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EXHIBIT (g)
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MUTUAL FUND CUSTODY AGREEMENT
THIS AGREEMENT, is made as of April 17, 1991, by and between NATIONWIDE
SEPARATE ACCOUNT TRUST, a Massachusetts Business Trust (hereinafter the "Trust")
and THE FIFTH THIRD BANK, a banking company organized under the laws of the
State of Ohio (the "Custodian").
WITNESSETH:
WHEREAS, in compliance with the Amended Trust Indenture for the
administration of a Trust known as the Nationwide Separate Account Trust
(hereinafter referred to as the "Amended Trust Indenture") the Trustees desire
that the Trusts' Securities and cash be held and administered by the Custodian
pursuant to this Agreement; and
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Trust and the Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
1.1 "Authorized Person" means any Officer or other person duly authorized by
resolution of the Board of Trustees to give Oral Instructions and Written
Instructions on behalf of the Trust and named in Exhibit A hereto or in
such resolutions of the Board of Trustees, certified by an Officer, as may
be received by the Custodian from time to time.
1.2 "Board of Trustees" shall mean the Trustees from time to time serving under
the Amended Trust Indenture, dated August 17, 1989, as from time to time
amended.
1.3 "Book-Entry System" shall mean a federal book-entry system as provided in
Subpart O of Treasury Circular Xx. 000, 00 XXX 306, in Subpart B of 31 CFR
Part 350, or in such book-entry regulations of federal agencies as are
substantially in the form of such Subpart 0.
1.4 "Business Day" shall mean any day recognized as a settlement day by The New
York Stock Exchange, Inc. and any other day for which the Trust computes
the net asset value of the Trust.
1.5 "NASD" shall mean The National Association of Securities Dealers, Inc.
1.6 "Officer" shall mean the President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer, or any Assistant Treasurer of the
Trust.
1.7 "Oral Instructions" shall mean instructions orally transmitted to and
accepted by the Custodian because such instructions are: (i) reasonably
believed by the Custodian to have been given by an Authorized Person, (ii)
recorded and kept among the records of the Custodian made in the ordinary
course of business and (iii) orally confirmed by the Custodian. The Trust
shall cause all Oral Instructions to be confirmed by Written Instructions.
If such Written Instructions confirming Oral Instructions are not received
by the Custodian prior to a transaction, it shall in no way affect the
validity of the transaction or the authorization thereof by the Trust. If
Oral Instructions vary from the Written Instructions which purport to
confirm them, the Custodian shall notify the Trust of such variance but
such Oral Instructions will govern unless the Custodian has not yet acted.
1.8 "Trust Custody Account" shall mean the accounts in the name of the Trust,
which is provided for in Section 4.2 below.
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1.9 "Proper Instructions" shall mean Oral Instructions or Written Instructions.
Proper Instructions may be continuing Written Instructions when deemed
appropriate by both parties.
1.10 "Securities Depository" shall mean The Depository Trust Company and
(provided that Custodian shall have received a copy of a resolution of the
Board of Trustees, certified by an Officer, specifically approving the use
of such clearing agency as a depository for the Funds) any other clearing
agency registered with the Securities and Exchange Commission under Section
17A of the Securities and Exchange Act of 1934 (the "1934 Act"), which acts
as a system for the central handling of Securities where all Securities of
any particular class or series of an issuer deposited within the system are
treated as fungible and may be transferred or pledged by bookkeeping entry
without physical delivery of the Securities.
l.11 "Securities" shall include, without limitation, common and preferred
stocks, bonds, call options, put options, debentures, notes, bank
certificates of deposit, bankers' acceptances, mortgage-backed securities,
other money market instruments or other obligations, and any certificates,
receipts, warrants or other instruments or documents representing rights to
receive, purchase or subscribe for the same, or evidencing or representing
any other rights or interests therein, or any similar property or assets
that the Custodian has the facilities to clear and to service.
1.12 "Shares" shall mean the units of beneficial interest issued by the Trust.
1.13 "Written Instructions" shall mean (i) written communications actually
received by the Custodian and signed by one or more persons as the Board of
Trustees shall have from time to time authorized, or (ii) communications by
telex or any other such system from a person or persons reasonably believed
by the Custodian to be Authorized, or (iii) communications transmitted
electronically through the Institutional Delivery System (IDS), or any
other similar electronic instruction system acceptable to Custodian and
approved by resolutions of the Board of Trustees, a copy of which,
certified by an Officer, shall have been delivered to the Custodian.
ARTICLE II
REPRESENTATIONS
2.1 The Trust hereby represents that it is an open-end management investment
company registered under the Investment Company Act of 1940, as amended
(the "1940 Act").
2.2 The Custodian hereby represents that it is a bank having the qualifications
prescribed in Section 26(a)(i) of the 1940.
ARTICLE III
APPOINTMENT OF CUSTODIAN
3.1 Appointment. The Trust hereby constitutes and appoints the Custodian as
custodian of all Securities and cash owned by or in the possession of the
Trust at any time during the period of this Agreement, provided that such
Securities or cash at all times shall be and remain the property of the
Trust.
3.2 Acceptance. The Custodian hereby accepts appointment as such custodian and
agrees to perform the duties thereof as hereinafter set forth.
ARTICLE IV
CUSTODYOF CASH AND SECURITIES
4.1 Segregation. All Securities and non-cash property held by the Custodian for
the account of the Trust, except Securities maintained in a Securities
Depository or Book-Entry System, shall be physically segregated from other
Securities and non-cash property in the possession of the Custodian and
shall be identified as subject to this Agreement.
