EX-99.23g
DELEGATION, CUSTODY AND INFORMATION SERVICES AGREEMENT
AGREEMENT dated as of May 14, 1999 between JNL Variable Fund LLC
("Fund"), 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, Boston Safe Deposit and Trust Company
("Custodian"), a Massachusetts trust company with its principal place of
business at Xxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
W I T N E S S E T H:
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 D 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 Fund" and collectively as the "Funds");
WHEREAS, The Board desires to delegate certain of its responsibilities
for performing the services set forth in paragraphs (c)(1), (c)(2) and (c)(3) of
Rule 17f-5 to the Custodian;
WHEREAS, The Custodian agrees to accept such delegation with respect to
Assets held by Eligible Foreign Custodians in the jurisdictions listed on
Appendix B as set forth in Article II;
WHEREAS, The Fund desires to hire the Custodian as a vendor to provide
certain information available to the Custodian with respect to foreign
jurisdictions, Securities Depositories and Foreign Custodians not listed on
Appendix B for which the Board or a delegatee other than the Custodian has the
responsibilities described in paragraphs (c)(1), (c)(2) and (c)(3) of Rule
17f-5; and
WHEREAS, The Custodian agrees to provide, as a vendor, the information
described in Article IV if, and when available in accordance with the terms and
conditions of Article IV.
WHEREAS, The Fund and the Custodian desire to set forth their agreement
with respect to the custody of the Funds' Assets and other property and the
processing of securities transactions;
NOW THEREFORE, in consideration of the mutual promises hereinafter set
forth, the Fund and the Custodian agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement or in any Appendices to this Agreement,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
(a) "Affiliated Person" shall have the meaning of the term within
Section 2(a) 3 of the 1940 Act.
(b) "Agreement" shall mean this Delegation, Custody and
Information Services Agreement.
(c) "Articles" shall mean the Articles of Formation of the Fund as
may be amended from time to time.
(d) "Assets" shall mean any of the Funds' investments and such
cash and cash equivalents as are reasonably necessary to
effect the Funds' transactions in such investments.
(e) "Authorized Person" shall be deemed to include the President,
and any Vice President, the Secretary, the 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 add or
delete jurisdictions pursuant to Article II and to give Oral
Instructions and Written Instructions on behalf of a Fund and
listed in the certification annexed hereto as Appendix A , as
may be amended from time to time.
(f) "Board" shall mean the Board of Managers of the Fund.
(g) "Book-Entry System" shall mean the Federal Reserve/Treasury
book-entry system for United States and federal agency
securities, its successor or successors and its nominee or
nominees.
(h) "Business Day" shall mean any day on which the Fund, the
Custodian, the Book-Entry System and appropriate clearing
corporation(s) are open for business.
(i) "Certificate" shall mean 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 Fund by
any two Authorized Persons.
(j) "Country Risk" means all factors reasonably related to the
systematic risk of holding assets in a particular country
including, but not limited to, such country's financial
infrastructure (including any Securities Depositories
operating in such country), prevailing custody and settlement
practices and laws applicable to the safekeeping and recovery
of Assets held in custody.
(k) "Custodian" shall mean Boston Safe Deposit and Trust Company
in its capacity as delegate, custodian or information services
provider as required under the terms of each Article.
(l) "Custody Agreement" shall mean the provisions of Articles I,
III and V of this Agreement and any Appendices referenced
therein and attached to this Agreement.
(m) "Information Services Agreement" shall mean the provisions of
Articles I and IV and V of this Agreement and any Appendices
referenced therein and attached to this Agreement.
(n) "Foreign Custodian" shall mean: (a) a banking institution or
trust company incorporated or organized under the laws of a
country other than the United States, that is regulated as
such by the country's government or an agency of the country's
government; (b) a majority-owned direct or indirect subsidiary
of a U.S. Bank or bank-holding company; or (c) any entity
other than a Securities Depository with respect to which
exemptive or no-action relief has been granted by the U. S.
Securities and Exchange Commission. For the avoidance of
doubt, the term "Foreign Custodian" shall not include
Euroclear, Cedel, First Chicago Clearing Centre or any other
transnational system for the central handling of securities or
equivalent book-entries regardless of whether or not such
entities are acting in a custodial capacity with respect to
Assets or other property of the Fund.
(o) "Delegation Agreement" shall mean the provisions of Articles
I, II and V of this Agreement and any Appendices referenced
therein and attached to this Agreement.
(p) "Money Market Security" shall be deemed to include, without
limitation, debt obligations issued or guaranteed as to
interest and principal by the government of the United States
or agencies or instrumentalities thereof ("U.S. government
securities"), commercial paper, bank certificates of deposit,
bankers' acceptances and short-term corporate obligations,
where the purchase or sale of such securities normally
requires settlement in federal funds on the same day as such
purchase or sale, and repurchase and reverse repurchase
agreements with respect to any of the foregoing types of
securities.
(q) "Oral Instructions" shall mean verbal instructions actually
received by the Custodian from a person reasonably believed by
the Custodian to be an Authorized Person or Senior Authorized
Person.
(r) "Prospectus" shall mean a Fund's current prospectus and
statement of additional information relating to the
registration of the Fund's Shares under the Securities Act of
1933, as amended.
(s) "Rule 17f-5" shall mean Rule 17f-5 promulgated under Section
17(f) of the 1940 Act as such rule (and any successor
regulation) may be amended from time to time.
(t) "Selected Countries" means the jurisdictions listed on
Appendix B as such may be amended from time to time in
accordance with Article II.
(u) "Senior Authorized Person" shall be such individuals so
designated on Appendix A.
(v) "Shares" refers to shares of beneficial interest of each Fund.
(w) "Securities Depository" shall mean any entity described in
subparagraph (a)(1)(ii) or paragraph (a)(6) of Rule 17f-5 or
any other recognized foreign or domestic clearing facility,
book-entry system, centralized custodial depository or similar
organization. For the avoidance of doubt, the term "Securities
Depository" shall include Euroclear, Cedel, First Chicago
Clearing Centre or any other transnational system for the
central handling of securities or equivalent book-entries
regardless of whether or not such entities are acting in a
custodial capacity with respect to Assets or other property of
the Funds.
