FUND ADMINISTRATION AND ACCOUNTING AGREEMENT
AGREEMENT made as of ________________, 2006, by and between WisdomTree
Trust (the "Trust") on behalf of each of its series listed on Exhibit A hereto,
and The Bank of New York, a New York banking organization ("BNY").
W I T N E S S E T H :
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WHEREAS, the Trust is an investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust desires to retain BNY to provide for the portfolios
identified on Exhibit A attached hereto, as may be amended from time to time
(each, a "Series"), the services described herein, and BNY is willing to provide
such services, all as more fully set forth below;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereby agree as follows:
1. Appointment.
The Trust hereby appoints BNY as its agent for the term of this Agreement
to perform the services described herein. BNY hereby accepts such appointment
and agrees to perform the duties hereinafter set forth.
2. Representations and Warranties of the Trust.
The Trust hereby represents and warrants to BNY, which representations and
warranties shall be deemed to be continuing, that:
(a) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business as
now conducted, to enter into this Agreement and to perform its obligations
hereunder;
(b) This Agreement has been duly authorized, executed and delivered
by the Trust in accordance with all requisite action and constitutes a valid and
legally binding obligation of the Trust, enforceable in accordance with its
terms;
(c) It is conducting its business in compliance with all applicable
laws and regulations, both state and federal, and has obtained all regulatory
licenses, approvals and consents necessary to carry on its business as now
conducted; there is no statute, regulation, rule, order or judgment binding on
it and no provision of its charter or by-laws, nor of any mortgage, indenture,
credit agreement or other contract binding on it or affecting its property which
would prohibit its execution or performance of this Agreement; and
(d) To the extent the performance of any services described in
Schedule II attached hereto by BNY in accordance with the then effective
Prospectus (as hereinafter defined) for the Trust would violate any applicable
laws or regulations, the Trust shall immediately so notify BNY in writing and
thereafter shall either furnish BNY with the appropriate values of securities,
net asset value or other computation, as the case may be, or, subject to the
prior approval of BNY, instruct BNY in writing to value securities and/or
compute net asset value or other computations in a manner the Trust specifies in
writing, and either the furnishing of such values or the giving of such Proper
Instructions shall constitute a representation by the Trust that the same is
consistent with its Prospectus.
3. Representations and Warranties of BNY.
BNY hereby represents and warrants to the Trust, which representations and
warranties shall be deemed to be continuing, that:
(a) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business as
now conducted, to enter into this Agreement and to perform its obligations
hereunder;
(b) This Agreement has been duly authorized, executed and delivered
by BNY in accordance with all requisite action and constitutes a valid and
legally binding obligation of BNY, enforceable in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency, creditors' rights
or equitable principles; and
(c) It is conducting its business in compliance with all applicable
laws and regulations, both state and federal, and has obtained all regulatory
licenses, approvals and consents necessary to carry on its business as now
conducted; there is no statute, regulation, rule, order or judgment binding on
it and no provision of its charter or by-laws, nor of any mortgage,
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indenture, credit agreement or other contract binding on it or affecting its
property which would prohibit its execution or performance of this Agreement.
4. Delivery of Documents.
(a) The Trust will promptly deliver to BNY true and correct copies
of each of the following documents as currently in effect and will promptly
deliver to it all future amendments and supplements thereto, if any:
(i) The Trust's articles of incorporation or other
organizational document and all amendments thereto (the "Charter");
(ii) The Trust's bylaws (the "Bylaws");
(iii) Resolutions of the Trust's board of directors or other
governing body (the "Board") authorizing the execution, delivery and performance
of this Agreement by the Trust;
(iv) The Trust's registration statement most recently filed
with the Securities and Exchange Commission (the "SEC") relating to the shares
of each Series (the "Registration Statement");
(v) The Trust's Notification of Registration under the 1940
Act on Form N-8A filed with the SEC; and
(vi) The Trust's Prospectus and Statement of Additional
Information pertaining to the Series (collectively, the "Prospectus").
(b) Each copy of the Charter shall be certified by the Secretary of
State (or other appropriate official) of the state of Delaware, and if the
Charter is required by law also to be filed with a county or other officer or
official body, a certificate of such filing shall be filed with a certified copy
submitted to BNY. Each copy of the Bylaws, Registration Statement and
Prospectus, and all amendments thereto, and copies of Board resolutions, shall
be certified by the Secretary or an Assistant Secretary of the appropriate
Trust.
