Exhibit 8
DELEGATION, CUSTODY AND INFORMATION SERVICES AGREEMENT
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DELEGATION, CUSTODY AND INFORMATION SERVICES AGREEMENT
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AGREEMENT dated as of March , 1998, between WM Trust I, WM Trust II,
WM Strategic Asset Management Portfolios, WM Prime Income Fund and WM Variable
Trust, each a business trust organized under the laws of the Commonwealth of
Massachusetts having its principal office and place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Funds"), and BOSTON SAFE DEPOSIT AND
TRUST COMPANY, a Massachusetts trust company with its principal place of
business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Custodian").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, The Board of Trustees of the Funds desires to delegate certain of
its responsibilities for performing the services set forth in paragraphs (c)(1),
(c)(2) and (c)(3) of Rule 17f-5 under the Investment Company Act of 1940, as
amended (the "1940 Act") to the Custodian;
WHEREAS, The Custodian agrees to accept such delegation with respect to
Assets held by Foreign Custodians in the jurisdictions listed on Appendix B as
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set forth in Article II;
WHEREAS, The Funds and the Custodian desire to restate the terms of any
existing custody agreement between various Funds and the Custodian to reflect
the changes made by the revised Rule 17f-5, and to set forth their agreement
with respect to the custody of the Fund's Securities and cash and the processing
of Securities transactions;
WHEREAS, The Funds desire to hire the Custodian as a vendor to provide
certain information available to the Custodian with respect to foreign
jurisdictions, Securities Depositories and Foreign Custodians not listed on
Appendix B for which the board or a delegatee other than the Custodian has the
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responsibilities described in paragraphs (c)(1), (c)(2) and (c)(3) of Rule 17f-
5; and
WHEREAS, The Custodian agrees to provide, as a vendor, the information
described in Article IV if, and when available in accordance with the terms and
conditions of Article IV.
NOW THEREFORE, in consideration of the mutual promises hereinafter set
forth, the Funds and the Custodian agree as follows:
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ARTICLE I
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DEFINITIONS
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Whenever used in this Agreement or in any Appendices to this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
a. "Affiliated Person" shall have the meaning of the term within Section
2(a)(3) of the ▇▇▇▇ ▇▇▇.
a)
b. "Agreement" shall mean this Delegation, Custody and Information
Services Agreement.
a)
c. "Assets" shall mean any of a Fund's investments (including foreign
currencies) for which the primary market is outside the United States, and
such cash and cash equivalents as are reasonably necessary to effect a
Fund's transactions in such investments.
a)
d. "Authorized Person" shall be deemed to include the Chairman of the Board
of Trustees, the President, and any Vice President, the Secretary, the
Treasurer or any other person, whether or not any such person is an
officer or employee of the Fund, duly authorized by the Board of Trustees
of the Fund to add or delete jurisdictions pursuant to Article II and to
give Oral Instructions and Written Instructions on behalf of the Funds and
listed in the certification annexed hereto as Appendix A or such other
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certification as may be received by the Custodian from time to time.
a)
e. "Board" shall mean the Board of Trustees of the Funds.
a)
f. "Book-Entry System" shall mean the Federal Reserve/Treasury book-entry
system for United States and federal agency Securities, its successor or
successors and its nominee or nominees.
a)
g. "Business Day" shall mean any day on which the Funds, the Custodian, the
Book-Entry System and appropriate clearing corporation(s) are open for
business.
a)
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h. "Certificate" shall mean any notice, instruction or other instrument in
writing, authorized or required by this Agreement to be given to the
Custodian, which is actually received by the Custodian and signed on
behalf of the Fund by any two Authorized Persons or any two officers
thereof.
a)
i. "Country Risk" means all factors reasonably related to the systematic
risk of holding assets in a particular country including, but not limited
to, such country's financial infrastructure (including any Securities
Depositories operating in such country), prevailing custody and settlement
practices and laws applicable to the safekeeping and recovery of Assets
held in custody.
a)
j. "Custodian" shall mean Boston Safe Deposit and Trust Company in its
capacity as delegate, custodian or information services provider as
required under the terms of each Article.
a)
k. "Custody Agreement" shall mean the provisions of Articles I, III and V
of this Agreement and any Appendices referenced therein and attached to
this Agreement.
l. "Information Services Agreement" shall mean the provisions of Articles
I and IV and V of this Agreement and any Appendices referenced therein and
attached to this Agreement.
a)
m. "Master Trust Agreement"] shall mean the Agreements and Declarations of
Trust of the Funds as the same may be amended from time to time.
a)
n. "Foreign Custodian" shall mean: (a) a banking institution or trust
company incorporated or organized under the laws of a country other than
the United States, that is regulated as such by the country's government
or an agency of the country's government; (b) a majority-owned direct or
indirect subsidiary of a U.S. Bank or bank-holding company; or (c) any
entity other than a Securities Depository with respect to which exemptive
or no-action relief has been granted by the Securities and Exchange
Commission. For the avoidance of doubt, the term "Foreign Custodian" shall
not include Euroclear, Cedel, First Chicago Clearing Centre or any other
transnational system for the central handling of securities or equivalent
book-entries regardless of whether or not such entities are acting in a
custodial capacity with respect to Assets, Securities or other property of
the Funds.
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a)
o. "Funds" shall mean WM Trust I, WM Trust II, WM Strategic Asset
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Management Portfolios, WM Prime Income Fund and WM Variable Trust.
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a)
p. "Delegation Agreement" shall mean the provisions of Articles I, II and
V of this Agreement and any Appendices referenced therein and attached to
this Agreement.
a)
q. "Money Market Security" shall be deemed to include, without limitation,
debt obligations issued or guaranteed as to interest and principal by the
government of the United States or agencies or instrumentalities thereof
("U.S. government securities"), commercial paper, bank certificates of
deposit, bankers' acceptances and short-term corporate obligations, where
the purchase or sale of such securities normally requires settlement in
federal funds on the same day as such purchase or sale, and repurchase and
reverse repurchase agreements with respect to any of the foregoing types
of securities.
a)
r. "Oral Instructions" shall mean verbal Custodian from a person reasonably
believed by the instructions actually received by the Custodian to be an
Authorized Person.
a)
s. "Prospectus" shall mean a Fund's current prospectus and statement of
additional information relating to the registration of the Fund's Shares
under the Securities Act of 1933, as amended.
a)
t. "Rule 17f-5" shall mean Rule 17f-5 promulgated under Section 17(f)
of the 1940 Act as such rule (and any successor regulation) may be
amended from time to time.
a)
u. "Selected Countries" means the jurisdictions listed on Appendix B as
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such may be amended from time to time in accordance with Article II.
a)
v. "Shares" refers to shares of beneficial interest par value per share of
the Funds.
