EXHIBIT 99.(E)(1)
WM GROUP OF FUNDS
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (this "Agreement"), dated as of this 6th
day of March, 2001 between WM Trust I, WM Trust II, and WM Strategic Asset
Management Portfolios, LLC, (each referred to hereinafter as a "Trust"), on
behalf of each respective series of each respective Trust listed on the
signature page of this Agreement (each a "Fund"), and WM Funds Distributor,
Inc., a Washington corporation doing business at Irvine, California, herein
sometimes referred to as the "Distributor."
RECITALS
WHEREAS, each Trust is registered as an open-end, management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act")
and the Funds are separate series of each respective Trust;
WHEREAS, each Fund and the Distributor desire to enter into an agreement
that sets forth standard terms and conditions for the distribution of shares of
each Fund;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. APPOINTMENT.
1.1 Each Trust hereby affirms the appointment of WM Funds
Distributor, Inc. as the agent for the distribution of shares of each
Fund (the "Shares") and grants Distributor the right to sell the Shares
on behalf of each Fund at such Shares' public offering price and on the
terms set forth in this Agreement.
1.2 The Distributor accepts such appointment and agrees to
render the services herein set forth for the payments herein provided
(including reimbursement of expenses).
2. DELIVERY OF DOCUMENTS.
2.1 Each Trust and/or each Fund has furnished the Distributor
with copies of:
(a) Agreement and Declaration of Trust of each of WM
Trust I and WM Trust II or LLC Operating Agreement of WM
Strategic Asset
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Management Portfolios, LLC, as applicable, and all amendments
thereto (as amended from time to time, the "Charter Document");
(b) Bylaws and all amendments thereto for the Trust (as
amended from time to time, the "Bylaws"); and
(c) Each Fund's registration statement, prospectus and
statement of additional information, then in effect (the
"Registration Statement") under the Securities Act of 1933, as
amended (the "1933 Act") and the ▇▇▇▇ ▇▇▇.
2.2 From time to time, each Trust will furnish the Distributor
with current copies of all amendments or supplements to the foregoing,
if any, and all documents, notices and reports filed with the Securities
and Exchange Commission (the "SEC") and will make available, upon
request, evidence of payment of registration fees imposed from time to
time by the States in which the Shares of each Fund are sold by the
Distributor.
3. DUTIES OF THE DISTRIBUTOR.
3.1 The Distributor shall provide each Fund with the benefit of
its best judgment, efforts and facilities in rendering its services as
Distributor. The Distributor will act as the exclusive Distributor of
the Shares of each Fund, subject to the supervision of each Trust's
Board of Trustees and the following understandings:
(a) each Trust's Board of Trustees shall be responsible
for and control the conduct of each Fund's affairs;
(b) in all matters relating to the performance of this
Agreement, the Distributor will act in conformity with the
Charter Document and Bylaws of each Trust and the Registration
Statement of each Fund and with the instructions and directions
of each Trust's Board of Trustees; and
(c) the Distributor will conform to and comply with
applicable requirements of the 1940 Act, the 1933 Act and all
other applicable federal or state laws and regulations.
3.2 In carrying out its obligations hereunder, the Distributor
shall:
(a) Provide to each Trust's Board of Trustees, at least
quarterly, a written report of the amounts expended in
connection with all distribution services rendered pursuant to
this Agreement, including the purposes for which such
expenditures were made; and
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(b) Take, on behalf of each Fund, all actions which
appear to be necessary to carry into effect the distribution of
each Fund's Shares as provided in Section 4.
4. DISTRIBUTION OF SHARES.
4.1 It is mutually understood and agreed that the Distributor
does not undertake to sell all or any specific portion of the Shares of
any Fund. Distributor shall have the right to enter into sales
agreements with dealers of its choice on such terms and conditions as
Distributor determines are not inconsistent with this Agreement.
Distributor shall set forth in such agreements the portion of the sales
charge which may be retained by such dealers.
4.2 If any Fund determines that it is necessary to file the form
of dealer agreement and amendments thereto as an exhibit to its
currently effective Registration Statement under the 1933 Act, then the
Distributor shall provide the Fund with currently effective documents.
4.3 A Fund shall not sell any of its Shares except through the
Distributor. Notwithstanding the provisions of the foregoing sentence:
(a) A Fund may issue its Shares at their net asset value
to any shareholder of the Fund purchasing such Shares with
dividends or other cash distributions received from the Fund
pursuant to any special or continuing offer made to
shareholders;
(b) The Distributor may, and when requested by a Fund,
shall, suspend its efforts to effectuate sales of the Shares of
a Fund at any time when in the opinion of the Distributor or of
the Fund no sales should be made because of a need to revise a
Registration Statement, or because of market or other economic
considerations or abnormal circumstances of any kind. Either
party in its sole discretion may reject orders for the purchase
of Shares;
(c) A Fund may withdraw the offering of its Shares (i)
at any time with the consent of the Distributor or (ii) without
such consent when so required by the provisions of any statute
or of any order, rule or regulation of any governmental body
having jurisdiction;
(d) The price at which the Shares will be sold to
investors (the "public offering price") shall be the net asset
value per Share, determined in accordance with the provisions of
the Fund's current Registration Statement, plus a sales charge
determined in the amount and manner established from time to
time by the Distributor and set forth in a Fund's current
prospectus.