4.2 Trust Custody Accounts. The Custodian shall open and maintain in its trust
department a custody account in the name of the Trust coupled with the name
of such Trust, subject only to draft or order of the Custodian, in which
the Custodian shall enter and carry all Securities, cash and other assets
of the Trust which are delivered to it.
4.3 Appointment of Agents. In its discretion, the Custodian may appoint, and at
any time remove, any domestic bank or trust company, which has been
approved by the Board of Trustees and is qualified to act as a custodian
under the 1940 Act, as sub-custodian to hold Securities and cash of the
Trusts and to carry out such other provisions of this Agreement as it may
determine, and may also open and maintain one or more banking accounts with
such a bank or trust company (any such accounts to be in the name of the
Custodian and subject only to its draft or order), provided, however, that
the appointment of any such agent shall not relieve the Custodian of any of
its obligations or liabilities under this Agreement.
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4.4 Delivery of Assets to Custodian. The Trust shall deliver, or cause to be
delivered, to the Custodian all of the Trusts' Securities, cash and other
assets, including (a) all payments of income, payments of principal and
capital distributions received by the Trusts with respect to such
Securities, cash or other assets owned by the Trusts at any time during the
period of this Agreement, and (b) all cash received by the Trusts for the
issuance, at any time during such period, of Shares. The Custodian shall
not be responsible for such Securities, cash or other assets until actually
received by it.
4.5 Securities Depositories and Book-Entry Systems. The Custodian may deposit
and/or maintain Securities of the Trusts in a Securities Depository or in a
Book-Entry System, subject to the following provisions:
(a) Prior to a deposit of Securities of the Trusts in any Securities
Depository or Book-Entry System, the Trust shall deliver to the
Custodian a resolution of the Board of Trustees, certified by an
Officer, authorizing and instructing the Custodian on an on-going
basis to deposit in such Securities Depository or Book-Entry System
all Securities eligible for deposit therein and to make use of such
Securities Depository or Book-Entry System to the extent possible and
practical in connection with its performance hereunder, including,
without limitation, in connection with settlements of purchases and
sales of Securities, loans of Securities, and deliveries and returns
of collateral consisting of Securities. So long as such Securities
Depository or Book-Entry System shall continue to be employed for the
deposit of Securities of the Trusts, the Trust shall annually re-adopt
such resolution and deliver a copy thereof, certified by an Officer,
to the Custodian.
(b) Securities of the Trust kept in a Book-Entry System or Securities
Depository shall be kept in an account ("Depository Account") of the
Custodian in such Book-Entry System or Securities Depository which
includes only assets held by the Custodian as a fiduciary, custodian
or otherwise for customers.
(c) The records of the Custodian and the Custodian's account on the books
of the Book-Entry System and Securities Depository as the case may be,
with respect to Securities of a Trust maintained in a Book-Entry
System or Securities Depository shall, by book-entry, or otherwise
identify such Securities as belonging to the Trust.
(d) If Securities purchases by the Trust are to be held in a Book-Entry
System or Securities Depository, the Custodian shall pay for such
Securities upon (i) receipt of advice from the Book-Entry System or
Securities Depository that such Securities have been transferred to
the Depository Account, and (ii) the making of an entry on the records
of the Custodian to reflect such payment and transfer for the account
of the Trust. If Securities sold by the Trust are held in a Book-Entry
System or Securities Depository, the Custodian shall transfer such
Securities upon (i) receipt of advice from the Book-Entry System or
Securities depository that payment for such Securities has been
transferred to the Depository Account, and (ii) the making of an entry
on the records of the Custodian to reflect such transfer and payment
for the account of the Trust.
(e) Upon request, the Custodian shall provide the Trust with copies of any
retort (obtained by the Custodian from a Book-Entry System or
Securities Depository in which Securities of the Trust is kept) on the
internal accounting controls and procedures for safeguarding
Securities deposited in such Book-Entry System or Securities
Depository.
(f) Anything to the contrary in this Agreement notwithstanding, the
Custodian shall be liable to the Trust for any loss or damage to a
Trust resulting (i) from the use of a Book-Entry System or Securities
Depository by reason of any negligence or willful misconduct on the
part of Custodian or any sub-custodian appointed pursuant to Section
3.3 above or any of its or their employees, or (ii) from failure of
Custodian or any such sub-custodian to enforce effectively such rights
as it may have against a Book-Entry System or Securities Depository.
At its election, the Trust shall be subrogated to the rights of the
Custodian with respect to any claim against a Book-Entry System or
Securities Depository or any other person for any loss or damage to
the Trust arising from the use of such Book-Entry System or Securities
Depository, if and to the extent that the Trust has been made whole
for any such loss or damage.
