Exhibit(d)(1)(A)
WM TRUST I
SECOND AMENDED AND RESTATED
INVESTMENT MANAGEMENT AGREEMENT
SECOND AMENDED AND RESTATED INVESTMENT MANAGEMENT AGREEMENT (this
"Agreement"), dated as of November 19, 2002, amending and restating in its
entirety the Amended and Restated Investment Management Agreement dated May 14,
2002, between WM TRUST I, a Massachusetts business trust, (the "Trust"), on
behalf of each of its series which are listed on the signature page of this
Agreement (each referred to herein as a "Fund") and WM Advisors, Inc., a
Washington corporation (the "Manager").
WITNESSETH
WHEREAS, the Trust is an open-end series management investment company,
registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, each Fund, as a separate series of the Trust, desires to
retain the Manager to render investment management services to the Fund, and the
Manager is willing to render such services;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
1. Appointment. The Fund hereby appoints the Manager to act as investment
manager to the Fund for the period and on the terms set forth in this Agreement.
The Manager accepts such appointment and agrees to render the services herein
described, for the compensation herein provided.
2. Management. Subject to the supervision of the Board of Trustees of the
Trust, the Manager shall manage the investment operations of the Fund and the
composition of the Fund's portfolio, including the purchase, retention and
disposition of securities therefor, in accordance with the Fund's investment
objectives, policies and restrictions as stated in the Prospectus and Statement
of Additional Information (as such terms are hereinafter defined) and
resolutions of the Trust's Board of Trustees and subject to the following
understandings:
(a) The Manager shall provide supervision of the Fund's investments,
furnish a continuous investment program for the Fund's portfolio and
determine from time to time what securities will be purchased,
retained, or sold by the Fund, and what portion of the assets will be
invested or held as cash.
(b) The Manager, in the performance of its duties and obligations under
this Agreement, shall act in conformity with the Declaration of Trust
(as hereinafter defined) of the Trust and the investment policies of
the Fund as determined by the Board of Trustees of the Trust.
(c) The Manager shall determine the securities to be purchased or sold
by the Fund and shall place orders for the purchase and sale of
portfolio securities pursuant to its determinations with brokers or
dealers selected by the Manager. In executing portfolio transactions
and selecting brokers or dealers, the Manager shall use its best
efforts to seek on behalf of the Fund the best overall terms available.
In assessing the best overall terms available for any transaction, the
Manager may consider all factors it deems relevant, including the
breadth of the market in the security, the price of the security, the
size of the transaction, the timing of the transaction, the reputation,
financial condition, experience, and execution capability of a broker
or dealer, the amount of commission, and the value of any brokerage and
research services (as those terms are defined in Section 28(e) of the
Securities Exchange Act of 1934, as amended) provided by a broker or
dealer. The Manager is authorized to pay to a broker or dealer who
provides such brokerage and research services a commission for
executing a portfolio transaction for the Fund which is in excess of
the amount of commission another broker or dealer would have charged
for effecting the transaction if the Manager determines in good faith
that such commission was reasonable in relation to the value of the
brokerage and research services provided by such broker or dealer,
viewed in terms of that particular transaction or in terms of the
overall responsibilities of the Manager to the Fund and/or other
accounts over which the Manager exercises investment discretion.
(d) On occasions when the Manager deems the purchase or sale of a
security to be in the best interest of the Fund as well as other
fiduciary accounts for which it has investment responsibility, the
Manager, to the extent permitted by applicable laws and regulations,
may aggregate the securities to be so sold or purchased in order to
obtain the best execution, most favorable net price or lower brokerage
commissions.