a)
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w. "Security" or "Securities" shall be deemed to include bonds, debentures,
notes, stocks, shares, evidences of indebtedness, and other securities,
commodities interests and investments from time to time owned by the Fund.
a)
x. "Securities Depository" shall mean any entity described in subparagraph
(a)(1)(ii) or paragraph (a)(6) of Rule 17f-5 or any other recognized
foreign or domestic clearing facility, book-entry system, centralized
custodial depository or similar organization. For the avoidance of doubt,
the term "Securities Depository" shall include Euroclear, Cedel, First
Chicago Clearing Centre or any other transnational system for the central
handling of securities or equivalent book-entries regardless of whether or
not such entities are acting in a custodial capacity with respect to
Assets, Securities or other property of the Fund.
a)
y. "Transfer Agent" shall mean the person which performs the transfer
agent, dividend disbursing agent and shareholder servicing agent functions
for the Fund.
a)
z. "Written Instructions" shall mean a written communication actually
received by the Custodian from a person reasonably believed by the
Custodian to be an Authorized Person by any system, including, without
limitation, electronic transmissions, facsimile and telex.
a)
aa. The "1940 Act" refers to the Investment Company Act of 1940, and the
Rules and Regulations thereunder, all as amended from time to time.
a)
bb. "Subcustodian" means a banking institution or any affiliate thereof
located in the United States.
ARTICLE II
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DELEGATION AGREEMENT
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1. REPRESENTATIONS.
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(a) Status of Custodian. The Custodian represents that it is a U.S. Bank
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within the meaning of paragraph (a)(7) of Rule 17f-5.
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(b) Fund Determinations and Authorizations. The Funds represent that the
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Board has determined that it is reasonable to rely on Custodian to perform
the responsibilities delegated pursuant to this Delegation Agreement and
that it has made the delegations set forth below, subject to the acceptance
of such delegation by the Custodian on the terms and conditions set forth
in this Delegation Agreement.
(c) Power and Authority; No Conflicts. Each party represents to the other
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that it has all necessary power and authority, and has obtained any consent
or approval necessary to permit it, to enter into and perform under this
Delegation Agreement and that this Delegation Agreement does not violate,
breach, give rise to a default or right of termination under or otherwise
conflict with any applicable law, regulation, ruling, decree or other
governmental authorization or any contract to which it is a party or by
which any of its assets is bound.
(d) Fund Responsibilities. The Funds acknowledge and agree that, except as
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expressly set forth in this Delegation Agreement, each Fund is solely
responsible to assure that the maintenance of the Fund's Securities and
cash (including Assets) hereunder complies with applicable laws and
regulations, including without limitation the 1940 Act and the rules and
regulations promulgated thereunder and applicable interpretations thereof
or exemptions therefrom.
2. DELEGATION AND CUSTODIAN'S SERVICES.
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(a) Delegation. Subject to the provisions of this Delegation Agreement
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and the requirements of Rule 17f-5, the Board hereby delegates to, and the
Custodian hereby agrees to accept the responsibility for selecting,
contracting with and monitoring Foreign Custodians in Selected Countries in
accordance with paragraphs (c)(1), (c)(2) and (c)(3) of Rule 17f-5.
Pursuant to this delegation, the Board authorizes the Custodian to place
and maintain Assets in the care of any Foreign Custodian(s) in the
Selected Countries and to enter into, on behalf of the Fund, such written
contracts governing the Fund's foreign custody arrangements with such
Foreign Custodian(s) as the Custodian deems appropriate.
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(b) Scope of Delegation. The delegation contained in Section 2(a) applies
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only to the selection of, contracting with and monitoring of Foreign
Custodians located in Selected Countries and only with respect to Assets
held by such Foreign Custodians in Selected Countries. The Board and the
Custodian agree that nothing in this Delegation Agreement or this Agreement
as a whole shall cause or be deemed to cause any delegation to the
Custodian of any of the Board's responsibilities with respect to Assets,
Securities or other property held in Securities Depositories or Assets held
by Foreign Custodians in jurisdictions other than Selected Countries.
(c) Additions to Appendix B. Appendix B may be amended from time to time
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to add jurisdictions by an instrument in writing signed by an Authorized
Person of the Fund and the Custodian, provided that with respect to any
amendment that adds a jurisdiction to Appendix B, the Custodian's
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responsibility and authority with respect to any jurisdiction so added will
commence at the later of (i) the time that the Custodian and the Fund's
Authorized Person have both executed such amendment, or (ii) the time that
the Custodian receives a copy of such executed amendment.
(d) Deletions from Appendix B. The Board may withdraw its delegation with
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respect to any jurisdiction upon written notice to the Custodian. The
Custodian shall withdraw its acceptance of delegated authority with respect
to any jurisdiction upon written notice to the Board. Upon receipt of such
notice by the party to whom such notice is given, the Custodian shall have
no further responsibilities under this Delegation Agreement with respect to
the selecting, contracting with, and monitoring of any Foreign Custodian
holding Assets in the removed jurisdiction.
(e) Reports to Board. Custodian shall provide written reports notifying
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Board of the placement of Assets with a particular Foreign Custodian and of
any material change in Fund's foreign custody arrangements. Such reports
shall be provided to Board quarterly, except as otherwise agreed by the
Custodian and the Fund.
(f) Monitoring System. In each case in which the Custodian has exercised
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the authority delegated under this Article II, Section 2 to place Assets
with an Foreign
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Custodian, the Custodian is authorized to, and shall, on behalf of Funds,
establish a system to re-assess or re-evaluate, at least annually (i) the
appropriateness of maintaining Assets with such Foreign Custodian and (ii)
the contract governing the Fund's arrangements with such Foreign Custodian.
3. GUIDELINES AND PROCEDURES.
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(a) Country Risk. In exercising its delegated authority under Article II,
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Section 2, the Custodian may assume, for all purposes, that the Board (or a
Fund's investment adviser, pursuant to authority delegated by the Board)
has considered, and, pursuant to its fiduciary duties to the Fund and the
Fund's shareholders, determined to accept, such Country Risk. In exercising
its delegated authority under Article II, Section 2, the Custodian may also
assume that the Board (or a Fund's investment adviser, pursuant to
authority delegated by the Board) has, and will continue to, monitor such
Country Risk to the extent the Board deems necessary or appropriate.
Nothing in this Delegation Agreement shall require the Custodian to make
any selection or to engage in any monitoring on behalf of the Fund (i) that
would entail consideration of Country Risk or (ii) otherwise in connection
with any Securities Depository or Foreign Custodians in jurisdictions other
than Selected Countries.
