EX-99.g.5
MUTUAL FUND CUSTODY AND
SERVICES AGREEMENT
MUTUAL FUND CUSTODY AND
SERVICES AGREEMENT
This AGREEMENT is effective as of _______________, 2003, and is between
JNL VARIABLE FUND LLC, JNL VARIABLE FUND III LLC, JNL VARIABLE FUND V LLC and
JNLNY VARIABLE FUND I LLC (each individually the "Fund"), each a Delaware
Limited Liability Company organized under the laws of Delaware having its
principal office and place of business at 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000, and Curian Clearing, a division of Investment Centers of
American, Inc., (the "Custodian") a North Dakota company with its principal
place of business at 0000 X. Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, the Fund is authorized to issue shares in separate series with
each such series representing interests in a separate portfolio of securities
and other assets, and the Fund has made the Series listed on Appendix C subject
to this Agreement (each such series, together with all other series subsequently
established by the Fund and made subject to the Agreement in accordance with the
terms hereof, shall be referred to as a "Series" and collectively as the
"Series");
WHEREAS, the Custodian agrees to accept such delegation with
respect to Assets
NOW THEREFORE, the Fund and the Custodian agree as follows:
DEFINITIONS
The following words and phrases, unless the context requires otherwise,
shall have the following meanings:
1. "Act": the Investment Company Act of 1940 and the Rules and Regulations
thereunder, all as amended from time to time.
2. "Agreement": this agreement and any amendments
3. "Assets": any of the Series' investments, including foreign currencies and
investments for which the primary market is outside the United States, and
such cash and cash equivalents as are reasonably necessary to effect the
Series' transactions in such investments.
4. "Authorized Person": the Chairman of the Fund's Board, its President, and
any Vice President, Secretary, Treasurer or any other person, whether or
not any such person is an officer or employee of the Fund, duly authorized
by the Board to give Instructions on behalf of a Series which is listed in
the Certificate annexed hereto as Appendix A or such other Certificate as
may be received by the Custodian from time to time.
5. "Board": the Board of Managers (or the body authorized to exercise
authority similar to that of the board of directors of a corporation) of
the Fund.
6. "Book-Entry System": the Federal Reserve/Treasury book-entry system for
United States and federal agency Securities, its successor or successors
and its nominee or nominees.
7. "Business Day": any day on which the Series, the Custodian, the Book-Entry
System and appropriate clearing corporation(s) are open for business.
8. "Certificate": 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 a
Series by an Authorized Person or Persons designated by the Board to issue
a Certificate.
9. "Instructions": directions and instructions to the Custodian from an
Authorized Person in writing by facsimile or electronic transmission
subject to the Custodian's practices or any other method specifically
agreed upon, provided that the Custodian may, in its discretion, accept
oral directions and instructions from an individual it reasonably believes
to be an Authorized Person and may require confirmation in writing.
10. "Prospectus": a Series' current prospectus and statement of additional
information relating to the registration of the Shares under the Securities
Act of 1933, as amended.
11. "Rule 17f-4": such Rule as promulgated under Section 17(f) of the Act, as
such rule (and any successor rules or regulations) may be amended from time
to time.
12. "Security" or "Securities": bonds, debentures, notes, stocks, shares,
evidences of indebtedness, and other securities, commodities, interests and
investments from time to time owned by the Series.
13. "Securities Depository": a system for the central handling of securities as
defined in Rule 17f-4.
14. "Shares": shares of each Series, however designated.
15. "Transfer Agent": the person which performs the transfer agent functions
for a Fund.
ARTICLE I
CUSTODY PROVISIONS
1. Appointment of Custodian. The Board appoints, and the Custodian accepts
appointment as custodian of all the Securities and monies at the time owned
by or in the possession of the Series during the period of this Agreement.
