CUSTODY AGREEMENT
AGREEMENT, originally dated as of April 1, 1996, and amended this 31st day
of December, 1997, between WILLIAMSBURG INVESTMENT TRUST, a business trust
organized under the laws of the Commonwealth of Massachusetts, having its
principal office and place of business at 000 Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxxx, Xxxx 00000 (the "Company"), and THE NORTHERN TRUST COMPANY (the
"Custodian"), an Illinois Company with its principal place of business at 00
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
W I T N E S S E T H:
That for and in consideration of the mutual promises hereinafter set forth,
the Company and the Custodian agree as follows:
1. Definitions.
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Whenever used in this Agreement or in any Schedules to this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
(a)The "1940 Act" shall mean the Investment Company Act of 1940, and the
Rules and Regulations thereunder, all as amended from time to time.
(b) "Administrator" shall mean the person which performs the administration
functions for the Company.
(c) "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 Company, duly authorized by the Board of
Trustees to give Oral Instructions and Written Instructions on behalf of
the Company and listed in the certification annexed hereto as Schedule A or
such other certification as may be received by the Custodian from time to
time.
(d) "Board of Trustees" shall mean the Board of Trustees of the Company.
(e) "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.
(f)"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 Company by any two Authorized Persons or any two officers thereof.
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(g)"Declaration of Trust" shall mean the Declaration of Trust of the
Company dated July 18, 1988, as amended.
(h)"Delegate" of the Company shall mean and include any entity to whom the
Board of Trustees has delegated any responsibility pursuant to Section (b)
of Rule 17f-5 of the 1940 Act.
(i) "Depository" shall mean The Depository Trust Company, a clearing agency
registered with the Securities and Exchange Commission under Section 17(a)
of the Securities Exchange Act of 1934, as amended, its successor or
successors and its nominee or nominees, in which the Custodian is hereby
specifically authorized to make deposits. The term "Depository" shall
further mean and include any other person to be named in a Certificate
authorized to act as a depository under the 1940 Act, its successor or
successors and its nominee or nominees.
(j) "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,
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 agreements with respect to any of the
foregoing types of securities.
(k) "Oral Instructions" shall mean an oral communication actually received
by the Custodian from a person reasonably believed by the Custodian to be
an Authorized Person.
(l) "Portfolio" refers to the The Jamestown International Equity Fund or
any such other separate and distinct investment portfolio as may from time
to time be created and designated by the Company in accordance with the
provisions of the Declaration of Trust and which the Company and the
Custodian shall have agreed in writing shall be subject to this Agreement
pursuant to the provisions of Section 5(b).
(m) "Prospectus" shall mean the Portfolio's current prospectus and
statement of additional information relating to the registration of the
Portfolio's Shares under the Securities Act of 1933, as amended.
(n) "Rule 17f-5" shall mean Rule 17f-5 under the 0000 Xxx.
(o) "Shares" refers to the shares of beneficial interest of the Portfolio.
(p) "Security" or "Securities" shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness, and other
securities, commodity interests and investments from time to time owned by
the Portfolio.
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(q) "Sub-Custodian" shall mean and include (i) any branch of the Custodian,
(ii) any branch of a "U.S. bank," as that term is defined in Rule 17f-5,
(iii) any "Eligible Foreign Custodian," as that term is defined in Rule
17f-5, having a written contract with the Custodian which has been approved
by the Company or a Delegate of the Company in the manner required by Rule
17f-5.
(r) "Transfer Agent" shall mean the person which performs as the transfer
agent, dividend disbursing agent and shareholder servicing agent for the
Company.
(s) "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 whereby the receiver of
such communication is able to verify through codes or otherwise with a
reasonable degree of certainty the authenticity of the sender of such
communication; however, "Written Instructions" from the Administrator to
the Custodian shall mean an electronic communication transmitted by fund
accountants, transfer agents and/or their manager(s) (who have been
provided an access code by the Administrator) and actually received by the
Custodian. Except as otherwise provided in this Agreement, "Written
Instructions" may include instructions given on a standing basis.
2. Appointment of Custodian.
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(a) The Company hereby constitutes and appoints the Custodian as custodian
of all the Securities and monies owned by or in the possession of the
Portfolio 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.
3. Appointment and Removal of Sub-Custodians.
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(a) The Custodian may appoint one or more Sub-Custodians to act as
Depository or Depositories or as sub-custodian or sub-custodians of
Securities and moneys at any time owned by the Portfolio, upon terms and
conditions as are specified in this Agreement. The Custodian shall oversee
the maintenance of any Securities or moneys of the Portfolio by any
Sub-Custodian.
(b) The Company hereby delegates to Custodian the responsibilities set
forth in Section 3 with respect to the Portfolio's foreign custody
arrangements, except that the Custodian shall not have such responsibility
with respect to Securities Depositories and clearing agencies or with
respect to custody arrangements in the countries listed on Schedule I,
attached hereto, as that Schedule may be amended from time to time. Prior
to the Custodian's use of any Securities Depository or clearing agency or
use of a
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Sub-Custodian in any country listed in Schedule I, the Company must approve
such Securities Depository, clearing agency or Sub-Custodian in the manner
provided by Rule 17f-5 and provide Custodian with satisfactory evidence of
such approval.
(c) With respect to its responsibilities under this Section 3, the
Custodian hereby warrants to the Company that it agrees to exercise
reasonable care, prudence and diligence such as a person having
responsibility for the safekeeping of property of the Portfolio. The
Custodian further warrants that the Portfolio's property maintained with
each foreign Sub-Custodian (other than a Securities Depository, clearing
agency or Sub-Custodian located in a country listed on Schedule I as that
Schedule may be amended from time to time) will be subject to reasonable
care, based upon standards applicable to custodians in the relevant market,
after considering all factors relevant to the safekeeping of such assets,
including, but not limited to: (i) the Sub-Custodian's practices,
procedures and internal controls, including, but not limited to, the
physical protections available for certificated securities (if applicable),
method of keeping custodial records, and the security and data protection
practices; (ii) whether the Sub-Custodian has the requisite financial
strength to provide reasonable care for assets of the Portfolio; (iii) The
Sub-Custodian's general reputation and standing; and (iv) whether the
Company will have jurisdiction over and be able to enforce judgments
against the Sub-Custodian, for example, by virtue of the existence of
offices of the Sub-Custodian in the United States or the Sub-Custodian's
consent to service of process in the United States.
(d) The contract between the Custodian and each Sub-Custodian acting
hereunder shall contain the required provisions set forth in paragraph
(c)(2)(i) of Rule 17f-5. Such contract may contain, in lieu of any or all
of the provisions specified in Rule 17f-5(c)(2)(i), such other provisions
that the Custodian determines will provide, in their entirety, the same or
a greater level of care and protection for assets of the Portfolio as the
specified provisions, in their entirety.
(e) The Custodian shall have an established system for monitoring the
appropriateness of maintaining the Portfolio's assets with a particular
Sub-Custodian and monitoring the written agreement with such Sub-Custodian.