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The Fund shall receive the net asset value per Share for the
sale of its Shares; and
(e) The Distributor is not authorized by any Fund to
provide any information or to make any representations other
than those contained in the appropriate Registration Statements,
or contained in shareholder reports or other material that may
be prepared by or on behalf of a Fund for Distributor's use.
This shall not be construed to prevent the Distributor from
preparing and distributing sales literature or other material as
it may deem appropriate.
5. COMPENSATION
5.1 Class B Distribution Fee. Each Trust will pay Distributor in
consideration of its services in connection with the distribution of
Class B Shares of each Fund its "Allocable Portion," as defined in
Schedule 1 to this Agreement, of the distribution fee allowable under
the conduct Rules of the National Association of Securities Dealers (the
"NASD") (the "Conduct Rules") in respect of such Class B Shares of such
Fund, which fee shall accrue daily and be paid monthly as promptly as
possible after the last day of each month but in any event prior to the
tenth day of the following calendar month, at an annual rate of 0.75% of
the average daily net asset value of such Class B Shares of such Fund,
subject to the aggregate maximum limitation on the distribution fee
allowable under the Conduct Rules and the Distribution Plan in respect
of such Class B Shares, in accordance with Rule 12b-1 under the 1940 Act
("Distribution Fee").
The Distributor will be deemed to have fully earned its
Allocable Portion of the Distribution Fee payable in respect of Class B
Shares of each Fund upon the sale of the "Commission Shares" (as defined
in Schedule 1 to this Agreement) of such Fund taken into account in
determining such Distributor's Allocable Portion of such Distribution
Fee.
5.2 Contingent Deferred Sales Charges. Each Trust shall cause
its transfer agent (the "Transfer Agent") to withhold, from redemption
proceeds payable to holders of Class B Shares, all contingent deferred
sales charges ("CDSCs") properly payable by such holders in accordance
with the terms of the Prospectuses relating to such Class B Shares and
shall cause the Transfer Agent to pay such amounts over as promptly as
possible after the settlement date for each redemption of such Class B
Shares. The Distributor's Allocable Portion (as defined in Schedule 1 to
this Agreement) of such CDSC amounts shall be payable to the Distributor
(or to persons to whom the Distributor directs the Trust to make
payments).
5.3 Service Fees.
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(a) Each Trust is authorized to pay to the Distributor a
fee, calculated daily and paid monthly in arrears, for the
shareholder services that are described in paragraph (b) of this
Section 5.3 and that are provided by such Distributor to one or
more of the Funds. The aggregate fee paid to the Distributor for
shareholder services to any Fund shall not be greater than the
annual rate of .25% of the average daily net assets attributable
to the Shares of such Fund.
(b) In addition to the distribution services set forth
in Section 3 above, the Distributor may provide shareholder
services to accounts of the Shares of one or more of the Funds,
including but not limited to the following: telephone service to
shareholders, including the acceptance of telephone inquiries
and transaction requests; acceptance and processing of written
correspondence, new account applications and subsequent
purchases by check; mailing of confirmations, statements and tax
forms directly to shareholders; and acceptance of payment for
trades by check, Federal Reserve wire or Automated Clearing
House payment. In addition, the Distributor may perform or
supervise the performance by others of shareholder services in
connection with the operations of such Fund(s) with respect to
its Shares, as agreed from time to time.
(c) The Distribution Fee payable pursuant to this
Agreement shall not be deemed to compensate the Distributor for
any shareholder services it may provide to any Trust or Fund
pursuant to the relevant Distribution Plan, which services may
include processing of shareholder transactions, responding to
inquiries from shareholders concerning the status of their
accounts and the operations of the Trust or any Fund,
communicating with the Trust and its transfer agent on behalf of
such shareholders, or providing other shareholder services, nor
for any expenses associated with the provision of such
shareholder services, including office space and equipment, and
telephone facilities.
5.4 Directed Payment: Allocable Portion Calculations. The
Distributor may direct the Trust to pay any part or all of the
Distribution Fee or CDSCs payable to the Distributor in respect of any
Class B Shares of any Fund directly to persons providing funds to the
Distributor to cover or otherwise enable the incurring of expenses
associated with distribution services, and each Trust agrees to accept
and to comply with such direction. The Distributor shall, at its own
expense and not at the expense of any Trust or Fund, provide each Trust
with any necessary calculations of the Distributor's Allocable Portion
of any Distribution Fee or CDSCs, and each Trust shall be entitled to
rely conclusively on such calculations, without prejudice to any claim
it may have concerning the accuracy of such calculations.
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5.5 Maximum Charges. Notwithstanding anything to the contrary
contained in this Agreement or in any relevant Distribution Plan, the
amount of asset-based sales charges and CDSCs paid to the Distributor by
any class of Shares of any Fund shall not exceed the amount permitted by
the Conduct Rules as in effect from time to time.
