AMENDED AND RESTATED ADMINISTRATION AGREEMENT
This Agreement is made as of 3rd day of December, 2007, between JNL
VARIABLE FUND LLC, a Delaware limited liability company ("Fund"), and XXXXXXX
NATIONAL ASSET MANAGEMENT, LLC, a Michigan limited liability company
("Administrator").
WHEREAS, the Fund is registered under the Investment Company Act of 1940,
as amended ("1940 Act"), as an open-end management investment company and has
established several separate Fund of shares ("Fund"), with each Fund having its
own assets and investment policies; and
WHEREAS, the Fund desires to retain the Administrator to furnish
administrative services to each Fund listed in Schedule A attached hereto, and
to such other Funds of the Fund hereinafter established as agreed to from time
to time by the parties, evidenced by an addendum to Schedule A (hereinafter
"Fund" shall refer to each Fund which is subject to this Agreement and all
agreements and actions described herein to be made or taken by a Fund shall be
made or taken by the Fund on behalf of the Fund), and the Administrator is
willing to furnish such services,
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties agree as follows:
1. SERVICES OF THE ADMINISTRATOR
1.1 ADMINISTRATIVE SERVICES. The Administrator shall supervise each Fund's
business and affairs and shall provide such services required for effective
administration of such Fund as are not provided by employees or other agents
engaged by such Fund; PROVIDED, that the Administrator shall not have any
obligation to provide under this Agreement any direct or indirect services to a
Fund's shareholders, any services related to the distribution of a Fund's
shares, or any other services that are the subject of a separate agreement or
arrangement between a Fund and the Administrator. Subject to the foregoing, in
providing administrative services hereunder, the Administrator shall:
1.1.1 OFFICE SPACE, EQUIPMENT AND FACILITIES. Furnish without cost to each
Fund, or pay the cost of, such office space, office equipment and office
facilities as are adequate for the Funds' needs;
1.1.2 PERSONNEL. Provide, without remuneration from or other cost to each
Fund, the services of individuals competent to perform all of the Funds'
executive, administrative and clerical functions that are not performed by
employees or other agents engaged by the Fund or by the Administrator acting in
some other capacity pursuant to a separate agreement or arrangement with the
Fund;
1.1.3 AGENTS. Assist each Fund in selecting and coordinating the activities
of the other agents engaged by the Fund, including the Funds' custodian,
independent auditors and legal counsel;
1.1.4 BOARD OF MANAGERS AND OFFICERS. Authorize and permit the
Administrator's directors, officers or employees who may be elected or appointed
as Managers or officers of the Fund to serve in such capacities, without
remuneration from or other cost to the Fund or any Fund;
1.1.5 BOOKS AND RECORDS. Ensure that all financial, accounting and other
records required to be maintained and preserved by each Fund are maintained and
preserved by it or on its behalf in accordance with applicable laws and
regulations; and
1.1.6 REPORTS AND FILINGS. Assist in the preparation of all periodic
reports by each Fund to shareholders of such Fund and all reports and filings
required to maintain the registration and qualification of the Fund and the
Fund's shares, or to meet other regulatory or tax requirements applicable to the
Fund, under federal and state securities and tax laws.
2. EXPENSES OF EACH FUND
2.1 EXPENSES TO BE PAID BY THE ADMINISTRATOR. If the Administrator pays or
assumes any expenses of the Fund or a Fund not required to be paid or assumed by
the Administrator under this Agreement, the Administrator shall not be obligated
hereby to pay or assume the same or any similar expense in the future; PROVIDED,
that nothing herein contained shall be deemed to relieve the Administrator of
any obligation to the Fund or to a Fund under any separate agreement or
arrangement between the parties.