2. Custody of Cash and Securities.
(a) Receipt and Holding of Assets. The Series will deliver or cause to be
delivered to the Custodian all Securities and monies owned by it at
any time during the period of this Custody Agreement. The Custodian
will not be responsible for such Securities and monies until actually
received. The Board specifically authorizes the Custodian to hold
Securities, Assets or other property of the Series with any domestic
subcustodian, or Securities Depository. Securities and monies of the
Series deposited in a Securities Depository will be reflected in an
account or accounts which include only assets held by the for its
customers.
(b) Disbursements of Cash and Delivery of Securities. The Custodian shall
disburse cash or deliver out Securities only for the purposes listed
below. Instructions must specify or evidence the purpose for which any
transaction is to be made and the Series shall be solely responsible
to assure that Instructions are in accord with any limitations or
restrictions applicable to the Series
(1) In payment for Securities purchased for the applicable Series;
(2) In payment of dividends or distributions with respect to Shares;
(3) In payment for Shares which have been redeemed by the applicable
Series;
(4) In payment of taxes;
(5) When Securities are called, redeemed, retired, or otherwise
become payable;
(6) In exchange for or upon conversion into other securities alone or
other securities and cash pursuant to any plan or merger,
consolidation, reorganization, recapitalization or readjustment;
(7) Upon conversion of Securities pursuant to their terms into other
securities;
(8) Upon exercise of subscription, purchase or other similar rights
represented by Securities;
(9) For the payment of interest, management or supervisory fees,
distributions or operating expenses;
(10) In payment of fees and in reimbursement of the expenses and
liabilities of the Custodian attributable to the applicable
Series;
(11) In connection with any borrowings by the applicable Series or
short sales of securities requiring a pledge of Securities, but
only against receipt of amounts borrowed;
(12) In connection with any loans, but only against receipt of
adequate collateral as specified in Instructions which shall
reflect any restrictions applicable to the Series.
(13) For the purpose of redeeming shares of the capital stock of the
applicable Series and the delivery to, or the crediting to the
account of, the Custodian or the applicable Series' transfer
agent, such shares to be purchased or redeemed;
(14) For the purpose of redeeming in kind shares of the applicable
Series against delivery to the Bank, its Subcustodian or the
Customer's transfer agent of such shares to be so redeemed;
(15) For delivery in accordance with the provisions of any agreement
among the Fund, the Custodian and a broker-dealer registered
under the Securities Exchange Act of 1934 (the "Exchange Act")
and a member of The National Association of Securities Dealers,
Inc. ("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 Fund. The Custodian will act
only in accordance with Instructions in the delivery of
Securities to be held in escrow and will have no responsibility
or liability for any such Securities which are not returned
promptly when due other than to make proper requests for such
return;
(16) For spot or forward foreign exchange transactions to facilitate
security trading, receipt of income from Securities or related
transactions;
(17) Upon the termination of this Agreement; and
(18) For other proper purposes as may be specified in Instructions
issued by an officer of the Fund which shall include a statement
of the purpose for which the delivery or payment is to be made,
the amount of the payment or specific Securities to be delivered,
the name of the person or persons to whom delivery or payment is
to be made, and a Certificate stating that the purpose is a
proper purpose under the instruments governing the Fund.