(c) It shall be the sole responsibility of the Trust to deliver to
BNY its currently effective Prospectus and BNY shall not be deemed to have
notice of any information
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contained in such Prospectus that is not contained in a Prospectus previously
delivered to BNY until such information is actually received by BNY.
5. Duties and Obligations of BNY.
(a) Subject to the direction and control of the Trust's Board and
the provisions of this Agreement, BNY shall provide to the Trust (i) the
administrative services set forth on Schedule I attached hereto and (ii) the
valuation and computation services listed on Schedule II attached hereto.
(b) In performing hereunder, BNY shall provide, at its expense,
office space, facilities, equipment and personnel.
(c) BNY may, pursuant to a separate agreement, provide services
relating to the sub-advisory functions of the Trust or maintenance of the
Trust's financial records, but shall have no duty or obligation to provide such
services under this Agreement.
(d) Upon receipt of the Trust's prior written consent, BNY may
delegate any of its duties and obligations hereunder to any delegee or agent
whenever and on such terms and conditions as it deems necessary or appropriate;
provided, however, that no such delegation of its duties and obligations
hereunder shall discharge BNY from its obligations hereunder, and provided
further that BNY shall not be liable for any delegee or agent consented to by
the Trust. Notwithstanding the foregoing, no Trust consent shall be required for
any such delegation to any other subsidiary of The Bank of New York Company,
Inc., and BNY hereunder shall be as liable for the acts or omissions of any such
subsidiary as if such acts or omissions were its own.
(e) The Trust shall cause its officers, advisors, sponsor,
distributor, legal counsel, independent accountants, and transfer agent to
cooperate with BNY and to provide BNY, upon request, with such information,
documents and advice relating to the Trust as is within the possession or
knowledge of such persons, in order to enable BNY to perform its duties
hereunder. In connection with its duties hereunder, BNY shall be entitled to
rely, and shall be held harmless by the Trust when acting in reliance, upon the
foregoing or upon any Proper Instructions, as that term is defined herein in
Section 6, advice or any documents relating to the Trust provided to BNY by any
of the individuals listed on Exhibit B attached hereto or any individual
reasonably believed by BNY to be one of the listed individuals (each an
"Authorized
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Person"). BNY shall not be liable for any loss, damage or expense resulting from
or arising out of the failure of the Trust to cause any information or,
documents to be provided to BNY as provided herein. All fees or costs charged by
such persons shall be borne by the Trust.
(f) Nothing in this Agreement shall limit or restrict BNY, any
affiliate of BNY or any officer or employee thereof from acting for or with any
third parties, and providing services similar or identical to same or all of the
services provided hereunder.
(g) The Trust shall furnish BNY with Proper Instructions containing
any and all instructions, explanations, information, specifications and
documentation reasonably deemed necessary by BNY in the performance of its
duties hereunder, including, without limitation, the amounts or written formula
for calculating the amounts and times of accrual of Trust liabilities and
expenses. BNY shall not be required to include as Trust liabilities and
expenses, nor as a reduction of net asset value, any accrual for any federal,
state or foreign income taxes unless the Trust shall have specified to BNY the
precise amount of the same to be included in liabilities and expenses or used to
reduce net asset value. The Trust shall also furnish BNY with bid, offer, or
market values of Securities if BNY notifies the Trust that same are not
available to BNY from a security pricing or similar service utilized, or
subscribed to, by BNY which BNY in its judgment deems reliable at the time such
information is required for calculations hereunder. At any time and from time to
time, the Trust also may furnish BNY with bid, offer, or market values of
Securities and instruct BNY to use such information in its calculations
hereunder. BNY shall at no time be required or obligated to commence or maintain
any utilization of, or subscriptions to, any securities pricing or similar
service. In no event shall BNY be required under this Agreement to determine, or
have any obligation with respect to, whether a market price represents any fair
or true value, nor to adjust any price to reflect any events or announcements,
including, without limitation, those with respect to the issuer thereof, it
being agreed that all such determinations and considerations shall be solely for
the Trust.