(b) Standard of Care for Selection of Eligible Foreign Custodians. In
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exercising the authority delegated under Article II, Section 2, to place
Assets with any Foreign Custodian in a Selected Country, the Custodian
shall determine that Assets will be subject to reasonable care, based on
the standards applicable to custodians in the Selected Country in which the
Assets will be held, after considering all factors relevant to the
safekeeping of such assets, including the factors set forth in Rule 17f-
5(c)(1)(i)-(iv).
(c) Standard for Contracting with Eligible Foreign Custodians. In
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exercising the authority delegated under Article II, Section 2, to enter
into a written contract governing the Fund's foreign custody arrangements
with a Foreign Custodian in a Selected Country, the Custodian shall
determine that such contract provides reasonable care for Assets based on
the standards applicable to Foreign Custodians in the Selected Country. In
making this determination, the Custodian shall consider the provisions of
Rule 17f-5(c)(2).
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(d) Standard of Care for Delegated Authority. In exercising the authority
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delegated under Article II, Section 2, the Custodian agrees to exercise
reasonable care, prudence and diligence such as a person having
responsibility for the safekeeping of the Assets would exercise in like
circumstances.
ARTICLE III
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CUSTODY PROVISIONS
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1. APPOINTMENT OF CUSTODIAN.
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(a) The Board hereby constitutes and appoints the Custodian as custodian
of all the Securities and monies at the time owned by or in the
possession of each Fund during the period of this Agreement.
(b) The Custodian hereby accepts appointment as such custodian and agrees
to perform the duties thereof as hereinafter set forth.
2. CUSTODY OF CASH AND SECURITIES.
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(a) Receipt and Holding of Assets. Each Fund will deliver or cause to
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be delivered to the Custodian all Securities and monies owned by it at
any time during the period of this Custody Agreement. The Custodian will
not be responsible for such Securities and monies until actually
received by it. The Board hereby specifically authorizes the Custodian
to hold Securities, Assets or other property of each Fund with any
Subcustodian, Foreign Custodian or Securities Depository. Securities and
monies of each Fund deposited in a Securities Depository will be
represented in accounts which include only assets held by the Custodian
for customers, including but not limited to accounts for which the
Custodian acts in a fiduciary or representative capacity.
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(b) Accounts and Disbursements. The Custodian shall establish and
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maintain a separate account for each Fund and shall credit to the
separate account all monies received by it for the account of each such
Fund and shall disburse the same only:
1. In payment for Securities purchased for the Fund;
2. In payment of dividends or distributions with respect to the
Shares;
3. In payment of original issue or other taxes with respect to the
Shares;
4. In payment for Shares which have been redeemed by the Fund;
5. Pursuant to Written Instructions setting forth the name and address
of the person to whom the payment is to be made, the amount to be paid
and the purpose for which payment is to be made, provided that in the
event of disbursements pursuant to this sub-section 2(b), the Fund shall
indemnify and hold the Custodian harmless from any claims or losses
arising out of such disbursements in reliance on such Written
Instructions which it, in good faith, believes to be received from duly
Authorized Persons; or
6. In payment of fees and in reimbursement of the expenses and
liabilities of the Custodian attributable to the Fund, as provided in
Article III, Section 9(I) and Article V, Section 1.___
(c) Confirmation and Statements. Promptly after the close of business
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on each day, the Custodian shall furnish each Fund with confirmations
and a summary of all transfers to or from the account of the Fund during
said day. Where securities purchased by a Fund are in a fungible bulk of
securities registered in the name of the Custodian (or its nominee) or
shown on the Custodian's account on the books of a Securities
Depository, the Custodian shall by book-entry or otherwise identify the
quantity of those securities belonging to the Fund. At least monthly,
the Custodian shall furnish each Fund with a detailed statement of the
Securities and monies held for the Fund under this Custody Agreement.
(d) Registration of Securities and Physical Separation. The Custodian
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is authorized to hold all Securities, Assets, or other property of each
Fund in nominee
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name, in bearer form or in book-entry form. The Custodian may register
any Securities, Assets or other property of a Fund in the name of the
Fund, in the name of the Custodian, any Subcustodian, or Foreign
Custodian, in the name of any duly appointed registered nominee of such
entity, or in the name of a Securities Depository or its successor or
successors, or its nominee or nominees. The Custodian is hereby
authorized to deposit with, and hold Securities, Assets or other
property of a Fund with any Securities Depository. Each Fund agrees to
furnish to the Custodian appropriate instruments to enable the Custodian
to hold or deliver in proper form for transfer, or to register in the
name of its registered nominee or in the name of a Securities
Depository, any Securities which it may hold for the account of the Fund
and which may from time to time be registered in the name of the Fund.
The Custodian shall hold all such Securities specifically allocated to a
Fund which are not held in a Securities Depository in a separate account
for the Fund in the name of the Fund physically segregated at all times
from those of any other person or persons.
(e) Segregated Accounts. Upon receipt of a Written Instruction, the
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Custodian will establish segregated accounts on behalf of each Fund to
hold liquid or other assets as it shall be directed by a Written
Instruction and shall increase or decrease the assets in such segregated
accounts only as it shall be directed by subsequent Written Instruction.
(f) Collection of Income and Other Matters Affecting Securities. Unless
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otherwise instructed to the contrary by a Written Instruction, the
Custodian by itself, or through the use of a Securities Depository with
respect to Securities therein deposited, shall with respect to all
Securities held for a Fund in accordance with this Agreement:
1. Collect all income due or payable, provided that the Custodian
shall not be responsible for the failure to receive payment of (or late
payment of) distribution with respect to securities or other property
held in the account;
2. Present for payment and collect the amount payable upon all
Securities which may mature or be called, redeemed, retired or otherwise
become payable. Notwithstanding the foregoing, the Custodian shall have
no responsibility to the Fund for monitoring or ascertaining any call,
redemption or retirement dates
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with respect to put bonds which are owned by the Fund and held by the
Custodian or its nominees. Nor shall the Custodian have any
responsibility or liability to the Fund for any loss by the Fund for any
missed payments or other defaults resulting therefrom, unless the
Custodian received timely notification from the Fund specifying the
time, place and manner for the presentment of any such put bond owned by
the Fund and held by the Custodian or its nominee. The Custodian shall
not be responsible and assumes no liability for the accuracy or
completeness of any notification the Custodian may furnish to the Fund
with respect to put bonds;
3. Surrender Securities in temporary form for definitive Securities;
4. Execute any necessary declarations or certificates of ownership
under the Federal income tax laws or the laws or regulations of any
other taxing authority now or hereafter in effect; and
5. Hold directly, or through a Securities Depository with respect to
Securities therein deposited, for the account of the Fund all rights and
similar Securities issued with respect to any Securities held by the
Custodian hereunder for the Fund.