(e) Subject to the provisions of the Agreement and Declaration of Trust
of the Trust and the Investment Company Act of 1940, as amended (the
"1940) Act"), the Manager, at its expense, may select and contract with
one or more investment advisers (the "Subadviser") for the Fund to
perform some or all of the services for which it is responsible
pursuant to this Section 2. In particular, for so long as a Subadviser
meets the standard of care set forth in the relevant subadvisory
agreement, which shall have been approved by the vote of the Trust's
Board of Trustees including a majority of those members of the Board of
Trustees who are not parties to such agreement or "interested persons"
of any such party, cast in person at a meeting called for that purpose,
and by vote of a majority of the outstanding voting securities of the
Fund (each a "Subadvisory Agreement"), the Manager shall have no
obligation to (i) furnish a continuous investment program for the Fund,
(ii) determine from time to time what securities will be purchased,
retained or sold by the Fund, and what portion of the Fund's assets
will be held as cash, or (iii) place orders for the purchase and sale
of portfolio securities for the Fund with brokers or dealers selected
by the Manager; provided, however, that the
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Manager shall remain authorized to determine what securities or other
property shall be purchased or sold by or for the Funds. The Manager
may terminate the services of any Subadviser at any time in its sole
discretion, and shall at such time assume the responsibilities of such
Subadviser unless and until a successor Subadviser is selected. To the
extent that more than one Subadviser is selected, the Manager shall, in
its sole discretion, determine the amount of the Fund's assets
allocated to each such Subadviser. The Manager agrees to indemnify and
hold the Trust harmless from and against any and all claims, costs,
expenses (including attorneys' fees), losses, damages, charges,
payments and liabilities of any sort or kind which may be asserted
against the Trust or for which the Trust may be liable arising out of
or attributable to any actual or alleged failure of a Subadviser to
meet the standard of care set forth in the relevant Subadvisory
Agreement.
3. Services Not Exclusive. The investment management services rendered by
the Manager hereunder to the Fund are not to be deemed exclusive, and the
Manager shall have the right to render similar services to others, including,
without limitation, other investment companies.
4. Expenses. During the term of this Agreement, the Manager shall pay
all expenses incurred by it in connection with its activities under this
Agreement including the salaries and expenses of any of the officers or
employees of the Manager who act as officers, Trustees or employees of the Trust
but excluding the cost of securities purchased for the Fund and the amount of
any brokerage fees and commissions incurred in executing portfolio transactions
for the Fund, and shall provide the Fund with suitable office space. Other
expenses to be incurred in the operation of the Fund (other than those borne by
any third party), including without limitation, taxes, interest, brokerage fees
and commissions, fees of Trustees who are not officers, directors, or employees
of the Manager, federal registration fees and state Blue Sky qualification fees,
administration fees, bookkeeping, charges of custodians, transfer and dividend
disbursing agents' fees, certain insurance premiums, industry association fees,
outside auditing and legal expenses, costs of maintaining the Fund's or the
Trust's existence, costs of independent pricing services, costs attributable to
investor services (including, without limitation, telephone and personnel
expenses), costs of preparing, printing and distributing prospectuses to
existing shareholders, costs of stockholders' reports and meetings of
shareholders and Trustees of the Fund or the Trust, as applicable, and any
extraordinary expenses will be borne by the Fund.
5. Compensation. For the services provided pursuant to this Agreement,
each Fund shall pay to the Manager as full compensation therefor a monthly fee
computed on the average daily net assets of the Fund as stated in Schedule A
attached hereto minus the monthly fee payable by the Fund directly to its
Subadviser or Subadvisers pursuant to the relevant Subadvisory Agreement(s), as
applicable. The Fund acknowledges that the Manager, as agent for the Fund, will
allocate a portion of the fee to WM Shareholder Services, Inc. for
administrative services, portfolio accounting and regulatory compliance systems.
The Manager also from time to time and in such amounts as it shall determine
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in its sole discretion may allocate a portion of the fee to WM Funds
Distributor, Inc. for facilitating distribution of the Fund. This payment would
be made from revenue which otherwise would be considered profit to the Manager
for its services. This disclosure is being made to the Fund solely for the
purpose of conforming with requirements of the Washington Department of Revenue
for exclusion of revenue from the Washington Business and Occupation Tax.
6. Limitation of Liability. The Manager shall not be liable for any error
of judgment or mistake of law or for any loss suffered by the Fund in connection
with the matters to which this Agreement relates, except a loss resulting from
willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement.