4.6 Disbursement of Moneys from Trust Custody Accounts. Upon receipt of Proper
Instructions, the Custodian shall disburse moneys from a Trust Custody
Account but only in the following cases:
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(a) For the purchase of Securities for the Trust but only upon compliance
with Section 5.1 of this Agreement and only (i) in the case of
Securities (other than options on Securities, futures contracts and
options on futures contracts), against the delivery to the Custodian
(or any sub-custodian appointed pursuant to Section 4.3 above) of such
Securities registered as provided in Section 4.9 below in proper form
for transfer, or if the purchase of such Securities is effected
through a Book-Entry System or Securities Depository, in accordance
with the conditions forth in Section 4.5 above; (ii) in the case of
options on Securities, against delivery to the Custodian (or such
sub-custodian) of such receipts as are required by the customs
prevailing among dealers in such options; (iii) in the case of futures
contracts and options on futures contracts, against delivery to the
Custodian (or such sub-custodian) of evidence of title thereto in
favor of the Trust or any nominee referred to in Section 4.9 below;
and (iv) in the case of repurchase or reverse repurchase agreements
entered into between the Trust and a bank which is a member of the
Federal Reserve System or between the Trust and a primary dealer in
U.S. Government securities, against delivery of the purchased
Securities either in certificate form or through an entry crediting
the Custodian's account at a Book-Entry System or Securities
Depository for the account of the Trust with such Securities;
(b) In connection with the conversion, exchange or surrender, as set forth
in Section 4.7 (f) below, of Securities owned by the Trust;
(c) For the payment of any dividends or capital gain distributions
declared by the Trust;
(d) In payment of the redemption price of Shares as provided in Section
6.1 below;
(e) For the payment of any expense or liability incurred by the Trust,
including but not limited to the following payments for the account of
the Trust: interest; taxes; administration, investment management,
investment advisory, accounting, auditing, transfer agent, custodian,
trustee and legal fees; and other operating expenses of the Trust; in
all cases, whether or not such expenses are to be in whole or in part
capitalized or treated as deferred expenses;
(f) For transfer in accordance with the provisions of any agreement among
the Trust, the Custodian and a broker-dealer registered under the 1934
Act and a member of the NASD, relating to compliance with rules of The
Options Clearing Corporation and of any registered national securities
exchange (or of any similar organization or organizations) regarding
escrow or other arrangements in connection with transactions by the
Trust;
(g) For transfer in accordance with the provisions of any agreement among
the Trust, the Custodian, and a future commission merchant registered
under the Commodity Exchange Act, relating to compliance with the
rules of the Commodity Futures Trading Commission and/or any contract
market (or any similar organization or organizations) regarding
account deposits in connection with transactions by the Trust;
(h) For the funding of any uncertificated time deposit or other
interest-bearing account with any banking institution (including the
Custodian), which deposit or account has a term of one year or less;
and
(i) For any other proper purposes, but only upon receipt, in addition to
Proper Instructions, of a copy of a resolution of the Board of
Trustee, certified by an Officer, specifying the amount and purpose of
such payment, declaring such purpose to be a proper corporate purpose,
and naming the person or persons to whom such payment is to be made.
4.7 Delivery of Securities from Trust Custody Accounts. Upon receipt of Proper
Instructions, the Custodian shall release and deliver Securities from a
Trust Custody Account but only in the following cases:
(a) Upon the sale of Securities for the account of the Trust but only
against receipt of payment therefor in cash, by certified or cashiers
check or bank credit;
(b) In the case of a sale effected through a Book-Entry System or
Securities Depository, in accordance with the provisions of Section
4.5 above;
(c) To an Offeror's depository agent in connection with tender or other
similar offers for Securities of the Trust; provided that, in any such
case, the cash or other consideration is to be delivered to the
Custodian;
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(d) To the issuer thereof or its agent (i) for transfer into the name of
the Trust, the Custodian or any sub-custodian appointed pursuant to
Section 4.3 above, or of any nominee or nominees of any of the
foregoing, or (ii) for exchange for a different number of certificates
or other evidence representing the same aggregate face amount or
number of units; provided that, in any such case, the new Securities
are to be delivered to the Custodian;
(e) To the broker selling Securities, for examination in accordance with
the "street delivery" custom;
(f) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of the
issuer of such Securities, or pursuant to provisions for conversion
contained in such Securities, or pursuant to any deposit agreement,
including surrender or receipt of underlying Securities in connection
with the issuance or cancellation of depository receipts; provided
that, in any such case, the new Securities and cash, if any, are to be
delivered to the Custodian;
(g) Upon receipt of payment therefor pursuant to any repurchase or reverse
repurchase agreement entered into by the Trust;
(h) In the case of warrants, rights or similar Securities, upon the
exercise thereof, provided that, in any such case, the new Securities
and cash, if any, are to be delivered to the Custodian;
(i) For delivery in connection with any loans of Securities of the Trust,
buy only against receipt of such collateral as the Trust shall have
specified to the Custodian in Proper Instructions;
(j) For delivery as security in connection with any borrowings by the
Trust requiring a pledge of assets by the Trust, but only against
receipt by the Custodian of the amounts borrowed;
(k) Pursuant to any authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of the Trust;
(1) For delivery in accordance with the provisions of any agreement among
the Trust, the Custodian and a broker-dealer registered under the 1934
Act and a member of the NASD, relating to compliance with the rules of
The Options Clearing Corporation and of any registered national
securities exchange (or of any similar organization or organizations)
regarding escrow or other arrangements in connection with transactions
by the Trust;
(m) For delivery in accordance with the provisions of any agreement among
the Trust, the Custodian, and a futures commission merchant registered
under the Commodity Exchange Act, relating to compliance with the
rules of the Commodity Futures Trading Commission and/or any contract
market (or any similar organization or organizations) regarding
account deposits in connection with transactions by the Trust; or
(n) For any other proper corporate purposes, but only upon receipt, in
addition to Proper Instructions, of a copy of a resolution of the
Board of Trustees, certified by an Officer, 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 corporate purpose,
and naming the person or persons to whom delivery of such Securities
shall be made.