(g) Delivery of Securities and Evidence of Authority. Upon receipt of a
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Written Instruction and not otherwise, except for subparagraphs 5, 6, 7,
and 8 of this section 2(g) which may be effected by Oral or Written
Instructions, the Custodian, directly or through the use of a Securities
Depository, shall:
1. Execute and deliver or cause to be executed and delivered to such
persons as may be designated in such Written Instructions, proxies,
consents, authorizations, and any other instruments whereby the
authority of a Fund as owner of any Securities may be exercised;
2. Deliver or cause to be delivered any Securities held for a Fund in
exchange for other Securities or cash issued or paid in connection with
the liquidation, reorganization, refinancing, merger, consolidation or
recapitalization of any corporation, or the exercise of any conversion
privilege;
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3. Deliver or cause to be delivered any Securities held for a Fund to
any protective committee, reorganization committee or other person in
connection with the reorganization, refinancing, merger, consolidation
or recapitalization or sale of assets of any corporation, and receive
and hold under the terms of this Custody Agreement in the separate
account for the Fund such certificates of deposit, interim receipts or
other instruments or documents as may be issued to it to evidence such
delivery;
4. Make or cause to be made such transfers or exchanges of the assets
specifically allocated to the separate account of a Fund and take such
other steps as shall be stated in Written Instructions to be for the
purpose of effectuating any duly authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of the Fund;
5. Deliver Securities upon sale of such Securities for the account of
a Fund pursuant to Section 3;
6. Deliver Securities upon the receipt of payment in connection with
any repurchase agreement related to such Securities entered into by a
Fund;
7. Deliver Securities owned by a Fund to the issuer thereof or its
agent when such Securities are called, redeemed, retired or otherwise
become payable; provided, however, that in any such case the cash or
other consideration is to be delivered to the Custodian. Notwithstanding
the foregoing, the Custodian shall have no responsibility to the Fund
for monitoring or ascertaining any call, redemption or retirement dates
with respect to the put bonds which are owned by the Fund and held by
the Custodian or its nominee. Nor shall the Custodian have any
responsibility or liability to the Fund for any loss by the Fund for any
missed payment or other default resulting therefrom unless the Custodian
received timely notification from the Fund specifying the time, place
and manner for the presentment of any such put bond owned by the Fund
and held by the Custodian or its nominee. The Custodian shall not be
responsible and assumes no liability to the Fund for the accuracy or
completeness of any notification the Custodian may furnish to the Fund
with respect to put bonds;
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8. Deliver Securities for delivery in connection with any loans of
Securities made by a Fund but only against receipt of adequate
collateral as agreed upon from time to time by the Custodian and the
Fund which may be in the form of cash or U.S. government securities or a
letter of credit;
9. Deliver Securities for delivery as security in connection with any
borrowings by a Fund requiring a pledge of Fund assets, but only against
receipt of amounts borrowed;
10. Deliver Securities upon receipt of Written Instructions from a Fund
for delivery to the Transfer Agent or to the holders of Shares in
connection with distributions in kind, as may be described from time to
time in the Fund's Prospectus, in satisfaction of requests by holders of
Shares for repurchase or redemption;
11. Deliver Securities as collateral in connection with short sales by
a Fund of common stock for which the Fund owns the stock or owns
preferred stocks or debt securities convertible or exchangeable, without
payment or further consideration, into shares of the common stock sold
short;
12. Deliver Securities for any purpose expressly permitted by and in
accordance with procedures described in a Fund's Prospectus; and
13. Deliver Securities for any other proper business purpose, but only
upon receipt of, in addition to Written Instructions, a certified copy
of a resolution of the Board of Trustees signed by an Authorized Person
and certified by the Secretary of a Fund, specifying the Securities to
be delivered, setting forth the purpose for which such delivery is to be
made, declaring such purpose to be a proper business purpose, and naming
the person or persons to whom delivery of such Securities shall be made.
Notwithstanding anything in this Agreement to the contrary, the Custodian
shall not be liable for the acts or omissions of any agent appointed under
paragraph (f) of Section 9 pursuant to Oral or Written Instructions including,
buy not limited to, any broker-dealer or other entity designated by the Fund or
its investment advisor to hold any Securities or other property of the Fund as
collateral or otherwise pursuant to any investment strategy.
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(h) Endorsement and Collection of Checks, Etc. The Custodian is hereby
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authorized to endorse and collect all checks, drafts or other orders for
the payment of money received by the Custodian for the account of the
Fund.
3. SETTLEMENT OF FUND TRANSACTIONS.
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(a) Customary Practices. Notwithstanding anything to the contrary in
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this Agreement, the Custodian is authorized to settle transactions in
accordance with trading and processing practices customary in the
jurisdiction or market where the transaction occurs. Each Fund acknowledges
that this may, in certain circumstances, require the delivery of cash or
Securities (or other property) without the concurrent receipt of Securities
(or other property) or cash and, in such circumstances, the Fund shall have
responsibility for nondelivery of Securities or other property (or late
delivery) or nonreceipt of payments of monies (or late payment) by the
counterparty.
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(b) Contractual Income. The Custodian shall credit each Fund with
------------------
income and maturity proceeds on securities on contractual payment date net
of any taxes or upon actual receipt as agreed between the Custodian and the
Fund. To the extent a Fund and the Custodian have agreed to credit income
on contractual payment date, the Custodian may reverse such accounting
entries with back value to the contractual payment date if the Custodian
reasonably believes that it will not receive such amount.
(c) Contractual Settlement. The Custodian will attend to the
----------------------
settlement of securities transactions on the basis of either contractual
settlement date accounting or actual settlement date accounting as agreed
between a Fund and the Custodian. To the extent the Fund and the Custodian
have agreed to settle certain securities transactions on the basis of
contractual settlement date accounting, the Custodian may reverse with back
value to the contractual settlement date any entry relating to such
contractual settlement where the related transaction remains unsettled in
accordance with established procedures.
4. LENDING OF SECURITIES.
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The Custodian may lend the assets of each Fund in accordance with the terms
and conditions of a separate securities lending agreement.
5. PAYMENT OF DIVIDENDS OR DISTRIBUTIONS.
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(a) Each Fund shall furnish to the Custodian the vote of the Board of
Trustees of the Fund certified by the Secretary (i) authorizing the
declaration of distributions on a specified periodic basis and authorizing
the Custodian to rely on Oral or Written Instructions specifying the date
of the declaration of such distribution, the date of payment thereof, the
record date as of which shareholders entitled to payment shall be
determined, the amount payable per share to the shareholders of record as
of the record date and the total amount payable to the Transfer Agent on
the payment date, or (ii) setting forth the date of declaration of any
distribution by the Fund, the date of payment thereof, the record date as
of which shareholders entitled to payment shall be determined, the amount
payable per share to the shareholders of record as of the record date and
the total amount payable to the Transfer Agent on the payment date.