If the custodial arrangement with a Sub-Custodian no longer meets the
requirements of this Agreement or Rule 17f-5, the Custodian shall promptly
take such steps as may be required to withdraw the assets of the Portfolio
from such Sub-Custodian and shall notify the Board of Trustees under the
reporting requirements contained in Section 3(f) below.
(f) The Custodian shall provide to the Board of Trustees of the Company a
written report at least annually. These reports are intended to facilitate
the Board of Trustees in overseeing the Custodian's performance of its
delegated responsibilities and shall contain information concerning the
placement of the property of the Portfolio with a particular Sub-Custodian.
The Custodian will also provide periodic reports concerning any material
changes in the custodial arrangements applicable to the Portfolio.
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4. Use of Sub-Custodians.
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With respect to property of a Portfolio which is maintained by the
Custodian in the custody of a Sub-Custodian pursuant to Section 3:
(a) The Custodian will identify on its books as belonging to the Portfolio
any property held by such Sub-Custodian.
(b) In the event that a Sub-Custodian permits any of the Securities placed
in its care to be held in an eligible foreign securities depository, such
Sub-Custodian will be required by its agreement with the Custodian to
identify on its books such Securities as being held for the account of the
Custodian as a custodian for its customers.
(c) Any Securities held by a Sub-Custodian will be subject only to the
instructions of the Custodian or its agents; and any Securities held in an
eligible foreign securities depository for the account of a Sub-Custodian
will be subject only to the instructions of such Sub-Custodian.
(d) The Custodian will only deposit property of the Portfolio in an account
with a Sub-Custodian which includes exclusively the assets held by the
Custodian for its customers, and will cause such account to be designated
by such Sub-Custodian as a special custody account for the exclusive
benefit of customers of the Custodian.
5. Compensation.
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(a) The Portfolio will compensate the Custodian for its services rendered
under this Agreement in accordance with the fees set forth in the Fee
Schedule annexed hereto as Schedule B and incorporated herein. Such Fee
Schedule does not include out-of-pocket disbursements of the Custodian for
which the Custodian shall be entitled to xxxx separately. Out-of-pocket
disbursements may include only the items specified in Schedule B and which
may be modified by the Custodian if the Company consents in writing to the
modification.
(b) The parties hereto will agree upon the compensation for acting as
Custodian for any series hereafter established and designated, and at the
time that the Custodian commences serving as such for said series, such
agreement shall be reflected in a Fee Schedule for that series, dated and
signed by an officer of each party hereto, which shall be attached to
Schedule B of this Agreement.
(c) Any compensation agreed to hereunder may be adjusted from time to time
by attaching to Schedule B of this Agreement a revised Fee Schedule, dated
and signed by an officer of each party hereto.
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(d) The Custodian will xxxx the Company for its services to the Portfolio
hereunder as soon as practicable after the end of each calendar quarter,
and said xxxxxxxx will be detailed in accordance with the Fee Schedule for
the Company. The Company will promptly pay to the Custodian the amount of
such billing. The Custodian shall have a claim of payment against the
property of the Portfolio for any compensation or expense amount owing to
the Custodian from time to time under this Agreement.
(e) The Custodian (not the Company) will be responsible for the payment of
the compensation of each Sub-Custodian.
6. Custody of Cash and Securities
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(a) Receipt and Holding of Assets. The Company will deliver or cause to be
delivered to the Custodian and the Sub-Custodians all Securities and monies
owned by the Portfolio at any time during the period of this Agreement and
shall specify the Portfolio to which the Securities and monies are to be
specifically allocated. The Custodian will not be responsible for such
Securities and monies until actually received by it or by a Sub-Custodian.
The Company shall instruct the Custodian from time to time in its sole
discretion, by means of Written Instructions, as to the manner in which and
in what amounts Securities, and monies of the Portfolio are to be deposited
on behalf of the Portfolio in the Book-Entry System or a Depository;
provided, however, that prior to the deposit of Securities of the Portfolio
in the Book-Entry System or a Depository, including a deposit in connection
with the settlement of a purchase or sale, the Custodian shall have
received a Certificate specifically approving such deposits by the
Custodian or a Sub-Custodian in the Book-Entry System or a Depository.
Securities and monies of the Portfolio deposited in the Book-Entry System
or a Depository will be deposited in accounts which include only assets
held by the Custodian for its customers.
(b) Accounts and Disbursements. The Custodian shall establish and
maintain a separate account for the Portfolio and shall credit to the
separate account all monies received by it or a Sub-Custodian for the
account of the Portfolio and shall disburse, or cause a Sub-Custodian
to disburse, the same only:
1. In payment for Securities purchased for the Portfolio, as provided
in Section 7 hereof;
2. In payment of dividends or distributions with respect to the Shares
of the Portfolio, as provided in Section 10 hereof;
3. In payment of original issue or other taxes with respect to the
Shares of the Portfolio, as provided in Section 11(c) hereof;
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4. In payment for Shares which have been redeemed by the Portfolio, as
provided in Section 11 hereof;
5. In payment of fees and in reimbursement of the expenses and
liabilities of the Custodian attributable to the Portfolio, as
provided in Sections 5 and 15(h) hereof;
6. Pursuant to Written Instructions setting forth the name of the
Portfolio and 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.
(c) Fail Float. In the event that any payment made for the Portfolio under
this Section 6 exceeds the funds available in the Portfolio's account, the
Custodian or relevant Sub- Custodian, as the case may be, may, in its
discretion, advance the Company on behalf of the Portfolio an amount equal
to such excess and such advance shall be deemed an overdraft from the
Custodian or such Sub-Custodian to the Portfolio payable on demand, bearing
interest at the rate of interest customarily charged by the Custodian or
such Sub- Custodian on similar overdrafts.
(d) Confirmation and Statements. Promptly after the close of business on
each business day, the Custodian shall furnish the Company with
confirmations and a summary of all transfers to or from the account of the
Portfolio during said day. Such summary shall include without limitation,
as to property acquired for the Portfolio, the identity of the entity
having physical possession of such property. Where securities purchased by
the Portfolio 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 Depository, the Book-Entry System or a Sub-Custodian, the
Custodian shall by book entry or otherwise identify the quantity of those
securities belonging to the Portfolio. At least monthly, the Custodian
shall furnish the Company with a detailed statement of the Securities and
monies held by it and all Sub-Custodians for the Portfolio. In the absence
of the filing in writing with the Custodian by the Company of exceptions or
objections to any such statement within 120 days after the date that a
material defect is reasonably discoverable, the Company shall be deemed to
have approved such statement; and in such case or upon written approval of
the Company of any such statement the Custodian shall, to the extent
permitted by law and provided the Custodian has met the standard of care in
Section 15 hereof, be released, relieved and discharged with respect to all
matters and things set forth in such statement as though such statement had
been settled by the decree of a court of competent jurisdiction in an
action in which the Company and all persons having any equity interest in
the Company were parties.