7. Delivery of Documents. The Trust has heretofore delivered to the
Manager true and complete copies of each of the following documents and shall
promptly deliver to it all future amendments and supplements thereto, if any:
Agreement and Declaration of Trust (such Agreement and
Declaration as presently in effect and as amended from time to time,
the "Declaration of Trust");
Bylaws of the Trust;
Registration Statement under the Securities Act of 1933 and
under the 1940 Act of the Trust on Form N-1A, and all amendments
thereto, as filed with the Securities and Exchange Commission (the
"Registration Statement") relating to the Fund and the shares of the
Fund;
Notification of Registration of the Trust under the 1940 Act
on Form N-8A;
Prospectuses of the Fund (such prospectuses as presently in
effect and/or as amended or supplemented from time to time, the
"Prospectus"); and
Statement of Additional Information of the Fund (such
statement as presently in effect and/or as amended or supplemented from
time to time, the "Statement of Additional Information").
8. Duration and Termination. This Agreement shall become effective as of
the date first above-written for an initial period of two years following May
14, 2002 and shall continue thereafter so long as such continuance is
specifically approved at least annually (a) by the vote of the Board of Trustees
including a majority of those members of the Trust's Board of Trustees who are
not parties to this Agreement or "interested persons" of any such party, cast in
person at a meeting called for that purpose, or by vote of a majority of the
outstanding voting securities of the Fund. Notwithstanding the foregoing,
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(a) this Agreement may be terminated at any time, without the payment of any
penalty, by either the Fund (by vote of the Trust's Board of Trustees or by vote
of a majority of the outstanding voting securities of the Fund) or the Manager,
on sixty (60) days prior written notice to the other and (b) shall automatically
terminate in the event of its assignment. As used in this Agreement, the terms
"majority of the outstanding voting securities, "interested persons" and
"assignment" shall have the meanings assigned to such terms in the 1940 Act.
9. Amendments. No provision of this Agreement may be amended, modified,
waived or supplemented except by a written instrument signed by the party
against which enforcement is sought. No amendment of this Agreement shall be
effective until approved in accordance with any applicable provisions of the
1940 Act.
10. Use of Name and Logo. The Fund agrees that it shall furnish to the
Manager, prior to any use or distribution thereof, copies of all prospectuses,
statements of additional information, proxy statements, reports to stockholders,
sales literature, advertisements, and other material prepared for distribution
to stockholders of the Fund or to the public, which in any way refer to or
describe the Manager or which include any trade names, trademarks or logos of
the Manager or of any affiliate of the Manager. The Fund further agrees that it
shall not use or distribute any such material if the Manager reasonably objects
in writing to such use or distribution within five (5) business days after the
date such material is furnished to the Manager.
The Manager and/or its affiliates own the names "Sierra", "Composite",
"WM", "WM Group" and derivations thereof and any other names which may be listed
from time to time on a Schedule B to be attached hereto that they may develop
for use in connection with the Fund, which names may be used by the Fund or the
Trust only with the consent of the Manager and/or its affiliates. The Manager,
on behalf of itself and/or its affiliates, consents to the use by the Trust and
by the Fund of such names or any other names embodying such names, but only on
condition and so long as (i) this Agreement shall remain in full force, (ii) the
Fund and the Trust shall fully perform, fulfill and comply with all provisions
of this Agreement expressed herein to be performed, fulfilled or complied with
by it, and (iii) the Manager is the manager of the Fund and the Trust. No such
name shall be used by the Fund or the Trust at any time or in any place or for
any purposes or under any conditions except as provided in this section. The
foregoing authorization by the Manager, on behalf of itself and/or its
affiliates, to the Fund and the Trust to use such names as part of a business or
name is not exclusive of the right of the Manager and/or its affiliates
themselves to use, or to authorize others to use, the same; the Fund and the
Trust acknowledge and agree that as between the Manager and/or its affiliates
and the Fund or the Trust, the Manager and/or its affiliates have the exclusive
right so to use, or authorize others to use, such names, and the Fund and the
Trust agree to take such action as may reasonably be requested by the Manager,
on behalf of itself and/or its affiliates, to give full effect to the provisions
of this section (including, without limitation, consenting to such use of such
names). Without limiting the generality of the foregoing, the Fund and the Trust
agree that, upon (i) any violation of the provisions of
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this Agreement by the Fund or the Trust or (ii) any termination of this
Agreement, by either party or otherwise, the Fund and the Trust will, at the
request of the Manager, on behalf of itself and/or its affiliates, made within
six months after such violation or termination, use its best efforts to change
the name of the Fund and the Trust so as to eliminate all reference, if any, to
such names and will not thereafter transact any business in a name containing
such names in any form or combination whatsoever, or designate itself as the
same entity as or successor to an entity of such names, or otherwise use such
names or any other reference to the Manager and/or its affiliates, except as may
be required by law. Such covenants on the part of the Fund and the Trust shall
be binding upon it, its Trustees, officers, shareholders, creditors and all
other persons claiming under or through it.