(h) BNY may apply to an officer of the Trust for written Proper
Instructions with respect to any matter arising in connection with BNY's
performance hereunder for the Trust, and BNY shall not be liable for any action
taken or omitted to be taken by it in good faith in accordance with such Proper
Instructions. Such application may, at the option of BNY, set forth in writing
any action proposed to be taken or omitted to be taken by BNY with respect to
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its duties or obligations under this Agreement and the date on and/or after
which such action shall be taken (which date shall be reasonably selected by BNY
given the particular circumstances), and BNY shall not be liable for any action
taken or omitted to be taken in accordance with a proposal included in any such
application on or after the date specified therein unless, prior to taking or
omitting to take any such action, BNY has received Proper Instructions in
response to such application specifying the action to be taken or omitted.
(i) BNY may consult with counsel to the Trust or its own external
counsel, at the Trust's expense, or with its internal counsel, with respect to
any matter arising in connection with the services to be performed by BNY under
this Agreement, and shall promptly advise the Trust of the advice or opinion of
such counsel, provided, however, that unless the circumstances do not reasonably
permit the giving of notice to the Trust, BNY shall give to the Trust notice of
the counsel it intends to use and await the Trust's approval thereof, which
approval shall not be unreasonably withheld, except that no such notice or
approval shall be required with respect to any matter or question of law
referred solely to BNY's in-house counsel, and BNY shall give prompt after the
fact notice where prior notice is not given. BNY shall be fully protected with
respect to anything done or omitted by it in good faith in accordance with the
advice or opinion of either Trust counsel or its own counsel, provided such
advice or opinion is consistent with generally accepted industry legal
standards.
(j) Notwithstanding any other provision contained in this Agreement
or Schedule I or II attached hereto, BNY shall have no duty or obligation to
with respect to, including, without limitation, any duty or obligation to
determine, or advise or notify the Trust of: (i) the taxable nature of any
distribution or amount received or deemed received by, or payable to, the Trust,
(ii) the taxable nature or effect on the Trust or its shareholders of any
corporate actions, class actions, tax reclaims, tax refunds or similar events,
(iii) the taxable nature or taxable amount of any distribution or dividend paid,
payable or deemed paid, by the Trust to its shareholders; or (iv) the effect
under any federal, state, or foreign income tax laws of the Trust making or not
making any distribution or dividend payment, or any election with respect
thereto.
(k) BNY shall have no duties or responsibilities whatsoever except
such duties and responsibilities as are specifically set forth in this Agreement
and Schedules I and II
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attached hereto, and no covenant or obligation, except for those set forth
herein, shall be implied against BNY in connection with this Agreement.
(l) BNY, in performing the services required of it under the terms
of this Agreement, shall be entitled to rely fully on the accuracy and validity
of any and all Proper Instructions, explanations, information, specifications
and documentation furnished to it by Authorized Persons and shall have no duty
or obligation to review the accuracy, validity or propriety of such Proper
Instructions, explanations, information, specifications or documentation,
including, without limitation, evaluations of securities; the amounts or formula
for calculating the amounts and times of accrual of Series' liabilities and
expenses; the amounts receivable and the amounts payable on the sale or purchase
of Securities; and amounts receivable or amounts payable for the sale or
redemption of Series shares effected by or on behalf of the Trust. In the event
BNY's computations hereunder rely, in whole or in part, upon information,
including, without limitation, bid, offer or market values of securities or
other assets, or accruals of interest or earnings thereon, from a pricing or
similar service utilized, or subscribed to, by BNY which BNY in its judgment
deems reliable, BNY shall not be responsible for, under any duty to inquire
into, or deemed to make any assurances with respect to, the accuracy or
completeness of such information. Without limiting the generality of the
foregoing, BNY shall not be required to inquire into any valuation of securities
or other assets by the Trust or any third party described in this (l) even
though BNY in performing services similar to the services provided pursuant to
this Agreement for others may receive different valuations of the same or
different securities of the same issuers.
(m) BNY, in performing the services required of it under the terms
of this Agreement, shall not be responsible for determining whether any interest
accruable to the Trust is or will be actually paid, but will accrue such
interest until otherwise instructed by the Trust.
(n) BNY shall not be responsible for delays or errors which occur by
reason of circumstances beyond its control in the performance of its duties
under this Agreement, including, without limitation, labor difficulties within
or without BNY, mechanical breakdowns, flood or catastrophe, acts of God,
failures of transportation, interruptions, loss, or malfunctions of utilities,
communications or computer (hardware or software) services. Nor shall BNY be
responsible for delays or failures to supply the information or services
specified in this
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Agreement where such delays or failures are caused by the failure of any
person(s) other than BNY to supply any instructions, explanations, information,
specifications or documentation reasonably deemed necessary by BNY in the
performance of its duties under this Agreement. Upon the occurrence of any such
delay or failure BNY shall use commercially reasonable best efforts to resume
performance as soon as practicable under the circumstances.