(e) Registration of Securities and Physical Separation. All Securities held
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for the
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Portfolio which are issued or issuable only in bearer form, except such
Securities as are held in the Book-Entry System, shall be held by the
Custodian or a Sub-Custodian in that form; all other Securities held for
the Portfolio may be registered in the name of the Portfolio, in the name
of any duly appointed registered nominee of the Custodian or a
Sub-Custodian as the Custodian or such Sub-Custodian may from time to time
determine, or in the name of the Book-Entry System or a Depository or their
successor or successors, or their nominee or nominees. The Company reserves
the right to instruct the Custodian as to the method of registration and
safekeeping of the Securities. The Company agrees to furnish to the
Custodian appropriate instruments to enable the Custodian or any
Sub-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 the
Book-Entry System or a Depository, any Securities which the Custodian or a
Sub-Custodian may hold for the account of the Portfolio and which may from
time to time be registered in the name of the Portfolio. The Custodian
shall hold all such Securities specifically allocated to the Portfolio
which are not held in the Book-Entry System or a Depository in a separate
account for the Portfolio, in the name of the Portfolio, physically
segregated at all times from those of any other person or persons.
(f) Segregated Accounts. Upon receipt of a Written Instruction, the
Custodian will establish segregated accounts on behalf of the Portfolio 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.
(g) Collection of Income and Other Matters Affecting Securities.
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Unless otherwise instructed to the contrary by a Written Instruction, the
Custodian, by itself or through the use of the Book-Entry System or a
Depository with respect to Securities therein deposited, shall, or shall
instruct the relevant Sub-Custodian to:
1. Collect all income due or payable with respect to Securities
held for the Portfolio in accordance with this Agreement;
2. Present for payment and collect the amount payable upon all
Securities which may mature or be called, redeemed or retired, or
otherwise become payable;
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 the Book-Entry System or a
Depository with
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respect to Securities therein deposited, for the account of the
Portfolio all rights and similar Securities issued with respect
to any Securities held by the Custodian or relevant Sub-Custodian
for the Portfolio.
If the Custodian or any Sub-Custodian causes the account of the
Portfolio to be credited on the payable date for interest,
dividends or redemptions, the Portfolio will promptly return to
the Custodian any such amount or property so credited upon oral
or written notification that neither the custodian nor the
relevant Sub-Custodian can collect such amount or property in the
ordinary course of business. The Custodian or such Sub-Custodian,
as the case may be, shall have no duty or obligation to institute
legal proceedings, file a claim or proof of claim in any
insolvency proceeding or take any other action with respect to
the collection of such amount or property beyond its ordinary
collection procedures unless it is specifically requested to do
so by the Company and indemnified to its satisfaction for any
liability, cost or expense arising therefrom.
(h) Delivery of Securities and Evidence of Authority.
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Upon receipt of a Written Instruction and not otherwise, except for
subparagraphs 5, 6, 7, and 8 of this section 6(h) which may be effected by Oral
or Written Instructions, the Custodian, directly or through the use of the
Book-Entry System or a Depository, shall, or shall instruct the relevant
Sub-Custodian to:
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 the Company
as owner of any Securities may be exercised;
2. Deliver or cause to be delivered any Securities held for the Portfolio 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;
3. Deliver or cause to be delivered any Securities held for the Portfolio 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 Agreement in the separate account for the Portfolio 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
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specifically allocated to the separate account of the Portfolio 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 Company;
5. Deliver Securities upon sale of such Securities for the account of the
Portfolio pursuant to Section 7;
6. Deliver Securities upon the receipt of payment in connection with any
repurchase agreement related to such Securities entered into by the Portfolio;
7. Deliver Securities owned by the Portfolio 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 or Sub-Custodian, as the case may be;
8. Deliver Securities for delivery in connection with any loans of securities
made by the Portfolio but only against receipt of adequate collateral as agreed
upon from time to time by the Custodian and the Company which may be in the form
of cash or obligations issued by the United States Government, its agencies or
instrumentalities;
9. Deliver Securities for delivery as security in connection with any borrowings
by the Portfolio requiring a pledge of Portfolio assets, but only against
receipt of the amounts borrowed;
10. Deliver Securities 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 Prospectus, in satisfaction of requests by holders of Shares for repurchase
or redemption;
11. Deliver Securities owned by the Portfolio for any purpose expressly
permitted by and in accordance with procedures described in the Prospectus; and
12. Deliver Securities owned by the Portfolio 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 the Company, 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.
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(i) Endorsement and Collection of Checks, Etc. The Custodian is hereby
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 Portfolio.
(j) The Custodian is hereby authorized to execute any and all application or
other documents required by a regulatory agency or similar entity as a condition
of making investments in the foreign market under such entity's jurisdiction.
7. Purchase and Sale of Investments of the Portfolio.
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(a) Promptly after each purchase of Securities for the Portfolio, the Company
shall deliver to the Custodian (i) with respect to each purchase of Securities
which are not Money Market Securities, a Written Instruction and (ii) with
respect to each purchase of Money Market Securities, either a Written
Instruction or Oral Instruction, in either case specifying with respect to each
purchase: (1) the name of the Portfolio to which such Securities are to be
specifically allocated; (2) the name of the issuer and the title of the
Securities; (3) the number of shares or the principal amount purchased and
accrued interest, if any; (4) the date of purchase and settlement; (5) the
purchase price per unit; (6) the total amount payable upon such purchase; and 7)
the name of the person from whom or the broker through whom the purchase was
made, if any. The Custodian or specified Sub-Custodian shall receive the
Securities purchased by or for the Portfolio and upon receipt thereof shall pay
to the broker or other person designated by the Company out of the monies held
for the account of the Portfolio the total amount payable upon such purchase,
provided that the same conforms to the total amount payable as set forth in such
Written or Oral Instruction.
(b) Promptly after each sale of Securities of the Portfolio, the Company shall
deliver to the Custodian (i) with respect to each sale of Securities which are
not Money Market Securities, a Written Instruction, and (ii) with respect to
each sale of Money Market Securities, either Written Instructions or Oral
Instructions, in either case specifying with respect to such sale: (1) the name
of the Portfolio to which the Securities sold were specifically allocated; (2)
the name of the issuer and the title of the Securities; (3) the number of shares
or principal amount sold, and accrued interest, if any; (4) the date of sale;
(5) the sale price per unit; (6) the total amount payable to the Portfolio upon
such sale; and (7) the name of the broker through whom or the person to whom the
sale was made. The Custodian or relevant Sub-Custodian shall deliver or cause to
be delivered the Securities to the broker or other person designated by the
Company upon receipt of the total amount payable to the Portfolio upon such
sale, provided that the same conforms to the total amount payable to the
Portfolio as set forth in such Written or Oral Instruction. Subject to the
foregoing, the Custodian or relevant Sub-Custodian may accept payment in such
form as shall be satisfactory to it, and may deliver Securities and arrange for
payment in accordance with the customs prevailing among dealers in Securities.