(x) "Transfer Agent" shall mean the person which performs the
transfer agent, dividend disbursing agent and shareholder
servicing agent functions for a Fund.
(y) "Written Instructions" shall mean a written communication
actually received by the Custodian from a person reasonably
believed by the Custodian to be an Authorized Person or Senior
Authorized Person by any system, including, without
limitation, electronic transmissions, facsimile and telex.
(z) The "1940 Act" refers to the Investment Company Act of 1940,
and the Rules and Regulations thereunder, all as amended from
time to time.
ARTICLE II
DELEGATION AGREEMENT
1. Representations.
(a) Status of Custodian. The Custodian represents that it is a
U.S. Bank within the meaning of paragraph (a)(7) of Rule 17f-5
and a "Securities Intermediary" as that term is defined in
Section 8-102 (A)(4) of Article 8 of the Massachusetts Uniform
Commercial Code.
(b) Fund Determinations and Authorizations. The Board represents
that it has determined that it is reasonable to rely on
Custodian to perform the responsibilities delegated pursuant
to this Delegation Agreement and that it has made the
delegations set forth below, subject to the acceptance of such
delegation by the Custodian on the terms and conditions set
forth in this Delegation Agreement.
(c) Fund Responsibilities. The Fund acknowledges and agrees that,
except as expressly set forth in this Delegation Agreement,
the Fund is solely responsible to assure that the maintenance
of each Fund's Assets hereunder complies with applicable laws
and regulations, including without limitation the 1940 Act and
the rules and regulations promulgated thereunder and
applicable interpretations thereof or exemptions therefrom.
2. Delegation and Custodian's Services.
(a) Delegation. Subject to the provisions of this Delegation
Agreement and the requirements of Rule 17f-5, the Board hereby
delegates to, and the Custodian hereby agrees to accept the
responsibility for selecting, contracting with and monitoring
Foreign Custodians in Selected Countries in accordance with
paragraphs (c)(1), (c)(2) and (c)(3) of Rule 17f-5. Pursuant
to this delegation, the Board authorizes the Custodian to
place and maintain Assets in the care of any Foreign
Custodian(s) in the Selected Countries and to enter into, on
behalf of a Fund, such written contracts governing the Fund's
foreign custody arrangements with such Foreign Custodian(s) as
the Custodian deems reasonably appropriate.
(b) Scope of Delegation. The delegation contained in Section 2(a)
applies only to the selection of, contracting with and
monitoring of Foreign Custodians located in Selected Countries
and only with respect to Assets held by such Foreign
Custodians in Selected Countries. The Board and the Custodian
agree that nothing in this Delegation Agreement or this
Agreement as a whole shall cause or be deemed to cause any
delegation to the Custodian of any of the Board's
responsibilities with respect to Assets or other property held
in Securities Depositories or Assets held by Foreign
Custodians in jurisdictions other than Selected Countries.
(c) Additions to Appendix B. Appendix B may be amended from time to
time to add jurisdictions by an instrument in writing signed by
an Authorized Person and the Custodian, provided that with
respect to any amendment that adds a jurisdiction to Appendix
B, the Custodian's responsibility and authority with respect to
any jurisdiction so added will commence at the later of (i) the
time that the Custodian and the Authorized Person have both
executed such amendment, or (ii) the time that the Custodian
receives a copy of such executed amendment.
(d) Deletions from Appendix B. The Board may withdraw its
delegation with respect to any jurisdiction listed in Appendix
B upon written notice to the Custodian. The Custodian shall
withdraw its acceptance of delegated authority with respect to
any jurisdiction listed in Appendix B upon written notice to
the Board. Upon receipt of such notice by the party to whom
such notice is given, the Custodian shall have no further
responsibilities under this Delegation Agreement with respect
to the selecting, contracting with, and monitoring of any
Foreign Custodian holding Assets in the removed jurisdiction.
(e) Reports to Board. Custodian shall provide written reports
notifying Board of the placement of Assets with a particular
Foreign Custodian and of any material change in a Fund's
foreign custody arrangements. Such reports shall be provided
to Board initially within 30 days after the execution of this
Agreement and thereafter quarterly, except as otherwise agreed
by the Custodian and the Fund.
(f) Monitoring System. In each case in which the Custodian has
exercised the authority delegated under this Article II,
Section 2 to place Assets with an Foreign Custodian, the
Custodian is authorized to, and shall, on behalf of a Fund,
establish a system to re-assess or re-evaluate, at least
annually (i) the appropriateness of maintaining Assets with
such Foreign Custodian and (ii) the contract governing the
Fund's arrangements with such Foreign Custodian.
3. Guidelines and Procedures.
(a) Country Risk. In exercising its delegated authority under
Article II, Section 2, the Custodian may assume, for all
purposes, that the Board (or the Fund's investment adviser,
pursuant to authority delegated by the Board) has considered,
and, pursuant to its fiduciary duties to the Funds and the
Fund's shareholders, determined to accept, Country Risk. In
exercising its delegated authority under Article II, Section
2, the Custodian may also assume that the Board (or the Fund's
investment adviser, pursuant to authority delegated by the
Board) has, and will continue to, monitor such Country Risk to
the extent the Board deems necessary or appropriate. Nothing
in this Delegation Agreement shall require the Custodian to
make any selection or to engage in any monitoring on behalf of
a Fund (i) that would entail consideration of Country Risk or
(ii) otherwise in connection with any Securities Depository or
Foreign Custodians in jurisdictions other than Selected
Countries.
(b) Standard of Care for Selection of Eligible Foreign Custodians.
In exercising the authority delegated under Article II,
Section 2, to place Assets with a Foreign Custodian in a
Selected Country, the Custodian shall determine that Assets
will be subject to reasonable care, based on the standards
applicable to custodians in the Selected Country in which the
Assets will be held, after considering all factors relevant to
the safekeeping of such assets, including the factors set
forth in Rule 17f-5(c)(1)(i)-(iv).
(c) Standard for Contracting with Eligible Foreign Custodians. In
exercising the authority delegated under Article II, Section
2, to enter into a written contract governing a Fund's foreign
custody arrangements with a Foreign Custodian in a Selected
Country, the Custodian shall determine that such contract
provides reasonable care for Assets based on the standards
applicable to Foreign Custodians in the Selected Country. In
making this determination, the Custodian shall consider the
provisions of Rule 17f-5(c)(2).