2.1.1 CUSTODY. All charges of depositories, custodians, and other agents
for the transfer, receipt, safekeeping, and servicing of its cash, securities,
and other property, except overdraft charges and interest expense;
2.1.2 SHAREHOLDER SERVICING. All expenses of maintaining and servicing
shareholder accounts, including, but not limited to, the charges of any
shareholder servicing agent, dividend disbursing agent or other agent engaged by
a Fund to service shareholder accounts;
2.1.3 SHAREHOLDER REPORTS. All expenses of preparing, setting type,
printing and distributing reports and other communications to shareholders of a
Fund;
2.1.4 PROSPECTUSES. All expenses of preparing, setting in type, printing
and mailing annual or more frequent revisions of a Fund's Prospectus and SAI and
any supplements thereto and of supplying them to shareholders of the Fund and
Account holders;
2.1.5 FUND ACCOUNTING SERVICES AND FUND VALUATION. All expenses for fund
accounting services to compute a Fund's NAV per share, including any equipment
or services obtained for the purpose of pricing shares or valuing the Funds'
investments;
2.1.6 COMMUNICATIONS. All charges for equipment or services used for
communications between the Administrator or the Fund and any custodian,
shareholder servicing agent, Fund accounting services agent, or other agent
engaged by a Fund;
2.1.7 LEGAL AND ACCOUNTING FEES. All charges for services and expenses of
the Fund's legal counsel and independent auditors excluding, however, the
charges for services and expenses of independent legal counsel to the
disinterested Managers (as defined in the Investment Company Act of 1940, as
amended). In addition, all audit and tax return related charges and expenses;
2.1.8 SHAREHOLDER MEETINGS. All expenses incidental to holding meetings of
shareholders, including the printing of notices and proxy materials, and proxy
solicitation therefor;
2.1.9 BONDING AND INSURANCE. All expenses of bond, liability, and other
insurance coverage required by law or regulation or deemed advisable by the
Board of Managers, including, without limitation, such bond, liability and other
insurance expense that may from time to time be allocated to the Fund in a
manner approved by the Board of Managers, excluding, however, the expenses of
the Managers' Errors & Omission policy;
2.1.10 TRADE ASSOCIATION FEES. Its proportionate share of all fees, dues
and other expenses incurred in connection with the Fund's membership in any
trade association or other investment organization;
2.1.11 LIPPER EXPENSES. All charges for services and expenses for Lipper
reports as requested or used by the Managers;
2.1.12 PROXY EXPENSES. All charges for services and expenses paid to a
third party for proxy expenses related to Form N-PX reporting and compliance;
2.1.13 JNAM CHIEF COMPLIANCE OFFICER AND COMPLIANCE STAFF. For all expenses
related to his/her position as JNAM's Chief Compliance Officer and for a portion
of the expenses related to any compliance staffing as agreed to by the
independent managers; and
2.1.14 SALARIES. All salaries, expenses and fees of the officers, managers,
or employees of the Fund who are officers, directors or employees of the
Administrator.
2.2 EXPENSES TO BE PAID BY THE FUND. Each Fund shall bear all expenses of its
operation, except those specifically allocated to the Administrator under this
Agreement or under any separate agreement between such Fund and the
Administrator. Expenses to be borne by such Fund shall include both expenses
directly attributable to the operation of that Fund and the offering of its
shares, as well as the portion of any expenses of the Fund that is properly
allocable to such Fund in a manner approved by the Board of Managers of the
Fund. Subject to any separate agreement or arrangement between the Fund of a
Fund and the Administrator, the expenses hereby allocated to each Fund, and not
to the Administrator, include, but are not limited to:
2.2.1 REGISTRATION FEES. All fees and expenses of registering and
maintaining the registration of the Fund and each Fund under the 1940 Act and
the registration of each Fund's shares under the Securities Act of 1933 (the
"1933 Act") or all fees and expenses of registering and maintaining the
registration of the Fund and each Fund under the laws and regulations of foreign
countries in which the funds may invest, fees and expenses paid to the Public
Company Accounting Oversight Board and any fees for CUSIP number registration;
2.2.2 BROKERAGE COMMISSIONS. All brokers' commissions and other charges