6. Proper Instructions
Proper Instructions shall mean (i) instructions given by an Authorized
Person(s), such instructions to be given in such form and manner as BNY and the
Trust shall agree upon from time to time, (ii) instructions (which may be
continuing instructions) signed or initialed by an Authorized Person, and (iii)
instructions transmitted by any electro-mechanical or electronic device agreed
to by the Trust and BNY and requiring the use of user and authorization codes,
passwords and/or authentication keys. Oral instructions will be considered
Proper Instructions if BNY reasonably believes them to have been given by an
Authorized Person. BNY shall act upon and comply with any subsequent Proper
Instruction which modifies a prior instruction and will make reasonable efforts
to detect any discrepancy between the original instruction and such confirmation
and to report any discrepancy to the Trust. The Trust shall be responsible for
taking any action, including any transaction reprocessing, necessary to correct
any such discrepancy or error, and to the extent such action requires BNY to
act, the Trust shall give BNY specific Proper Instructions as to the action
required. The Trust shall protect with extreme care the user and authorization
codes, passwords and/or authentication keys used for electronic or
electro-mechanical Proper Instructions, and agrees such Proper Instructions may
be conclusively presumed by BNY to be given by Authorized Persons. BNY shall not
to be held to have notice of any change of authority of any Authorized Person
until receipt of appropriate written notice thereof has been received by BNY
from the Trust.
7. Allocation of Expenses.
Except as otherwise provided herein, all costs and expenses arising or
incurred in connection with the performance of this Agreement shall be paid by
the appropriate Trust.
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8. Standard of Care; Indemnification.
(a) BNY shall have no responsibility and shall not be liable for any
loss or damage unless such loss or damage is caused by its own negligence or
willful misconduct or that of its employees, or its breach of any of its
representations. Except for the Trust's obligation to indemnify BNY for Losses
as set forth in Section 8(b) hereof, including Losses constituting special,
indirect or consequential damages to third parties, neither BNY nor the Trust
shall otherwise be liable for special, indirect or consequential damages
regardless of the form of action and even if the same were foreseeable, except
that BNY shall be liable for reasonable counsel fees as provided in Section 8(c)
hereof.
(b) BNY shall not be responsible for, and the Trust shall indemnify
and hold BNY harmless from and against, any and all losses, damages, costs,
charges, reasonable counsel fees, payments, expenses and liability ("Losses")
arising out of or attributable to:
(i) The Trust's negligence or willful misconduct;
(ii) The breach of any representation or warranty of the Trust
hereunder;
(iii) The conclusive reliance on or use by BNY or its agents or
subcontractors of information, records, documents or services which (A) are
received by BNY or its agents or subcontractors, and (B) have been prepared,
maintained or performed by the Trust or any other person or firm on behalf of
the Trust including but not limited to any previous transfer agent or registrar;
(iv) The conclusive reliance on, or the carrying out by BNY or its
agents or subcontractors of any instructions or requests of the Trust on behalf
of the Trust; and
(v) The offer or sale of Shares in violation of any requirement
under the federal securities laws or regulations or the securities laws or
regulations of any state that such Shares be registered in such state or in
violation of any stop order or other determination or ruling by any federal
agency or any state with respect to the offer or sale of such Shares in such
state.
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(vi) BNY shall promptly give notice of any claim, but a delay in
giving notice shall not affect the BNY's right to indemnification. BNY agrees to
keep the Trust informed of the status of, and material developments in, any
lawsuit, litigation or other proceeding relating to such claim, and its counsel
shall discuss its response, defense and legal action with respect to any claim
with the Trust's counsel but BNY's counsel shall control any response, defense,
or legal action, including any settlement, without the consent or approval of
the Trust's counsel and even if the Trust's counsel disagrees. In the event BNY
enters any settlement for an amount which is unreasonable, the Trust shall not
be liable for, and its indemnity to BNY shall not include, the difference
between the dollar amount of BNY's settlement and the highest dollar amount of a
settlement which would have been reasonable. This indemnity shall be a
continuing obligation of the Trust, its successors and assigns, notwithstanding
the termination of this Agreement.