5.6 Class A and Class C Sales Charges. As compensation for its
services hereunder, the Distributor shall be entitled to receive all
front-end loads and contingent deferred sales charges with respect to
Class A Shares and Class C Shares as may be described from time to time
in the Registration Statement. The Fund also shall pay a distribution
fee to the Distributor at an annual rate as shall be authorized by the
shareholders and further set by the Board of Trustees pursuant to the
provisions of the Class A Distribution Plan and Class C Distribution
Plan, respectively, each as then in effect, in accordance with Rule
12b-1 under the 1940 Act.
6. EXPENSES. The expenses connected with distribution shall be allocable
between the Funds and the Distributor as follows:
6.1 The Distributor shall furnish the services of personnel to
the extent that such services are required to carry out its obligations
under this Agreement.
6.2 Each Fund assumes and shall pay or cause to be paid the
following expenses incurred on its behalf:
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6.3 Registration of Shares including the expense of printing and
distributing prospectuses to existing shareholders; expenses incurred
for maintaining each Trust's or Fund's existence, taxes and expenses
related to portfolio transactions; charges and expenses of any
registrar, custodian or depository for portfolio securities and other
property, and any stock transfer, dividend or account agent or agents;
all taxes, including securities issuance and transfer taxes, and fees
payable to federal, state or other governmental agencies; costs and
expenses in connection with the registration, maintenance of
registration and qualification for sale of a Fund and its Shares with
the SEC and various states and other jurisdictions (including filing
fees, legal fees and disbursements of counsel); expenses of
shareholders' and directors' meetings and preparing, printing, and
mailing of proxy statements and reports to shareholders; fees and travel
expenses of directors who are not "interested persons" as that term is
defined in the 1940 Act; expenses incident to the payment of any
dividend, distribution, withdrawal or redemption, whether in Shares or
in cash; charges and expenses of any outside service used for pricing of
a Fund's Shares; fees and expenses of legal counsel and of independent
accountants; membership dues of industry associations; postage
(excluding postage for promotional and sales literature); insurance
premiums on property of personnel (including, but not limited to legal
claims and liabilities and litigation costs and any indemnification
related thereto); and all other charges and costs of a Fund's operation
unless otherwise explicitly provided herein.
6.4 The Distributor will bear all expenses incurred in
connection with its performance of the services described herein and the
incurring of distribution expenses under this Agreement. For purposes of
this Agreement, "distribution expenses" of the Distributor shall mean
all expenses borne by the Distributor which represent payment for
activities primarily intended to result in the sale of Shares,
including, but not limited to, the expenses of distribution that are
described in the Distribution Plans.
6.5 The Distributor will furnish the Board of Trustees
statements of distribution revenues and expenditures at least quarterly
with respect to the Shares of each Fund as required by the Distribution
Plans.
7. NON-EXCLUSIVITY.
7.1 The services of the Distributor are not exclusive and the
Distributor shall be entitled to render distribution or other services
to others (including other investment companies) and to engage in other
activities.
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7.2 It is understood and agreed that officers and directors of
the Distributor may serve as officers or trustees of each Trust, and
that officers or trustees of each Trust may serve as officers and
directors of the Distributor to the extent permitted by law; and that
officers and directors of the Distributor are not prohibited from
engaging in any other business activity or from rendering services to
any other person, or from serving as partners, officers or directors of
any other firm or corporation, including other investment companies and
broker/dealers.
8. TERM AND APPROVAL.
8.1 This Agreement shall become effective as of the date first
above written for an initial period of two years, and shall continue in
force and effect from year to year thereafter, provided that, with
respect to any Fund, such continuance is specifically approved at least
annually:
(a) By each Trust's Board of Trustees, including the
affirmative vote of a majority of the Board of Trustees of the
respective Trust who are not (i) parties to this Agreement, (ii)
interested persons of any such party (as defined in Section
2(a)(19) of the 1940 Act), or (iii) persons having a direct or
indirect financial interest in the operation of this Agreement
or any agreement related to this Agreement (the "Qualified
Trustees") by votes cast in person at a meeting called for the
purpose of voting on such approval, or
(b) By the vote of a majority of the outstanding voting
securities of the Fund (as such vote is defined in Section
2(a)(42) of the 1940 Act).
9. TERMINATION.
9.1 Termination on Assignment. This Agreement shall terminate
automatically in the event of its "assignment" (as defined in the 1940
Act), it being understood that this Agreement has been approved by the
Trustees, including the Qualified Trustees in contemplation of an
Amended and Restated Purchase and Sale Agreement to be entered into by
the Distributor, Citibank, N.A. and Citicorp North America, Inc., which
provides for a transfer of receivables relating to the Distribution Fees
and CDSCs payable to the Distributor under this Agreement. The
Distributor agrees to notify the respective Trust of any circumstances
that might result in this Agreement being deemed to be assigned.
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9.2 Voluntary Termination. Each Trust may terminate this
Agreement with respect to any Fund or class, or in its entirety, without
penalty, on 60 days' written notice to the Distributor by vote of the
Board of Trustees of the respective Trust, or by vote of a majority of
the Qualified Trustees or by vote of a majority of the outstanding
voting Shares of such Fund, as the case may be. The Distributor may
terminate this Agreement with respect to any Fund, or in its entirety,
on 60 days' written notice to the Fund or Trust as the case may be.
