--------------------------------------------------------------------------------
EXHIBIT (g)(3)
--------------------------------------------------------------------------------
AMENDMENT TO THE CUSTODY AGREEMENT
AMENDMENT made as of June 29, 2001 to that certain Custody Agreement dated
as of April 17, 1991 between Nationwide Separate Account Trust (the "Trust") and
Fifth Third Bank ("Custodian") (such Custody Agreement, including the Global
Custody Addendum thereto, hereinafter referred to as the "Custody Agreement").
WITNESSETH:
WHEREAS, Rule 17f-5 under the Investment Company Act of 1940, as amended
was amended on June 12, 2000 and Rule 17f-7 under the Investment Company Act of
1940, as amended, was adopted on June 12, 2000 by the Securities and Exchange
Commission (the "Rules");
WHEREAS, the Trust and Custodian desire to amend the Custody Agreement to
conform with the Rules;
NOW, THEREFORE, the Trust and Custodian hereby agree as follows:
1. The following new section is hereby added to the Custody Agreement:
FOREIGN DEPOSITORIES.
(a) As used in this Section, the term "Foreign Depository" shall mean each
Eligible Securities Depository as defined in Rule 17f-7 under the
Investment Company Act of 1940, as amended, identified to the Trust by
the Custodian from time to time, including but not limited to
Euroclear and Clearstream Banking, societe anonyme and the respective
successors and nominees of the foregoing; provided that each qualifies
as an Eligible Securities Depository.
(b) Notwithstanding any other provision in this Agreement, the Trust
hereby acknowledges that the Trust or its investment adviser or
subadviser, as appropriate, shall weigh the overall risks related to
engaging each Foreign Depository, which may include the evaluation of
the custody risk analysis provided by the Custodian, and will be
responsible for making the determination that the custody arrangements
of each Foreign Depository is appropriate.
(c) With respect to each Foreign Depository, Custodian shall exercise
reasonable care, prudence, and diligence in fulfilling its duties.
Under Rule 17f-7 of the Investment Company Act of 1940, as amended,
the Custodian is obligated: (i) to provide the Trust, in a timely
fashion, with an analysis of the custody risks associated with
maintaining assets with the Foreign Depository (the "Custody
Analysis"), and (ii) to monitor such custody risks on a continuing
basis and promptly notify the Trust of any material change in such
risks or the Custody Analysis. The Trust acknowledges and agrees that
such analysis and monitoring shall be made on the basis of, and
limited by, information gathered from any subcustodian to which the
Custodian has delegated its global custody duties (the "Subcustodian")
or through publicly available information otherwise obtained by
Custodian, and shall not include any evaluation of Country Risks. As
used herein the term "Country Risks" shall mean with respect to any
Foreign Depository: (a) the financial infrastructure of the country in
which it is organized, (b) such country's prevailing settlement
practices, (c) nationalization, expropriation or other governmental
actions, (d) currency controls, restrictions, devaluations or
fluctuations, (e) such country's regulation of the banking or
securities industry; and (f) market conditions which affect the order
execution of securities transactions or affect the value of
securities.
2. This Amendment 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 amendment.
-- 284 --
3. In the event of a conflict between the Amendment and the Custody
Agreement, it is the intention of the parties that this Amendment
shall control and the Custody Agreement shall be interpreted on that
basis.
4. Trust is a business trust organized under a Declaration of Trust, to
which reference is hereby made and a copy of which is on file at the
office of the Secretary of State of the Commonwealth of Massachusetts
and elsewhere as required by law, and to any and all amendments
thereto so filed or hereafter filed. The obligations of a fund or the
Trust entered into in the name of or on behalf thereof by any of the
Trustees, officers, employees or agents are made not individually, but
in such capacities, and are not binding upon any of the Trustees,
officers, employees, agents or shareholders as they relate to the fund
personally, but bind only the assets of the Trust, and all persons
dealing with a fund must look solely to the assets of that fund for
the enforcement of any claims against the Trust.
IN WITNESS WHEREOF, the Trust and Custodian have caused this Amendment to
be executed by their respective officers, thereunto duly authorized, as of the
day and year first above written.
NATIONWIDE SEPARATE ACCOUNT TRUST
By: /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
Title: Treasurer
FIFTH THIRD BANK
By: /s/_AVP_________________________
Title: Assistant Vice President
The Custody Analysis should include, but is not limited to, information
relating to a depository's expertise and market reputation, the quality of its
services, its financial strength (e.g., level of settlement guarantee funds,
collateral requirements, lines of credit or insurance as compared with
participants' daily settlement obligations), any insurance or indemnification
arrangements, the extent and quality of regulation and independent examination
of the depository, its standing in published ratings, its internal controls, and
other procedures for safeguarding investments, and any related legal
proceedings, unless such information is not otherwise available to the Custodian
or Subcustodians under ordinary and reasonable circumstances. In the event that
such information is not readily available, the Custodian will so note in the
Custody Analysis.
--------------------------------------------------------------------------------
-- 285 --