(c) The Trust shall not be responsible for, and BNY shall indemnify
and hold the Trust harmless from and against, any and all Losses (including
reasonable counsel fees) arising out of or attributable to:
(i) BNY's negligence or willful misconduct; and
(ii) The breach of any representation or warranty of BNY hereunder.
(iii) The Trust shall promptly give notice of any claim, but a delay
in giving notice shall not affect the Trust's right to indemnification. The
Trust agrees to keep the Bank informed of the status of, and material
developments in, any lawsuit, litigation or other proceeding relating to such
claim, and its counsel shall discuss its response, defense and legal action with
respect to any claim with BNY's counsel, but the Trust's counsel shall control
any response, defense, or legal action, including any settlement, without the
consent or approval of the Bank's counsel and even if the Bank's counsel
disagrees. In the event the Trust enters any settlement for an amount which is
reasonable, the Bank shall not be liable for, and its indemnity to the Trust
shall not include, the difference between the dollar amount of the Trust's
settlement and the highest dollar amount of a settlement which would have been
reasonable. This indemnity shall be a continuing obligation of BNY, its
successors and assigns, notwithstanding the termination of this Agreement.
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(d) Notwithstanding any other provision contained in this Agreement,
BNY shall have no duty or obligation with respect to, including, without
limitation, any duty or obligation to determine, or advise or notify the Trust
of: (a) the taxable nature of any distribution or amount received or deemed
received by, or payable to the Trust; (b) the taxable nature or effect on the
Trust or its shareholders of any corporate actions, class actions, tax reclaims,
tax refunds, or similar events; (c) the taxable nature or taxable amount of any
distribution or dividend paid, payable or deemed paid, by the Trust to its
shareholders; or (d) the effect under any federal, state, or foreign income tax
laws of the Trust making or not making any distribution or dividend payment, or
any election with respect thereto.
(e) The terms of this Section 8 shall survive the termination of
this Agreement.
9. Compensation.
For the services provided hereunder, the Trust agrees to pay BNY such
compensation as is mutually agreed upon in writing from time to time and such
out-of-pocket expenses (e.g., telecommunication charges, postage and delivery
charges, record retention costs, reproduction charges and transportation and
lodging costs) as are incurred by BNY in performing its duties hereunder. Except
as hereinafter set forth, compensation shall be calculated and accrued daily and
paid monthly. BNY shall deliver to the Trust invoices for services rendered
hereunder, and the Trust shall have a reasonable time period to review and
approve the payment of such invoices. Upon termination of this Agreement before
the end of any month, the compensation for such part of a month shall be
prorated according to the proportion which such period bears to the full monthly
period and shall be payable upon the effective date of termination of this
Agreement. For the purpose of determining compensation payable to BNY, the
Trust's net asset value shall be computed at the times and in the manner
specified in the Trust's Prospectus.
10. Term of Agreement.
This Agreement may be terminated by either BNY giving to the Trust, or
the Trust giving to BNY, a notice in writing specifying the date of such
termination, which date shall be not less than 180 days after the date of the
giving of such notice, provided that any such termination prior to the first
anniversary of the date first above written may only be for cause. Upon
termination
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hereof, the affected Trust(s) shall pay to BNY such compensation as may be due
as of the date of such termination, and shall reimburse BNY for any
disbursements and expenses made or incurred by BNY and payable or reimbursable
hereunder.
11. Authorized Persons.
Attached hereto as Exhibit B is a list of persons duly authorized by
the board of the Trust to execute this Agreement and give any written or oral
Proper Instructions, or written or oral specifications, by or on behalf of the
Trust. From time to time, the Trust may deliver a new Exhibit B to add or delete
any person and BNY shall be entitled to rely on the last Exhibit B actually
received by BNY.
12. Records
In compliance with the requirements of Rule 31a-3 under the 1940 Act, BNY
agrees that all records listed on Schedule II which it maintains for the Trust
shall at all times remain the property of the Trust, shall be readily accessible
in a facility owned or maintained by BNY, during normal business hours, and
shall be promptly surrendered in the form and medium then maintained upon the
termination of the Agreement or otherwise on written request. BNY further agrees
that all records listed on Schedule II which it maintains for the Trust pursuant
to Rule 31a-1 under the 1940 Act will be preserved for the periods prescribed by
Rule 31a-2 under the 1940 Act unless any such records are earlier surrendered as
provided above, and will be surrendered in the form and medium then maintained.