Termination of this Agreement with respect to any class of Shares of any
Fund shall not cause this Agreement to terminate with respect to the
other class of Shares of such Fund or any Shares of any other Fund.
Notice of termination as provided for in this Section may be waived by
either party, such waiver to be in writing.
9.3 Continued Payment. With respect to Class B Shares of any
Fund sold pursuant to this Agreement, the respective Trust shall
continue payment to the Distributor of (a) the Distributor's Allocable
Portion, as defined in Schedule 1 to this Agreement, of the Contingent
Deferred Sales Charges attributable to such Shares of such Fund, and (b)
so long as there has been no Complete Termination (as defined in the
applicable Distribution Plan), the Distributor's Allocable Portion of
the Distribution Fee attributable to such Class B Shares of such Fund,
in either case notwithstanding termination of this Agreement according
to its terms.
10. REPRESENTATIONS AND WARRANTIES.
10.1 Each Trust represents and warrants to the Distributor that
any registration statement, prospectus and statement of additional
information, when such Registration Statement becomes effective, will
include all statements required to be contained therein in conformity
with the 1933 Act, the 1940 Act and the rules and regulations of the
SEC; that all statements of fact contained in any registration
statement, prospectus or statement of additional information will be
true and correct when such Registration Statement becomes effective; and
that neither any registration statement nor any prospectus or statement
of additional information when such Registration Statement becomes
effective will include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading to a purchaser of Shares.
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10.2 The Distributor may, but shall not be obligated to, propose
from time to time such amendment or amendments to any registration
statement and such supplement or supplements to any prospectus or
statement of additional information as, in the light of future
developments, may, in the opinion of the Distributor's counsel, be
necessary or advisable. If the respective Trust shall not propose such
amendment or amendments and/or supplement or supplements within fifteen
(15) days after receipt by the respective Trust of a written request
from the Distributor to do so, the Distributor may, at its option,
terminate this Agreement. No Trust shall file any amendment to any
registration statement or supplement to any prospectus or statement of
additional information without giving the Distributor reasonable notice
thereof in advance; provided, however, that nothing contained in this
Agreement shall in any way limit a Trust's right to file at any time
such amendments to any registration statement and/or supplements to any
prospectus or statement of additional information, of whatever
character, as such Trust may deem advisable, such right being in all
respects absolute and unconditional.
10.3 Each Trust represents and warrants to the Distributor that
the payment by the respective Trust of fees under this Agreement for
distribution services rendered with respect to any Class B Shares of any
Fund is authorized pursuant to such Trust's Class B Distribution Plan,
as amended, pertaining to such Class B Shares of such Fund, adopted in
accordance with Rule 12b-1 under the 1940 Act (a "Plan").
11. AMENDMENTS. This Agreement may be amended, with respect to any Fund,
by the parties hereto only if such amendment is specifically approved (i) by the
Board of Trustees of the respective Trust or by the vote of majority of
outstanding voting securities of the Fund, and (ii) by a majority of the
Qualified Trustees, which vote must be cast in person at a meeting called for
the purpose of voting on such approval; provided, however, that any such
amendment that constitutes an amendment of the Distribution Plan for any class
of Shares of a Fund shall be approved by shareholders pursuant to Rule 12b-1 to
the extent required by applicable law.
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12. INDEMNIFICATION.
12.1 Each Trust authorizes the Distributor and any dealers with
whom Distributor has entered into dealer agreements to use any
prospectus or statement of additional information furnished by the
respective Trust from time to time, in connection with the sale of
Shares of each Fund. Each Trust agrees to indemnify, defend and hold
Distributor, its several officers and directors, and any person who
controls Distributor within the meaning of Section 15 of the 1933 Act,
free and harmless from and against any and all claims, demands,
liabilities and expenses (including the cost of investigating or
defending such claims, demands or liabilities and any counsel fees
incurred in connection therewith) which Distributor, its officers and
directors, or any such controlling person, may incur under the 1933 Act,
the 1940 Act or common law or otherwise, arising out of or based upon
any untrue statement or alleged untrue statement of a material fact
contained in any registration statement, any prospectus or any statement
of additional information, or arising out of or based upon any omission
or alleged omission to state a material fact required to be stated in
any registration statement, any prospectus or any statement of
additional information, or necessary to make the statements in any of
them not misleading; provided, however, that each Trust's agreement to
indemnify the Distributor, its officers or directors, and any such
controlling person shall not be deemed to cover any claims, demands,
liabilities or expenses arising out of or based upon any statements or
representations made by Distributor or its representatives or agents
other than such statements and representations as are contained in any
registration statement, prospectus or statement of additional
information and in such financial and other statements as are furnished
to the Distributor pursuant to Section 2 hereof; and further provided
that each Trust's agreement to indemnify the Distributor and each
Trust's representations and warranties shall not be deemed to cover any
liability to the Trust or its shareholders to which Distributor would
otherwise be subject by reason of willful misfeasance, bad faith or
gross negligence in the performance of its duties, or by reason of
Distributor's reckless disregard of its obligations and duties under
this Agreement. Each Trust's agreement to indemnify Distributor, its
officers and directors, and any such controlling person, as aforesaid,
is expressly conditioned upon the respective Trust being notified of any
action brought against Distributor, its officers or directors, or any
such controlling person, such notification to be given by letter or by
telegram addressed to the respective Trust at its principal office
stated herein and sent to such Trust by the person against whom such
action is brought, within ten (10) days after the summons or other first
legal process shall have been served. The failure so to notify such
Trust of any such action shall not relieve the Trust from any liability
that the Trust may have to the person against whom such action is
brought by reason of any such untrue or alleged untrue statement or
omission or alleged omission otherwise than on account of the Trust's
indemnity agreement contained in this Sub-Section 12.1. Each Trust's
indemnification agreement contained in this Sub-Section 12.1 and each
Trust's representations and warranties in this Agreement shall remain
operative and in full force and effect
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regardless of any investigation made by or on behalf of Distributor, its
officers and directors, or any controlling person, and shall survive the
delivery of any Shares. This agreement of indemnity will inure
exclusively to Distributor's benefit, to the benefit of its several
officers and directors and their respective estates, and to the benefit
of the controlling persons and their successors. Each Trust agrees to
notify Distributor promptly of the commencement of any litigation or
proceedings against the respective Trust or any of its officers or
trustees in connection with the issuance and sale of any Shares.