4.8 Actions Not Requiring Proper Instructions. Unless otherwise instructed by
the Trust, the Custodian shall with respect to all Securities held for a
Trust;
(a) Subject to Section 8.4 below, collect on a timely basis all income and
other payments to which the Trust is entitled either by law or
pursuant to custom in the securities business;
(b) Present for payment and, subject to Section 8.4 below, collect on a
timely basis the amount payable upon all Securities which may mature
or be called, redeemed, or retired, or otherwise become payable;
(c) Endorse for collection, in the name of the Trust, checks, drafts and
other negotiable instruments;
(d) Surrender interim receipts or Securities in temporary form for
Securities in definitive form;
(e) Execute, as custodian, 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 prepare
and submit reports to the Internal Revenue Service ("IRS") and to the
Trust at such time, in such manner and containing such information as
is prescribed by the IRS;
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(f) Hold for the Trust, either directly or, with respect to Securities
held therein, through a Book-Entry System or Securities Depository,
all rights and similar securities issued with respect to Securities of
the Trust; and
(g) In general, and except as otherwise directed in Proper Instructions,
attend to all non-discretionary details in connection with sale,
exchange, substitution, purchase, transfer and other dealings with
Securities and assets of the Trust.
4.9 Registration and Transfer of Securities. All Securities held for the Trust
that are issued or issuable only in bearer form shall be held by the
Custodian in that form, provided that any such Securities shall be held in
a Book-Entry System if eligible therefor. All other Securities held for the
Trust may be registered in the name of the Trust, the Custodian, or any
subcustodian appointed pursuant to Section 4.3 above, or in the name of any
nominee of any of them, or in the name of a Book-Entry System, Securities
Depository or any nominee of either thereof; provided, however, that such
Securities are held specifically for the account of the Trust. The Trust
shall 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 any of the nominees hereinabove referred to or in the name of a
Book-Entry System or Securities Depository, any Securities registered in
the name of the Trust.
4.10 Records.
(a) The Custodian shall maintain, by fund, complete and accurate records
with respect to Securities, cash or other property held for the Trust,
including (i) journals or other records of original entry containing
an itemized daily record in detail of all receipts and deliveries of
Securities and all receipts and disbursements of cash; (ii) ledgers
(or other records) ref letting (A) Securities in transfer, (B)
Securities in physical possession, (C) monies and Securities borrowed
and monies and Securities loaned (together with a record of the
collateral therefor and substitutions of such collateral), (D)
dividends and interest received, and (E) dividends receivable and
interest accrued; and (iii) cancelled checks and bank records related
thereto. The Custodian shall keep such other books and records of the
Trust as the Trust shall reasonably request, or as may be required by
the 1940 Act, including, but not limited to Section 31 and Rule 31a-1
and 31a-2 promulgated thereunder.
(b) All such books and records maintained by the Custodian shall (i) be
maintained in a form acceptable to the Trust and in compliance with
rules and regulations of the Securities and Exchange Commission, (ii)
be the property of the Trust and at all times during the regular
business hours of the Custodian be made available upon request for
inspection by duly authorized officers, employees or agents of the
Trust and employees or agents of the Securities and Exchange
Commission, and (iii) if required to be maintained by Rule 31a-1 under
the 1940 Act, be preserved for the periods prescribed in Rule 31a-2
under the 0000 Xxx.
4.11 Trust Reports by Custodian. The Custodian shall furnish the Trust with a
daily activity statement by Trust and a summary of all transfers to or from
each Trust Custody Account on the day following such transfers. At least
monthly and from time to time, the Custodian shall furnish the Trust with a
detailed statement, by Trust, of the Securities and moneys held for the
Trust under this Agreement.
4.12 Other Reports by Custodian. The Custodian shall provide the Trust with such
reports, as the Trust may reasonably request from time to time, on the
internal accounting controls and procedures for safeguarding Securities,
which are employed by the Custodian or any sub-custodian appointed pursuant
to Section 3.3 above.
4.13 Proxies and Other Materials. The Custodian shall cause all proxies relating
to Securities which are not registered in the name of the Trust, to be
promptly executed by the registered holder of such Securities, without
indication of the manner in which such proxies are to be voted, and shall
include all other proxy materials, if any, promptly deliver to the Trust
such proxies, all proxy soliciting materials and all notices to such
Securities.
4.14 Information on Corporate Actions. Custodian will promptly notify Trust of
corporate actions, limited to those Securities registered in nominee name
and to those Securities held at a Depository or sub-Custodian acting as
agent for Custodian. Custodian will be responsible only if the notice of
such corporate actions is published by the Financial Daily Card Service,
X.X. Xxxxx Called Bond Service, DTC, or received by first class mail from
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the agent. For market announcements not yet received and distributed by
Custodian's services, Trust will inform its custody representative with
appropriate instructions. Custodian will, upon receipt of Trust's response
within the required deadline, affect such action for receipt or payment for
the Trust. For those responses received after the deadline, Custodian will
affect such action for receipt or payment, subject to the limitations of
the agent(s) affecting such actions. Custodian will promptly notify Trust
for put options only if the notice is received by first class mail from the
agent. The Trust will provide or cause to be provided to Custodian with all
relevant information contained in the prospectus for any security which has
unique put/option provisions and provide Custodian with specific tender
instructions at least ten business days prior to the beginning date of the
tender period.
ARTICLEV
PURCHASE AND SALE OF INVESTMENTS OF THE TRUST
5.1 Purchase of Securities. Promptly upon each purchase of Securities for the
Trust, Written Instructions shall be delivered to the Custodian, specifying
(a) the name of the issuer or writer of such Securities, and the title or
other description thereof, (b) the number of shares, principal amount (and
accrued interest, if any) or other units purchased, (c) the date of
purchase and settlement, (d) the purchase price per unit, (e) the total
amount payable upon such purchase, and (f) the name of the person to whom
such amount is payable. The Custodian shall upon receipt of such Securities
purchased by the Trust pay out of the moneys held for the account of the
Trust the total amount specified in such Written Instructions to the person
named therein. The Custodian shall not be under any obligation to pay out
moneys to cover the cost of a purchase of Securities for a Trust, if in the
relevant Trust Custody Account there is insufficient cash available to the
Trust for which such purchase was made.