(c) Actions Which May be Taken Without Instructions. Unless an Instruction
to the contrary is received, the Custodian shall:
(1) Collect all income due or payable, provided that the Custodian
shall not be responsible for the failure to receive payment of
(or late payment of) distributions or other payments with respect
to Securities or other property held in the account;
(2) Present for payment and collect the amount payable upon all
Securities which may mature or be called, redeemed, retired or
otherwise become payable. Notwithstanding the foregoing, the
Custodian shall have no responsibility to the Series for
monitoring or ascertaining any call, redemption or retirement
dates with respect to put bonds or similar instruments where such
dates are not published in sources routinely used by the
Custodian which are owned by the Series and held by the Custodian
or its nominees. Nor shall the Custodian have any responsibility
or liability to the Series for any loss by the Series for any
missed payments or other defaults resulting therefrom, unless the
Custodian received timely notification from the Series specifying
the time, place and manner for the presentment of any such put
bond owned by the Series and held by the Custodian or its
nominee. The Custodian shall not be responsible and assume no
liability for the accuracy or completeness of any notification
the Custodian may furnish to the Series with respect to put bonds
or similar instruments;
(3) Surrender Securities in temporary form for definitive Securities;
(4) Hold directly, or through a Securities Depository with respect to
Securities therein deposited, for the account of the applicable
Series all rights and similar Securities issued with respect to
any Securities held by the Custodian hereunder for that Series;
(5) Submit or cause to be submitted to the applicable Series or its
investment advisor as designated by the applicable Series
information actually received by the Custodian regarding
ownership rights pertaining to property held for the applicable
Series;
(6) Deliver or cause to be delivered any Securities held for the
applicable Series 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;
(7) Deliver or cause to be delivered any Securities held for the
applicable Series 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 such certificates of deposit, interim receipts
or other instruments or documents as may be issued to it to
evidence such delivery;
(8) Make or cause to be made such transfers or exchanges of the
assets specifically allocated to the applicable Series and take
such other steps as shall be stated in Instructions to be for the
purpose of effectuating any duly authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of the
Series;
(9) Deliver Securities upon the receipt of payment in connection with
any repurchase agreement related to such Securities entered into
by the applicable Series;
(10) Deliver Securities owned by the applicable Series to the issuer
thereof or its agent when such Securities are called, redeemed,
retired or otherwise become payable; provided, however, that in
any such case the cash or other consideration is to be delivered
to the Custodian. Notwithstanding the foregoing, the Custodian
shall have no responsibility to the Series for monitoring or
ascertaining any call, redemption or retirement dates with
respect to the put bonds or similar instruments where such dates
are not published in sources routinely used by the Custodian
which are owned by the Series and held by the Custodian or its
nominee. Nor shall the Custodian have any responsibility or
liability to the Series for any loss by the Series for any missed
payment or other default resulting therefrom unless the Custodian
received timely notification from the Series specifying the time,
place and manner for the presentment of any such put bond owned
by the Series and held by the Custodian or its nominee. The
Custodian shall not be responsible and assumes no liability to
the Series for the accuracy or completeness of any notification
the Custodian may furnish to the Series with respect to put bonds
or similar investments;
(11) Endorse and collect all checks, drafts or other orders for the
payment of money received by the Custodian for the account of the
applicable Series; and
(12) Execute any and all documents, agreements or other instruments as
may be necessary or desirable for the accomplishment of the
purposes of this Agreement.
(d) Confirmation and Statements. Promptly after the close of business on
each day, the Custodian shall furnish each Series with confirmations
and a summary of all transfers to or from the account of the Series
during the day. Where securities purchased by a Series are in a
fungible bulk of securities registered in the name of the Custodian
(or its nominee) or shown on the Custodian's account on the books of a
Securities Depository, the Custodian shall by book-entry or otherwise
identify the quantity of those securities belonging to that Series. At
least monthly, the Custodian shall furnish each Series with a detailed
statement of the Securities and monies held for the Series under this
Custody Agreement.
(e) Registration of Securities. The Custodian is authorized to hold all
Securities, Assets, or other property of each Series in
----------------------------- nominee name, in bearer form or in
book-entry form. The Custodian may register any Securities, Assets or
other property of each Series in the name of the Fund or the Series,
in the name of the Custodian, any domestic subcustodian, in the name
of any duly appointed registered nominee of such entity, or in the
name of a Securities Depository or its successor or successors, or its
nominee or nominees. The Fund agrees to furnish to the Custodian
appropriate instruments to enable the Custodian to hold or deliver in
proper form for transfer, or to register in the name of its registered
nominee or in the name of a Securities Depository, any Securities
which it may hold for the account of the applicable Series and which
may from time to time be registered in the name of the Fund or the
applicable Series.
(f) Segregated Accounts. Upon receipt of Instruction, the Custodian will,
from time to time establish segregated accounts on behalf of the
applicable Series to hold and deal with specified assets as shall be
directed.