12.2 Distributor agrees to indemnify, defend and hold each
Trust, its several officers and trustees, and any person who controls
such Trust within the meaning of Section 15 of the 1933 Act, free and
harmless from and against any and all claims, demands, liabilities and
expenses (including the costs of investigating or defending such claims,
demands or liabilities and any counsel fees incurred in connection
therewith) that the respective Trust, its officers or trustees or any
such controlling person may incur under the 1933 Act, the 1940 Act or
common law or otherwise, but only to the extent that such liability or
expense incurred by the respective Trust, its officers or trustees or
such controlling person resulting from such claims or demands shall
arise out of or be based upon (a) any unauthorized sales literature,
advertisements, information, statements or representations or (b) any
untrue or allegedly untrue statement of a material fact contained in
information furnished in writing by the Distributor to the respective
Trust and used in the answers to any of the items of the Registration
Statement or in the corresponding statements made in the prospectus or
statement of additional information, or shall arise out of or be based
upon any omission or alleged omission to state a material fact in
connection with such information furnished in writing by Distributor to
the respective Trust and required to be stated in such answers or
necessary to make such information not misleading. Distributor's
agreement to indemnify the Trust, its officers and trustees, and any
such controlling person, as aforesaid, is expressly conditioned upon
Distributor being notified of any action brought against the Trust, its
officers or trustees, and any such controlling person, such notification
to be given by letter or telegram addressed to Distributor at its
principal office as stated herein and sent to Distributor by the person
against whom such action is brought, within ten days after the summons
or other first legal process shall have been served. The failure so to
notify the Distributor of any such action shall not relieve Distributor
from any liability that the Distributor may have to the Trust, its
officers or trustees, or to such controlling person by reason of any
such untrue or alleged untrue statement or omission or alleged omission
otherwise than on account of Distributor's indemnity agreement contained
in this Sub-Section 12.2. The Distributor agrees to notify the Trust
promptly of the commencement of any litigation or proceedings against
Distributor or any of its officers or directors in connection with the
issuance and sale of any Shares.
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12.3 In case any action shall be brought against any indemnified
party under Sub-Sections 12.1 or 12.2, and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate in, and, to the extent that it shall
wish to do so to assume the defense thereof with counsel satisfactory to
such indemnified party. If the indemnifying party opts to assume the
defense of such action, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof other
than (a) reasonable costs of investigation or the furnishing of
documents or witnesses and (b) all reasonable fees and expenses of
separate counsel to such indemnified party if (i) the indemnifying party
and the indemnified party shall have agreed to the retention of such
counsel or (ii) the indemnified party shall have concluded reasonably
that representation of the indemnifying party and the indemnified party
by the same counsel would be inappropriate due to actual or potential
differing interests between them in the conduct of the defense of such
action.
13. LIABILITY OF THE DISTRIBUTOR. In the performance of its duties
hereunder, the Distributor shall be obligated to exercise care and diligence and
to act in good faith and to use its best efforts within reasonable limits to
insure the accuracy of all services performed under this Agreement, but the
Distributor shall not be liable for any act or omission which does not
constitute willful misfeasance, bad faith or gross negligence on the part of the
Distributor or reckless disregard by the Distributor of its duties under this
Agreement.
14. NOTICES. Any notices under this Agreement shall be in writing,
addressed and delivered or mailed postage paid to the other party at such
address as such other party may designate for the receipt of such notice. Until
further notice to the other party, it is agreed that the address of each Fund
shall be ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and the address of
the Distributor shall be ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
15. DECLARATION OF TRUST AND LIMITATION OF LIABILITY. A copy of the
Charter Documents of each 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 behalf of each Fund, and that the
obligations of this Agreement with respect to each Fund 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 Fund or series of the Trust or upon any of
the trustees, officers, employees, agents or shareholders of the Fund or the
Trust individually.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate by their respective officers on the date and year first
above written.