(d) Standard of Care for Delegated Authority. In exercising the
authority delegated under Article II, Section 2, the Custodian
agrees to exercise reasonable care, prudence and diligence
such as a person having direct responsibility for the
safekeeping of the Assets would exercise.
ARTICLE III
CUSTODY PROVISIONS
1. Appointment of Custodian.
(a) The Board hereby constitutes and appoints the Custodian as
custodian of all the Assets and monies at the time owned by or
in the possession of the Funds during the period of this
Agreement.
(b) The Custodian hereby accepts appointment as such custodian and
agrees to perform the duties thereof as hereinafter set forth
2. Custody of Cash and Securities.
(a) Receipt and Holding of Assets. The Funds will deliver or cause
to be delivered to the Custodian all Assets and monies owned
by them at any time during the period of this Custody
Agreement. The Custodian will not be responsible for such
Assets and monies until actually received by it. The Board
hereby specifically authorizes the Custodian to hold Assets or
other property of the Funds with any domestic subcustodian,
Foreign Custodian or Securities Depository. Assets and monies
of the Funds deposited in a Securities Depository will be
represented in accounts which include only assets held by the
Custodian for customers, including but not limited to accounts
for which the Custodian acts in a fiduciary or representative
capacity.
(b) Accounts and Disbursements. The Custodian shall establish and
maintain a separate account in the name of each Fund and shall
credit to such separate accounts all monies, Assets and other
property received by it for the account of each Fund and shall
disburse the same only:
1. In payment for Securities purchased for the
applicable Fund;
2. In payment of dividends or distributions with respect
to the Shares;
3. In payment of original issue or other taxes with
respect to the Shares;
4. In payment for Shares which have been redeemed by the
applicable Fund;
5. Pursuant to Written Instructions received by a Senior
Authorized Person setting forth the name and address
of the person to whom the payment is to be made, the
amount to be paid and the purpose for which payment
is to be made, provided that in the event of
disbursements pursuant to this sub-section 2(b), the
Fund shall indemnify and hold the Custodian harmless
from any claims or losses arising out of such
disbursements in reliance on such Written
Instructions which it, reasonably and in good faith,
believes to be received from Senior Authorized
Persons; or
6. In payment of fees and in reimbursement of the
reasonable expenses and liabilities of the Custodian
attributable to the applicable Fund, as provided in
Article III, Section 9(I) and Article V, Section 1.
(c) Confirmation and Statements. Promptly after the close of
business on each day, the Custodian shall furnish by Facsimile
each Fund with confirmations and a summary of all transfers to
or from the account of the Fund during said Business Day.
Where securities purchased by a Fund 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 Fund. At least monthly, the Custodian shall furnish
each Fund with a detailed statement of the Assets and monies
held for the Fund under this Custody Agreement.
(d) Registration of Securities and Physical Separation. The
Custodian is authorized to hold all Assets, or other property
of each Fund in nominee name, in bearer form or in book-entry
form. The Custodian may register any Assets or other property
of each Fund in the name of the Trust or the Fund, in the name
of the Custodian, any domestic subcustodian, or Foreign
Custodian, 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 Custodian will credit to each Fund's Account at
the Custodian such Assets or other property of the respective
Fund. The Custodian is hereby authorized to deposit with, and
hold Assets or other property of the applicable Fund with any
Securities Depository. 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 Assets which it may hold for the
account of the applicable Fund and which may from time to time
be registered in the name of the Trust or the applicable Fund.
The Custodian shall hold all such Assets specifically
allocated to the applicable Fund which are not held in a
Securities Depository in a separate account for the Fund in
the name of the Fund physically segregated at all times from
those of any other person or persons.
(e) Segregated Accounts. Upon receipt of a Written Instruction,
the Custodian will establish segregated accounts on behalf of
the applicable Fund to hold liquid or other assets as it shall
be directed by a Written Instruction and shall increase or
decrease the assets in such segregated account only as it
shall be directed by subsequent Written Instruction.
(f) Collection of Income and Other Matters Affecting Securities.
Unless otherwise instructed to the contrary by a Written
Instruction, the Custodian by itself, or through the use of a
Securities Depository with respect to Securities therein
deposited, shall with respect to all Securities held for the
Funds in accordance with this Agreement:
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
with respect to Assets 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 Funds for monitoring or
ascertaining any call, redemption or retirement dates
with respect to put bonds which are owned by the
Funds and held by the Custodian or its nominees. Nor
shall the Custodian have any responsibility or
liability to the Funds for any loss by the Funds for
any missed payments or other defaults resulting
therefrom, unless the Custodian received timely
notification from the Funds specifying the time,
place and manner for the presentment of any such put
bond owned by the Funds and held by the Custodian or
its nominee. The Custodian shall not be responsible
and assumes no liability for the accuracy or
completeness of any notification the Custodian may
furnish to the Funds with respect to put bonds,
unless the Custodian has not acted in a reasonably
prudent manner in transmitting information with
respect to the accuracy, completeness or furnishings
of such notice;
3. Surrender Securities in temporary form for definitive
Securities;
4. Promptly execute 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
5. Hold directly, or through a Securities Depository
with respect to Securities therein deposited, for the
account of the applicable Fund all rights and similar
Securities issued with respect to any Securities held
by the Custodian hereunder for that Fund.