incident to the purchase, sale or lending of a Fund's securities;
2.2.3 TAXES. All taxes or governmental fees or accounting related services
payable by or with respect to a Fund to federal, state or other governmental
agencies, domestic or foreign, including stamp or other transfer taxes;
2.2.4 NONRECURRING AND EXTRAORDINARY EXPENSES. Such nonrecurring and
extraordinary expenses as may arise, including the costs of actions, suits, or
proceedings to which the Fund is a party and the expenses a Fund may incur as a
result of its legal obligation to provide indemnification to the Fund's
officers, Board of Managers and agents;
2.2.5 INVESTMENT ADVISORY SERVICES. Any fees and expenses for investment
advisory services that may be incurred or contracted for by a Fund;
2.2.6 INDEPENDENT LEGAL COUNSEL TO DISINTERESTED MANAGERS. All charges for
services and expenses of independent legal counsel to the disinterested Managers
(as defined in the Investment Company Act of 1940, as amended);
2.2.7 MANAGERS' FEES AND EXPENSES. All compensation of Managers, all
expenses incurred in connection with such Managers' services as Managers, and
all other expenses of meetings of the Managers or committees thereof;
2.2.8 RULE 12B-1 FEES. All Rule 12b-1 fees paid the Funds' distributor
pursuant to a Distribution Plan;
2.2.9 LICENSE FEES. All license fees for the Funds;
2.2.10 FUNDS' CHIEF COMPLIANCE OFFICER AND COMPLIANCE STAFF. For all
expenses related to his/her position as the Fund's Chief Compliance Officer and
for a portion of the expenses related to any compliance staffing as agreed to by
the disinterested Managers;
2.2.11 MANAGERS' ERRORS AND OMISSION POLICY. For all expenses of the
Managers' Errors & Omission Policy; and
2.2.12 ANTI-MONEY LAUNDERING ("AML") SERVICE FEE. For all expenses related
to AML services paid to Xxxxxxx National Life Insurance Company.
3. ADMINISTRATION FEE
3.1 FEE. As compensation for all services rendered, facilities provided and
expenses paid or assumed by the Administrator to or for each Fund under this
Agreement, such Fund shall pay the Administrator an annual fee as set out in
Schedule B to this Agreement.
3.2 COMPUTATION AND PAYMENT OF FEE. The administration fee shall accrue on each
calendar day; and shall be payable monthly on the first business day of the next
succeeding calendar month.
4. OWNERSHIP OF RECORDS
All records required to be maintained and preserved by each Fund pursuant to the
provisions or rules or regulations of the Securities and Exchange Commission
("SEC") under section 31(a) of the 1940 Act and maintained and preserved by the
Administrator on behalf of such Fund are the property of such Fund and shall be
surrendered by the Administrator promptly on request by the Fund; PROVIDED, that
the Administrator may at its own expense make and retain copies of any such
records.
5. REPORTS TO ADMINISTRATOR
Each Fund shall furnish or otherwise make available to the Administrator such
copies of that Fund's Prospectus, SAI, financial statements, proxy statements,
reports, and other information relating to its business and affairs as the
Administrator may, at any time or from time to time, reasonably require in order
to discharge its obligations under this Agreement.
6. REPORTS TO EACH FUND
The Administrator shall prepare and furnish to each Fund such reports,
statistical data and other information in such form and at such intervals as
such Fund may reasonably request.
7. OWNERSHIP OF SOFTWARE AND RELATED MATERIALS
All computer programs, written procedures and similar items developed or
acquired and used by the Administrator in performing its obligations under this
Agreement shall be the property of the Administrator, and no Fund will acquire
any ownership interest therein or property rights with respect thereto.
8. CONFIDENTIALITY
The Administrator agrees, on its own behalf and on behalf of its employees,
agents and contractors, to keep confidential any and all records maintained and
other information obtained hereunder which relate to any Fund or to any of a
Fund's former, current or prospective shareholders, EXCEPT that the
Administrator may deliver records or divulge information (a) when requested to
do so by duly constituted authorities after prior notification to and approval
in writing by such Fund (which approval will not be unreasonably withheld and
may not be withheld by such Fund where the Administrator advises such Fund that
it may be exposed to civil or criminal contempt proceeding or other penalties
for failure to comply with such request) or (b) whenever requested in writing to
do so by such Fund.