WM TRUST I, on behalf of its series WM TRUST II, on behalf of its series
U.S. GOVERNMENT SECURITIES FUND, SHORT TERM HIGH QUALITY BOND FUND,
INCOME FUND, GROWTH FUND,
GROWTH & INCOME FUND, EMERGING GROWTH FUND,
MONEY MARKET FUND, INTERNATIONAL GROWTH FUND,
TAX EXEMPT MONEY MARKET FUND, CALIFORNIA MUNICIPAL FUND,
TAX-EXEMPT BOND FUND, CALIFORNIA INSURED
NORTHWEST FUND, INTERMEDIATE MUNICIPAL FUND,
BOND & STOCK FUND, and CALIFORNIA MONEY FUND,
HIGH YIELD FUND. FLORIDA INSURED MUNICIPAL FUND, and
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Attest:
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇, Secretary ▇▇▇▇ ▇. ▇▇▇▇, Secretary
WM STRATEGIC ASSET MANAGEMENT WM FUNDS DISTRIBUTOR, INC.
PORTFOLIOS, LLC,
on behalf of its series
STRATEGIC GROWTH PORTFOLIO
CONSERVATIVE GROWTH By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
PORTFOLIO ---------------------------------
BALANCED PORTFOLIO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
FLEXIBLE INCOME PORTFOLIO
INCOME PORTFOLIO Attest:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Attest:
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇, Secretary
WM TRUST I,
WM TRUST II, AND
WM STRATEGIC ASSET MANAGEMENT PORTFOLIOS, LLC
DISTRIBUTION AGREEMENT
Schedule 1
Date of Agreement:
Date of this Schedule:
ALLOCABLE PORTIONS
The Distributor's "Allocable Portion" of the Distribution Fee payable on
any class of Shares of any Fund, or of the CDSC in respect of any Class B Shares
of any Fund shall be that percentage allocated to the Distributor in accordance
with the allocation formulas set forth in Parts C and D below, and the rules of
attribution set forth in Part B below.
Capitalized terms used in this Schedule without definition and defined
in the Agreement shall have the same meanings herein as therein, except that the
term "Share" shall refer only to Class B shares of each Fund.
PART A: DEFINITIONS
"Commission Share" means, in respect of any Fund, each Share of such
Fund issued under circumstances that would normally give rise to an obligation
or the holder of such Share to pay a CDSC upon redemption of such Share,
including, without limitation, any Share of such Fund issued in connection with
a "Permitted Free Exchange" (as such term is defined in that certain Amended and
Restated Purchase and Sale Agreement dated as of March __, 2000 by and among the
Distributor, Citicorp North America, Inc. and Citibank, N.A., as the same shall
be amended from time to time (the "Purchase Agreement")), provided that no such
Share shall cease to be a Commission Share prior to its redemption (including a
redemption in connection with a Permitted Free Exchange) or conversion even
though the obligation of such holder to pay a CDSC shall have expired or the
CDSC on such Share shall have been waived.
"Cutoff Date" means, in respect of any class of Shares of any Fund, the
date of the last sale of a Commission Share of such class of such Fund during
the term of the Agreement.
"Distribution Fee" has the meaning given to the term "asset-based sales
charge" in Rule 2830 (b)(8)(A) of the Conduct Rules.
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"Free Exchange Share" means, in respect of any Fund, any Free Share of
such Fund issued in connection with a Permitted Free Exchange.
"Free New Share" means, in respect of any Fund, any Free Share that is
not a Free Exchange Share.
"Free Share" means, in respect of any Fund, each Share of such Fund
other than a Commission Share, including, without limitation, any Share issued
in connection with the reinvestment of dividends.
"Non-Omnibus Shares" means, in respect of any Fund, all Shares of such
Fund other than Omnibus Shares.
"Omnibus Shares" means, in respect of any Fund, all Shares of such Fund
in any Omnibus Account on the records of a Fund maintained by the Transfer
Agent, for which account such broker-dealer provides subtransfer agency services
for that Fund.
"Sub-Transfer Agent" means, in respect of any Fund, the record owner of
any Omnibus Account.
PART B: ATTRIBUTION
Shares of each class of Shares of each Fund, which Shares are
outstanding from time to time, shall be attributed to either the Distributor or
to any other person named as a distributor of Shares of such class of such Fund
(such person, an "Other Distributor") in accordance with the following rules:
(1) Commission Shares: Each Commission Share of Fund is specifically
tracked, on the records maintained by the Transfer Agent of Sub-Transfer Agents
for such Fund with reference to an "original issuance date" (a) of the
Commission Share in question or (b) of the Commission Share from which the
Commission Share in question derived through one or more Permitted Free
Exchanges.
The Commission Shares of each class of Shares of each Fund outstanding
from time to time attributed to the Distributor shall be: (a) all Commission
Shares of such class of such Fund issued, on or prior to the Cutoff Date for
such class of such Fund, other than in a Permitted Free Exchange, and (b) those
Commission Shares of such class of such Fund that are (i) issued in a Permitted
Free Exchange in exchange for (ii) Shares of another Fund that had been
attributed to the Distributor in accordance with the preceding clause (a) of
this paragraph, in each case determined in accordance with the records
maintained by the Transfer Agent or Sub-Transfer Agents for such Fund. For the
avoidance of doubt, all Commission Shares issued during periods in which Funds
Distributor, Inc., ▇▇▇▇▇▇▇ Financial Services or WM Fund Services, Inc. served
as distributor under the Agreement or
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any predecessor agreement together with all Commission Shares derived from such
Commission Shares, whether pursuant to one or more Permitted Free Exchanges or
otherwise, shall be attributed to the Distributor.