(g) Delivery of Securities and Evidence of Authority. Upon receipt
of a Written Instruction and not otherwise, except for
subparagraphs 5, 6, 7, and 8 of this section 2(g) which may be
effected by Oral or Written Instructions, the Custodian,
directly or through the use of a Securities Depository, shall:
1. Execute and promptly deliver or cause to be executed
and delivered to such persons as may be designated in
such Written Instructions, proxies, consents,
authorizations, and any other instruments whereby the
authority of the applicable Fund as owner of any
Securities may be exercised;
2. Deliver or cause to be delivered any Securities held
for the applicable Fund 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;
3. Deliver or cause to be delivered any Securities held
for the applicable Fund 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 Custody Agreement in the separate
account for the Fund such certificates of deposit,
interim receipts or other instruments or documents as
may be issued to it to evidence such delivery;
4. Make or cause to be made such transfers or exchanges
of the assets specifically allocated to the separate
account of the applicable Fund and take such other
steps as shall be stated in Written Instructions to
be for the purpose of effectuating any duly
authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of the
Fund;
5. Deliver Securities upon sale of such Securities for
the account of the applicable Fund pursuant to
Section 3;
6. Deliver Securities upon the receipt of payment in
connection with any repurchase agreement related to
such Securities entered into by the applicable Fund;
7. Deliver Securities owned by the applicable Fund 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 Fund
for monitoring or ascertaining any call, redemption
or retirement dates with respect to the put bonds
which are owned by the Fund and held by the Custodian
or its nominee. Nor shall the Custodian have any
responsibility or liability to the Fund for any loss
by the Fund for any missed payment or other default
resulting therefrom unless the Custodian received
timely notification from the Fund specifying the
time, place and manner for the presentment of any
such put bond owned by the Fund and held by the
Custodian or its nominee. The Custodian shall not be
responsible and assumes no liability to the Fund for
the accuracy or completeness of any notification the
Custodian may furnish to the Fund with respect to put
bonds;
8. Deliver Securities in connection with any loans of
Securities made by the Funds but only against receipt
of adequate collateral as agreed upon from time to
time by the Custodian and the Funds, which may be in
the form of cash or U.S. government securities or a
letter of credit;
9. Deliver Securities as security in connection with any
borrowings by the Funds requiring a pledge of the
applicable Fund's assets, but only against receipt of
amounts borrowed;
10. Deliver Securities upon receipt of Written
Instructions from a Fund for delivery to the Transfer
Agent or to the holders of Shares in connection with
distributions in kind, as may be described from time
to time in the Fund's Prospectus, in satisfaction of
requests by holders of Shares for repurchase or
redemption;
11. Deliver Securities as collateral in connection with
short sales by a Fund of common stock for which the
Fund owns the stock or owns preferred stocks or debt
securities convertible or exchangeable, without
payment or further consideration, into shares of the
common stock sold short;
12. Deliver Securities for any purpose expressly
permitted by and in accordance with procedures
described in the Fund's Prospectus; and
13. Deliver Securities for any other proper business
purpose, but only upon receipt of, in addition to
Written Instructions, a certified copy of a
resolution of the Board signed by an Authorized
Person and certified by the Secretary of the Funds,
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 business
purpose, and naming the person or persons to whom
delivery of such Securities shall be made.
Notwithstanding anything in this Agreement to the contrary,
the Custodian shall not be liable for the acts or omissions of
any agent appointed under paragraph (f) of Section 9 pursuant
to Oral or Written Instructions including, but not limited to,
any broker-dealer or other entity designated by a Fund or its
investment advisor to hold any Securities or other property of
the Fund as collateral or otherwise pursuant to any investment
strategy.
(h) Endorsement and Collection of Checks, Etc. The Custodian is
hereby authorized to endorse and collect all checks, drafts or
other orders for the payment of money received by the
Custodian for the account of the applicable Fund.
3. Settlement of Funds Transactions.
(a) Customary Practices. Notwithstanding anything to the contrary in
this Agreement, the Custodian is authorized to settle
transactions 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 and, in such circumstances, the Fund
shall have responsibility for nondelivery of Securities or other
property (or late delivery) or nonreceipt of payments of monies
(or late payment) by the counterparty, provided, however, that
in such an event, the Custodian agrees to provide reasonable
assistance to the Fund in order to consummate such incomplete
transaction(s) .
(b) Contractual Income. The Custodian shall credit the applicable
Fund with income and maturity proceeds on securities on
contractual payment date net of any taxes or upon actual receipt
as agreed between the Custodian and the Fund. To the extent the
Fund and the Custodian have agreed to credit 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 it will not
receive such amount.
(c) Contractual Settlement. The Custodian will attend to the
settlement of securities transactions on the basis of either
contractual settlement date accounting or actual settlement date
accounting as agreed between the Fund and the Custodian. To the
extent the Fund and the Custodian have agreed to settle certain
securities transactions on the basis of contractual settlement
date accounting, the Custodian may reverse with back value to
the contractual settlement date any entry relating to such
contractual settlement where the related transaction remains
unsettled in accordance with established procedures.
4. Lending of Securities.
The Custodian may lend the assets of the Funds in accordance with the
terms and conditions of a separate securities lending agreement,
approved by the Fund.
5. Payment of Dividends or Distributions.
(a) The Fund shall furnish to the Custodian the vote of the Board
certified by the Secretary (i) authorizing the declaration of
distributions on a specified periodic basis and authorizing
the Custodian to rely on Oral or Written Instructions
specifying the date of the declaration of such distribution,
the date of payment thereof, the record date as of which
shareholders entitled to payment shall be determined, the
amount payable per share to the shareholders of record as of
the record date and the total amount payable to the Transfer
Agent on the payment date, or (ii) setting forth the date of
declaration of any distribution by the Funds, the date of
payment thereof, the record date as of which shareholders
entitled to payment shall be determined, the amount payable
per share to the shareholders of record as of the record date
and the total amount payable to the Transfer Agent on the
payment date.
(b) Upon the payment date specified in such vote, Oral
Instructions or Written Instructions, as the case may be, the
Custodian shall pay out the total amount payable to the
Transfer Agent of the Fund.
6. Sale and Redemption of Shares of the Funds.
(a) Whenever a Fund shall sell any Shares, that Fund shall deliver
or cause to be delivered to the Custodian a Written
Instruction duly specifying:
1. The number of Shares sold, trade date, and price; and
2. The amount of money to be received by the Custodian
for the sale of such Shares.
The Custodian understands and agrees that Written Instructions
may be furnished subsequent to the purchase of Shares and that
the information contained therein will be derived from the
sales of Shares as reported to the Fund by the Transfer Agent.
(b) Upon receipt of money from the Transfer Agent, the Custodian
shall credit such money to the separate account of the
applicable Fund.