3. Settlement of Series Transactions.
(a) Customary Practices. Settlement of transactions may be effected in
accordance with trading and processing practices customary in the
jurisdiction or market where the transaction occurs. The Fund
acknowledges that this may, in certain circumstances, require the
delivery of cash or Securities (or other property) without the
concurrent receipt of Securities (or other property) or cash. In such
circumstances, the Custodian shall have no responsibility for
nonreceipt of payments (or late payment) or nondelivery of Securities
or other property (or late delivery) by the counterparty.
(b) Contractual Income. Unless the parties agree to the contrary, the
Custodian shall credit the applicable Series in accordance with the
Custodian's standard operating procedure, with income and maturity
proceeds on securities on contractual payment date net of any taxes or
upon actual receipt. To the extent the Custodian credits income on
contractual payment date, the Custodian may reverse such accounting
entries with back value to the contractual payment date if the
Custodian reasonably believes that such amount will not be received.
(c) Contractual Settlement. Unless the parties agree to the contrary, the
Custodian will attend to the settlement of securities transactions in
accordance with the Custodian's standard operating procedure, on the
basis of contractual settlement date accounting.
4. Lending of Securities. The Custodian may lend the assets of the Series in
accordance with the terms and conditions of a separate securities lending
agreement, approved by the Fund.
5. Persons Having Access to Assets of the Series
(a) No trustee or agent of the Fund, and no officer, director, employee or
agent of the Fund's investment adviser, of any sub-investment adviser
of the Fund, or of the Fund's administrator, shall have physical
access to the assets of the Series held by the Custodian or be
authorized or permitted to withdraw any investments of the Series, nor
shall the Custodian deliver any assets of the Series to any such
person. No officer, director, employee or agent of the Custodian who
holds any similar position with the Fund's investment adviser, with
any sub-investment adviser of the Fund or with the Fund's
administrator shall have access to the assets of the Series.
(b) Nothing in this Section 5 shall prohibit any duly authorized officer,
employee or agent of the Fund, or any duly authorized officer,
director, employee or agent of the investment adviser, of any
sub-investment adviser of the Series or of the Series' administrator,
from giving Instructions to the Custodian or executing a Certificate
so long as it does not result in delivery of or access to assets of
the Series prohibited by paragraph (a) of this Section 5.
6. Standard of Care; Scope of Custodial Responsibilities.
(a) Standard of Care. Custodian shall be required to exercise reasonable
care with respect to its duties under this Agreement unless otherwise
provided.
(1) Notwithstanding any other provision of this Custody Agreement,
the Custodian shall not be liable for any loss or damage,
including counsel fees, resulting from its action or omission to
act or otherwise, except for any such loss or damage arising out
of the negligence or willful misconduct of the Custodian.
(2) The Custodian may, with respect to questions of law, apply for
and obtain the advice and opinion of counsel to the Fund or of
its own counsel, at the expense of the Fund, and shall be fully
protected with respect to anything done or omitted by it in good
faith in conformity with such advice or opinion.
(b) Scope 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 acts or omissions of any agent appointed pursuant to
Instructions of the Fund or its investment advisor including, but
not limited to, any broker-dealer or other entity to hold any
Securities or other property of the Fund as collateral or
otherwise pursuant to any investment strategy;
(2) The validity of the issue of any Securities purchased by the
Series, the legality of the purchase thereof, or the propriety of
the amount paid therefore;
(3) The legality of the sale of any Securities by the Series or the
propriety of the amount for which the same are sold;
(4) The legality of the issue or sale of any Shares, or the
sufficiency of the amount to be received therefore;
(5) The legality of the redemption of any Shares, or the propriety of
the amount to be paid therefore;
(6) The legality of the declaration or payment of any distribution of
the Series;
(7) The legality of any borrowing for temporary administrative or
emergency purposes.
(c) No Liability Until Receipt. The Custodian shall not be liable for, or
considered to be the Custodian of, any money, whether or not
represented by any check, draft, or other instrument for the payment
of money, received by it on behalf of the Series until the Custodian
actually receives and collects such money.
