HOLDING ACCOUNT AGREEMENT (“Agreement”)
EX-99.23(g)(34)
(“Agreement”)
The Bank
of Nova Scotia, acting through its ScotiaMocatta division (“Scotiabank”) and JNL
Series Trust, on behalf of JNL/Ivy Asset Strategy Fund (the “Customer”) hereby
agree that Scotiabank will provide, to the Customer, storage and related
services for gold, silver, platinum, and palladium in bullion form (“Precious
Metals”), in Toronto, Ontario, New York, New York, and such other locations as
to which the parties may agree, pursuant to the following terms and
conditions:
1. Holding Account. Scotiabank
will hold Precious Metals for the account of the Customer, at mutually agreed
upon locations, including, without limitation, in Toronto, Ontario and New York,
New York pursuant to the terms of this Agreement. Such Precious
Metals that will be held for or owed to the Customer by Scotiabank shall be held
on an allocated and segregated basis and shall be free and clear of any lien or
claim which Scotiabank may have against the Customer, its agents, officers or
employees, its customers or any other person, except where such claims arise
from costs associated with this Agreement. For the purposes of this
Agreement and as may be mutually agreed, Scotiabank may deposit all or part of
the Precious Metals at such other branch or agency or correspondent of
Scotiabank or with a sub-custodian, agent or depository appointed by Scotiabank
to perform custodial and safekeeping duties with respect to Precious
Metals.
2. Withdrawal,
Receipt. Scotiabank will release Precious Metals from the
Customer’s account upon receipt of specific written and signed instructions from
an authorized representative of the Customer, such written instructions to be
provided at least two (2) full Business Days (hereinafter defined) prior to the
release date. Out charges (at a mutually agreed upon rate) will apply
if the Precious Metals are to be removed from Scotiabank custody. No
out charges would apply if Precious Metals are sold to Scotiabank.
Scotiabank
will receive Precious Metals for the Customer’s account upon the specific
written and signed instructions from an authorized representative of the
Customer, such written instructions to be received by Scotiabank at least two
(2) full Business Days prior to the date of receipt of such Precious Metals by
Scotiabank.
Upon
release of Precious Metals from the Customer’s account or upon the receipt of
Precious Metals into the Customer’s account, Scotiabank will send written
confirmation (specifying the quantity involved) to the Customer, identifying
either to whom the material was released or from whom the material was
received.
For the
purposes of this Agreement, “Business Day” means any day other than a Saturday,
Sunday or other day on which banks are authorized or required by law to close in
Toronto, Canada or New York, New York.
3. Authorized
Representative. The parties hereto will, from time to time,
notify each other in writing of the names of those persons who are to be their
authorized representatives for the purposes hereof and shall provide to each
other specimen signatures of such persons. Until written notice to
the contrary is received, each party is entitled to assume that the most recent
list of the names of authorized representatives provided to it will continue to
be up-to-date and accurate.
4. Authenticity. Scotiabank
has not and will not ascertain nor will it be responsible or liable for the
authenticity or correctness of markings on, or the weight, contents, composition
or fineness of Precious Metals received and held for the Customer.
5. Insurance. Scotiabank
agrees to maintain insurance satisfactory to the Customer against all risks of
physical loss or damage except those for which insurance is not currently
available, including, but not limited to, war, terrorist events, nuclear
incident or government confiscations. Scotiabank shall not cancel
said insurance without 30 days’ prior written notice to the
Customer.
6. Limitation
of Liability and Indemnity.
|
(a)
|
Scotiabank
shall not be liable for any losses, damages, liabilities or costs suffered
or incurred by the Customer as a result of (i) any act or omission by
Scotiabank, if such act or omission was in accordance with the
instructions on which Scotiabank is authorized to rely pursuant to the
provisions of this Agreement, (ii) acting in accordance with instructions
from any unauthorized person which Scotiabank, in good faith, believed to
be authorized to give such instructions, (iii) improperly executing or
failing to execute any instructions because of unclear instructions,
failure of communications media or any other circumstances beyond
Scotiabank’s control, (iv) the actions or inactions of any agent,
representative or carrier not selected by Scotiabank, (v) those perils
referred to in Section 5 “Insurance”, for which coverage is not currently
available, or (vi) any other acts or omissions of Scotiabank (or any of
its agents, correspondents or sub-custodians) relating to this
Agreement or the activities contemplated hereby except to the extent, if
any, that such other acts or omissions constitute negligence or willful
misconduct by Scotiabank.
|
|
(b)
|
Scotiabank
shall not be liable for any indirect, special or consequential damages
which may arise with respect to Scotiabank’s holding of the Precious
Metals under this Agreement.