The Commission Shares of each class of Shares of each Fund outstanding
from time to time attributed to Other Distributor shall be: (a) those Commission
Shares of such class of Shares of such Fund issued, after the Cutoff Date for
such class of Shares of such Fund, other than in a Permitted Free Exchange, and
(b) those Commission Shares of such class of such Fund that are (i) issued in a
Permitted Free Exchange in exchange for (ii) Shares of another Fund that were
attributed to an Other Distributor in accordance with the immediately preceding
clause (a) of this paragraph, in each case determined in accordance with the
records maintained by the Transfer Agent or Sub-Transfer Agents for such Fund.
(2) Free Shares. Free Shares of each class of Shares of each Fund are
not specifically tracked by the Transfer Agent or Sub-Transfer Agents for such
Fund. The number of Free Shares of each class of Shares of each Fund outstanding
from time to time shall be attributed to either the Distributor of an Other
Distributor in accordance with records maintained by the Distributor in
accordance with this paragraph (2).
(a) The number of Non-Omnibus Free New Shares, of a class of any
Fund, that are attributed to the Distributor shall be determined
pursuant to the following formula.
For such Shares issued during any calendar month:
FNS x [ (PCS + PFS) / (TCS + TFS) ]
where:
FNS = Non-Omnibus Free New Shares of such class of such Fund that
are issued during such calendar month.
PCS = Non-Omnibus Commission Shares of such class of such Fund that
have been attributed to the Distributor and that were
outstanding as of the close of business on the last business day
of the immediately preceding calendar month.
PFS = Non-Omnibus Free Shares of such class of such Fund that have
been attributed to the Distributor and that were outstanding as
of the close of business on the last business day of the
immediately preceding calendar month.
TCS = Non-Omnibus Commission Shares of such class of such Fund that
were outstanding as of the close of business on the last
business day of the immediately preceding calendar month.
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TFS = Non-Omnibus Free Shares of such class of such Fund that were
outstanding as of the close of business on the last business day
of the immediately preceding calendar month.
The balance of such Non-Omnibus Free New Shares issued during such
calendar month shall be attributed to Other Distributors.
(b) The number of Omnibus Free New Shares, of a class of any
Fund, that are attributed to the Distributor shall be
determined pursuant to the following formula.
For such Shares issued during any calendar month:
OFNS x [ ( POCS + POFS) / (TOCS + TOFS) ]
where:
OFS = Omnibus Free New Shares of such class of such Fund that are
issued during such calendar month.
POCS = Omnibus Commission Shares of such class of such Fund that have
been attributed to the Distributor and that were outstanding as
of the close of business on the last business day of the
immediately preceding calendar month.
POFS = Omnibus Free Shares of such class of such Fund that have been
attributed to the Distributor and that were outstanding as of
the close of business on the last business day of the
immediately preceding calendar month.
TOCS = Omnibus Commission Shares of such class of such Fund that were
outstanding as of the close of business on the last business day
of the immediately preceding calendar month.
TOFS = Omnibus Free Shares of such class of such Fund that were
outstanding as of the close of business on the last business day
of the immediately preceding calendar month.
The balance of such Omnibus Free New Shares issued during such calendar
month shall be attributed to Other Distributions.
(c) The number of Non-Omnibus Free Exchange Shares, of a class of
any Fund (the "New Fund"), that are attributed to the
Distributor shall be determined pursuant to the following
formula.
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For such Shares issued during any calendar month in exchange for Shares
of any other Fund (each, an "Old Fund"):
FES x (PFS(o) / TFS(o))
where:
FES = Non-Omnibus Free Exchange Shares of such class of the New Fund
that are issued during such calendar month.
PFS(o) = Non-Omnibus Free Shares of such class of the Old Fund that had
been attributed to the Distributor and that were outstanding as
of the close of business on the last business day of the
immediately preceding calendar month.
TFS(o) = Non-Omnibus Free Shares of such class of the Old Fund that
were outstanding as of the close of business on the last
business day of the immediately preceding calendar month.
The balance of such Non-Omnibus Free Exchange Shares of the New Fund
issued during such calendar month shall be attributed to Other Distributors.
(d) The number of Omnibus Free Exchange Shares, of a class
of any Fund (the "New Fund"), that are attributed to the
Distributor shall be determined pursuant to the
following formula.
For such Shares issued during any calendar month in exchange for Shares
of any other Fund (each, an "Old Fund"):
OFES x (POFS(o)/TOFS(o))
where:
OFES = Omnibus Free Exchange Shares of such class of the New Fund that
are issued during such calendar month.
POFS(o) = Omnibus Free Shares of such class of the Old Fund that had
been attributed to the Distributor and that were outstanding
as of the close of business on the last business day of the
immediately preceding calendar month.