(d) Amounts Due from Transfer Agent. The Custodian shall not be required
to effect collection of any amount due to the Series from the Transfer
Agent nor be required to cause payment or distribution by the Transfer
Agent of any amount paid by the Custodian to the Transfer Agent.
(e) Collection Where Payment Refused. The Custodian shall not be required
to take action to effect collection of any amount, if the Securities
upon which such amount is payable are in default, or if payment is
refused after due demand or presentation, unless and until it shall be
directed to take such action and it shall be assured to its
satisfaction of reimbursement of its related costs and expenses.
(f) 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 Series are such as may properly be
held by the Series under the provisions of its governing instruments
or Prospectus.
(g) Reliance on Instructions. The Custodian shall be entitled to rely upon
any Instruction, notice or other instrument in
---------------------------- writing received by the Custodian and
reasonably believed by the Custodian to be genuine and to be signed by
an officer or Authorized Person of the Series. Where the Custodian is
issued Instructions orally, the Series acknowledge that if written
confirmation is requested, the validity of the transactions or
enforceability of the transactions authorized by the Series shall not
be affected if such confirmation is not received or is contrary to
oral Instructions given. The Custodian shall be under no duty to
question any direction of an Authorized Person to review any property
held in the account, to make any suggestions with respect to the
investment of the assets in the account, or to evaluate or question
the performance of any Authorized Person. The Custodian shall not be
responsible or liable for any diminution of value of any securities or
other property held by the Custodian.
7. Appointment of Subcustodians. The Custodian is hereby authorized to appoint
one or more domestic subcustodians (which may be an affiliate of the
Custodian) to hold Securities' and monies at any time owned by the Series.
The Custodian is also hereby authorized when acting pursuant to
Instructions to: place assets with a broker or other agent as subcustodian
in connection with futures, options, short selling or other transactions.
When acting pursuant to such Instructions, the Custodian shall not be
liable for the acts or omissions of any subcustodian so appointed.
8. Overdraft Facility and Security for Payment. In the event that the
Custodian receives Instructions to make payments or
------------------------------------------------ transfers of monies on
behalf of the Series for which there would be, at the close of business on
the date of such payment or transfer, insufficient monies held by the
Custodian on behalf of the Series, the Custodian may, in its sole
discretion, provide an overdraft (an "Overdraft") to the Series in an
amount sufficient to allow the completion of such payment or transfer. Any
Overdraft provided hereunder: (a) shall be payable on the next Business
Day, unless otherwise agreed by the Series and the Custodian; and (b) shall
accrue interest from the date of the Overdraft to the date of payment in
full by the Series at a rate agreed upon from time to time, by the
Custodian and the Series or, in the absence of specific agreement, by such
rate as charged to other customers of Custodian under procedures uniformly
applied. The Custodian and the Series acknowledge that the purpose of such
Overdraft is to temporarily finance the purchase of Securities for prompt
delivery in accordance with the terms hereof, to meet unanticipated or
unusual redemptions, to allow the settlement of foreign exchange contracts
or to meet other unanticipated Series expenses. The Custodian shall
promptly notify the Series (an "Overdraft Notice") of any Overdraft. To
secure payment of any Overdraft, the Series hereby grant to the Custodian a
continuing security interest in and right of setoff against the Securities
and cash in the Series' account from time to time in the full amount of
such Overdraft. Should the Series fail to pay promptly any amounts owed
hereunder, the Custodian shall be entitled to use available cash in the
Series' account and to liquidate Securities in the account as necessary to
meet the Series' obligations under the Overdraft. In any such case, and
without limiting the foregoing, the Custodian shall be entitled to take
such other actions(s) or exercise such other options, powers and rights as
the Custodian now or hereafter has as a secured creditor under the Uniform
Commercial Code of any state jurisdiction or any other applicable law.