5.2 Liability for Payment in Advance of Receipt of Securities Purchased. In any
and every case where payment for the purchase of Securities for a Trust is
made by the Custodian in advance of receipt for the account of the Trust of
the Securities purchased but in the absence of specific Written or Oral
Instructions to so pay in advance, the Custodian shall be liable to the
Trust for such Securities to the same extent as if the Securities had been
received by the Custodian.
5.3 Sale of Securities. Promptly upon each sale of Securities by the Trust,
Written Instructions shall be delivered to the Custodian, specifying (a)
the name of the issuer or writer of such Securities, and the title or other
description thereof, (b) the number of shares, principal amount (and
accrued interest, if any), or other units sold, (c) the date of sale and
settlement (d) the sale price per unit, (e) the total amount payable upon
such sale, and (f) the person to whom such Securities are to be delivered.
Upon receipt of the total amount payable to the Trust as specified in such
Written Instructions, the Custodian shall deliver such Securities to the
person specified in such Written Instructions. Subject to the foregoing,
the 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.
5.4 Delivery of Securities Sold. Notwithstanding Section 5.3 above or any other
provision of this Agreement, the Custodian, when instructed to deliver
Securities against payment, shall be entitled, if in accordance with
generally accepted market practice, to deliver such Securities prior to
actual receipt of final payment therefor. In any such case, the Trust shall
bear the risk that final payment for such Securities may not be made or
that such Securities may be returned or otherwise held or disposed of by or
through the person to whom they were delivered, and the Custodian shall
have no liability for any of the foregoing.
5.5 Payment for Securities Sold, etc. In its sole discretion and from time to
time, the Custodian may credit the relevant Trust Custody Account, prior to
actual receipt of final payment thereof, with (i) proceeds from the sale of
Securities which it has been instructed to deliver against payment, (ii)
proceeds from the redemption of Securities or other assets of the Trust,
and (iii) income from cash, Securities or other assets of the Trust . Any
such credit shall be conditional upon actual receipt by Custodian of final
payment and may be reversed if final payment is not actually received in
full. The Custodian may, in its sale discretion and from time to time,
permit a Trust to use funds so credited to its Trust Custody Account in
anticipation of actual receipt of final payment. Any such funds shall be
repayable immediately upon demand made by the Custodian at any time prior
to the actual receipt of all final payments in anticipation of which funds
were credited to the Trust Custody Account.
5.6 Advances by Custodian for Settlement. The Custodian may, in its sole
discretion and from time to time, advance funds to the Trust to facilitate
the settlement of a Trust's transactions in its Trust Custody Account. At
such advance shall be repayable immediately upon demand made by Custodian.
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ARTICLE VI
REDEMPTION OF TRUST SHARES
6.1 Transfer of Trusts. From such funds as may be available for the purpose in
the relevant Trust Custody Account, and upon receipt of Proper Instructions
specifying that the funds are required to redeem Shares of a Trust, the
Custodian shall wire each amount specified in such Proper Instructions to
or through such bank as the Trust may designate with respect to such amount
in such Proper Instructions.
6.2 No Duty Regarding Paying Banks. The Custodian shall not be under any
obligation to effect payment or distribution by any bank designated in
Proper Instructions given pursuant to Section 6.1 above of any amount paid
by the Custodian to such bank in accordance with such Proper Instructions.
ARTICLE VII
SEGREGATED ACCOUNTS
Upon receipt of Proper Instructions, the Custodian shall establish and
maintain a segregated account or accounts for and on behalf of a Trust, into
which account or accounts may be transferred cash and/or Securities, including
Securities maintained in a Depository Account,
(a) in accordance with the provisions of any agreement among the Trust,
the Custodian and a broker-dealer registered under the 1934 Act and a
member of the NASD (or any futures commission merchant registered
under the Commodity Exchange Act), relating to compliance with the
rules of The Options Clearing Corporation and of any registered
national securities exchange (or the Commodity Futures Trading
commission or any registered contract market), or of any similar
organization or organizations, regarding escrow or other arrangements
in connection with transactions by the Trust,
(b) for purposes of segregating cash or Securities in connection with
securities options purchased or written by the Trust or in connection
with financial futures contracts (or options thereon) purchased or
sold by the Trust,
(c) which constitute collateral for loans of Securities made by the Trust,
(d) for purposes of compliance by the Trust with requirements under the
1940 Act for the maintenance of segregated accounts by registered
investment companies in connection with reverse repurchase agreements
and when-issued, delayed delivery and firm commitment transactions,
and
(e) for other proper corporate purposes, but only upon receipt of, in
addition to Proper Instructions, a certified copy of a resolution of
the Board of Trustees, certified by an Officer, setting forth the
purpose or purposes of such segregated account and declaring such
purposes to be proper corporate purposes.
ARTICLE VIII
CONCERNING THE COSTODIAN
8.1 Standard of Care. The Custodian shall be held to the exercise of reasonable
care in carrying out its obligations under this Agreement, and shall be
without liability to the Trust for any loss, damage, cost, expense
(including attorneys' fees and disbursements), liability or claim unless
such loss, damages, cost, expense, liability or claim arises from
negligence, bad faith or willful misconduct on its part or on the part of
any sub-custodian appointed pursuant to Section 4.3 above. The Custodian
shall be entitled to rely on and may act upon advice of counsel on all
matters, and shall be without liability for any action reasonably taken or
omitted pursuant to such advice. The Custodian shall promptly notify the
Trust of any action taken or omitted by the Custodian pursuant to advice of
counsel. The Custodian shall not be under any obligation at any time to
ascertain whether the Trust is in compliance with the 1940 Act, the
regulations thereunder, the provisions of the Trust's charter documents or
by-laws, or its investment objectives and policies as then in effect.