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(c) Notwithstanding (a) and (b) above, cash of the Portfolio may be invested by
the Custodian for short term purposes pursuant to standing Written Instructions
from the Company.
8. Investment in Futures and Options
---------------------------------
The Custodian shall pursuant to Written Instructions (which may be standing
instructions) from an Authorized Person (i) transfer initial margin to a
safekeeping bank or, with respect to options, broker; (ii) pay or demand
variation margin to or from a designated futures commission merchant or other
broker based on daily marking to market calculations and in accordance with
accepted industry practices; and (iii) subject to the consent of the Custodian,
enter into separate procedural, safekeeping or other agreements with safekeeping
banks, futures commission merchants and other brokers pursuant to which such
banks and, in the case of options, brokers, will act as custodian for initial
margin deposits in transactions involving futures contracts and options. The
Custodian shall have no custodial or investment responsibility for any assets
transferred to a safekeeping bank, futures commission merchant or broker
pursuant to this paragraph.
9. Lending of Securities.
---------------------
If the Portfolio is permitted by the terms of the Declaration of Trust and the
Prospectus to lend Securities, then the Board of Trustees may approve a separate
written agreement between the Company and the Custodian authorizing the
Custodian to lend such Securities. Such agreement may provide for the payment of
additional reasonable compensation to the Custodian.
10. Payment of Dividends or Distributions.
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(a) The Company shall furnish to the Custodian the vote of the Board of Trustees
or the Dividend Committee thereof, as the case may be, certified by the
Secretary of the Company (i) authorizing the declaration of distributions with
respect to the Portfolio 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 Portfolio, 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.
(b) Upon the payment date specified in such vote, Oral Instructions, or Written
Instructions, as the case may be, the Custodian shall pay the total amount
payable to the Transfer Agent out of the monies specifically allocated to and
held for the account of the Portfolio.
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11. Sale and Redemption of Shares of the Porfolio.
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(a) Whenever the Company shall sell any Shares of the Portfolio, the Company
shall deliver or cause to be delivered to the Custodian a Written Instruction
duly specifying:
1. The name of the Portfolio whose Shares were sold;
2. The number of Shares sold, trade date, and price; and
3. 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 of the Portfolio and that the information
contained therein will be derived from the sales of Shares as reported to the
Company by the Transfer Agent.
(b) Upon receipt of such money from the Transfer Agent, the Custodian shall
credit such money to the separate account of the Portfolio.
(c) Upon issuance of any Shares of the Portfolio in accordance with the
foregoing provisions of this Section 11, 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 of the Portfolio are
redeemed, the Company shall cause the Transfer Agent to promptly furnish to the
Custodian Written Instructions specifying:
1. The name of the Portfolio whose Shares were redeemed;
2. The number of Shares redeemed; and
3. The amount to be paid for the Shares redeemed.
The Custodian further understands that the information contained in such Written
Instructions will be derived from the redemption of Shares as reported to the
Company by the Transfer Agent.
(e) Upon receipt from the Transfer Agent of advice setting forth the number of
Shares of the Portfolio being redeemed pursuant to valid instructions as
described in the Prospectus, the Custodian shall make payment to the Transfer
Agent out of the monies specifically allocated to and held for the account of
the Portfolio the total
- 13 -
amount specified in a Written Instruction issued pursuant to paragraph (d) of
this Section 11.
12. Indebtedness.
------------
(a) The Company will cause to be delivered to the Custodian by any bank
(excluding the Custodian) from which the Company borrows money, using Securities
as collateral, a notice or undertaking in the form currently employed by any
such bank setting forth the amount which such bank will loan to the Company
against delivery of a stated amount of collateral. The Company shall promptly
deliver to the Custodian Written Instructions stating with respect to each such
borrowing: (1) the name of the Portfolio for which the borrowing is to be made;
(2) the name of the bank; (3) the amount and terms of the borrowing, which may
be set forth by incorporating by reference an attached promissory note, duly
endorsed by the Company, or other loan agreement; (4) the time and date, if
known, on which the loan is to be entered into (the "borrowing date"); (5) the
date on which the loan becomes due and payable; (6) the total amount payable to
the Company for the separate account of the Portfolio on the borrowing date; (7)
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; (8) whether the Custodian is to
deliver such collateral through the Book-Entry System or a Depository; and (9) a
statement that such loan is in conformance with the 1940 Act and the Prospectus.
(b) Upon receipt of the Written Instruction referred to in paragraph (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 Company from time to time
such Securities specifically allocated to the Portfolio as may be specified in
Written Instruction to collateralize further any transaction described in this
Section 12. The Company 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 Company fails to specify in Written Instruction all of the
information required by this Section 12, 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.
13. Corporate Action
----------------
Whenever the Custodian or any Sub-Custodian (other than a foreign securities
depository or clearing agency) receives information concerning Securities held
for the Portfolio
- 14 -
which requires discretionary action by the beneficial owner of the Securities
(other than a proxy), such as subscription rights, bond issues, stock repurchase
plans and rights offerings, or legal notices or other material intended to be
transmitted to Securities holders ("Corporate Actions"), the Custodian will give
the Company notice of such Corporate Actions to the extent that the Custodian's
central corporate actions department has actual knowledge of a Corporate Action
in time to notify its customers.
When a rights entitlement or a fractional interest resulting from a rights
issue, stock dividend, stock split or similar Corporate Action is received which
bears an expiration date, the Custodian will endeavor to obtain Written or Oral
Instructions from the Company, but if such Instructions are not received in time
for the Custodian to take timely action, or actual notice of such Corporate
Action was received too late to seek such Instructions, the Custodian is
authorized to sell, or cause a Sub-Custodian to sell, such rights entitlement or
fractional interest and to credit the applicable account with the proceeds and
to take any other action it deems, in good faith, to be appropriate, in which
case, provided it has met the standard of care in Section 15 hereof, it shall be
held harmless by the Portfolio for any such action.
The Custodian will deliver proxies to the Company or its designated agent
pursuant to special arrangements which may have been agreed to in writing
between the parties hereto. Such proxies shall be executed in the appropriate
nominee name relating to Securities registered in the name of such nominee but
without indicating the manner in which such proxies are to be voted; and where
bearer Securities are involved, proxies will be delivered in accordance with
Written or Oral Instructions from Authorized Persons.
14. Persons Having Access to the Portfolio.
--------------------------------------
(a) No officer, director, employee or agent of the Company, or of the Company's
investment adviser, or of any sub-investment adviser of the Company, or of the
Administrator, shall have physical access to the assets of the Portfolio held by
the Custodian or any Sub-Custodian or be authorized or permitted to withdraw any
investments of the Portfolio, nor shall the Custodian or any Sub-Custodian
deliver any assets of the Portfolio to any such person. No officer, director,
employee or agent of the Custodian who holds any similar position with the
Company's investment adviser, with any sub-investment adviser of the Company or
with the Administrator shall have access to the assets of the Portfolio.