17
(b) Upon the payment date specified in such vote, Oral Instructions or
Written Instructions, as the case may be, the Custodian shall pay out the
total amount payable to the Transfer Agent of the Fund.
6. SALE AND REDEMPTION OF SHARES OF A FUND.
---------------------------------------
(a) Whenever a Fund shall sell any Shares, the Fund shall deliver or cause
to be delivered to the Custodian a Written Instruction duly specifying:
1. The number of Shares sold, trade date, and price; and
2. The amount of money to be received by the Custodian for the sale of
such Shares.
The Custodian understands and agrees that Written Instructions may be
furnished subsequent to the purchase of Shares and that the information
contained therein will be derived from the sales of Shares as reported to
the Fund by the Transfer Agent.
(b) Upon receipt of money from the Transfer Agent, the Custodian shall
credit such money to the separate account of the Fund.
(c) Upon issuance of any Shares in accordance with the foregoing
provisions of this Section 6, the Custodian shall pay all original issue
or other taxes required to be paid in connection with such issuance upon
the receipt of a Written Instruction specifying the amount to be paid.
(d) Except as provided hereafter, whenever any Shares are redeemed, the
Fund shall cause the Transfer Agent to promptly furnish to the Custodian
Written Instructions, specifying:
1. The number of Shares redeemed; and
2. The amount to be paid for the Shares redeemed.
18
The Custodian further understands that the information contained in such
Written Instructions will be derived from the redemption of Shares as reported
to the Fund by the Transfer Agent.
(e) Upon receipt from the Transfer Agent of advice setting forth the
number of Shares received by the Transfer Agent for redemption and that
such Shares are valid and in good form for redemption, the Custodian shall
make payment to the Transfer Agent of the total amount specified in a
Written Instruction issued pursuant to paragraph (d) of this Section 6.
(f) Notwithstanding the above provisions regarding the redemption of
Shares, whenever such Shares are redeemed pursuant to any check redemption
privilege which may from time to time be offered by the Fund, the
Custodian, unless otherwise instructed by a Written Instruction shall,
upon receipt of advice from the Fund or its agent stating that the
redemption is in good form for redemption in accordance with the check
redemption procedure, honor the check presented as part of such check
redemption privilege out of the monies specifically allocated to the Fund
in such advice for such purpose.
7. INDEBTEDNESS.
------------
(a) Each Fund will cause to be delivered to the Custodian by any bank
(excluding the Custodian) from which the Fund borrows money for temporary
administrative or emergency purposes using Securities as collateral for
such borrowings, a notice or undertaking in the form currently employed by
any such bank setting forth the amount which such bank will loan to the
Fund against delivery of a stated amount of collateral. The Fund shall
promptly deliver to the Custodian Written Instructions stating with
respect to each such borrowing: (1) the name of the bank; (2) the amount
and terms of the borrowing, which may be set forth by incorporating by
reference an attached promissory note, duly endorsed by the Fund, or other
loan agreement; (3) the time and date, if known, on which the loan is to
be entered into (the "borrowing date"); (4) the date on which the loan
becomes due and payable; (5) the total amount payable to the Fund on the
borrowing date; (6) the market value of Securities to be delivered as
collateral for such loan, including the name of the issuer, the title and
the number of shares or the principal amount of any particular Securities;
(7) whether the Custodian is to deliver such collateral through a
Securities
19
Depository; and (8) a statement that such loan is in conformance with the
1940 Act and the Fund's Prospectus.
(b) Upon receipt of the Written Instruction referred to in subparagraph
(a) above, the Custodian shall deliver on the borrowing date the specified
collateral and the executed promissory note, if any, against delivery by
the lending bank of the total amount of the loan payable, provided that
the same conforms to the total amount payable as set forth in the Written
Instruction. The Custodian may, at the option of the lending bank, keep
such collateral in its possession, but such collateral shall be subject to
all rights therein given the lending bank by virtue of any promissory note
or loan agreement. The Custodian shall deliver as additional collateral in
the manner directed by the Fund from time to time such Securities as may
be specified in Written Instruction to collateralize further any
transaction described in this Section 7. The Fund shall cause all
Securities released from collateral status to be returned directly to the
Custodian, and the Custodian shall receive from time to time such return
of collateral as may be tendered to it. In the event that the Fund fails
to specify in Written Instruction all of the information required by this
Section 7, the Custodian shall not be under any obligation to deliver any
Securities. Collateral returned to the Custodian shall be held hereunder
as it was prior to being used as collateral.
8. PERSONS HAVING ACCESS TO ASSETS OF THE FUND.
-------------------------------------------
(a) No trustee or agent of a Fund, and no officer, director, employee or
agent of a Fund's investment adviser, of any sub-investment adviser of a
Fund, or of the Fund's administrator, shall have physical access to the
assets of the Fund held by the Custodian or be authorized or permitted to
withdraw any investments of the Fund, nor shall the Custodian deliver any
assets of the Fund to any such person. No officer, director, employee or
agent of the Custodian who holds any similar position with the Fund's
investment adviser, with any sub-investment adviser of the Fund or with
the Fund's administrator shall have access to the assets of the Fund.
(b) Nothing in this Section 8 shall prohibit any duly authorized officer,
employee or agent of a Fund, or any duly authorized officer, director,
employee or agent of the investment adviser, of any sub-investment adviser
of a Fund or of a Fund's administrator, from giving Oral Instructions or
Written Instructions to the Custodian
20
or executing a Certificate so long as it does not result in delivery of or
access to assets of the Fund prohibited by paragraph (a) of this Section
8.
9. CONCERNING THE CUSTODIAN.
------------------------
(a) Standard of Conduct. Notwithstanding any other provision of this
-------------------
Custody Agreement, the Custodian shall not be liable for any loss or
damage, including counsel fees, resulting from its action or omission to
act or otherwise, except for any such loss or damage arising out of the
negligence or willful misconduct of the Custodian. The Custodian may, with
respect to questions of law, apply for and obtain the advice and opinion
of counsel to the Funds or of its own counsel, at the expense of the
Funds, and shall be fully protected with respect to anything done or
omitted by it in good faith in conformity with such advice or opinion.
(b) Limit of Duties. Without limiting the generality of the foregoing,
---------------
the Custodian shall be under no duty or obligation to inquire into, and
shall not be liable for:
1. The validity of the issue of any Securities purchased by a Fund, the
legality of the purchase thereof, or the propriety of the amount paid
therefor;
2. The legality of the sale of any Securities by a Fund or the propriety
of the amount for which the same are sold;
3. The legality of the issue or sale of any Shares, or the sufficiency of
the amount to be received therefor;
4. The legality of the redemption of any Shares, or the propriety of the
amount to be paid therefor;
5. The legality of the declaration or payment of any distribution of a
Fund;
6. The legality of any borrowing for temporary administrative or
emergency purposes.