8.2 Actual Collection Required. The Custodian shall not be liable for, or
considered to be the custodian of, any cash belonging to the Trust or any
money represented by a check, draft or other instrument for the payment of
money, until the Custodian or its agents actually receive such cash or
collect on such instrument.
8.3 No Responsibility for Title, etc. So long as and to the extent that it is
in the exercise of reasonable care, the Custodian shall not be responsible
for the title, validity or genuineness of any property or evidence of title
thereto received or delivered by it pursuant to this Agreement.
-- 269 --
8.4 Limitation on Duty to Collect. Custodian shall not be required to enforce
collection, by legal means or otherwise, of any money or property due and
payable with respect to Securities held for the Trust if such Securities
are in default or payment is not made after due demand or presentation.
8.5 Reliance Upon Documents and Instructions. The Custodian shall be entitled
to rely upon any certificate, notice or other instrument in writing
received by it and reasonably believed by it to be genuine. The Custodian
shall be entitled to rely upon any Oral Instructions and/or any Written
Instructions actually received by it pursuant to this Agreement.
8.6 Express Duties Only. The Custodian shall have no duties or obligations
whatsoever except such duties and obligations are specifically set forth in
this Agreement, and no covenant or obligation shall be implied in this
Agreement against the Custodian.
8.7 Co-operation. The Custodian shall cooperate with and supply necessary
information, by Trust, to the entity or entities appointed by the Trust to
keep the books of account of the Trusts and/or compute the value of the
assets of the Trust. The Custodian shall take all such reasonable actions
as the Trust may from time to time request to enable the Trust to obtain,
from year to year, favorable opinions from the Trust's independent
accountants with respect to the Custodian's activities hereunder in
connection with (a) the preparation of the Trust's report on Form N-lA and
Form N-SAR and any other reports required by the Securities and Exchange
Commission, and (b) the fulfillment by the Trust of any other requirements
of the Securities and Exchange Commission.
ARTICLE IX
INDEMNIFICATION
9.1 Indemnification. The Trust shall indemnify and hold harmless the Custodian
and any sub-custodian appointed pursuant to Section 3.3 above, and any
nominee of the Custodian or of such sub-custodian from and against any
loss, damage, cost, expense (including attorneys' fees and disbursements),
liability (including, without limitation, liability arising under the
Securities Act of 1933, the 1934 Act, the 1940 Act, and any state or
foreign securities and/or banking laws) or claim arising directly or
indirectly (a) from the fact that Securities are registered in the name of
any such nominee, or (b) from any action or inaction by the Custodian or
such sub-custodian (i) at the request or direction of or in reliance on the
advice of the Trust, or (ii) upon Proper Instructions, or (c) generally,
from the performance of its obligations under this Agreement or any
sub-custody agreement with a sub-custodian appointed pursuant to Section
4.3 above or, in the case of any such sub-custodian, from the performance
of its obligations under such sub-custody agreement, provided that neither
the Custodian nor any such sub-custodian shall be indemnified and held
harmless from and against any such loss, damage, cost, expense, liability
or claim arising from the Custodian's or such sub-custodian's negligence,
bad faith or willful misconduct. The Custodian and any Sub-Custodian
appointed pursuant to Section 4.3 above, and any nominee of the Custodian
or of such Sub-Custodian shall at all times indemnify and hold harmless the
Trust for any disposition of any securities and/or cash held by it
hereunder, made by it or its agents, officers, servants, or employees in
direct contradiction to the terms of this Agreement and from any acts or
omissions by it or such agents, officers, servants or employees in direct
contradiction to the terms of this Agreement except such acts or omissions
as are required by order of any Court or other legal process or regulation
of any government body.
9.2 Indemnity to be Provided. If the Trust requests the Custodian to take any
action with respect to Securities, which may, in the opinion of the
custodian, result in the Custodian or its nominee becoming liable for the
payment of money or incurring liability of some other form, the Custodian
shall not be required to take such action until the Trust shall have
provided indemnity therefor to the Custodian in an amount and form
satisfactory to the Custodian.
ARTICLE X
FORCEMAJEURE
Neither the Custodian nor the Trust shall be liable for any failure or
delay in performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; strikes; epidemics; riots; power
failures; computer failure and any such circumstances beyond its reasonable
control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes, acts of civil or military authority;
governmental actions; or inability to obtain labor, material, equipment or
transportation; provided, however, that the Custodian in the event of a failure
or delay shall use its best efforts to ameliorate the effects of any such
failure or delay.
-- 270 --
ARTICLE XI
EFFECTIVE PERIOD: TERMINATION
11.1 Effective Period. This Agreement shall become effective as of the date
first set forth above and shall continue in full force and effect until
terminated as hereinafter provided.
11.2 Termination. Either party hereto may terminate this Agreement by giving to
the other party a notice in writing specifying the date of such
termination, which shall be not less than ninety (90) days after the date
of the giving of such notice. If a successor custodian shall have been
appointed by the Board of Trustees, the Custodian shall, upon receipt of a
notice of acceptance by the successor custodian, on such specified date of
termination (a) deliver directly to the successor custodian all Securities
(other than Securities held in a Book-Entry System or Securities
Depository) and cash then owned by the Trust and held by the Custodian as
custodian, and (b) transfer any Securities held in a Book-Entry System or
Securities Depository to an account of or for the benefit of the Trusts at
the successor custodian, provided that the Trust shall have paid to the
Custodian all fees, expenses and other amounts to the payment or
reimbursement of which it shall then be entitled. Upon such delivery and
transfer, the Custodian shall be relieved of all obligations under this
Agreement. The Trust may at any time immediately terminate this Agreement
in the event of the appointment of a conservator or receiver for the
Custodian by regulatory authorities in the State of Ohio or upon the
happening of a like event at the direction of an appropriate regulatory
agency or court of competent jurisdiction.