|
|
(c)
|
The
Customer agrees to indemnify Scotiabank and its agents, nominees,
correspondents and sub-custodians against and hold them harmless from all
expenses (including legal fees), liability, claims, demands, losses,
actions, proceedings and accounts arising out of the exercise of their
duties hereunder, except such expenses, liability, claims, demands,
losses, actions, proceeding and accounts arising from Scotiabank’s or its
agents’, nominees’, correspondents’ or sub-custodians’ own negligence or
willful misconduct.
|
|
(d)
|
The
Customer shall pay and indemnify Scotiabank against any tax or other levy
imposed with respect to the delivery, storage and release of Precious
Metals held by Scotiabank pursuant to this
Agreement.
|
|
(e)
|
Scotiabank
agrees to indemnify the Customer against and hold it harmless from all
expenses (including legal fees), liability, claims, demands, losses,
actions, proceedings and accounts arising out of Scotiabank’s negligence
and willful misconduct in the exercise of its duties
hereunder.
|
7. Delay. Neither party shall be
liable for any failure or delay to meet its obligations hereunder due to any
causes beyond its control which shall include, but not be limited to, nuclear
fission or fusion, radioactivity, war, terrorist event, invasion, insurrection,
civil commotion, riot, strike, act of government or public authority or act of
God. In the event of any such delay, the time for performance shall
be extended for a period equal to that during which the inability to perform
continues.
8. Duration. This
Agreement shall continue for a period of one (1) year from the date of signing
and will renew thereafter from year to year; provided that, this Agreement may
be terminated at any time upon thirty (30) days’ written notice by either party
to the other. However, either party may at any time terminate this
Agreement by written notice to the other if a party fails to perform any duty or
obligation hereunder.
9. Trademark. The
Customer shall not, without obtaining Scotiabank’s prior written consent, use
Scotiabank’s name or any of its trademarks or logos in any advertisement or in
connection with any promotions or in its public relations with third
parties. Any consent previously given may be revoked if the use of
Scotiabank’s name, or any of its trademarks or logos is at any time considered
to be unacceptable by Scotiabank in its absolute discretion.
10. Fee. With
respect to Scotiabank providing the Customer with Precious Metals storage and
related services in Toronto, Ontario, New York, New York and such other
locations as to which the parties have agreed, the Customer agrees to pay
Scotiabank a mutually agreed upon monthly fee determined pursuant to the
custodian fee schedule approved by Scotiabank and the Customer and in effect
from time to time. An invoice respecting the Precious Metals held at
each location shall be forwarded to the Customer on a monthly basis and the
Customer will pay the fee to Scotiabank monthly against invoice within five (5)
Business Days of its receipt of such invoice. Any non-payment by the
Customer of such fee shall relieve Scotiabank of its duties and obligations
hereunder, if such non-payment continues for more than five (5) Business Days
after the Customer has been notified in writing by Scotiabank of such
non-payment.
11. Relationship between the
Parties. The parties understand and agree that neither
this Agreement nor any operations hereunder shall be deemed to create a
partnership, joint venture or agency relationship between the
parties. The parties acknowledge that neither party has a duty to
supervise the other nor does it have authority to represent or contract for,
bind, assume or create any obligation on the other’s behalf, and
shall not hold both parties to this Agreement out or represent to any person to
the contrary.
12. No Third Party Beneficiaries.
No third party is intended, or shall be deemed to be, a beneficiary of
any provision of this Agreement.
13. Notices. All
notices, instructions or communications which are to be furnished under this
Agreement, shall be in writing and may be given by being delivered by hand, sent
by certified or registered mail (airmail, if overseas) or by being sent by
facsimile transmission to the appropriate address or fax number as set forth
below or to such other address or fax number as may hereafter be notified in
writing by one party to the other party. Any such notices,
instructions or communications delivered by hand, sent by mail or given by
facsimile transmission shall be effective upon the recipient’s receipt of
same.
Customer notice
information:
JNL Series Trust, on behalf of JNL/Ivy
Asset Strategy Fund
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention:
Xxxx X. Xxxxx
Tel. No.: 000-000-0000
Fax No.: 000-000-0000
Scotiabank notice
information:
(i) With respect to Precious Metals held in storage with
ScotiaMocatta, New York:
The Bank of Nova Scotia
ScotiaMocatta - New York
Metals Operation
Xxx Xxxxxxx Xxxxx, 00xx
xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
(ii) With respect to back office operations:
The Bank
of Nova Scotia
ScotiaMocatta
000 Xxxx
Xxxxxx Xxxx
0xx
Xxxxx
Xxxxxxx,
Xxxxxxx
X0X
0X0
Tel.
No.: (000) 000-0000
Fax
No.: (000) 000-0000
14. Severability. In
the event any one or more of the provisions of this Agreement shall, for any
reason, be held to be invalid, illegal or unenforceable, the remaining
provisions of this Agreement shall be unimpaired, and the invalid, illegal or
unenforceable provision shall be replaced by a mutually acceptable provision,
which, being valid, legal and enforceable, comes closest to the intention of the
parties underlying the invalid, illegal or unenforceable provision.