9. Tax Obligations. To the extent an Authorized Person has provided necessary
information to the Custodian, the Custodian shall use reasonable efforts to
assist the Fund with respect to the Fund's tax obligations, including the
payment of taxes, withholding requirements, certification and reporting
requirements, and claims for exemptions or refunds, interest, penalties and
other related expenses of the Fund. The Fund shall notify the Custodian in
writing of any such tax obligations. The Custodian shall have no
responsibility or liability for any tax obligations now or hereafter
imposed on the Fund by any taxing authorities, domestic or foreign.
To the extent the Custodian may be responsible under any applicable law for
any tax obligation, the Fund shall direct the Custodian with respect to the
performance of such obligations, and shall provide the Custodian with the
necessary funds and all information required by the Custodian to meet such
obligations. All such tax obligations shall be paid from the Fund unless
paid by the Company.
In making payments to service providers pursuant to Instructions, the Fund
acknowledges that the Custodian is acting as a paying agent and not as the
payor, for tax information reporting and withholding purposes.
ARTICLE II
GENERAL PROVISIONS
1. Compensation.
a) The Fund will compensate the Custodian for its services rendered under
this Agreement in accordance with the fees set forth in a separate Fee
Schedule which schedule may be modified by the Custodian upon not less
than sixty days prior written notice to the Fund.
b) The Custodian will xxxx the Fund as soon as practicable after the end
of each calendar month. The Fund will promptly pay to the Custodian
the amount of such billing.
c) If not paid directly or timely by the Fund, the Custodian may charge
against assets held on behalf of the Series compensation and any
expenses incurred by the Custodian in the performance of its duties
pursuant to this Agreement. The Custodian shall also be entitled to
charge against assets of the Series the amount of any loss, damage,
liability or expense incurred with respect to the Series, including
counsel fees, for which it shall be entitled to reimbursement under
the provisions of this Agreement. The expenses which the Custodian may
charge include, but are not limited to, the expenses of domestic
subcustodians incurred in settling transactions.
2. Liability for Depositories. The Custodian shall not be responsible for any
losses resulting from the deposit or maintenance of Securities, Assets or
other property of the Series with a Securities Depository.
3. Damages. Under no circumstances shall the Custodian be liable for any
indirect, consequential or special damages with respect to its role as
Custodian or information vendor.
4. Indemnification: Liability of the Series.
a) The Fund shall indemnify and hold the Custodian harmless from all
liability and expense, including reasonable counsel fees and expenses,
arising out of the performance of the Custodian's obligations under
this Agreement except as a result of the Custodian's negligence or
willful misconduct.
b) The Series and the Custodian agree that the obligations of the Fund
under this Agreement shall not be binding upon any of the trustees,
shareholders, nominees, officers, employees or agents, whether past,
present or future, of the Series, individually, but are binding only
upon the assets and property of the Fund.
5. Force Majeure. Notwithstanding anything in this Agreement to the contrary,
the Custodian shall not be liable for any losses ---------------- resulting
from or caused by events or circumstances beyond its reasonable control,
including, but not limited to, losses resulting from nationalization,
strikes, expropriation, devaluation, revaluation, confiscation, seizure,
cancellation, destruction or similar action by any governmental authority,
defacto or dejure; or enactment, promulgation, imposition or enforcement by
any such governmental authority of currency restrictions, exchange
controls, taxes, levies or other charges affecting the Series' property; or
the breakdown, failure or malfunction of any utilities or
telecommunications systems; or any order or regulation of any banking or
securities industry including changes in market rules and market conditions
affecting the execution or settlement of transactions; or acts of war,
terrorism, insurrection or revolution; or any other similar event.