11.3 Failure to Appoint Successor Custodian. If a successor custodian is not
designated by the trust on or before the date of termination specified
pursuant to Section 11.1 above, then the Custodian shall have the right to
deliver to a bank or trust company of its own selection, which is (a) a
"Bank" as defined in the 1940 Act, (b) has aggregate capital, surplus and
undivided profits as shown on its then most recent published report of not
less than $25 million, and (c) is doing business in New York, New York, all
Securities, cash and other property held by Custodian under this Agreement
and to transfer to an account of or for the Trusts at such bank or trust
company all Securities of the Trust held in a Book-Entry System or
Securities Depository. Upon such delivery and transfer, such bank or trust
company shall be the successor custodian under this Agreement and the
Custodian shall be relieved of all obligations under this Agreement. If,
after reasonable inquiry, Custodian cannot find a successor custodian as
contemplated in this Section 11.3, then Custodian shall have the right to
deliver to the Trust all Securities and cash then owned by the Trust and to
transfer any Securities held in a Book-Entry System or Securities
Depository to an account of or for the Trust. Thereafter, the Trust shall
be deemed to be its own custodian with respect to the Trusts and the
Custodian shall be relieved of all obligations under this Agreement.
ARTICLE XII
COMPENSATION OF CUSTODIAN
The Custodian shall be entitled to compensation as agreed upon from time to
time by the Trust and the Custodian. The fees and other charges in effect on
the date hereof and applicable to the Trusts are set forth in Exhibit B attached
hereto and incorporated by reference.
ARTICLE XIII
LIMITATION OF LIABILITY
It is expressly agreed that the obligations of the Trust hereunder shall
not be binding upon any of the Trustees, shareholders, nominees, officers,
agents or employees of the Trust personally, but shall bind only the trust
property of the Trust as provided for in the Trust's Amended Trust Indenture,
dated August 17, 1989, and as from time to time amended. The execution and
delivery of this Agreement have been authorized by the Trustee, and this
Agreement has been signed and delivered by an authorized officer of the Trust,
acting as such, and neither such authorization by the Trustees nor such
execution and delivery by such officer shall be deemed to have been made by any
of them individually or to impose any liability on any of them personally, but
shall bind only the trust property of the Trust as provided in the
above-mentioned Amended Trust Indenture.
-- 271 --
ARTICLE XIV
NOTICES
Unless otherwise specified herein, all demands, notices, instructions, and
other communications to be given hereunder shall be in writing and shall be sent
or delivered to The receipt at the address set forth after its name herein
below:
TO THE TRUST:
NATIONWIDE SEPARATE ACCOUNT TRUST
NATIONWIDE FINANCIAL SERVICES, INC.
P. O. Xxx 0000
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxx, Xx.
Telephone: (000) 000-0000
TO THE CUSTODIAN:
THE FIFTH THIRD BANK
Department 008
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Department Manager, Mutual Funds Operations
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as either party shall have provided to the other by
notice given in accordance with this Article XIV. Writing shall include
transmission by or through teletype, facsimile, central processing unit
connection, on-line terminal and magnetic tape.
ARTICLE XV
MISCELLANEOUS
15.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
15.2 References to Custodian. The Trust shall not circulate any printed matter
which contains any reference to Custodian without the prior written
approval of Custodian, excepting printed matter contained in the prospectus
or statement of additional information or its registration statement for a
Trust and such other printed matter as merely identifies Custodian as
custodian for one or both Trusts. The Trust shall submit printed matter
requiring approval to Custodian, other than the items listed above, in
draft form, allowing sufficient time for review by Custodian and its
counsel prior to any deadline for printing.
15.3 No Waiver. No failure by either party hereto to exercise and no delay by
such party in exercising, any right hereunder shall operate as a waiver
thereof. The exercise by either party hereto of any right hereunder shall
not preclude the exercise of any other right, and the remedies provided
herein are cumulative and not exclusive of any remedies provided at law or
in equity.
15.4 Amendments. This Agreement cannot be changed orally and no amendment to
this Agreement shall be effective unless evidenced by an instrument in
writing executed by the parties hereto.
15.5 Counterparts. This Agreement may be executed in one or more counterparts,
and by the parties hereto on separate counterparts, each of which shall be
deemed an original but all of which together shall constitute but one and
the same instrument.
15.6 Severability. If any provision of this Agreement shall be invalid, illegal
or unenforceable in any respect under any applicable law, the validity,
legality and enforceability of the remaining provisions shall not be
affected or impaired thereby.
15.7 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors
and assigns; provided, however, that this Agreement shall not be assignable
by either party hereto without the written consent of the other party
hereto.
15.8 Headings. The headings of sections in this Agreement are for convenience of
reference only and shall not affect the meaning or construction of any
provision of this Agreement.
-- 272 --
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
he executed and delivered in its name and on its behalf by its representatives
thereunto duly authorized, all as of the day and year first above written.
ATTEST: NATIONWIDE SEPARATE ACCOUNT TRUST
By: /s/ Xxxxx X. Xxxxx, Xx.