(b) Nothing in this Section 14 shall prohibit any officer, employee or agent of
the Company, or any officer, director, employee or agent of the investment
adviser, of any sub-investment adviser of the Company or of the Administrator,
from giving Oral Instructions or Written Instructions to the Custodian or
executing a Certificate so long as it does not result in delivery of or access
to assets of the Portfolio prohibited by paragraph (a) of this Section 14.
- 15 -
(c) The Custodian represents that it maintains a system that is reasonably
designed to prevent unauthorized persons from having access to the assets that
it holds (by any means) for its customers.
15. Concerning the Custodian.
------------------------
(a) Scope of Services. The Custodian shall be obligated to perform only such
services as are set forth in this Agreement or expressly contained in a
Certificate, Written Instructions or Oral Instructions given to the Custodian
which are not contrary to the provisions of this Agreement.
(b) Standard of Care.
----------------
1. The Custodian will use reasonable care with respect to its obligations
under this Agreement and the safekeeping of property of the Portfolio. The
Custodian shall be liable to, and shall indemnify and hold harmless the
Company from and against any loss which shall occur as the result of the
failure of the Custodian or a Sub-Custodian (other than a foreign
securities depository or clearing agency) to exercise reasonable care with
respect to their respective obligations under this Agreement and the
safekeeping of such property. The determination of whether the Custodian or
Sub-Custodian has exercised reasonable care in connection with the
safekeeping of Portfolio property shall be made in light of the standards
applicable to a professional asset custodian acting without negligence. The
determination of whether the Custodian or Sub-Custodian has exercised
reasonable care in connection with their other obligations under this
Agreement shall be made in light of prevailing standards applicable to
professional custodians in the jurisdiction in which such custodial
services are performed. In the event of any loss to the Company by reason
of the failure of the Custodian or a Sub-Custodian (other than a foreign
securities depository or clearing agency) to exercise reasonable care, the
Custodian shall be liable to the Company only to the extent of all of the
Company's direct damages and expenses incurred or borne on account of such
loss, which damages, for purposes of property only, shall be determined
based on the market value of the property which is the subject of the loss.
2. Subject to the provisions of paragraph (b)(1) above, the Custodian will
not be responsible for any act, omission, default or for the solvency of
any foreign securities depository or clearing agency approved by the
Company or a Delegate of the Company.
3. The Custodian will not be responsible for any act, omission, default or
for the solvency of any broker or agent (not referred to in paragraph
(b)(2) above) which it or a Sub-Custodian appoints and uses unless such
appointment and use is made or done negligently or in bad faith. In the
event such an
- 16 -
appointment and use is made or done negligently or in bad faith, the
Custodian shall be liable to the Company only for direct damages and
expenses (determined in the manner described in paragraph (b)(1) above)
resulting from such appointment and use and, in the case of any loss due to
an act, omission or default of such agent or broker, only to the extent
that such loss occurs as a result of the failure of the agent or broker to
exercise reasonable care ("reasonable care" for this purpose to be
determined in light of the prevailing standards applicable to agents or
brokers, as appropriate, in the jurisdiction where services are performed).
4. The Custodian shall be entitled to rely, and may act upon the advice of
counsel (who may be counsel for the Company) on all matters and shall be
without liability for any action reasonably taken or omitted in good faith
and without negligence pursuant to such advice.
5. 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 two officers of
the Company. 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 Custodian to be genuine and to be given by an Authorized
Person. The Company 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. The Company 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 Company. The
Company agrees that the Custodian shall incur no liability to the Company
in (i) 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 or (ii) deciding not to
act solely upon Oral Instructions, provided that the Custodian shall be
required to contact the giver of such Oral Instructions and request written
confirmation immediately following any such decision not to act.
6. The Custodian shall supply the Administrator with such daily information
regarding the cash and securities positions and activity of the Portfolio
as the Custodian and the Administrator shall from time to time agree. It is
understood that such information will not be audited by Custodian and
Custodian represents that such information will be the best information
then available to the Custodian. The Custodian shall have no responsibility
- 17 -
whatsoever for the pricing of Portfolio Securities or for the failure of
the Administrator to reconcile differences between the information supplied
by the Custodian and information obtained by the Administrator from other
sources, including but not limited to pricing vendors and the Company's
investment adviser. Subject to the foregoing, to the extent that any
miscalculation by the Administrator of the Portfolio's net asset value is
attributable to the willful misfeasance, bad faith or negligence of the
Custodian (including any Sub-Custodian other than a foreign securities
depository or clearing agency) in supplying or omitting to supply the
Administrator with information as aforesaid, the Custodian shall be liable
to the Company for any resulting loss (subject to such de minimus rule of
change in value as the Board of Trustees may from time to time adopt).
(c) 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 the Portfolio,
the legality of the purchase thereof, or the propriety of the amount
specified by the Company for payment therefor;
2. The legality of the sale of any Securities by the Portfolio or the
propriety of the amount of consideration 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 the
Portfolio;
6. The legality of any borrowing.
(d) The Custodian need not maintain any insurance for the exclusive benefit of
the Company, but hereby warrants that as of the date of this Agreement it is
maintaining a bankers Blanket Bond and hereby agrees to notify the Company in
the event that such bond is canceled or otherwise lapses.
(e) Consistent with and without limiting the language contained in Section
15(b), it is specifically acknowledged that the Custodian shall have no duty or
responsibility to:
1. Question Written Instructions or Oral Instructions or make any
suggestions to the Company or an Authorized Person regarding such
Instructions;
- 18 -
2. Supervise or make recommendations with respect to investments or
the retention of Securities;
3. Subject to Section 15(b)(3) hereof, evaluate or report to the
Company or an Authorized Person regarding the financial condition
of any broker, agent or other party to which Securities are
delivered or payments are made pursuant to this Agreement; or
4. Review or reconcile trade confirmations received from brokers.
(f) Amounts Due For Transfer Agent. The Custodian shall not be under any duty or
obligation to take action to effect collection of any amount due to the
Portfolio 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 Agreement.
(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 the Company and specifically allocated to the Portfolio are such as
may properly be held by the Company under the provisions of the Declaration of
Trust and the Prospectus.
(h)Indemnification. The Company agrees to indemnify and hold the Custodian
harmless from all loss, cost, taxes, charges, assessments, claims, and
liabilities (including, without limitation, liabilities arising under the
Securities Act of 1933, the Securities Exchange Act of 1934 and the 1940 Act and
state or foreign securities laws) and expenses (including reasonable attorneys
fees and disbursements) arising directly or indirectly from any action taken or
omitted by the Custodian (i) at the request or on the direction of or in
reliance on the advice of the Company or in reasonable reliance upon the
Prospectus or (ii) upon a Certificate or Oral or Written Instructions; provided,
that the aforegoing indemnity shall not apply to any loss, cost, tax, charge,
assessment, claim, liability or expense to the extent the same is attributable
to the Custodian's or any Sub-Custodian's (other than a foreign securities
depository or clearing agency) negligence, willful misconduct, bad faith or
reckless disregard of duties and obligations under this Agreement or any other
agreement relating to the custody of Company property.