21
(c) No Liability Until Receipt. The Custodian shall not be liable for, or
--------------------------
considered to be the Custodian of, any money, whether or not represented
by any check, draft, or other instrument for the payment of money,
received by it on behalf of a Fund until the Custodian actually receives
and collects such money.
(d) Amounts Due from Transfer Agent. The Custodian shall not be under
-------------------------------
any duty or obligation to take action to effect collection of any amount
due to a Fund from the Transfer Agent nor to take any action to effect
payment or distribution by the Transfer Agent of any amount paid by the
Custodian to the Transfer Agent in accordance with this Custody Agreement.
(e) Collection Where Payment Refused. The Custodian shall not be under
--------------------------------
any duty or obligation to take action to effect collection of any amount,
if the Securities upon which such amount is payable are in default, or if
payment is refused after due demand or presentation, unless and until (i)
it shall be directed to take such action by a Certificate and (ii) it
shall be assured to its satisfaction of reimbursement of its costs and
expenses in connection with any such action.
(f) Appointment of Subcustodians. (i) The Custodian is hereby
-----------------------------
authorized to appoint one or more Subcustodians to hold Securities and
monies at any time owned by a Fund. The Custodian is also hereby
authorized to place Assets with any Foreign Custodian located in a
jurisdiction which is not a Selected Country and with Euroclear, Cedel,
First Chicago Clearing Centre or any other transnational depository.
(g) No Duty to Ascertain Authority. The Custodian shall not be under any
------------------------------
duty or obligation to ascertain whether any Securities at any time
delivered to or held by it for a Fund are such as may properly be held by
the Fund under the provisions of the Agreement and Declaration of Trust
and the Prospectus.
(h) Reliance on Certificates and Instructions. The Custodian shall be
-----------------------------------------
entitled to rely upon any Certificate, notice or other instrument in
writing received by the Custodian and reasonably believed by the Custodian
to be genuine and to be signed by an officer or Authorized Person of a
Fund. The Custodian shall be entitled to rely upon any Written Instructions
or Oral Instructions actually received by the Custodian pursuant to the
applicable Sections of this Agreement and reasonably believed by the
22
Custodian to be genuine and to be given by an Authorized Person. Each Fund
agrees to forward to the Custodian Written Instructions from an Authorized
Person confirming such Oral Instructions in such manner so that such
Written Instructions are received by the Custodian, whether by hand
delivery, telex or otherwise, by the close of business on the same day that
such Oral Instructions are given to the Custodian. Each Fund agrees that
the fact that such confirming instructions are not received by the
Custodian shall in no way affect the validity of the transactions or
enforceability of the transactions hereby authorized by the Fund. Each Fund
agrees that the Custodian shall incur no liability to the Fund in acting
upon Oral Instructions given to the Custodian hereunder concerning such
transactions provided such instructions reasonably appear to have been
received from a duly Authorized Person. The Custodian shall be under no
duty to question any direction of an Authorized Person with respect to the
portion of the account over which such Authorized Person has authority, to
review any property held in the account, to make any suggestions with
respect to the investment and reinvestment of the assets in the account, or
to evaluate or question the performance of any Authorized Person. The
Custodian shall not be responsible or liable for any diminution of value of
any securities or other property held by the Custodian.
(i) Overdraft Facility and Security for Payment. In the event that the
-------------------------------------------
Custodian is directed by Written Instruction (or Oral Instructions
confirmed in writing in accordance with Section 9(h) hereof) to make any
payment or transfer of monies on behalf of a Fund for which there would
be, at the close of business on the date of such payment or transfer,
insufficient monies held by the Custodian on behalf of the Fund, the
Custodian may, in its sole discretion, provide an overdraft (an
"Overdraft") to the Fund in an amount sufficient to allow the completion
of such payment or transfer. Any Overdraft provided hereunder: (a) shall
be payable on the next Business Day, unless otherwise agreed by the Fund
and the Custodian; and (b) shall accrue interest from the date of the
Overdraft to the date of payment in full by the Fund at a rate agreed upon
from time to time, by the Custodian and the Fund. The Custodian and the
Fund acknowledge that the purpose of such Overdraft is to temporarily
finance the purchase of Securities for prompt delivery in accordance with
the terms hereof, to meet unanticipated or unusual redemptions, to allow
the settlement of foreign exchange contracts or to meet other emergency
expenses not reasonably foreseeable by the Fund. The Custodian shall
promptly notify the Fund (an "Overdraft Notice") of any Overdraft by
facsimile transmission or in such other
23
manner as the Fund and the Custodian may agree. To secure payment of any
Overdraft, the Fund hereby grants to the Custodian a continuing security
interest in and right of setoff against the Securities and cash in the
Fund's account from time to time in the full amount of such Overdraft.
Should the Fund fail to pay promptly any amounts owed hereunder, the
Custodian shall be entitled to use available cash in the Fund's account
and to liquidate Securities in the account as is necessary to meet the
Fund's obligations under the Overdraft. In any such case, and without
limiting the foregoing, the Custodian shall be entitled to take such other
actions(s) or exercise such other options, powers and rights as the
Custodian now or hereafter has as a secured creditor under the
Massachusetts Uniform Commercial Code or any other applicable law.
ARTICLE IV
----------
INFORMATION SERVICES AGREEMENT
------------------------------
The following sets forth our agreement with respect to the delivery of certain
information to the Board or its agents as requested by the Board from time to
time.
1. PROVISIONS OF INFORMATION
-------------------------
A)
B) In accordance with the provisions of this Information Services
Agreement, the Custodian agrees to provide to the Board, or at the direction of
the Board, to a Fund's investment advisors, the information set forth in Article
IV, Section 2 with respect to Foreign Custodians and Securities Depositories
which hold Securities, Assets, or other property of the Fund and the systems and
environment for securities processing in the jurisdiction in which such Foreign
Custodians or Securities Depositories are located. The Custodian shall provide
only that portion of such information as is reasonably available to it.
c)
2. INFORMATION TO BE PROVIDED
--------------------------
COUNTRY INFORMATION
* Settlement Environment
* Depository
* Settlement Period
* Trading
24
* Security Registration
* Currency
* Foreign Investment Restrictions
* Entitlements
* Proxy Voting
* Foreign Taxation
x
25
x Depository Information (if applicable to the Country)
* Name
* Information relative to Determining Compulsory or Voluntary Status of
the Facility
* Type of Entity
* Ownership Structure
* Operating History
* Eligible Instruments
* Security Form
* Financial Data
* Regulator
* External Auditor
x
x
x SUBCUSTODIAN INFORMATION
* Financial Information
* Regulator
* External Auditor
* How Securities are Held
* Operational Capabilities
* Insurance Coverage
x
x INFORMATION ON THE FOLLOWING LEGAL QUESTIONS
* Would the applicable foreign law restrict the access afforded the
independent public accountants of the Fund to books and records kept by a
foreign custodian?
x
* Would the applicable foreign law restrict the ability of the Fund
to recover its assets in the event of bankruptcy of the foreign custodian?
x
* Would the applicable foreign law restrict the ability of the Fund
to recover assets that are lost while under the control of the foreign
custodian?
x
* What are the foreseeable difficulties in converting the Fund's
cash into U.S. dollars?