9. THE ADMINISTRATOR'S ACTIONS IN RELIANCE ON FUNDS' INSTRUCTIONS, LEGAL
OPINIONS, ETC.; FUNDS' COMPLIANCE WITH LAWS.
9.1 The Administrator may at any time apply to an officer of the Fund for
instructions, and may consult with legal counsel for a Fund or with the
Administrator's own legal counsel, in respect of any matter arising in
connection with this Agreement; and the Administrator shall not be liable for
any action taken or omitted to be taken in good faith and with due care in
accordance with such instructions or with the advice or opinion of such legal
counsel. The Administrator shall be protected in acting upon any such
instructions, advice, or opinion and upon any other paper or document delivered
by a Fund or such legal counsel which the Administrator believes to be genuine
and to have been signed by the proper person or persons, and the Administrator
shall not be held to have notice of any change of status or authority of any
officer or representative of the Fund, until receipt of written notice thereof
from the Fund.
9.2 Except as otherwise provided in this Agreement or in any separate agreement
between the parties and except for the accuracy of information furnished to each
Fund by the Administrator, each Fund assumes full responsibility for the
preparation, contents, filing and distribution of its Prospectus and SAI, and
full responsibility for other documents or actions required for compliance with
all applicable requirements of the 1940 Act, the Securities Exchange Act of
1934, the 1933 Act, and any other applicable laws, rules and regulations of
governmental authorities having jurisdiction over such Fund.
10. SERVICES TO OTHER CLIENTS
Nothing herein contained shall limit the freedom of the Administrator or any
affiliated person of the Administrator to render administrative or shareholder
services to other investment companies, to act as administrator to other
persons, firms, or corporations, or to engage in other business activities.
11. LIMITATION OF LIABILITY REGARDING THE FUND
The Administrator shall look only to the assets of each Fund for performance of
this Agreement by the Fund on behalf of such Fund, and neither the Board of
Managers of the Fund nor any of the Fund's officers, employees or agents,
whether past, present or future shall be personally liable therefor.
12. INDEMNIFICATION BY FUND
Each Fund shall indemnify the Administrator and hold it harmless from and
against any and all losses, damages and expenses, including reasonable
attorneys' fees and expenses, incurred by the Administrator that result from (i)
any claim, action, suit or proceeding in connection with the Administrator's
entry into or performance of this Agreement with respect to such Fund; or (ii)
any action taken or omission to act committed by the Administrator in the
performance of its obligations hereunder with respect to such Fund; or (iii) any
action of the Administrator upon instructions believed in good faith by it to
have been executed by a duly authorized officer or representative of the Fund
with respect to such Fund; PROVIDED, that the Administrator shall not be
entitled to such indemnification in respect of actions or omissions constituting
negligence or misconduct on the part of the Administrator or its employees,
agents or contractors. Before confessing any claim against it which may be
subject to indemnification by a Fund hereunder, the Administrator shall give
such Fund reasonable opportunity to defend against such claim in its own name or
in the name of the Administrator.
13. INDEMNIFICATION BY THE ADMINISTRATOR
The Administrator shall indemnify each Fund and hold it harmless from and
against any and all losses, damages and expenses, including reasonable
attorneys' fees and expenses, incurred by such Fund which result from (i) the
Administrator's failure to comply with the terms of this Agreement with respect
to such Fund; or (ii) the Administrator's lack of good faith in performing its
obligations hereunder with respect to such Fund; or (iii) the Administrator's
negligence or misconduct or its employees, agents or contractors in connection
herewith with respect to such Fund. A Fund shall not be entitled to such
indemnification in respect of actions or omissions constituting negligence or
misconduct on the part of that Fund or its employees, agents or contractors
other than the Administrator, unless such negligence or misconduct results from
or is accompanied by negligence or misconduct on the part of the Administrator,
any affiliated person of the Administrator, or any affiliated person of an
affiliated person of the Administrator. Before confessing any claim against it
which may be subject to indemnification hereunder, a Fund shall give the
Administrator reasonable opportunity to defend against such claim in its own
name or the name of the Fund.