(c) Upon issuance of any Shares in accordance with the foregoing
provisions of this Section 6, the Custodian shall pay all
original issue or other taxes required to be paid in
connection with such issuance upon the receipt of a Written
Instruction specifying the amount to be paid.
(d) Except as provided hereafter, whenever any Shares are
redeemed, a Fund shall cause the Transfer Agent to promptly
furnish to the Custodian Written Instructions, specifying:
1. The number of Shares redeemed; and
2. The amount to be paid for the Shares redeemed.
The Custodian further understands that the information
contained in such Written Instructions will be derived from
the redemption of Shares as reported to the Fund by the
Transfer Agent.
(e) Upon receipt from the Transfer Agent of advice setting forth
the number of Shares received by the Transfer Agent for
redemption and that such Shares are valid and in good form for
redemption, the Custodian shall make payment to the Transfer
Agent of the total amount specified in a Written Instruction
issued pursuant to paragraph (d) of this Section 6.
(f) Notwithstanding the above provisions regarding the redemption
of Shares, whenever such Shares are redeemed pursuant to any
check redemption privilege which may from time to time be
offered by the Funds, the Custodian, unless otherwise
instructed by a Written Instruction shall, upon receipt of
advice from the Funds or its agent stating that the redemption
is in good form for redemption in accordance with the check
redemption procedure, honor the check presented as part of
such check redemption privilege out of the monies specifically
allocated to the Funds in such advice for such purpose.
7. Indebtedness.
(a) The Fund will cause to be delivered to the Custodian by any
bank (excluding the Custodian) from which the a Fund borrows
money for temporary administrative or emergency purposes using
Securities as collateral for such borrowings, a notice or
undertaking in the form currently employed by any such bank
setting forth the amount which such bank will loan to the Fund
against delivery of a stated amount of collateral. The Fund
shall promptly deliver to the Custodian Written Instructions
stating with respect to each such borrowing: (1) the name of
the bank; (2) the amount and terms of the borrowing, which may
be set forth by incorporating by reference an attached
promissory note, duly endorsed by the Funds, or other loan
agreement; (3) the time and date, if known, on which the loan
is to be entered into (the "borrowing date"); (4) the date on
which the loan becomes due and payable; (5) the total amount
payable to the Funds on the borrowing date; (6) the market
value of Securities to be delivered as collateral for such
loan, including the name of the issuer, the title and the
number of shares or the principal amount of any particular
Securities; (7) whether the Custodian is to deliver such
collateral through a Securities Depository; and (8) a
statement that such loan is in conformance with the 1940 Act
and the Fund's Prospectus.
(b) Upon receipt of the Written Instruction referred to in
subparagraph (a) above, the Custodian shall deliver on the
borrowing date the specified collateral and the executed
promissory note, if any, against delivery by the lending bank
of the total amount of the loan payable, provided that the
same conforms to the total amount payable as set forth in the
Written Instruction. The Custodian may, at the option of the
lending bank, keep such collateral in its possession, but such
collateral shall be subject to all rights therein granted to
the lending bank by virtue of any promissory note or loan
agreement. The Custodian shall deliver as additional
collateral in the manner directed by the Fund from time to
time such Securities as may be specified in Written
Instruction to collateralize further any transaction described
in this Section 7. The Fund shall cause all Securities
released from collateral status to be returned directly to the
Custodian, and the Custodian shall receive from time to time
such return of collateral as may be tendered to it. In the
event that the Fund fails to specify in Written Instruction
all of the information required by this Section 7, the
Custodian shall not be under any obligation to deliver any
Securities. Collateral returned to the Custodian shall be held
hereunder as it was prior to being used as collateral.
8. Persons Having Access to Assets of the Funds.
(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
Funds held by the Custodian or be authorized or permitted to
withdraw any investments of the Funds, nor shall the Custodian
deliver any assets of the Funds 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 Funds.
(b) Nothing in this Section 8 shall prohibit any duly authorized
officer, employee or agent of the Fund, including the Fund's
independent public accountants or any duly authorized officer,
director, employee or agent of the investment adviser, of any
sub-investment adviser of the Funds or of the Fund's
administrator, from giving Oral Instructions or Written
Instructions to the Custodian or executing a Certificate so
long as it does not result in delivery of or access to assets
of the Funds prohibited by paragraph (a) of this Section 8.
9. Concerning the Custodian.
(a) Standard of Conduct. 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, recklessness, or
willful misconduct of the Custodian or its breach of this
Agreement. The Custodian will use reasonable care in the
performance of its duties under this contract. 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 with substantial experience in the subject matter
concerning such questions of the law, at the expense of the
Fund, and shall be fully protected with respect to anything
done or omitted by it reasonably and in good faith in
conformity with such advice or opinion.
(b) Limit 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 validity of the issue of any Securities purchased
by the Funds, the legality of the purchase thereof,
or the propriety of the amount paid therefor;
2. The legality of the sale of any Securities by the
Funds or the propriety of the amount for which the
same are sold;
3. The legality of the issue or sale of any Shares, or
the sufficiency of the amount to be received
therefor;
4. The legality of the redemption of any Shares, or the
propriety of the amount to be paid therefor;
5. The legality of the declaration or payment of any
distribution of the Funds;
6. 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
Funds until the Custodian actually receives and collects such
money.
(d) Amounts Due from Transfer Agent. The Custodian shall not be
under any duty or obligation to take action to effect
collection of any amount due to the Funds from the Transfer
Agent nor to take any action to effect payment or distribution
by the Transfer Agent of any amount paid by the Custodian to
the Transfer Agent in accordance with this Custody Agreement.
(e) Collection Where Payment Refused. The Custodian shall not be
under any duty or obligation 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 (i) it
shall be directed to take such action by a Certificate and
(ii) it shall be assured to its satisfaction of reimbursement
of its costs and expenses in connection with any such action.
(f) Appointment of Subcustodians. (i) 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 Funds.The
Custodian is also hereby authorized to place Assets with any
Foreign Custodian located in a jurisdiction which is not a
Selected Country and with Euroclear, Cedel, First Chicago
Clearing Centre or any other transnational depository.
(g) 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
Funds are such as may properly be held by the Funds under the
provisions of the Articles and the Prospectus.