13. Confidentiality.
BNY has established and maintains policies and measures reasonably
designed to protect the confidentiality of customer information, and will
subject information hereunder to such policies and measures.
14. Amendment.
(a) This Agreement may not be amended or modified in any manner
except by a written agreement executed by BNY and the Trust to be bound thereby,
and authorized or approved by the Trust's Board.
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(b) Notwithstanding any other provisions contained in this
Agreement, the Trust may without BNY's consent amend Exhibit A to add or delete
Series, provided that after such amendment there are not more than forty-four
(44) Series listed thereon, and provided further that the Trust provide at least
thirty (30) days notice to BNY of each such amendment.
15. Assignment.
This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by the Trust without the written consent
of BNY, or by BNY without the written consent of the affected Trust accompanied
by the authorization or approval of the Trust's Board. Any purported assignment
in violation of this provision shall be void.
16. Governing Law; Consent to Jurisdiction.
This Agreement shall be construed in accordance with the laws of the State
of New York, without regard to conflict of laws principles thereof. BNY and the
Trust each hereby consent to the jurisdiction of a state or federal court
situated in New York City, New York in connection with any dispute arising
hereunder, and waives to the fullest extent permitted by law its right to a
trial by jury. To the extent that in any jurisdiction BNY or the Trust may now
or hereafter be entitled to claim, for themselves or their assets, immunity from
suit, execution, attachment (before or after judgment) or other legal process,
BNY and the Trust irrevocably agree not to claim, and hereby waive, such
immunity.
17. Severability.
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations shall not in any
way be affected or impaired thereby, and if any provision is inapplicable to any
person or circumstances, it shall nevertheless remain applicable to all other
persons and circumstances.
18. No Waiver.
Each and every right granted to BNY or the Trust hereunder or under any
other document delivered hereunder or in connection herewith, or allowed it by
law or equity, shall be cumulative and may be exercised from time to time. No
failure on the part of BNY or the Trust
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to exercise, and no delay in exercising, any right will operate as a waiver
thereof, nor will any single or partial exercise by BNY or the Trust of any
right preclude any other or future exercise thereof or the exercise of any other
right.
19. Notices.
All notices, requests, consents and other communications pursuant to this
Agreement in writing shall be sent as follows:
if to the Trust, at
WisdomTree Trust
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With a copy (which shall not constitute notice) to
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
if to BNY, at
The Bank of ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Title:
or at such other place as may from time to time be designated in writing.
Notices hereunder shall be effective upon receipt.
20. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original; but such counterparts together shall
constitute only one instrument.
21. Several Obligations.
The parties acknowledge that the obligations of the Series hereunder are
several and not joint, that no Series shall be liable for any amount owing by
another Series and that the Series have executed one instrument for convenience
only.
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22. Limitation of Liability.
It is expressly acknowledged and agreed that the obligations of the Trust
hereunder shall not be binding upon any of the shareholders, Trustees, officers,
employees or agents of the Trust, personally, but shall bind only the trust
property of the Trust, as provided in its Trust Instrument. The execution and
delivery of this Agreement have been authorized by the Trustees of the Trust and
signed by an officer of the Trust, acting as such, and neither such
authorization by such Trustees nor such execution and delivery by such officer
shall be deemed to have been made by any of them individually or to impose any
liability on any of them personally, but shall bind only the trust property of
the Trust as provided in its Trust Instrument.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused the foregoing
instrument to be executed by their duly authorized officers and their seals to
be hereunto affixed, all as of the day and year first above written.
