Exhibit d(2)(A)
WM TRUST II
AMENDED AND RESTATED INVESTMENT MANAGEME NT AGREEMENT
AMENDED AND RESTATED INVESTMENT MANAGEMENT AGREEMENT (this "Agreement"),
dated as of May 14, 2002, amending and restating in its entirety the Investment
Management Agreement dated March 20, 1998, as amended as of January 1, 1999,
between the WM Trust II, 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, collectively, the "Funds")
and WM Advisors, Inc., a Washington corporation (the "Manager").
W I T N E S S E T H
WHEREAS, the Trust is an open-end series management investment company,
registered under the Investment Company Act of 1940 (the "1940 Act"); and
WHEREAS, the Trust, desires to retain the Manager to render investment
management services to each 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 Trust hereby appoints the Manager to act as investment
manager to each 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 each Fund and the
composition of each 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 each Fund's
investments, furnish a continuous investment program for each Fund's
portfolio and determine from time to time what securities will be
purchased, retained, or sold by each 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 Master Trust
Agreement of the Trust and the investment policies of the Funds as
determined by the Bo and of Trustees of the Trust.
(c) The Manager shall determine the securities to be purchased or
sold by each 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 each 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, provide d 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
a Fund which is in excess of the amount of commission another broker or
dealer would have charged f or 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 a 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 Master Trust Agreement of the
Trust and the 1940 Act, the Manager, a t its expense, may select and
contract with one or more investment advisers (the "Subadviser") for each
Fund to perform some or all of the ser vices 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 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
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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 Funds 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 Funds and the amount of any brokerage
fees and commissions incurred in executing portfolio transactions for the Funds,
and shall provide the Funds with suitable office space. Other expenses to be
incurred in the operation of the Funds (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 Funds' 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 Funds 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, the
Trust shall pay to the Manager as full compensation therefor a monthly fee
computed on the average daily net assets at the annual rate f or each 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 Trust acknowledges that the Manager, as agent
for the Funds, 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 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
b e made from revenue which otherwise would be considered profit to the Manager
for its ser vices. This disclosure is being ma de to the Trust 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 Trust 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 t o it all future amendments and supplements thereto, if any:
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(a) Master Trust Agreement as presently in effect and as amended
from time to time;
(b) Bylaws of the Trust;
(c) Registration Statement under the Securities Act of 1933 and
under the 1940 Act of the Trust on Form N-lA, and all amendments thereto,
as filed with the Securities and Exchange Commission (the "Registration
Statement") relating to the Trust and the shares of the Funds;
(d) Notification of Registration of the Trust under the 1940 Act
on Form N-8A;
(e) Prospectuses of the Trust relating to shares of the Funds
(such prospectuses as presently in effect an d/or as amended or
supplemented from time to time, the "Prospectus"); and
(f) Statement of Additional Information of the Trust relating to
shares of the Funds (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 f or an initial period of two years 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 Boa rd 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 each Fund. Notwithstanding the foregoing, (a) this Agreement may be
terminated with respect to any Fund at any time, without the payment of any
penalty, by either the Trust (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 Trust 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 Trust 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 Trust 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.
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The Manager and/or its affiliates own the names "WM" and "WM Group of
Funds" 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
Trust, which names may be used by the Trust only with the consent of the Manager
and/or its affiliates. The Manager, on behalf of itself and/o r its affiliates,
consents to the use by the Trust 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 each
Fund of the Trust. No such name shall be used by 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/o r
its affiliates, 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; each Fund and the Trust acknowledges
and agrees that as between the Manager and/o r its affiliates and a Fund or the
Trust, the Manager and/or its affiliates have the exclusive right so to use, o r
authorize others to use, such names, and the Trust agrees 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 Trust agrees that, upon (i) any violation of
the provisions of this Agreement by the Trust or (ii) any termination of this
Agreement, by either party or otherwise, 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
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 o r
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 Trust shall be binding upon it, its Trustees,
officers, shareholders, creditors and all of her 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 Trust: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; 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.
(a) Except a s 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 Trust in any way or
otherwise be deemed an agent of the Trust.
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(b) The Trust shall furnish or otherwise make available to the
Manager such information relating to the business affairs of the Trust as
the Manager at any time or from time to time reasonably requests in order
to discharge its obligations hereunder.
(c) This Agreement shall be governed by and construed in
accordance with the laws of The Common wealth of Massachusetts and shall
inure to the benefit of the parties hereto and their respective
successors.
(d) 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 there by.
13. Declaration of Trust and Limitation of Liability. A copy of the Master
Trust Agreement 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 of the Trust on behalf of the Trustees of the Trust, as
trustees and not individually, on further be half of the Funds, and that the
obligations of this Agreement with respect to a Fund shall be binding upon the
assets and properties of that Fund only and shall not be binding upon the assets
and properties of any other Fund or series of the Trust or up on any of the
Trustees, officers, employees, agents or shareholders of the Funds or the Trust
individually.
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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 II, on behalf of its series
GROWTH FUND,
SHORT TERM INCOME FUND,
INTERNATIONAL GROWTH FUND,
CALIFORNIA MUNICIPAL FUND,
CALIFORNIA INSURED INTERMEDIATE
MUNICIPAL FUND,
CALIFORNIA MONEY FUND, and
SMALL CAP STOCK FUND
By: _________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Attest:
By: _________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary
WM ADVISORS, INC.
By: _________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Attest:
By: _________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
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SCHEDULE A - WM TRUST II
AMENDED AND RESTATED INVESTMENT MANAGEMENT AGREEMENT
The fees to be charged to WM Trust II for services provided under this Agreement
(including any sub-advisory fees) are as follows:
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FUND FEE
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California Municipal Fund Monthly fee equal to .50% per annum computed
California Insured Intermediate on the average daily net assets of the Fund; on
Municipal Fund assets in excess of $1 billion, the fee decreases to
.45% per annum.
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Growth 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 of assets; .70% per annum on
the next $1 billion of assets and .65% per annum
on assets in excess of $3 billion.
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Small Cap Stock Fund Monthly fee equal to .85% per annum computed
on the average daily net assets of the Fund; on
assets in excess of $3 billion, the fee decreases to
.80% per annum.
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International Growth Fund Monthly fee computed on the average daily net
assets of the Fund equal to 1.00% per annum on
the first $125 million of assets; .80% per annum
on the next $875 million; .75% per annum on the
next $2 billion and .70% per annum on assets in
excess of $3 billion.
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Short Term Income Fund Monthly fee computed on the average daily net
assets of the Fund equal to .50% per annum on the
first $200 million of assets; .45% per annum on
the next $300 million; .40% per annum on assets
in excess of $500 million and above.
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California Money Fund Monthly fee equal to .45% per annum computed
on the average daily net assets of the Fund; on
assets in excess of $500 million, the fee decreases
to .40% per annum.
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