15. Waiver. Any waiver
of, or consent to depart from, the requirements of any provision of this
Agreement shall be effective only if it is in writing and signed by the party
giving it, and only in the specific instance and for the specific purpose for
which it has been given. No failure on the part of any party to
exercise, and no delay in exercising, any right under this Agreement shall
operate as a waiver of such right. No single or partial exercise of
any such right shall preclude any other or further exercise of such right or the
exercise of any other right.
16. Amendment. This
Agreement may be amended or supplemented only by a written agreement signed by
each party.
17. Headings. The headings in this
Agreement are for purposes of reference only and shall not limit or affect any
of the terms hereof.
18. Successors and Assigns. This
Agreement shall be binding on all successors and assigns of both parties
irrespective of change of firm name or personnel. This Agreement may
not be assigned by a party without the prior written consent of the other
party.
19. Governing Law. This
Agreement shall be governed by, and interpreted and enforced in accordance with,
the laws in force in the State of New York (excluding any conflict of laws rule
or principle which might refer such construction to the laws of another
jurisdiction) and shall be treated in all respects as a New York
contract. Each party irrevocably submits to the non-exclusive
jurisdiction of the courts of New York with respect to any matter arising
hereunder or related hereto.
20. Entire
Agreement. The provisions, terms and conditions of this
Agreement represent the entire agreement between the parties and supersede any
prior written or oral communications, discussions or understandings not
incorporated herein. In the event inconsistencies exist between this Agreement
and any prior written agreement or understanding, the terms of this Agreement
shall prevail.
21. Counterparts. This Agreement
may be executed in counterparts each of which shall be deemed an original and
all of which together shall constitute one instrument.
22. Confidentiality. Both
parties agree to keep confidential all information (whether written or oral),
ideas, techniques, records, and materials (“Confidential Information”) supplied
by the other party, and shall not distribute the same to any other parties, at
any time, except with the express written consent of the other
party. Both parties agree to discontinue use of and destroy, where
applicable, pursuant to legal and regulatory requirements, all Confidential
Information supplied by the other party upon termination of this
Agreement. Each party further agrees that the other party is hereby
permitted to release Confidential Information in response to any subpoena or
court order from a court of competent jurisdiction or government regulatory
agency; provided that the other party is given reasonable prior notice to enable
it to seek a protective order, and the other party may disclose only such
Confidential Information which in the reasonable judgment of its counsel is
required to be disclosed.
IN WITNESS WHEREOF, the
parties have caused this Agreement to be executed and do each hereby warrant and
represent that, as applicable, their respective signatory whose signature
appears below has been, and is on the date of this Agreement, duly authorized by
all necessary and appropriate corporate action to execute this
Agreement.
|
Date: 09/23/09
|
Date: Sep.
26, 2009
|
|
JNL
Series Trust, on behalf of JNL/Ivy Asset Strategy Fund
By: /s/
Xxxx X. Xxxxx
Xxxx X. Xxxxx
President
|
The
Bank of Nova Scotia
By:
/s/ Xxxxx Xxxxxxx
XXXXX XXXXXXX
Title:
Director, Head
|
|
Corporate
Address:
0 Xxxxxxxxx Xxx, Xxxxxxx,
Xxxxxxxx 00000
|
Address: Scotia
Plaza, 68th
Floor, 00
Xxxx Xxxxxx Xxxx, Xxxxxxx,
Xxxxxxx, X0X 0X0
|
Fee
Schedule
The Bank
of Nova Scotia is pleased to offer The JNL/Ivy Asset Strategy Fund the following
rates regarding gold and silver storage at the ScotiaMocatta Depository which is
adjacent to Xxxx X. Xxxxxxx International Airport. Our modern, secure vault’s
address is:
ScotiaMocatta
Depository
230-59
International Airport Center Blvd.
Building
C, Suite 000
Xxxxxxxx
Xxxx.
Xxxxxxx,
Xxx Xxxx 00000
Gold
|
Bar
Size
|
Monthly
Storage/Bar
|
Monthly
Storage/oz
|
Out
Charge/Bar
|
Out
Charge/oz
|
|
100
oz Bar
|
$3.00
|
3.0
cents
|
$3.00
|
3.0
cents
|
|
400
oz Bar
|
$7.00
|
1.75
cents
|
$8.00
|
2
cents
|
|
Kilos
Bar
|
$1.00
|
3.10
cents approximately
|
$2.00
|
6.20
cents approximately
|
Silver
|
Bar
Size
|
Monthly
Storage/Bar
|
Monthly
Storage/oz
|
Out
Charge/Bar
|
Out
Charge/oz
|
|
1000
oz Bar
|
$2.00
|
.002
cents
|
$1.50
|
.0015
cents
|