6. Termination.
a) Either party may terminate this Agreement by giving the other party
sixty (60) days notice in writing, specifying the date of such
termination. In the event notice is given by the Fund, it shall be
accompanied by a Certificate evidencing the vote of the Fund's Board
to terminate this Agreement and designating a successor.
b) In the event notice of termination is given by the Custodian, the Fund
shall, on or before the termination date, deliver to the Custodian a
Certificate evidencing the vote of the Board designating a successor
custodian. In the absence of such designation, the Custodian may
designate a successor custodian, which shall be a person qualified to
so act under the Act or the Series. If the Fund fails to designate a
successor custodian, the Fund shall, upon the date specified in the
notice of termination, and upon the delivery by the Custodian of all
Securities and monies then owned by the Series, be deemed to be its
own custodian and the Custodian shall thereby be relieved of all
duties and or the Series responsibilities under to this Agreement
other than the duty with respect to Securities held in the Book-Entry
System which cannot be delivered to the Series.
c) Upon termination of the Agreement, the Custodian shall, upon receipt
of a notice of acceptance by the successor custodian, deliver to the
successor all Securities and monies then held by the Custodian on
behalf of the Series, after deducting all fees, expenses and other
amounts owed.
d) In the event of a dispute following the termination of this Agreement
all relevant provisions shall be deemed to continue to apply to the
obligations and liabilities of the parties.
7. 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 Fund at its own expense and with prior written
notice to the Custodian, and by the appropriate employees of the Securities
and Exchange Commission.
8. Miscellaneous.
a) Appendix A is a Certificate signed by the Secretary of the Fund
setting forth the names and the signatures of Authorized Persons. The
Fund shall furnish a new Certificate when the list of Authorized
Persons is changed in any way. Until a new certification is received,
the Custodian shall be fully protected in acting upon Instructions
from Authorized Persons as set forth in the last delivered
Certificate.
b) Appendix B is a Certificate signed by the Secretary of the Fund
setting forth the names and the signatures of the present officers of
the Fund. The Fund agrees to furnish to the Custodian a new
Certificate when any changes are made. Until a new Certificate is
received, the Custodian shall be fully protected in relying upon the
last delivered Certificate.
c) Any required written notice or other instrument shall be sufficiently
given if addressed to the Custodian or the Fund as the case may be and
delivered to it at its offices at:
The Custodian:
Curian Clearing
0000 X. Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Attn: Chief Legal Officer
The Fund:
JNL Variable Fund LLC
JNL Variable Fund III LLC
JNL Variable Fund V LLC
JNLNY Variable Fund I LLC
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn. Xxxx Xxxxx
or at such other place as the parties may from time to time designate
to the other in writing.
d) This Agreement may not be amended or modified except by a written
agreement executed by both parties.
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 Fund
without the written consent of the Custodian, or by the Custodian
without the written consent of the Fund authorized or approved by a
vote of the Board, provided, however, that the Custodian may assign
the Agreement or any function thereof to any corporation or entity
which directly or indirectly is controlled by, or is under common
control with, the Custodian and any other attempted assignment without
written consent shall be null and void.
f) Nothing in this Agreement shall give or be construed to give or confer
upon any third party any rights hereunder.
g) The Fund acknowledges and agrees that, except as expressly set forth
in this Agreement, the Fund is solely responsible to assure that the
maintenance of the Series' Securities and cash hereunder complies with
applicable laws and regulations, including without limitation the Act
and the rules and regulations promulgated thereunder and applicable
interpretations thereof or exemptions therefrom. The Fund represents
that it has determined that it is reasonable to rely on Custodian to
perform the responsibilities delegated pursuant to this Agreement.
h) This Agreement shall be construed in accordance with the laws of the
State of Colorado
i) The captions of the Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
j) Each party represents to the other that it has all necessary power and
authority, and has obtained any consent or approval necessary to
permit it, to enter into and perform this Agreement and that this
Agreement does not violate, give rise to a default or right of
termination under or otherwise conflict with any applicable law,
regulation, ruling, decree or other governmental authorization or any
contract to which it is a party or by which any of its assets is
bound.
k) 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.
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.