Authorized Officer
ATTEST: THE FIFTH THIRD BANK
/s/ Xxxxxxxx X. Xxxxxxx By: /s/
EXHIBIT A
TO THE CUSTODY AGREEMENT BETWEEN
THE NATIONWIDE SEPARATE ACCOUNT TRUST AND
THE FIFTH THIRD BANK
(Effective December 27, 2000)
Total Return Fund
Capital Appreciation Fund Government Bond Fund Money Market Fund Nationwide
Small Company Fund
X.X. Xxxxxx NSAT Balanced Fund (formerly `Nationwide Balanced Fund') Federated
NSAT Equity Income Fund (formerly `Nationwide Equity Income Fund') Nationwide
Globa150 Fund (formerly `Nationwide Global Equity Fund')
Federated NSAT High Income Bond Fund (formerly `Nationwide High Income Bond
Fund') MAS NSAT Multi Sector Bond Fund (formerly `Nationwide Multi Sector Bond
Fund') Nationwide Small Cap Value Fund
Dreyfus NSAT Mid Cap Index Fund (formerly `Nationwide Mid Cap Index Fund')
Nationwide Small Cap Growth Fund (formerly `Nationwide Select Advisers Small Cap
Growth Fund')
Strong NSAT Mid Cap Growth Fund (formerly `Nationwide Strategic Growth Fund')
Nationwide Strategic Value Fund
Nationwide Income Fund
Xxxxxx NSAT Growth Focus Fund (formerly `Nationwide Growth Focus Fund II')
Gartmore NSAT Millennium Growth Fund (formerly `Nationwide New Economy Fund II')
Gartmore Global Technology and Communications Fund (formerly 'Nationwide Global
Technology and Communications Fund II')
Nationwide Global Life Sciences Fund II
Gartmore NSAT Emerging Markets Fund
Gartmore NSAT International Growth Fund
Gartmore NSAT Global Leaders Fund
Gartmore NSAT European Growth Fund
Gartmore NSAT Global Small Companies Fund
Gartmore NSAT OTC Fund
FIFTH THIRD BANK
NATIONWIDE FAMILY OF FUNDS AND VILLANOVA CAPITAL MANAGEMENT
MUTUAL FUND DOMESTIC AND INTERNATIONAL CUSTODY FEE SCHEDULE (^)(*)
CUSTODY OF ASSETS WITH ALL FOREIGN EXCHANGE
ACTIVITY TRANSACTED WITH FIFTH THIRD BANK
MARKET VALUE BREAKPOINT FEE
--------------------------------- -----------------------------------------
15 Billion to 17499999999.99 0.85 Basis Point of Market Value Annually
17.5 Billion to 19,999,999,999.99 0.75 Basis Point of Market Value Annually
20 Billion to 22,499,999,999.99 0.65 Basis Point of Market Value Annually
22.5 Billion to 24,999,999,999.99 0.55 Basis Point of Market Value Annually
25 Billion & above To be negotiated
^ This schedule does not include country specific pass-through charges per
attached schedule. These country specific pass-through charges can change
as designated by each market.
* 100% of earnings credit on account balances will be used to offset monthly
fees
ACCOUNT OPENING FEES
--------------------------------------------------------------------------------
BRAZIL At cost
CHILE 1,000.00 per account
COLOMBIA 200.00-3,000.00 per account
CZECH REPUBLIC CZK 5,000
ECUADOR At cost
ICELAND $625.00
INDIA 10,000.00 per account
JAMAICA $500.00 per account
SLOVENIA 500.00 for relationship
TAIWAN 1,000.00 per account
VENEZUELA $250.00 per account
-- 273 --
ACCOUNT MAINTENANCE / LOCAL ADMINISTRATION FEE/ LOCAL LEGAL REPRESENTATION
--------------------------------------------------------------------------------
BRAZIL 4BP of Market Value, annually
CHILE 4,000-8,000 per account, annually
COLOMBIA MONTHLY Minimum $600.00 to $4,000.00 Maximum, per account
COSTA RICA $150.00 per MONTH
CZECH REPUBLIC $130 per MONTH
VENEZUELA 1,000 per account, annually
AUDIT FEES
--------------------------------------------------------------------------------
BRAZIL At cost
TAIWAN At cost
PROXY VOTING ($10.00 per notification plus country charges)
--------------------------------------------------------------------------------
ARGENTINA $50.00 per voting
AUSTRIA EUR 72
BANGLADESH $100.00
BELGIUM EUR 24.50, EUR 74.00 for representation
BULGARIA $500.00+20% VAT
CHILE $150.00+18% VAT
COLOMBIA $100.00+16% VAT
CZECH REPUBLIC 200.00+translation fees
EGYPT $100.00
FINLAND EUR 168 per attendance + cost of travel expenses
FRANCE EUR 46
GREECE GRD 15,000
HUNGARY 100.00 + cost of travel expenses
ISRAEL $200.00
ITALY $EUR 00
XXXXX JPY 2,000 - 3,000
KAZAKHSTAN $500.00 + 20% VAT
LATIVA 150.00 + translation fees
LITHUANIA At cost
XXXXX XXX 00
XXXXXXXXXXX EUR 45.50
PAKISTAN 50.00 + cost of travel expenses
POLAND $150 minimum
PORTUGAL EUR 60.00
RUSSIA $150.00
SLOVAKIA $200.00 + 23% VAT
SLOVENIA 150.00 + cost of travel expenses
SPAIN EUR 60, EUR 30 per instruction
SWEDEN At cost
TAIWAN $200.00
THAILAND THB 2,250
UKRAINE $200.00 - 600.00
VENEZUELA $100.00
--------------------------------------------------------------------------------
-- 274 --
