublic personal information to any person or entity, except as
necessary to perform its obligations under this Agreement, at the
direction of the Trusts or otherwise as required or permitted by law;
(b) it will maintain physical, electronic and procedural safeguards
reasonably designed to protect the security, confidentiality and
integrity of, and to prevent unauthorized access to or use of, records
and information relating to consumers and customers of the Trusts. The
Transfer Agent will adhere to the privacy policy and procedures of the
Trust and its respective policies and procedures governing information
security. The Trusts reserve the right to audit the Transfer Agent to
ensure compliance with such policies and procedures and applicable
privacy laws; and
(c) at the request of the Trusts, the Transfer Agent will provide the
Trustees with periodic reports outlining its policies and procedures
governing information security and the implementation of such policies
and procedures. The Transfer Agent will promptly report to the Trusts
any material changes to these policies and procedures before, or
promptly after, the adoption of such changes.
10. FORCE MAJEURE.
The Transfer Agent shall not be liable for any damage, loss of data, delay
or any other loss caused by events beyond its reasonable control, including any
power failure or machine breakdown, acts of civil or military authority,
national emergencies, fire, flood, catastrophe, acts of God, insurrection, war,
riots or failure of the mails, transportation, communication or power supply,
except that in the event of any such power failure or machine breakdown, the
Transfer Agent shall be liable for actual out-of-pocket costs caused by any such
power failure or machine breakdown, and shall use commercially reasonable best
efforts to recover the data in process that is assumed lost during any power
failure and to limit such damages, loss of data, delays or other losses.
11. RIGHTS OF OWNERSHIP; RETURN OF RECORDS.
All records and other data except computer programs and procedures
developed to perform services required to be provided by the Transfer Agent are
the exclusive property of the Trusts and all such records and data will be
furnished to the Trusts in appropriate form as soon as practicable after
termination of this Agreement for any reason. The Transfer Agent may at its
option at any time, and shall promptly upon the Trusts' demand, turn over to the
Trusts and cease to retain the Trusts' files, records and documents created and
maintained by the Transfer Agent pursuant to this Agreement which are no longer
needed by the Transfer Agent in the performance of its services or for its legal
protection or as otherwise required by law. If not so turned over to the Trusts,
(1) such documents and records will be copied and complete copies shall be
delivered to the Trusts by the Transfer Agent as soon as reasonably practical,
and (2) the original documents and records will be retained by the Transfer
Agent for six years from the year of creation. At the end of such six-year
period, such records and documents will be turned over to the Trusts unless the
Trusts authorize in writing the destruction of such records and documents.
12. REPRESENTATIONS OF THE TRUSTS.
Each Trust certifies to the Transfer Agent that: (1) as of the close of
business on the Effective Date, each Portfolio that is in existence as of the
Effective Date has authorized unlimited shares, and (2) this Agreement has been
duly authorized by the Trust, respectively, and, when executed and delivered by
each Trust, will constitute a legal, valid and binding obligation of that Trust,
enforceable against the Trust 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.
13. REPRESENTATIONS OF THE TRANSFER AGENT.
The Transfer Agent represents and warrants that: (1) the various procedures
and systems which the Transfer Agent has implemented with regard to safeguarding
from loss or damage attributable to fire, theft, or any other cause the records,
and other data of the Trusts and the Transfer Agent's records, data, equipment
facilities and other property used in the performance of its obligations
hereunder are adequate and that it will make such changes therein from time to
time as are required for the secure performance of its obligations hereunder,
(2) this Agreement has been duly authorized by the Transfer Agent and, when
executed and delivered by the Transfer Agent, will constitute a legal, valid and
binding obligation of the Transfer Agent, enforceable against the Transfer Agent
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, (3) it is duly registered with the
appropriate regulatory agency as a transfer agent and such registration will
remain in full force and effect for the duration of this Agreement, and (4) it
has and will continue to have access to the necessary facilities, equipment and
personnel to perform its duties and obligations under this Agreement.
14. INSURANCE.
The Transfer Agent shall furnish the Trusts with pertinent information
concerning the professional liability and fidelity bond insurance coverage that
it maintains. Such information shall include the identity of the insurance
carrier(s), coverage levels/limits and deductible amounts. The Transfer Agent
shall notify the Trust should any of its insurance coverage be canceled or
reduced. Such notification shall include the date of change and the reasons
therefor. The Transfer Agent shall notify the Trusts of any material claims
against it with respect to services performed under this
Agreement, whether or not they may be covered by insurance, and shall notify the
Trusts from time to time as may be appropriate of the total outstanding claims
made by the Transfer Agent under its insurance coverage.
Further, the Transfer Agent shall furnish the Trusts with a Certificate of
Insurance or a copy of the policy evidencing such coverage, which insurance
shall name the Trust as an Insured Investment Company under the policy, and
shall contain a 60-day "cancellation" clause and a "changes in exposure" clause.
Such policy shall be primary coverage as between the Transfer Agent and the
Trusts and such insurance coverage shall not limit the liability of the Transfer
Agent to the Trusts for any damages. In the event of any payment of damages to
the Trusts, the Transfer Agent hereby waives any right to be subrogated to the
rights of the Trusts against any third party.
15. INFORMATION TO BE FURNISHED BY THE TRUSTS.
The Trusts have furnished, or will furnish upon request, to the Transfer
Agent the following:
(a) Copies of the Declaration of Trust (in the case of WM Strategic Asset
Management Portfolios, LLC, a Certificate of Organization) and of any
amendments thereto, certified by the proper official of the state in
which such document has been filed.