TOFS(o) = Omnibus Free Shares of such class of the Old Fund that were
outstanding as of the close of business on the last business
day of the immediately preceding calendar month.
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The balance of such Omnibus Free Exchange Shares of the New Fund issued
during such calendar month shall be attributed to Other Distributors.
(e) The number of Non-Omnibus Free Shares, of a class of any
Fund, that are redeemed or converted and that are
attributed to the Distributor shall be determined
pursuant to the following formula.
For such Shares redeemed or converted during any calendar month:
FSR x (PFS/TFS)
where:
FSR = Non-Omnibus Free Shares of such class of such Fund that are
redeemed or converted during such calendar month.
PFS = Non-Omnibus Free Shares of such class of such Fund that have
been attributed to the Distributor and that were outstanding as
of the close of business on the last business day of the
immediately preceding calendar month.
TFS = Non-Omnibus Free Shares of such class of such Fund that were
outstanding as of the close of business on the last business day
of the immediately preceding calendar month.
The balance of such Non-Omnibus Free Shares redeemed or converted during
such calendar month shall be attributed to Other Distributors.
(f) The number of Omnibus Free Shares, of a class of any
Fund, that are redeemed or converted and that are
attributed to the Distributor shall be determined
pursuant to the following formula.
For such Shares redeemed or converted during any calendar month:
OFSR x (POFS/TOFS)
where:
OFSR = Omnibus Free Shares of such class of such Fund that are
redeemed or converted during such calendar month.
POFS = Omnibus Free Shares of such class of such Fund that have been
attributed to the Distributor and that were outstanding as of
the close of business on the last business day of the
immediately preceding calendar month.
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TOFS = Omnibus Free Shares of such class of such Fund that were
outstanding as of the close of business on the last business day
of the immediately preceding calendar month.
The balance of such Omnibus Free Shares redeemed or converted during
such calendar month shall be attributed to Other Distributors.
(3) Timing of Attributions and Distributions.
(a) The attributions of all Non-Omnibus Shares of each class
of Shares of each Fund shall be made on a daily basis.
The attribution of all Omnibus Shares of each class of
Shares of each Fund shall be made monthly, for each
calendar month no later than five (5) days following the
last day of such month.
(b) The parties to the Agreement acknowledge expressly that
the procedures for determining the Distributor's
Allocable Portion of Free Shares of any Fund implicitly
assume that Free Shares issued in respect of dividends
or other distributions made for any calendar month will
be issued not earlier than the first business day of the
following calendar month. Said parties agree that such
procedures shall be modified in the event Free Shares
attributable to reinvestment of such dividends or
distributions are issued in the same calendar month for
which such dividends are earned or distributions made.
PART C: ALLOCATION OF CDSCs
CDSCs will be allocated to either the Distributor or an Other
Distributor depending upon whether the related redeemed Shares were attributed
to, respectively, the Distributor or such Other Distributor in accordance with
Part B, Paragraph (1) above. CDSCs relating to Non-Omnibus Shares will be
allocated to either the Distributor or an Other Distributor on or prior to the
third business day of the calendar week immediately succeeding the calendar week
during which the Transfer Agent has paid such CDSC amount. CDSCs relating to
Omnibus Shares shall be allocated to either the Distributor or an Other
Distributor on or prior to the tenth (10th) day of the calendar month
immediately succeeding the calendar month in which they are remitted by the
Transfer Agent to the "Demand Deposit Account" for further credit to the
"Collection Account" as such term is defined in that certain Second Amended and
Restated Collection Agency Agreement dated as of March 20, 1998 among Citibank,
N.A., Citicorp North America, Inc., the Distributor, and Bankers Trust Company
as the same may be amended from time to time (the "Collection Agency
Agreement"), unless in accordance with the Collection Agency Agreement more
frequent allocations are required.
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PART D: ALLOCATION OF DISTRIBUTION FEE
The Distribution Fee accruing in respect of each class of Shares of each
Fund during any calendar month and that is allocated to the Distributor shall be
determined pursuant to the following formula:
A X [ (B + C) / (D + E) ]
where:
A = Distribution Fee accrued in respect of such class of Shares of
such Fund during such calendar month.
B = Shares of such class of such Fund attributed to the
Distributor and outstanding as of the close of business on the
last business day of the immediately preceding calendar month
times the net asset value per share of such Shares as of such
time.
C = Shares of such class of such Fund attributed to the
Distributor and outstanding as of the close of business on the
last business day of such calendar month times the net asset
value per share of such Shares as of such time.
D = Total Shares of such class of such Fund outstanding as of the
close of business on the last business day of the immediately
preceding calendar month times the net asset value per share of
such Shares as of such time.
E = Total Shares of such class of such Fund outstanding as of the
close of business on the last business day of such calendar
month times the net asset value per share of such Shares as of
such time.
The balance of the Distribution Fee in respect of such class of Shares
of such Fund accruing during such calendar month shall be allocated to Other
Distributors.
The allocations contemplated by this Part D of Distribution Fees
accruing during any calendar month shall be made on or prior to the tenth (10th)
day of the immediately following calendar month and in all cases prior to the
payment of such Fees pursuant to the terms of the Agreement.
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