(h) Reliance on Certificates and Instructions. The Custodian shall
be entitled to rely upon any Certificate, 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 or a Senior Authorized Person.
The Custodian shall be entitled to rely upon any Written
Instructions or Oral Instructions actually received by the
Custodian pursuant to the applicable Sections of this
Agreement and reasonably believed by the Custodian to be
genuine and to be given by such person. The Funds agree to
forward to the Custodian Written Instructions from an
Authorized Person or Senior Authorized Person confirming such
Oral Instructions in such manner so that such Written
Instructions are received by the Custodian, whether by hand
delivery, telex or otherwise, by the close of business on the
same day that such Oral Instructions are given to the
Custodian. The Funds agree that the fact that such confirming
instructions are not received by the Custodian shall in no way
affect the validity of the transactions or enforceability of
the transactions hereby authorized by the Funds. The Funds
agree that the Custodian shall incur no liability to the Funds
in acting upon Oral Instructions given to the Custodian
hereunder concerning such transactions provided such
instructions reasonably appear to have been received from a
duly Authorized Person or Senior Authorized Person. The
Custodian shall be under no duty to question any direction of
an Authorized Person or a Senior Authorized Person with
respect to the portion of the account over which such person
has authority, to review any property held in the account, to
make any suggestions with respect to the investment and
reinvestment of the assets in the account, or to evaluate or
question the performance of any Authorized Person or Senior
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.
(i) Overdraft Facility and Security for Payment. In the event that
the Custodian is directed by Written Instruction (or Oral
Instructions confirmed in writing in accordance with Section
9(h) hereof) to make any payment or transfer of monies on
behalf of the Funds 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 Funds, the
Custodian may, in its sole discretion, provide an overdraft
(an "Overdraft") to the Funds in an amount sufficient to allow
the completion of such payment or transfer. The Custodian
shall promptly notify the Funds (an "Overdraft Notice") of any
Overdraft by facsimile transmission or in such other manner as
the Funds and the Custodian may agree. Any Overdraft provided
hereunder: (a) shall be payable on the next Business Day after
receipt of an Overdraft Notice, unless otherwise agreed by the
Funds and the Custodian; and (b) shall accrue interest from
the date of the Overdraft to the date of payment in full by
the Funds at a rate agreed upon from time to time, by the
Custodian and the Funds. The Custodian and the Funds
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 emergency
expenses not reasonably foreseeable by the Funds. To secure
payment of any Overdraft, the Funds hereby grant to the
Custodian a continuing security interest in and right of
setoff against the Securities and cash in the Fund's accounts
from time to time in the full amount of such Overdraft. Should
the Funds fail to pay promptly any amounts owed hereunder, the
Custodian shall be entitled to use available cash in the
applicable Fund's account and to liquidate Securities in the
account as is necessary to meet the Fund's 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 Massachusetts Uniform Commercial Code or any other
applicable law.
ARTICLE IV
INFORMATION SERVICES AGREEMENT
The following sets forth our agreement with respect to the delivery of certain
information to the Board or its agents as requested by the Board from time to
time.
1. Provisions of Information
In accordance with the provisions of this Information Services
Agreement, the Custodian agrees to provide to the Board, or at the
direction of the Board, to the Fund's investment advisers, the
information set forth in Article IV, Section 2 with respect to Foreign
Custodians and Securities Depositories which hold Securities, Assets,
or other property of the Funds and the systems and environment for
securities processing in the jurisdiction in which such Foreign
Custodians or Securities Depositories are located. The Custodian shall
provide only that portion of such information as is reasonably
available to it.
2. Information to be Provided
Country Information
Settlement Environment
Depository
Settlement Period
Trading
Security Registration
Currency
Foreign Investment Restrictions
Entitlements
Proxy Voting
Foreign Taxation
Depository Information (if applicable to the Country)
Name
Information relative to Determining Compulsory or Voluntary
Status of the Facility
Type of Entity
Ownership Structure
Operating History
Eligible Instruments
Security Form
Financial Data
Regulator
External Auditor
Subcustodian Information
Financial Information
Regulator
External Auditor
How Securities are Held
Operational Capabilities
Insurance Coverage
Information on the Following Legal Questions
Would the applicable foreign law restrict the access afforded
the independent public accountants of the Funds to books and
records kept by a foreign custodian?
Would the applicable foreign law restrict the ability of the
Funds to recover their assets in the event of bankruptcy of
the foreign custodian?
Would the applicable foreign law restrict the ability of the
Funds to recover assets that are lost while under the control
or in the custody of the foreign custodian?
What are the foreseeable difficulties in converting the Fund's
cash from the relevant foreign currency into U.S. dollars?
3. Liability and Warranties
The Custodian will use reasonable best efforts to ensure that the information
provided pursuant to Article IV, Section 1 is accurate and current as of time of
provision. However, due to the nature and source of this information, and the
necessity of relying on various information sources, most of which are external
to the Custodian, the Custodian shall have no liability for direct or indirect
use of such information if the Custodian acted reasonably. The Custodian makes
no other warranty or condition, either express or implied, as to the
merchantability or fitness for any particular purpose of the information
provided under this Article IV.
ARTICLE V
ADDITIONAL PROVISIONS
1. Compensation.
(a) The Custodian shall be entitled to receive, and the Fund
agrees to pay to the Custodian, such reasonable compensation
as may be agreed upon from time to time between the Custodian
and the Fund. The Custodian may charge against any monies held
on behalf of the Funds pursuant to this Agreement such
reasonable compensation and any reasonable expenses incurred
by the Custodian in the performance of its duties pursuant to
this Agreement. The Custodian shall also be entitled to charge
against any money held on behalf of the Funds pursuant to this
Agreement the amount of any loss, damage, liability or expense
incurred with respect to the Funds, including counsel fees,
for which it shall be entitled to reimbursement under the
provisions of this Agreement. The expenses which the Custodian
may charge against such account include, but are not limited
to, the expenses of domestic subcustodians and Foreign
Custodians incurred in settling transactions outside of
Boston, Massachusetts or New York City, New York involving the
purchase and sale of Securities.
(b) 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.
(c) Any compensation agreed to hereunder may be adjusted from time
to time by a revised Fee Schedule, dated and signed by a
Senior Authorized Person or authorized representative of each
party hereto.
