AMENDMENT TO GLOBAL CUSTODY AGREEMENT
EX-28.g.1.a
AMENDMENT TO GLOBAL CUSTODY AGREEMENT
This instrument, dated December 2, 2009, is between NATIONWIDE MUTUAL FUNDS, successor in
interest to GARTMORE MUTUAL FUNDS (the “Customer”), and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
(the “Bank”). It amends the Global Custody Agreement dated April 4, 2003, as supplemented, amended
and restated from time to time, (the “Custody Agreement”) between the Customer and the Bank.
Capitalized terms in this amendment that are not defined herein have the meaning set forth in the
Custody Agreement.
RECITAL
The Customer and the Bank wish to amend the Custody Agreement to provide for the reimbursement
of amounts attributable to Customer.
AMENDMENT
| 1. | Paragraph 13 shall be deleted and replaced in its entirety with the following: |
13. Fees and Expenses; Overdrafts; Bank’s Lien Rights; Setoff.
(a) Customer shall pay Bank for its services hereunder the fees set forth in
Schedule B hereto or such other amounts as may be agreed upon in writing from time
to time, together with Bank’s reasonable out-of-pocket or incidental expenses
directly related to the performance of its obligations under this Agreement,
including, but not limited to, legal fees and tax or related fees incidental to
processing charged directly or indirectly by governmental authorities, issuers, or
their agents.
(b) If a debit to any currency in the Deposit Account results in a debit
balance, then Bank may, in its discretion, (i) advance an amount equal to the
overdraft, (ii) refuse to settle in whole or in part the transaction causing such
debit balance, or (iii) if any such transaction is posted to the Custody Account,
reverse any such posting. If Bank elects to make such an advance, the advance will
be deemed a loan to Customer, payable on demand, bearing interest at the applicable
rate charged by Bank to its institutional customers from time to time, for such
overdrafts, from the date of such advance to the date of payment (both after as
well as before judgment) and otherwise on the terms on which Bank makes similar
overdrafts available to its institutional customers from time to time. No prior
action or course of dealing on Bank’s part with respect to the settlement of
transactions on Customer’s behalf will be asserted by Customer against Bank for
Bank’s refusal to make advances to the Deposit Account or to settle any transaction
for which Customer does not have sufficient available funds in the applicable
currency in the Account.
(c) Without prejudice to Bank’s rights under Applicable Law, Customer grants
Bank a security interest in and a lien on the Financial Assets held in the Custody
Account as security for any and all amounts which are now or become owing to Bank
under any provision of this Agreement, whether or not matured or contingent, and
Bank shall be entitled without notice to Customer, to withhold delivery of such
Financial Assets, sell or otherwise realize any of such Financial Assets and to
apply the proceeds and any other monies credited to the Deposit Account in
satisfaction of such amounts owing to the Bank under any provision hereof. For this
purpose, Bank may make such currency conversions as may be necessary at its then
current rates for the sale and purchase of relevant currencies.
(d) Without prejudice to Bank’s rights under Applicable Law, Bank may set off
against any amount owing by Customer under this Agreement any amount in any currency
standing to the credit of any of Customer’s accounts (whether deposit or otherwise)
with any Bank branch or office or with any Affiliate of Bank. For this purpose, Bank
shall be entitled to accelerate the maturity of any fixed term deposits and to
effect such currency conversions as may be necessary at its current rates for the
sale and purchase of the relevant currencies.
(e) Customer grants to the Bank a security interest in and a lien on the
Financial Assets held in any given Customer’s Securities Account and the cash held
in that Customer’s Deposit Account to secure the portion of Concentration Account
Liabilities with respect to the Customer, and the Bank shall be entitled without
prior notice to the Customer, to withhold delivery of such Financial Assets, sell or
otherwise realize any of such Financial Assets and to apply the proceeds and any
other monies credited to the Deposit Account in satisfaction of such Concentration
Account Liabilities, provided that Bank hereby agrees, that when commercially
reasonable, it shall apply monies credited to the Deposit Account in satisfaction of
such Concentration Account Liabilities before selling or otherwise realizing any of
such Financial Assets in the Securities Account, and provided further, that Customer
agrees that Bank may so apply monies credited to the Deposit Account. For the
purpose of effecting the foregoing rights, the Bank shall be entitled to accelerate
the maturity of any fixed term deposits and to effect such currency conversions as
may be necessary at its current rates for the sale and purchase of the relevant
currencies. For the avoidance of doubt, with respect to the obligations of the
Customer on behalf of any of its Funds arising out of this Agreement, including the
obligations of Section 13 hereof, the Bank shall look for
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satisfaction or payment of any obligation solely to the Assets of the Fund to
which such obligation relates as though each Fund had separately contracted with the
Bank by separate written instrument. Consistent with the foregoing, the obligations
of each Fund under this Agreement are several and neither joint nor joint and
several.
(f) The Customer will be solely responsible for maintaining sufficient records
and internal controls to monitor and reconcile daily activity with respect to
amounts and transactions in the Concentration Accounts that are attributable to
Customer. In particular, the Customer or its agent will provide to the Bank, on a
daily basis: (1) information as to the amount of cash attributable to Customer in
the Concentration Accounts, (2) information regarding the transactions of Customer
that are processed through the Concentration Accounts, and (3) records to identify
and support any Concentration Account Liabilities incurred or created in connection
with the transactions processed through the Concentration Accounts that are
attributable to Customer. The Customer will be responsible for any Concentration
Account Liabilities resulting from a failure by the Customer or its agent to provide
accurate and timely information to the Bank regarding the Concentration Accounts.
| 2. | The following definitions shall be added to Paragraph 15 of the Custody Agreement: | |
| “Applicable Law” means any applicable statute, treaty, rule, regulation or common law and any applicable decree, injunction, judgment, order, formal interpretation or ruling issued by a court or governmental entity. | ||
| “Concentration Account” means a clearing account to be used to process certain transactions for the Customer, including, but not limited to, purchases and redemptions for the Customer, so that monies transferring into and out of such clearing accounts can be made as a single net payment or receipt by the Bank. | ||
| “Concentration Account Liabilities” means with respect to the Customer, that portion of any overdraft, obligation, or other amount owing to the Bank arising in any Concentration Account that are directly attributable to transactions relating to Customer, including, but not limited to, purchases and redemptions of shares of the Customer. | ||
| 3. | This Amendment shall be effective as of the date first written above. |
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| 4. | Except as amended hereby, all other terms and conditions of the Custody Agreement remain unchanged and the Custody Agreement shall remain in full force and effect. |
| JPMORGAN CHASE BANK, NATIONAL ASSOCIATION |
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| By: | /s/ Xxxx Xxxxx | |||
| Title: | Vice President | |||
| CUSTOMER |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Title: | President & CEO | |||
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