JNL VARIABLE FUND LLC
JNL VARIABLE FUND III LLC
JNL VARIABLE FUND V LLC
JNLNY VARIABLE FUND I LLC
By: _____________________
Name: Xxxxxx X. Xxxxxxx
Title:
CURIAN CLEARING
By: ______________________
Name:
Title:
APPENDIX A
LIST OF AUTHORIZED PERSONS
I, Xxxxxx X. Xxxxx, the Secretary of the JNL Variable Fund LLC, JNL Variable
Fund III LLC JNL Variable Fund V LLC and JNLNY Variable Fund I LLC, each a
Delaware Limited Liability Company organized under the laws of Delaware (each
individually, the "Fund"), do hereby certify that:
The following individuals have been duly authorized as Authorized Persons to
give Instructions on behalf of the Fund and each Fund thereof and the specimen
signatures set forth opposite their respective names are their true and correct
signatures:
Name Signature
Xxxxxx X. Xxxxxxx
--------------------------
Xxxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxxx
--------------------------
Xxxx X. Xxxxx
--------------------------
Xxxxx X. Xxxx
--------------------------
Xxxxxxx X. Xxxxx
--------------------------
Xxxxx Xxxxx
--------------------------
JNL VARIABLE FUND LLC
JNL VARIABLE FUND III LLC
JNL VARIABLE FUND V LLC
JNLNY Variable Fund I LLC
By:
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
Date:
APPENDIX B
FUND OFFICERS
I, Xxxxxx X. Xxxxx, the Secretary of the JNL Variable Fund LLC, JNL Variable
Fund III LLC, JNL Variable Fund V LLC and JNLNY Variable Fund I LLC, each a
Delaware Limited Liability Company organized under the laws of Delaware (each
individually, the "Fund"), do hereby certify that:
The following individuals serve in the following positions with the Funds and
each individual has been duly elected or appointed to each such position and
qualified therefore in conformity with the Fund's governing instrument and the
specimen signatures set forth opposite their respective names are their true and
correct signatures:
Name Position Signature
Xxxxxx X. Xxxxxxx Chairman of the Board
--------------------------
Xxxxxx X. Xxxxxx President
and Chief Executive Officer --------------------------
Xxxxxx X. Xxxxx Vice President, Secretary
and Counsel --------------------------
Xxxx X. Xxxxx Vice President, Treasurer
and Chief Financial Officer --------------------------
Xxxxx X. Xxxx Assistant Secretary
--------------------------
JNL VARIABLE FUND LLC
JNL VARIABLE FUND III LLC
JNL VARIABLE FUND V LLC
JNLNY VARIABLE FUND I LLC
By:
-----------------------------------
Name:
Title: Secretary
Dated:
APPENDIX C
LIST OF FUNDS
JNL VARIABLE FUND LLC
Funds:
JNL/Curian The Dow(SM) Target 5 Fund
JNL/Curian The Dow(SM) Target 10 Fund
JNL/Curian The S&P(R) Target 10 Fund
JNL/Curian Target 25 Fund JNL/Curian Target Small-Cap Fund
JNL/Curian Technology Sector Fund
JNL/Curian Pharmaceutical/Healthcare Sector Fund
JNL/Curian Financial Sector Fund
JNL/Curian Energy Sector Fund
JNL/Curian Consumer Brands Sector Fund
JNL/Curian Communications Sector Fund
JNL VARIABLE FUND III LLC
Funds:
JNL/Curian The Dow(SM) Target 10 Fund
JNL VARIABLE FUND V LLC
Funds:
JNL/Curian The Dow(SM) Target 10 Fund
JNLNY VARIABLE FUND I LLC
Funds:
JNL/Curian The Dow(SM) Target 5 Fund
JNL/Curian The Dow(SM) Target 10 Fund
JNL/Curian The S&P(R) Target 10 Fund
JNL/Curian Target 25 Fund
JNL/Curian Target Small-Cap Fund
JNL/Curian Technology Sector Fund
JNL/Curian Pharmaceutical/Healthcare Sector Fund
JNL/Curian Financial Sector Fund
JNL/Curian Energy Sector Fund
JNL/Curian Consumer Brands Sector Fund
JNL/Curian Communications Sector Fund