(i) The Company, on behalf of the Portfolio, agrees to hold the Custodian
harmless from any liability or loss resulting from the imposition or assessment
of any taxes or other governmental charges on the Portfolio.
(j) Without limiting the foregoing, the Custodian shall not be liable for any
loss which results from:
- 19 -
1. the general risk of investing, or
2. subject to Section 15(b) hereof, investing or holding
property in a particular country including, but not limited
to, losses resulting from nationalization, expropriation or
other governmental actions; regulation of the banking or
securities industry; currency restrictions, devaluations or
fluctuations; and market conditions which prevent the
orderly execution of securities transactions or affect the
value of property held pursuant to this Agreement.
(k) No party shall be liable to the other for any loss due to forces beyond
their control including but not limited to strikes or work stoppages (other than
strikes or work stoppages of the Custodian), acts of war or terrorism,
insurrection, revolution, nuclear fusion, fission or radiation, or acts of God.
(1) 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 the Company and by the appropriate employees of the
Securities and Exchange Commission.
(m) Accounting Control Reports. The Custodian shall provide the Company with any
report obtained by the Custodian on the system of internal accounting control of
the Book-Entry System, each Depository, and each Sub-Custodian and with an
annual report on its own systems of internal accounting control.
16. Term and Termination.
--------------------
(a) This Agreement shall become effective on the date first set forth above
(the "Effective Date") and shall continue in effect thereafter as the
parties may mutually agree.
(b) Either of the parties hereto may terminate this Agreement by giving to
the other party a notice in writing specifying the date of such
termination, which, in case the Company is the terminating party, shall be
not less than 60 days after the date of receipt of such notice or, in case
the Custodian is the terminating party, shall be not less than 90 days
after the date of receipt of such notice. In the event such notice is given
by the Company, it shall be accompanied by a certified vote of the Board of
Trustees, electing to terminate this Agreement and designating a successor
custodian or custodians, which shall be a person qualified to so act under
the 1940 Act.
In the event such notice is given by the Custodian, the Company shall, on
or before the termination date, deliver to the Custodian a certified vote
of the Board of Trustees, designating a successor custodian or custodians.
In the absence of such designation by
- 20 -
the Company, the Custodian may designate a successor custodian, which shall
be a person qualified to so act under the 0000 Xxx. If the Company fails to
designate a successor custodian, the Company shall upon the date specified
in the notice of termination of this Agreement and upon the delivery by the
Custodian of all Securities (other than Securities held in the Book-Entry
System which cannot be delivered to the Company) and monies then owned by
the Portfolio, be deemed to be its own custodian and the Custodian shall
thereby be relieved of all duties and responsibilities pursuant to this
Agreement, other than the duty with respect to Securities held in the
Book-Entry System which cannot be delivered to the Company.
(c) Upon the date set forth in such notice under paragraph (b) of this
Section 16, this Agreement shall terminate to the extent specified in such
notice, and 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 and
specifically allocated to the Portfolio, after deducting all fees, expenses
and other amounts for the payment or reimbursement of which it shall then
be entitled with respect to the Portfolio.
17. Limitation of Liability.
-----------------------
The Company and the Custodian agree that the obligations of the Company
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 Company individually, but are binding only upon
the assets and property of the Portfolio, as provided in the Declaration of
Trust. The execution and delivery of this Agreement have been authorized by
the Board of Trustees of the Company, and signed by an authorized officer
of the Company, acting as such, and neither such authorization by the Board
of 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 Company
individually or to impose any liability on any of them or any shareholder
of the Company personally, but shall bind only the assets and property of
the Portfolio as provided in the Declaration of Trust.
18. Miscellaneous.
-------------
(a) Annexed hereto as Schedule A is a certification signed by two of the
present officers of the Company setting forth the names and the signatures
of the present Authorized Persons. The Company 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 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.
- 21 -
(b) 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
its address stated on the first page hereof or at such other place as the
Custodian may from time to time designate in writing.
(c)Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Company, shall be sufficiently given if
addressed to the Company and mailed or delivered to it at its offices at
its address shown on the first page hereof or at such other place as the
Company may from time to time designate in writing.
(d)This Agreement may not be amended or modified in any manner except by a
written agreement executed by both parties with the same formality as this
Agreement, (i) authorized and approved by a vote of the Board of Trustees,
including a majority of the members of the Board of Trustees who are not
"interested persons" of the Company (as defined in the 1940 Act), or (ii)
authorized and approved by such other procedures as may be permitted or
required by the 0000 Xxx.
(e)This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by the Company without the
written consent of the Custodian, or by the Custodian without the written
consent of the Company authorized or approved by a vote of the Board of
Trustees, and any attempted assignment without such written consent shall
be null and void.
(f) This Agreement shall be construed in accordance with the laws of the
State of Illinois.
(g) 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.
(h) 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.
- 22 -
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.
WILLIAMSBURG INVESTMENT TRUST
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Chairman
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Second Vice President
- 23 -
SCHEDULE A
AUTHORIZED PERSONS
Set forth below are the names and specimen signatures of the persons
authorized by the Trust to administer the Jamestown International Equity
Custody Account.
Name Signature
---------------------- -----------------------
Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
-----------------------
Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
-----------------------
Xxxx X. Xxxxxx /s/ Xxxx X. Xxxxxx
-----------------------
Xxxx X. Xxxxx /s/ Xxxx X. Xxxxx
-----------------------
M. Xxxxxxxx Xxxxxxx /s/ M. Xxxxxxxx Xxxxxxx
-----------------------
Xxxxxxxxx Xxxxxxxx /s/ Xxxxxxxxx Xxxxxxxx
-----------------------
Xxxx X. Xxxxxxxxxxx /s/ Xxxx X. Xxxxxxxxxxx
-----------------------
Xxxxxx Xxxxxxxxxx /s/ Xxxxxx Xxxxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
-----------------------
- 24 -
SCHEDULE B
A Global Custody Fee PROPOSAL for
XXXX, XXXXXXXXXXXXX & XXXXXXXXXX'x
JAMESTOWN FUND FAMILY
o International Equity Fund
ASSUMPTIONS USED:
o Initial market value of $35 - 40 million -- roughly EAFE weighted
o No more than 100 security holdings
o 100% per annum security turnover (200)
o 1 portfolio
o Daily on-line interface with Fund Accountant and Transfer Agent
o Approximately 5% excess cash invested with Northern
o Utilization of our on-line inquiry system for all parties involved
o Some portion of foreign exchange volume transacted through Northern
SERVICES PROVIDED:
o Safekeeping of securities
o Settlement of trades
o Foreign exchange services
o Investment and management of excess cash balances
o Interest and dividend collection and payable date crediting
o Tax withholding and reclamation
o Corporate action and proxy handling
o Relationship servicing to the client, the Fund Accountant/Administrator
and Transfer Agent
o Daily on-line reporting to all parties
o Monthly fund level reporting
-25-
CUSTODY FEE PROPOSAL:
Account-based charges:
$5,000 per portfolio/account per annum (1 x $5,000 = $5,000)
Asset-based charges:
U.S. Assets
4.0 Basis points on the first $50 million in market value 2.0 Basis
points on over $50 million in market value
Non-U.S. Assets
9.0 Basis points on the first $50 million in market value
($35 mm x .0009 = $31,500)
Emerging Markets Assets
35.0 Basis points on the first $50 million in market value 25.0 Basis
points on over $50 million in market value
Transaction-based charges (per purchase/sale):
U.S.