WISDOMTREE TRUST
By: __________________________
Title:
THE BANK OF NEW YORK
By: __________________________
Title:
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EXHIBIT A
Name of Series:
WisdomTree Total Dividend Fund
WisdomTree High-Yielding Equity Fund
WisdomTree LargeCap Dividend Fund
WisdomTree Dividend Top 100(SM) Fund
WisdomTree MidCap Dividend Fund
WisdomTree SmallCap Dividend Fund
WisdomTree DIEFA(SM) Fund
WisdomTree DIEFA High-Yielding Equity Fund
WisdomTree Europe Total Dividend Fund
WisdomTree Europe High-Yielding Equity Fund
WisdomTree Europe SmallCap Dividend Fund
WisdomTree Japan Total Dividend Fund
WisdomTree Japan High-Yielding Equity Fund
WisdomTree Japan SmallCap Dividend Fund
WisdomTree DIPR(SM) Fund
WisdomTree DIPR High-Yielding Equity Fund
WisdomTree International LargeCap Dividend Fund
WisdomTree International Dividend Top 100(SM) Fund
WisdomTree International MidCap Dividend Fund
WisdomTree International SmallCap Dividend Fund
EXHIBIT B
I, , of WisdomTree Trust, a statutory trust
organized and existing under the laws of the State of Delaware (the "Trust"), do
hereby certify that:
The following individuals serve in the following positions with the
Trust, and each has been duly elected or appointed by the Board of Trustees of
the Trust to each such position and qualified therefor in conformity with the
Trust's Trust Instrument and By-Laws, and the signatures set forth opposite
their respective names are their true and correct signatures. Each such person
is authorized to give written or oral Proper Instructions or written or oral
specifications by or on behalf of the Trust to the Bank.
Name Position Signature
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SCHEDULE I
ADMINISTRATIVE SERVICES
1. Prepare minutes of Board of Director meetings and assist the Secretary
of each Fund in preparation for Board meetings. Such minutes, meeting agendas
and other material prepared in preparation for each Board meeting are subject to
the review and approval of Fund counsel.
2. Perform for each Fund, the compliance tests as mutually agreed and
which shall be specific to each Fund. The Compliance Summary Reports listing the
results of such tests are subject to review and approval by each Fund.
3. Participate in the periodic updating of each Fund's Registration
Statement and Prospectus and, subject to approval by such Fund's Treasurer and
legal counsel, coordinate the preparation, filing, printing and dissemination of
periodic reports and other information to the SEC and the Fund's shareholders,
including annual and semi-annual reports to shareholders, Form N-SAR, Form
N-CSR, Form N-Q and notices pursuant to Rule 24(f)-2.
4. Prepare workpapers supporting the preparation of federal, state and
local income tax returns for each Fund for review and approval by each Fund's
independent auditors; perform ongoing wash sales review (i.e., purchases and
sales of Fund investments within 30 days of each other); and prepare Form 1099s
with respect to each Fund's directors or trustees and file such forms upon the
approval of the Fund's Treasurer.
5. Prepare and, subject to approval of each Fund's Treasurer, disseminate
to such Fund's Board quarterly unaudited financial statements and schedules of
such Fund's investments and make presentations to the Board, as appropriate.
6. Subject to approval of each Fund's Board, assist such Fund in obtaining
fidelity bond and E&O/D&O insurance coverage.
7. Prepare statistical reports for outside information services (e.g.,
IBC/▇▇▇▇▇▇▇▇, ICI, Lipper Analytical and Morningstar).
8. Attend shareholder and Board meetings as requested from time to time.
9. Subject to review and approval by the Fund Treasurer, establish
appropriate expense accruals, maintain expense files and coordinate the payment
of invoices for each Fund.
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SCHEDULE II
VALUATION AND COMPUTATION SERVICES
I. BNY shall maintain the following records on a daily basis for each Series.
1. Report of priced portfolio securities
2. Statement of net asset value per share
II. BNY shall maintain the following records on a monthly basis for each
Series:
1. General Ledger
2. General Journal
3. Cash Receipts Journal
4. Cash Disbursements Journal
5. Subscriptions Journal
6. Redemptions Journal
7. Accounts Receivable Reports
8. Accounts Payable Reports
9. Open Subscriptions/Redemption Reports
10. Transaction (Securities) Journal
11. Broker Net Trades Reports
III. BNY shall prepare a Holdings Ledger on a quarterly basis, and a
Buy-Sell Ledger (Broker's Ledger) on a semiannual basis for each Series.
Schedule D shall be produced on an annual basis for each Series.
The above reports may be printed according to any other required frequency
to meet the requirements of the Internal Revenue Service, the Securities and
Exchange Commission and the Fund's Auditors.
IV. For internal control purposes, BNY uses the Account Journals produced by
The Bank of New York Custody System to record daily settlements of the
following for each Series:
1. Securities bought
2. Securities sold
3. Interest received
4. Dividends received
5. Capital stock sold
6. Capital stock redeemed
7. Other income and expenses
All portfolio purchases for the Fund are recorded to reflect expected
maturity value and total cost including any prepaid interest.
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