26
3. LIABILITY AND WARRANTIES
------------------------
The Custodian will take all reasonable precautions to ensure that the
information provided is accurate. However, due to the nature and source of this
information, and the necessity of relying on various information sources, most
of which are external to the Custodian, the Custodian shall have no liability
for direct or indirect use of such information. The Custodian makes no other
warranty or condition, either express or implied, as to the merchantability or
fitness for any particular purpose of the information provided under this
Article IV.
ARTICLE V
---------
ADDITIONAL PROVISIONS
---------------------
1. COMPENSATION.
------------
(a) The Custodian shall be entitled to receive, and each Fund agrees
to pay to the Custodian, such compensation as may be agreed upon from
time to time between the Custodian and the Fund. The Custodian may
charge against any monies held on behalf of the Fund pursuant to this
Agreement such compensation and any expenses incurred by the Custodian
in the performance of its duties pursuant to this Agreement. The
Custodian shall also be entitled to charge against any money held on
behalf of the Fund pursuant to this Agreement the amount of any loss,
damage, liability or expense incurred with respect to the Fund,
including counsel fees, for which it shall be entitled to
reimbursement under the provisions of this Agreement. The expenses
which the Custodian may charge against such account include, but are
not limited to, the expenses of Subcustodians and Foreign Custodians
incurred in settling transactions outside of Boston, Massachusetts or
New York City, New York involving the purchase and sale of Securities.
(b) Each Fund will compensate the Custodian for its services rendered
under this Agreement in accordance with the fees set forth in a
separate Fee Schedule which schedule may be modified by the Custodian
upon not less than thirty days prior written notice to the Fund.
27
(c) Any compensation agreed to hereunder may be adjusted from time to
time by a revised Fee Schedule, dated and signed by an Authorized
Person or authorized representative of each party hereto.
(d) The Custodian will ▇▇▇▇ each Fund as soon as practicable after the
end of each calendar month. The Fund will promptly pay to the
Custodian the amount of such billing. In making payments to service
providers pursuant to Written Instructions, the Fund acknowledges that
the Custodian is acting as a paying agent and not as the payor, for
tax information reporting and withholding purposes.
2. INSOLVENCY OF ELIGIBLE FOREIGN CUSTODIANS.
-----------------------------------------
The Custodian shall not be responsible or liable for any losses or damages
suffered by a Fund arising as a result of the insolvency of any Foreign
Custodian except with respect to any Foreign Custodian in any Selected
Country which the Custodian appointed in accordance with the provisions of
Article II but only to the extent that the Custodian failed to comply with
the standard of care set forth in Article II with respect to the selection
and monitoring of such Foreign Custodian.
3. LIABILITY FOR DEPOSITORIES.
---------------------------
The Custodian shall not be responsible for any losses resulting from the
deposit or maintenance of Securities, Assets or other property of a Fund
with any Securities Depository.
4. DAMAGES.
--------
Under no circumstances shall the Custodian be liable for any indirect,
consequential or special damages with respect to its role as Delegate,
Custodian or information vendor.
5. LIMITATION OF LIABILITY.
------------------------
The Fund and the Custodian agree that the obligations of each Fund under
this Agreement shall not be binding upon any of the Trustees, shareholders,
nominees, officers, employees or agents, whether past, present or future,
of the Fund, individually, but are binding only upon the assets and
property of the Fund, as provided in the Agreement and Declaration of
28
Trust. The execution and delivery of this Agreement have been authorized by
the Trustees of the Fund, and signed by an authorized officer of the Fund,
acting as such. 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 or any shareholder of the Fund individually or to impose any
liability on any of them or any shareholder of the Fund personally, but
shall bind only the assets and property of the Fund as provided in the
Agreement and Declaration of Trust.
6. TERM AND TERMINATION.
---------------------
(a) This Agreement and any portion thereof shall become effective on
the date first set forth above (the "Effective Date") and shall
continue in effect thereafter until such time as this Agreement may be
terminated in accordance with the provisions hereof.
(b) Any of the parties hereto may terminate this Agreement as a whole
or may terminate either the Delegation Agreement or the Information
Services Agreement individually or the Delegation Agreement
collectively, or may terminate this Agreement as to such party, by
giving to the other parties a notice in writing specifying the date and
scope of such termination, which shall be not less than 60 days after
the date of receipt of such notice. In the event such notice is given
by a Fund, it shall be accompanied by a certified vote of the Board of
Trustees of the Fund, electing to terminate this Agreement or the
applicable portion thereof and designating a successor, which shall be
a person qualified to so act under the 1940 Act if necessary.
In the event such notice is given by the Custodian of any
termination which include the Custody Agreement, each Fund shall, on or
before the termination date, deliver to the Custodian a certified vote
of the Board of Trustees of the Fund, designating a successor custodian
or custodians. In the absence of such designation by the Fund, the
Custodian may designate a successor custodian, which shall be a person
qualified to so act under the 1940 Act. If a Fund fails to designate a
successor custodian, the Fund shall upon the date specified in the
notice of termination of this Agreement and upon the delivery by the
Custodian of all Securities and monies then owned by the Fund, be
deemed to be its own custodian and the Custodian shall thereby be
relieved of all duties and responsibilities pursuant to this Agreement
or
29
the portion so terminated, other than the duty with respect to
Securities held in the Book-Entry System which cannot be delivered to
the Fund.
(c) Upon the date set forth in such notice under paragraph (b) of this
Section 6, this Agreement or portion thereof shall terminate to the
extent specified in such notice, and if the Custody Agreement is
terminated the Custodian shall upon receipt of a notice of acceptance
by the successor custodian on that date deliver directly to the
successor custodian all Securities and monies then held by the
Custodian on behalf of the Fund, after deducting all fees, expenses and
other amounts for the payment or reimbursement of which it shall then
be entitled.