(d) The Custodian will xxxx the Fund for services rendered
hereunder as soon as practicable after the end of each
calendar month but in no event later than the 15th day of the
month following the month in which such services were
rendered. The Fund will promptly pay to the Custodian the
amount of such billing unless such fees have been previously
debited under Section 1(a). In making payments to service
providers pursuant to Written 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.
2. Insolvency of Eligible Foreign Custodians.
The Custodian shall not be responsible or liable for any losses or
damages suffered by the Funds arising as a result of the insolvency of
any Foreign Custodian except with respect to any Foreign Custodian in
any Selected Country which the Custodian appointed in accordance with
the provisions of Article II but only to the extent that the Custodian
failed to comply with the standard of care set forth in Article II with
respect to the selection and monitoring of such Foreign Custodian.
3. 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 Funds with any Securities Depository.
4. Damages.
Under no circumstances shall the Custodian be liable for any indirect,
consequential or special damages with respect to its role as Delegate,
Custodian or information vendor.
5. Limitation of Liability.
The Funds 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 Funds, individually, but are binding only
upon the assets and property of the Fund, as provided in the Articles.
The execution and delivery of this Agreement have been authorized by
the Trustees of the Fund, and signed by an authorized officer of the
Fund, acting as such. Neither such authorization by such Trustees nor
such execution and delivery by such officer shall be deemed to have
been made by any of them or any shareholder of the Funds individually
or to impose any liability on any of them or any shareholder of the
Funds personally, but shall bind only the assets and property of the
Fund as provided in the Master Trust Agreement.
6. Term and Termination.
(a) This Agreement and any portion thereof shall become effective
on the date first set forth above (the "Effective Date") and
shall continue in effect thereafter until such time as this
Agreement may be terminated in accordance with the provisions
hereof.
(b) Either of the parties hereto may terminate this Agreement as a
whole or may terminate either the Delegation Agreement or the
Information Services Agreement individually or the Delegation
Agreement collectively by giving to the other party a notice
in writing specifying the date and scope of such termination,
which shall be not less than 60 days after the date of receipt
of such notice. In the event such notice is given by the Fund,
it shall be accompanied by a certified vote of the Board,
electing to terminate this Agreement or the applicable portion
thereof .
In the event such notice is given by the Custodian of any
termination which includes the Custody Agreement, the Fund
shall, on or before the termination date, deliver to the
Custodian a certified vote of the Board, designating a
successor custodian or custodians. In the absence of such
designation by the Fund, the Custodian may designate a
successor custodian, which shall be a person qualified to so
act under the 0000 Xxx. If the Fund fails to designate a
successor custodian, the Fund shall upon the date specified in
the notice of termination of this Agreement and upon the
delivery by the Custodian of all Securities and monies then
owned by the Funds, be deemed to be its own custodian and the
Custodian shall thereby be relieved of all duties and
responsibilities pursuant to this Agreement or the portion so
terminated, other than the duty with respect to Securities
held in the Book-Entry System which cannot be delivered to the
Funds.
(c) Upon the date set forth in such notice under paragraph (b) of
this Section 6, this Agreement or portion thereof shall
terminate to the extent specified in such notice, and if the
Custody Agreement is terminated the Custodian shall upon
receipt of a notice of acceptance by the successor custodian
on that date deliver directly to the successor custodian all
Securities and monies then held by the Custodian on behalf of
the Funds, after deducting all fees, expenses and other
amounts for the payment or reimbursement of which it shall
then be entitled as set forth in this Agreement.
(d) If there is a material default in the Agreement by either
party, the non-defaulting party may immediately terminate the
Agreement pursuant to the procedures set forth in Section 6(b)
and the non-defaulting party shall be entitled to reasonable
attorney's fees.
7. Force Majeure.
Notwithstanding anything in this Agreement to the contrary, neither the
Custodian nor the Fund shall 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, de facto or de jure; or enactment,
promulgation, imposition or enforcement by any such governmental
authority of currency restrictions, exchange controls, taxes, levies or
other charges affecting the Fund's 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 or third-party event. This Section
shall survive the termination of this Agreement.
8. 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 staff of the Securities and Exchange Commission.
9. Miscellaneous.
(a) Annexed hereto as Appendix C is a certification signed by the
Secretary of the Fund setting forth the names and the
signatures of the present Authorized and Senior Authorized
Persons. The Fund agrees to furnish to the Custodian a new
certification in similar form in the event that any such
present person ceases to be such an Authorized Person or
Senior Authorized Person or in the event that other or
additional persons are elected or appointed. Until such new
certification shall be received, the Custodian shall be fully
protected in acting under the provisions of this Agreement
upon Oral Instructions or signatures of the present Authorized
and Senior Authorized Persons as set forth in the last
delivered certification.
(b) Annexed hereto as Appendix A is a certification 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 certification in
similar form in the event any such present officer ceases to
be an officer of the Fund or in the event that other or
additional officers are elected or appointed. Until such new
certification shall be received, the Custodian shall be fully
protected in acting under the provisions of this Agreement
upon the signature of an officer as set forth in the last
delivered certification.
(c) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Custodian, shall
be sufficiently given if actually received by the Custodian at
its offices at Xxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
or at such other place as the Custodian may from time to time
designate in writing.
(d) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Fund, shall be
sufficiently given if actually received by the Fund at its
offices at 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX
00000 or at such other place as the Fund may from time to time
designate in writing.
(e) Except as provided in Article II, Section 2 this Agreement may
not be amended or modified in any manner except by a written
agreement executed by both parties with the same formality as
this Agreement (i) authorized, or ratified and approved by a
vote of the Board of Trustees of the Fund, including a
majority of the members of the Board of Trustees of the Fund
who are not "interested persons" of the Fund (as defined in
the 1940 Act), or (ii) authorized, or ratified and approved by
such other procedures as may be permitted or required by the
1940 Act.
(f) 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 of Trustees of
the Fund provided, however, that the Custodian may assign the
Agreement to an Affiliated Person and any attempted assignment
without such written consent shall be null and void. Nothing
in this Agreement shall give or be construed to give or confer
upon any third party any rights hereunder.