The provisions of this section shall survive termination of this
Agreement.
11. Notices. Any notice or other communication required to be given
pursuant to this Agreement shall be deemed duly given if delivered or mailed by
registered mail, postage prepaid, if to the Fund: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; or if to the Manager: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; or to either party at such other address as such
party shall designate to the other by a notice given in accordance with the
provisions of this section.
12. Miscellaneous.
Except as otherwise expressly provided herein or authorized by
the Board of Trustees of the Trust from time to time, the Manager for
all purposes herein shall be deemed to be an independent contractor and
shall have no authority to act for or represent the Fund in any way or
otherwise be deemed an agent of the Fund.
The Trust shall furnish or otherwise make available to the
Manager such information relating to the business affairs of the Fund
as the Manager at any time or from time to time reasonably requests in
order to discharge its obligations hereunder.
This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts and shall
inure to the benefit of the parties hereto and their respective
successors.
If any provision of this Agreement shall be held or made
invalid or by any court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
13. Declaration of Trust and Limitation of Liability. A copy of the
Declaration of Trust of the Trust is on file with the Secretary of State of The
Commonwealth of Massachusetts, and notice is hereby given that this Agreement is
executed by an officer
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of the Trust on behalf of the Trustees of the Trust, as trustees and not
individually, on further behalf of the Fund, and that the obligations of this
Agreement shall be binding upon the assets and properties of the Fund only and
shall not be binding upon the assets and properties of any other series of the
Trust or upon any of the Trustees, officers, employees, agents or shareholders
of the Fund or the Trust individually.
[The remainder of this page has intentionally been left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date first above-written.
WM TRUST I, on behalf of its series
EQUITY INCOME FUND,
GROWTH & INCOME FUND,
U.S. GOVERNMENT SECURITIES FUND,
INCOME FUND,
TAX-EXEMPT BOND FUND,
MONEY MARKET FUND,
TAX-EXEMPT MONEY MARKET FUND,
WEST COAST EQUITY FUND
HIGH YIELD FUND
MID CAP STOCK FUND
REIT FUND
By: __________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
Attest:
By: __________________________________
▇▇▇▇ ▇. ▇▇▇▇
Secretary
WM ADVISORS, INC.
By: __________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
Attest:
By: __________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Secretary
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SCHEDULE A - WM TRUST I
SECOND AMENDED AND RESTATED
INVESTMENT MANAGEMENT AGREEMENT
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FUND FEE
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Equity Income Fund Monthly fee equal to .625% per annum computed
Growth & Income on the Fund average daily net assets of the
High Yield Fund; on assets in excess Fund of $250
million, the fee decreases to .50% per annum.
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Income Fund Monthly fee equal to .50% per annum computed
U.S. Government Securities on the average daily net assets of the Fund;
Fund on assets in excess of $3 billion, the fee
decreases to .45% per annum.
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Tax-Exempt Bond Fund Monthly fee equal to .50% per annum computed
on the average daily net assets of the Fund;
on assets in excess of $250 million, the fee
decreases to .40% per annum.
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Money Market Fund Monthly fee computed on the average daily net
Tax-Exempt Money Market assets of the Fund equal to .45% per annum on
Fund the first $1 billion of assets; .40% per
annum on assets in excess of $1 billion.
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West Coast Equity Fund Monthly fee computed on the average daily net
assets of the Fund equal to .625% per annum
on the first $500 million of assets; .50% per
annum on the next $500 million; .375% per
annum on assets in excess of $1 billion.
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Mid Cap Stock Fund Monthly fee equal to .75% per annum computed
on the average daily net assets of the Fund;
on assets in excess of $3 billion, the fee
decreases to .70% per annum.
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REIT Fund Monthly fee computed on the average daily net
assets of the Fund equal to .80% per annum on
the first $500 million of assets; .75% per
annum on the next $1.5 billion; .70% per
annum on the next $1 billion; .65% per annum
on the assets in excess of $3 billion.
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