Securities $10 per
Wire Transfers (incoming/outgoing) $10 per
Non-U.S. & Emerging Markets
Securities $15 per
Non-Northern foreign exchange contracts $50 per
(200 x $15 = $3,000)
We do not impose additional charges for facsimile, telex, income
collection, tax reclamation, administration, or other "miscellaneous"
activities. Costs attributable, but not limited, to settlement in
specific markets, such as stamp duty, security re-registration charges
and subcustodian delivery/receipt charges will be passed through at
cost as and where applicable.
Total Estimated Annual Fee = $39,500
-------
A $40,000 minimum annual fee applies.
- 26 -
DESKTOP SERVICES:
Full access to Northern Trust's on-line customized reporting system,
PASSPORT, will be made available free of charge. A one-time charge of
$5,000 per personal computer LAN applies for licensing, installation and
training of the PASSPORT software.
MATERIAL CHANGES:
The fees quoted above are offered contingent upon the information provided
and assume that actual experience will not be materially different from
projected activity. "Material" changes, for the purposes of this provision,
will be changes in excess of 10% from the account, holdings and transaction
assumptions used.
REFERENCE:
Presently, the following markets are defined as Emerging Markets by
Northern:
Bangladesh, Botswana, Brazil, Czeck Republic, Chile, Columbia, Cyprus,
Ghana, Greece, Hungary, India, Indonesia, Israel, Jordan, Morocco, Namibia,
Nigeria, Pakistan, Peru, Philippines, Poland, Portugal, Slovak Republic,
South Africa, Uruguay, Venezuela and Zimbabwe.
- 27 -
SCHEDULE I
(Countries for which Custodian shall not have
responsibility under Section 3 for managing
foreign custody arrangements)
Russia
Lithuania
Taiwan
Romania
Croatia
- 28 -
SECOND AMENDMENT
TO
CUSTODY AGREEMENT
This instrument dated as of June 1, 2001 is a Second Amendment to that
certain Custody Agreement between Williamsburg Investment Trust (the "Company")
and The Northern Trust Company (the "Custodian") originally entered into as of
April 1, 1996 and amended on December 31, 1997 (the "Custody Agreement").
WHEREAS, the parties desire to amend the Custody Agreement to take into
account amendments to Rule 17f-5 and new Rule 17f-7 under the Investment Company
Act of 1940.
NOW THEREFORE, the parties agree that the Agreement shall be amended as
follows:
1. The following definition shall be added to Section 1 of the Custody
Agreement:
" `Rule 17f-7' shall mean Rule 17f-7 under the 1940 Act."
"'Foreign Assets' shall mean any investments (including foreign currencies)
for which the primary market is outside the United States, and any cash or cash
equivalents that are reasonably necessary to effect a Portfolio's transactions
in those investments."
" 'Foreign Securities Depository' shall mean a system that (i) acts as or
operates a system for the central handling of Securities or equivalent
book-entries in the country where it is incorporated, or a transnational system
for the central handling of Securities or equivalent book-entries; (ii) is
regulated by a foreign financial regulatory authority as defined by Section
2(a)(50) of the 1940 Act; (iii) holds assets for the custodian that participates
in the system under safekeeping conditions no less favorable than the conditions
that apply to other participants; (iv) maintains records that identify the
assets of each participant and segregate the system's own assets from the assets
of participants; (v) provides periodic reports to its participants with respect
to safekeeping of assets, including notices of transfers to or from any
participant's account; and (vi) is subject to periodic examination by regulatory
authorities or independent accountants."
2. The following shall replace the definition of "Sub-Custodian" under
Section 1(q) of the Custody Agreement:
"'Sub-Custodian' shall mean and include (i) any branch of the Custodian,
(ii) any branch of a "U.S. Bank" as the term is defined in Rule 17f-5 and
(iii) any `Eligible Foreign Custodian,' as that term is defined in Rule
17f-5, having a written contract with the Custodian which the Company or a
Delegate of the Company has determined will provide reasonable care for
Foreign Assets based upon the
standards specified in Section 3A(b) of this Agreement. For the avoidance
of doubt, the term `Sub-Custodian' shall not include any central securities
depository or clearing agency."
3. The following shall replace Sections 3, and 4 of the Custody Agreement:
"3. Appointment and Removal of Sub-Custodians.
-----------------------------------------
(a) The Custodian may appoint one or more Sub-Custodians to act as
sub-custodian or sub-custodians of Securities and moneys at any time held
in any Portfolio, upon the terms and conditions specified in this
Agreement. The Custodian shall oversee the maintenance by any Sub-Custodian
of any Securities or moneys of any Portfolio.
(b) The contract between the Custodian and each Sub-Custodian described in
clause (iii) of Section 1(q) and acting hereunder shall contain the
provisions set forth in paragraph (c)(2)(i) of Rule 17f-5. The contract may
contain, in lieu of any or all of the provisions specified in Rule
17f-5(c)(2)(i), such other provisions that the Custodian determines will
provide, in their entirety, the same or a greater level of care and
protection for Foreign Assets of the Portfolio as the specified provisions,
in their entirety.
(c) Prior to the Custodian's use of any Sub-Custodian described in any
country listed in Schedule I, the Company or a Delegate of the Company must
approve such Sub-Custodian in the manner required by Rule 17f-5 and provide
the Custodian with satisfactory evidence of such approval.
(d) The Custodian shall promptly take such steps as may be required to
remove any Sub-Custodian that has ceased to be an "eligible foreign
custodian" or has otherwise ceased to meet the requirements under Rule
17f-5. If the Custodian intends to remove any Sub-Custodian previously
approved by the Company or a Delegate of the Company pursuant to paragraph
3(c), and the Custodian proposes to replace such Sub-Custodian with a
Sub-Custodian that has not yet been approved by the Company or a Delegate
of the Company, it will so notify the Company or a Delegate of the Company
and provide it with information reasonably necessary to determine such
proposed Sub-Custodian's eligibility under Rule 17f-5, including a copy of
the proposed agreement with such Sub-Custodian. The Company shall at the
meeting of the Board of Trustees next following receipt of such notice and
information, or a Delegate of the Company shall promptly after receipt of
such notice and information, determine whether to approve the proposed
Sub-Custodian and will promptly thereafter give written notice of the
approval or disapproval of the proposed action.
(e) The Custodian hereby represents to the Company that in its opinion,
after due inquiry, the established procedures to be followed by each
Sub-Custodian in
connection with the safekeeping of property of a Portfolio pursuant to this
Agreement afford reasonable care for the safekeeping of such property based
on the standards applicable in the relevant market.