14. EFFECT OF AGREEMENT
Nothing herein contained shall be deemed to require the Fund or any Fund to take
any action contrary to the Fund Instrument or By-laws of the Fund or any
applicable law, regulation or order to which it is subject or by which it is
bound, or to relieve or deprive the Board of Managers of their responsibility
for and control of the conduct of the business and affairs of the Fund or any
Fund.
15. TERM OF AGREEMENT
The term of this Agreement shall begin on the date first above written with
respect to each Fund listed in Schedule A on the date hereof and, unless sooner
terminated as hereinafter provided, this Agreement shall remain in effect
through December 15, 2005. With respect to each Fund added by execution of an
Addendum to Schedule A, the term of this Agreement shall begin on the date of
such execution. Thereafter, in each case this Agreement shall continue in effect
with respect to each Fund from year to year, subject to the termination
provisions and all other terms and conditions hereof; PROVIDED, such continuance
with respect to a Fund is approved at least annually by vote or written consent
of the Board of Managers, including a majority of the Board of Managers who are
not interested persons of either party hereto ("Disinterested Board of
Managers"); and PROVIDED FURTHER, that neither party has terminated the
Agreement in accordance with Section 17. The Administrator shall furnish any
Fund, promptly upon its request, such information as may reasonably be necessary
to evaluate the terms of this Agreement or any extension, renewal or amendment
thereof. However, the addition or deletion of a Fund reflecting changes that
have been formally approved by resolution by the Board of Managers will not
require approval by the Board of Managers.
16. AMENDMENT OR ASSIGNMENT OF AGREEMENT
Any amendment to this Agreement shall be in writing signed by the parties
hereto; PROVIDED, that no such amendment shall be effective unless authorized on
behalf of any Fund (i) by resolution of the Board of Managers, including the
vote or written consent of a majority of the Disinterested Board of Managers, or
(ii) by vote of a majority of the outstanding voting securities of such Fund.
This Agreement shall terminate automatically and immediately in the event of its
assignment; provided, that with the consent of a Fund, the Administrator may
subcontract to another person any of its responsibilities with respect to such
Fund.
17. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time by either party hereto, without the
payment of any penalty, upon at least sixty days' prior written notice to the
other party; PROVIDED, that in the case of termination by any Fund, such action
shall have been authorized (i) by resolution of the Board of Managers, including
the vote or written consent of the Disinterested Board of Managers, or (ii) by
vote of a majority of the outstanding voting securities of such Fund.
18. USE OF NAME
Each Fund hereby agrees that if the Administrator shall at any time for any
reason cease to serve as administrator to a Fund, such Fund shall, if and when
requested by the Administrator, thereafter refrain from using the name "Xxxxxxx
National Asset Management, LLC" or the initials "JNAM" in connection with its
business or activities, and the foregoing agreement of each Fund shall survive
any termination of this Agreement and any extension or renewal thereof.
19. INTERPRETATION AND DEFINITION OF TERMS
Any question of interpretation of any term or provision of this Agreement having
a counterpart in or otherwise derived from a term or provision of the 1940 Act
shall be resolved by reference to such term or provision of the 1940 Act and to
interpretation thereof, if any, by the United States courts or, in the absence
of any controlling decision of any such court, by rules, regulations or orders
of the SEC validly issued pursuant to the 1940 Act. Specifically, the terms
"vote of a majority of the outstanding voting securities," "interested persons,"
"assignment" and affiliated person," as used in this Agreement shall have the
meanings assigned to them by section 2(a) of the 1940 Act. In addition, when the
effect of a requirement of the 1940 Act reflected in any provision of this
Agreement is modified, interpreted or relaxed by rule, regulation or order of
the SEC, whether of special or general application, such provision shall be
deemed to incorporate the effect of such rule, regulation or order.