7. FORCE MAJEURE.
--------------
Notwithstanding anything in this Agreement to the contrary, the
Custodian shall not be liable for any losses resulting from or caused by events
or circumstances beyond its reasonable control, including, but not limited to,
losses resulting from nationalization, strikes, expropriation, devaluation,
revaluation, confiscation, seizure, cancellation, destruction or similar action
by any governmental authority, de facto or de jure; or enactment, promulgation,
imposition or enforcement by any such governmental authority of currency
restrictions, exchange controls, taxes, levies or other charges affecting a
Fund's property; or the breakdown, failure or malfunction of any utilities or
telecommunications systems; or any order or regulation of any banking or
securities industry including changes in market rules and market conditions
affecting the execution or settlement of transactions; or acts of war,
terrorism, insurrection or revolution; or any other similar or third-party
event. This Section shall survive the termination of this Agreement.
30
8. INSPECTION OF BOOKS AND RECORDS.
-------------------------------
The books and records of the Custodian shall be open to inspection and
audit at reasonable times by officers and auditors employed by a Fund at
its own expense and with prior written notice to the Custodian, and by the
appropriate employees of the Securities and Exchange Commission.
9. MISCELLANEOUS.
--------------
(a) Annexed hereto as Appendix C is a certification signed by the
----------
Secretary of each Fund setting forth the names and the signatures of
the present Authorized Persons. Each Fund agrees to furnish to the
Custodian a new certification in similar form in the event that any
such present Authorized Person ceases to be such an Authorized Person
or in the event that other or additional Authorized Persons are elected
or appointed. Until such new certification shall be received, the
Custodian shall be fully protected in acting under the provisions of
this Agreement upon Oral Instructions or signatures of the present
Authorized Persons as set forth in the last delivered certification.
(b) Annexed hereto as Appendix A is a certification signed by the
-----------
Secretary of each Fund setting forth the names and the signatures of
the present officers of the Fund. Each Fund agrees to furnish to the
Custodian a new certification in similar form in the event any such
present officer ceases to be an officer of the Fund or in the event
that other or additional officers are elected or appointed. Until such
new certification shall be received, the Custodian shall be fully
protected in acting under the provisions of this Agreement upon the
signature of an officer as set forth in the last delivered
certification.
(c) Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Custodian, shall be sufficiently
given if addressed to the Custodian and mailed or delivered to it at
its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such
other place as the Custodian may from time to time designate in
writing.
(d) Any notice or other instrument in writing, authorized or required
by this Agreement to be given to a Fund, shall be sufficiently given if
addressed to the Fund
31
and mailed or delivered to it at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at such other place as the Fund may from
time to time designate in writing.
(e) Except as provided in Article II, Section 2 this Agreement may not
be amended or modified with respect to a Fund in any manner except by a
written agreement executed by both the Fund and the Custodian with the
same formality as this Agreement (i) authorized, or ratified and
approved by a vote of the Board of Trustees of the Fund, including a
majority of the members of the Board of Trustees of the Fund who are
not "interested persons" of the Fund (as defined in the 1940 Act), or
(ii) authorized, or ratified and approved by such other procedures as
may be permitted or required by the 1940 Act.
(f) 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 a Fund without
the written consent of the Custodian, or by the Custodian without the
written consent of each Fund authorized or approved by a vote of the
Board of Trustees of the Fund provided, however, that the Custodian may
assign the Agreement to an Affiliated Person and any attempted
assignment without such written consent shall be null and void. Nothing
in this Agreement shall give or be construed to give or confer upon any
third party any rights hereunder.
(g) Each Fund represents that a copy of the Agreement and Declaration
of Trust is on file with the Secretary of the Commonwealth of
Massachusetts.
(h) This Agreement shall be construed in accordance with the laws of
The Commonwealth of Massachusetts.
(i) The captions of the Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
(j) This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but such counterparts
shall, together, constitute only one instrument.
32
APPENDIX A
----------
I, ▇▇▇▇ ▇. ▇▇▇▇, the Secretary of WM Trust I, WM Trust II, WM Strategic
Asset Management Portfolios, WM Prime Income Fund, and WM Variable Trust, a
business trust organized under the laws of the Commonwealth of Massachusetts
(the "Fund"), do hereby certify that:
The following individuals have been duly authorized as Authorized Persons to
give Oral Instructions and Written Instructions on behalf of the Fund and the
specimen signatures set forth opposite their respective names are their true and
correct signatures:
Name Signature
---- ---------
33
WM Trust I, WM Trust II, WM Strategic Asset
Mgmt Portfolios, WM Prime Income, WM
Variable Trust
By:
Secretary
Dated:
▇▇
▇▇▇▇▇▇▇▇ ▇
----------
Selected Countries
------------------
[List]
ARGENTINA
AUSTRALIA
AUSTRIA
BANGLADESH
BELGIUM
BERMUDA
BOTSWANA
BRAZIL
CANADA
CHILE
CHINA, PEOPLES' REPUBLIC OF
COLOMBIA
CYPRUS
THE CZECH REPUBLIC
DENMARK
EGYPT
FINLAND
FRANCE
GERMANY
GHANA
GREECE
HONG KONG
HUNGARY
INDIA
INDONESIA
IRELAND
ISRAEL
ITALY
JAPAN
KENYA
KOREA, REPUBLIC OF
LUXEMBOURG
MALAYSIA
MAURITIUS
MEXICO
NAMIBIA
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇
THE PHILIPPINES
POLAND
PORTUGAL
SINGAPORE
SLOVAK REPUBLIC
SOUTH AFRICA
SPAIN
SRI LANKA
SWEDEN
SWITZERLAND
TAIWAN
THAILAND
TURKEY
UNITED KINGDOM
URUGUAY
VENEZUELA
ZAMBIA
ZIMBABWE
36
APPENDIX C
----------
I, ▇▇▇▇ ▇. ▇▇▇▇, the Secretary of WM Trust I, WM Trust
II, WM Strategic Asset Mgmt Portfolios, WM Prime Income Fund, and WM Variable
Trust, a [corporation/business trust] organized under the laws of the
Commonwealth of Massachusetts (the "Fund"), do hereby certify that:
The following individuals serve in the following
positions with the Fund and each individual has been duly elected or appointed
to each such position and qualified therefor in conformity with the Fund's
Agreement and Declaration of Trust and the specimen signatures set forth
opposite their respective names are their true and correct signatures:
Name Position Signature
---- -------- ---------
Chairman of the Board
President
Treasurer
Secretary
Vice President and
Investment Officer
Vice President and
Investment Officer
WM Trust I, WM Trust II, WM Strategic Asset Mgmt Portfolios, WM
Prime Income Fund, WM Variable Trust
37
By:
Secretary
Dated:
38
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective representatives duly authorized as of the day and year first
above written.
WM Trust I, WM Trust II, WM Strategic Asset Mgmt
Portfolios, WM Prime Income Fund, WM Variable Trust
By:
Name:
Title:
BOSTON SAFE DEPOSIT AND TRUST COMPANY
By:
Name:
Title:
39