(b) Copies of the following documents:
(1) Each Trust's Bylaws and any amendments thereto; and
(2) Certified copies of resolutions of the Trustees covering the
approval of this Agreement, authorization of a specified officer
of the Trust to execute and deliver this Agreement and
authorization for specified officers of the Trust to instruct the
Transfer Agent thereunder.
(c) A list of all the officers of each Trust, together with specimen
signatures of those officers who are authorized to instruct the
Transfer Agent in all matters.
(d) Copies of the Prospectus and Statement of Additional Information for
each Portfolio.
16. AMENDMENTS TO AGREEMENT.
This Agreement, or any term thereof, may be changed or waived only by
written amendment signed by the party against whom enforcement of such change or
waiver is sought.
For special cases, the parties hereto may amend such procedures set forth
herein as may be appropriate or practical under the circumstances, and the
Transfer Agent may conclusively assume that any special procedure which has been
approved by the Trusts does not conflict with or violate any requirements of its
Declaration of Trust (or other organizations documents) or then current
prospectuses, or any rule, regulation or requirement of any regulatory body.
17. COMPLIANCE WITH LAW.
Except for the obligations of the Transfer Agent otherwise set forth
herein, the Trusts assume full responsibility for the preparation, contents and
distribution of each prospectus of the Trusts as to compliance with all
applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act"), the 1940 Act and any other laws, rules and regulations of
governmental authorities having jurisdiction. The Trusts represent and warrants
that no shares of a Trust will be offered to the public until such Trust's
registration statement under the Securities Act and the 1940 Act has been
declared or becomes effective.
18. NOTICES.
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such
notice, at the following address: if to the Trusts, at
_____________________________; and if to the Transfer Agent, at
_______________________________; or at such other address as such party may from
time to time specify in writing to the other party pursuant to this Section.
19. ASSIGNMENT.
This Agreement and the rights and duties hereunder shall not be assignable
by either of the parties hereto except by the specific written consent of the
other party, and any assignment in violation of this section will be void. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and permitted assigns.
20. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of the
Commonwealth of Massachusetts without giving effect to the provisions thereof
relating to conflicts of law. To the extent that the applicable laws of the
Commonwealth of Massachusetts, or any of the provisions herein, conflict with
the applicable provisions of the 1940 Act, the latter shall control.
21. LIMITATION OF LIABILITY.
A copy of the Declaration of Trust of each Trust (in the case of WM
Strategic Asset Management Portfolios, LLC, a Certificate of Organization) 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 Board of Trustees
of the Trusts[, respectively,] and not individually and that the obligations of
this instrument are not binding upon any of the Trustees, officers or
shareholders individually but are binding only upon the assets and property of
the Trusts (or if the matter relates only to a particular Portfolio, that
Portfolio), and the Transfer Agent shall look only to the assets of the Trusts,
or the particular Portfolio, for the satisfaction of such obligations.
22. MULTIPLE ORIGINALS.
This Agreement may be executed in two or more counterparts, each of which
when so executed shall be deemed to be an original, but such counterparts shall
together constitute but one and the same instrument.
23. AML SERVICES.
(a) The Trusts hereby delegate to the Transfer Agent the performance, on
behalf of each Trust, of the anti-money laundering services (the "AML
Services") set forth in Schedule C to this Agreement as concerns the
shareholder accounts maintained by the Transfer Agent pursuant to the
Agreement (including direct accounts; accounts maintained through
FUND/SERV and Networking; and omnibus accounts). The Transfer Agent
agrees to the foregoing delegation and agrees to perform the delegated
services in accordance with the anti-money laundering program that has
been adopted by the Trust (the "AML Program). In connection therewith,
the Transfer Agent agrees to maintain policies and procedures, and
related internal controls, that are consistent with the Trusts' AML
Program and the requirement that the Trusts employ procedures
reasonably designed to achieve compliance with the applicable
anti-money laundering laws (the "Applicable AML Laws"), including the
requirement to have policies and procedures that can be reasonably
expected to detect and cause the reporting of transactions under
Section 5318 of the Bank Secrecy Act as required by applicable laws
and/or regulations.
(b) The Trusts agree and acknowledge that, notwithstanding the delegation
provided for in the foregoing paragraph, the Trusts maintain full
responsibility for ensuring that its AML Program is, and shall
continue to be, reasonably designed to ensure compliance with the
Applicable AML Laws, in light of the particular business of the
Trusts, taking into account factors such as its size, location,
activities and risks or vulnerabilities to money laundering.
(c) In connection with the foregoing delegation, the Trusts also
acknowledge that the performance of the AML Services enumerated in
Schedule C involves the exercise of discretion, which in certain
circumstances may result in consequences to the Trusts and their
shareholders, respectively, (such as in the case of the reporting of
suspicious activities and the freezing of shareholder accounts). In
this regard, (i) under the circumstances in which the AML Program
authorizes the taking of certain actions, the Transfer Agent is
granted the discretion to take any such action as may be authorized,
and consultation with the Trusts shall not be required in connection
therewith unless expressly required by the AML Program, and (ii) the
Trusts instruct the Transfer Agent that it may rely on any safe harbor
from civil liability that may be available to it under Applicable AML
Laws for making a disclosure or filing a report thereunder.