20. CHOICE OF LAW
This Agreement is made and to be principally performed in the State of Michigan,
and except insofar as the 1940 Act or other federal laws and regulations may be
controlling, this Agreement shall be governed by, and construed and enforced in
accordance with, the internal laws of the State of Illinois.
21. CAPTIONS
The captions in this Agreement are included for convenience of reference only
and in no way define or delineate nay of the provisions hereof or otherwise
affect their construction or effect.
22. EXECUTION ON COUNTERPARTS
This Agreement may be executed simultaneously in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
by their respective officers thereunto duly authorized and their respective
seals to be hereunto affixes, as of the day and year first above written.
JNL VARIABLE FUND LLC
Attest: By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Vice President, Counsel & Secretary
XXXXXXX NATIONAL ASSET MANAGEMENT, LLC
Attest: By: /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
President
SCHEDULE A
DATED DECEMBER 3, 2007
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FUNDS
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JNL/Mellon Capital Management DowSM 10 Fund
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JNL/Mellon Capital Management S&P(R) 10 Fund
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JNL/Mellon Capital Management Global 15 Fund
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JNL/Mellon Capital Management 25 Fund
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JNL/Mellon Capital Management Select Small-Cap Fund
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JNL/Mellon Capital Management Nasdaq(R) 25 Fund
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JNL/Mellon Capital Management Value Line(R) 30 Fund
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JNL/Mellon Capital Management DowSM Dividend Fund
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JNL/Mellon Capital Management S&P(R) 24 Fund
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JNL/Mellon Capital Management VIP Fund
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JNL/Mellon Capital Management JNL 5 Fund
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JNL/Mellon Capital Management JNL Optimized 5 Fund
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JNL/Mellon Capital Management S&P(R) XXxx 60 Fund
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JNL/Mellon Capital Management NYSE(R) International 25 Fund
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JNL/Mellon Capital Management Communications Sector Fund
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JNL/Mellon Capital Management Consumer Brands Sector Fund
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JNL/Mellon Capital Management Oil & Gas Sector Fund
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JNL/Mellon Capital Management Financial Sector Fund
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JNL/Mellon Capital Management Healthcare Sector Fund
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JNL/Mellon Capital Management Technology Sector Fund
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SCHEDULE B
DATED DECEMBER 3, 2007
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FUNDS ASSETS FEE
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JNL/Mellon Capital Management DowSM 10 Fund All Assets .15%
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JNL/Mellon Capital Management S&P(R) 10 Fund All Assets .15%
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JNL/Mellon Capital Management Global 15 Fund All Assets .20%
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JNL/Mellon Capital Management 25 Fund All Assets .15%
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JNL/Mellon Capital Management Select Small-Cap Fund All Assets .15%
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JNL/Mellon Capital Management Nasdaq(R) 25 Fund All Assets .15%
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JNL/Mellon Capital Management DowSM Dividend Fund All Assets .15%
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JNL/Mellon Capital Management Value Line(R) 30 Fund All Assets .15%
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JNL/Mellon Capital Management S&P(R) 24 Fund All Assets .15%
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JNL/Mellon Capital Management VIP Fund All Assets .15%
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JNL/Mellon Capital Management JNL 5 Fund All Assets .15%
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JNL/Mellon Capital Management JNL Optimized 5 Fund All Assets .15%
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JNL/Mellon Capital Management S&P(R) XXxx 60 Fund All Assets .15%
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JNL/Mellon Capital Management NYSE(R) International 25 Fund All Assets .20%
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JNL/Mellon Capital Management Communications Sector Fund All Assets .15%
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JNL/Mellon Capital Management Consumer Brands Sector Fund All Assets .15%
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JNL/Mellon Capital Management Oil & Gas Sector Fund All Assets .15%
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JNL/Mellon Capital Management Financial Sector Fund All Assets .15%
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JNL/Mellon Capital Management Healthcare Sector Fund All Assets .15%
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JNL/Mellon Capital Management Technology Sector Fund All Assets .15%
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