3A. Delegation of Foreign Custody Management.
----------------------------------------
(a) The Company hereby appoints the Custodian as its Foreign Custody
Manager with respect to the responsibilities set forth in this Section 3A, in
accordance with Rule 17f-5 with respect to foreign custody arrangements for the
Company's existing and future Portfolios, except that the Custodian shall not
have such responsibility with respect to the custody arrangements in the
countries listed on Schedule I, attached hereto, as that Schedule may be amended
from time to time by notice to the Company.
(b) With respect to each arrangement with any Sub-Custodian regarding the
Foreign Assets of any Portfolio for which Custodian has responsibility under
this Section 3A (a "Foreign Custodian"), the Custodian hereby warrants to the
Company that it agrees to exercise reasonable care, prudence and diligence such
as a person having responsibility for the safekeeping of Foreign Assets would
exercise in performing the delegated responsibilities. Custodian further
warrants that:
(i) the Company's Foreign Assets will be subject to reasonable
care, based on the standards applicable to custodians in the
relevant market, after considering all factors relevant to the
safekeeping of such assets, including, but not limited to,(i) the
Sub-Custodian's practices, procedures and internal controls,
including, but not limited to, the physical protections available
for certificated Securities (if applicable), method of keeping
custodial records, and the security and data protection
practices; (ii) whether the Sub-Custodian has the requisite
financial strength to provide reasonable care for Foreign Assets;
(iii) the Sub-Custodian's general reputation and standing; and
(iv) whether the Company will have jurisdiction over and be able
to enforce judgments against the Sub-Custodian, for example, by
virtue of the existence of offices of the Sub-Custodian in the
United States or the Sub-Custodian's consent to service of
process in the United States;
(ii) the written contract with such Foreign Custodian governing
the foreign custody arrangements shall comply with the
requirements of Rule 17f-5 and will provide reasonable care for
the Company's assets;
(iii) the Custodian shall have an established system to monitor
the appropriateness of maintaining Foreign Assets with such
Foreign Custodian and to monitor the performance of the contract
with such Foreign Custodian;
(iv) the Custodian shall provide to the Board of Trustees, at
least annually, written reports notifying the Board of the
placement of the Company's
Foreign Assets with a particular Foreign Custodian and periodic
reports of any material changes to the Company's foreign custody
arrangements; and
(v) the Custodian shall withdraw the Company's assets from any
Foreign Custodian as soon as reasonably practicable, if the
foreign custody arrangement no longer meets the requirements of
this Agreement or Rule 17f-5, and shall notify the Board of
Trustees under the reporting requirements in clause (iv) of this
Section 3A(b).
4. Use of Sub-Custodians and Foreign Securities Depositories.
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With respect to property of a Portfolio which is maintained by the Custodian in
the custody of a Sub-Custodian pursuant to Section 3:
(a) The Custodian will identify on its books as belonging to the particular
Portfolio any property held by such Sub-Custodian.
(b) In the event that a Sub-Custodian permits any of the Securities placed in
its care to be held in a Foreign Securities Depository, such Sub-Custodian will
be required by its agreement with the Custodian to identify on its books such
Securities as being held for the account of the Custodian as a custodian for its
customers.
(c) Any Securities held by a Sub-Custodian will be subject only to the
instructions of the Custodian or its agents; and any Securities held in an
Foreign Securities Depository for the account of a Sub-Custodian will be subject
only to the instructions of such Sub-Custodian.
(d) The Custodian will only deposit property of a Portfolio in an account with a
Sub-Custodian which includes exclusively the assets held by the Custodian for
its customers, and will cause such account to be designated by such
Sub-Custodian as a special custody account for the exclusive benefit of
customers of the Custodian.
(e) Before any Securities are placed in a Foreign Securities Depository, the
Custodian shall provide the Board of Trustees with an analysis of the custody
risks associated with maintaining assets with the Foreign Securities Depository.
(f) The Custodian shall continue to monitor the custody risks associated with
maintaining the Securities with a Foreign Securities Depository and shall
promptly notify the Board of Trustees of any material changes in said risks."
5. The following shall replace Sections 15(b)(1) and 15(b)(2) of the Custody
Agreement:
"1. The Custodian will use reasonable care, prudence and
diligence with respect to its obligations under this Agreement
and the safekeeping of property of the Portfolios. The Custodian
shall be liable to, and shall indemnify and hold harmless the
Company from and against any loss which shall occur as the result
of the failure of the Custodian or a Sub-Custodian to exercise
reasonable care, prudence and diligence with respect to their
respective obligations under this Agreement and the safekeeping
of such property. The determination of whether the Custodian or
Sub-Custodian has exercised reasonable care in connection with
the safekeeping of Portfolio property shall be made in light of
the standards applicable to a professional asset custodian acting
without negligence. The determination of whether the Custodian or
Sub-Custodian has exercised reasonable care, prudence and
diligence in connection with their other obligations under this
Agreement shall be made in light of prevailing standards
applicable to professional custodians in the jurisdiction in
which such custodial services are performed. In the event of any
loss to the Company by reason of the failure of the Custodian or
a Sub-Custodian to exercise reasonable care, prudence and
diligence, the Custodian shall be liable to the Company only to
the extent of the Company's direct damages and expenses, which
damages, for purposes of property only, shall be determined based
on the market value of the property which is the subject of the
loss.
2. Subject to the provisions of paragraph (b)(1) above, the
Custodian will not be responsible for any act, omission, or
default of, or for the solvency of, any central securities
depository or clearing agency."
6. The following shall replace Section 15(h):
"(h) Indemnification. The Company agrees to indemnify and hold the
Custodian harmless from all loss, cost, taxes, charges, assessments, claims, and
liabilities (including, without limitation, liabilities arising under the
Securities Act of 1933, the Securities Exchange Act of 1934 and the 1940 Act and
state or foreign securities laws) and expenses (including reasonable attorneys
fees and disbursements) arising directly or indirectly from any action taken or
omitted by the Custodian (i) at the request or on the direction of or in
reliance on the advice of the Company or in reasonable reliance upon the
Prospectus or (ii) upon an Instruction; provided, that the foregoing indemnity
shall not apply to any loss, cost, tax, charge, assessment, claim, liability or
expense to the extent the same is attributable to the Custodian's or any
Sub-Custodian's negligence, willful misconduct, bad faith or reckless disregard
of duties and obligations under this Agreement or any other agreement relating
to the custody of Company property."
In all other respects the Custody Agreement shall remain in full force and
effect as originally written.
IN WITNESS WHEREOF, the parties have executed this Second Amendment,
intending it to be effective as of the date written above.
WILLIAMSBURG INVESTMENT TRUST
By: /s/ Xxxx X. Xxxxx
______________________________________
Name: Xxxx X. Xxxxx
______________________________________
Title: Chairman
______________________________________
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxx
______________________________________
Name: Xxxxx X. Xxxxxx
______________________________________
Title: Second Vice President
______________________________________