(g) The Fund represents that a copy of the Master Trust Agreement
is on file with the Secretary of the Commonwealth of
Massachusetts and with the Boston City Clerk.
(h) This Agreement shall be construed in accordance with the laws
of The Commonwealth of Massachusetts.
(i) The captions of this 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) 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.
(k) 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 under this
Agreement and that this Agreement does not violate, breach,
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.
(l) Custodian convenants that it will maintain financial insurance
coverage for its operations, including errors and omissions,
directors and officers and Fidelity bond insurance.
(m) The parties agree that information disclosed between the
parties, including but not limited to information learned by
one party from the other party's employees, agents or through
inspection of its property, that relates to it or its
affiliates' (which includes any entity controlling or under
the common control of such party) products, designs, business
plans, business opportunities, finances, research,
development, know-how, personnel, third-party confidential
information, the terms and conditions of this Agreement,
information regarding either party's or its affiliates'
customers and the existence of the discussion between the
parties will be considered and referred to collectively in
this Agreement as "Confidential Information," provided that
information disclosed by the disclosing party (the
"discloser") will be considered Confidential Information by
the receiving party (the "recipient"). Confidential
Information, however, does not include information that: (1)
is now or subsequently becomes generally available to the
public through no fault or breach on the part of the
recipient; (2) the recipient can demonstrate to have had
rightfully in its possession free of any obligation of
Confidentiality; (3) is independently developed by the
recipient without the use of any Confidential Information; or
(4) the recipient rightfully obtains from a third party who
has the right to transfer or disclose it or if such party does
not have such right, then the recipient had no reason to know
of such circumstance and no actual knowledge of such
circumstance.
The recipient will not disclose, publish, or disseminate
Confidential Information to anyone other than those of its
employees or consultant (or its affiliates' or subsidiaries'
employees or consultants) with a need to know, and the
recipient agrees to take reasonable precautions to prevent any
unauthorized use, disclosure, publication, or dissemination of
Confidential Information. The recipient agrees to accept
Confidential Information for the sole purpose of the
performance of its duties in connection with this Agreement.
The recipient agrees not to use Confidential Information
otherwise for its own or any third party's benefit without the
prior written approval of an authorized representative of the
discloser in each instance.
All Confidential Information, and any Derivative thereof,
whether created by the recipient or the discloser, remains the
property of the discloser and no license or other rights to
Confidential Information is granted or implied hereby. For
purposes of this Agreement, "Derivatives" shall mean: (1) for
copyrightable or copyrighted material, any translation,
abridgment, revision or other form in which an existing work
may be recast, transformed or adapted; (2) for patentable or
patented material, or any improvement thereon; and (3) for
material which is protected by trade secret, any new material
derived from such existing trade secret material, including
any new material which may be protected by copyright, patent
and/or trade secret.
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
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
BOSTON SAFE DEPOSIT AND TRUST COMPANY
By: /s/ Xxxxxxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Vice President
APPENDIX A
I, Xxxxxx X. Xxxxx, the Secretary of the JNL Variable Fund LLC, a
Delaware Limited Liability Company organized under the laws of the State of
Delaware (the "Fund"), do hereby certify that:
The following individuals have been duly authorized as Authorized
Persons to give Oral Instructions and Written 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 Position Signature
Xxxxxx X. Xxxxxxx President and Chief
Executive Officer /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx Vice President, /s/ Xxxxxx X. Xxxxxx
Treasurer and Chief
Financial Officer
Xxxxxx X. Xxxxx Vice President, Counsel /s/ Xxxxxx X. Xxxxx
and Secretary
Xxxx X. Xxxxx Vice President and /s/ Xxxx X. Xxxxx
Assistant Treasurer
Xxx X. Xxxxxxxxx Vice President and /s/ Xxx X. Xxxxxxxxx
Assistant Secretary
Xxxxxxx X. Xxxxx Employee of Xxxxxxx /s/ Xxxxxxx X. Xxxxx
National Financial
Services, LLC
Xxxx Xxxxxxxx Employee of Xxxxxxx /s/ Xxxx Xxxxxxxx
National Financial
Services, LLC
By: /s/ Xxxxxx X. Xxxxx
--------------------
Secretary
Dated
APPENDIX B
SELECTED COUNTRIES
ARGENTINA KOREA, REPUBLIC OF
AUSTRALIA LUXEMBOURG
AUSTRIA MALAYSIA
BANGLADESH MAURITIUS
BELGIUM MEXICO
BERMUDA NAMIBIA
BOTSWANA THE NETHERLANDS
BRAZIL NEW ZEALAND
CANADA NORWAY
CHILE PAKISTAN
CHINA, PEOPLES' REPUBLIC OF PERU
COLOMBIA THE PHILIPPINES
CYPRUS POLAND
THE CZECH REPUBLIC PORTUGAL
DENMARK SINGAPORE
EGYPT SLOVAK REPUBLIC
FINLAND SOUTH AFRICA
FRANCE SPAIN
GERMANY SRI LANKA
GHANA SWEDEN
GREECE SWITZERLAND
HONG KONG TAIWAN
HUNGARY THAILAND
INDIA TURKEY
INDONESIA UNITED KINGDOM
IRELAND URUGUAY
ISRAEL VENEZUELA
ITALY ZAMBIA
JAPAN ZIMBABWE
KENYA
APPENDIX C
I, Xxxxxx X. Xxxxx, the Secretary of the JNL Variable Fund LLC, a
Delaware Limited Liability Company organized under the laws of the State of
Delaware (the "Fund"), do hereby certify that:
The following individuals serve in the following positions with the Fund
and each individual has been duly elected or appointed to each such position and
qualified therefor in conformity with the Fund's Master Trust Agreement and the
specimen signatures set forth opposite their respective names are their true and
correct signatures:
Name Position Signature
Xxxxxx X. Xxxxxxx President and Chief /s/ Xxxxxx X. Xxxxxxx
Executive Officer
Xxxxxx X. Xxxxxx Vice President, /s/ Xxxxxx X. Xxxxxx
Treasurer and Chief
Financial Officer
Xxxxxx X. Xxxxx Vice President, Counsel /s/ Xxxxxx X. Xxxxx
and Secretary
Xxxx X. Xxxxx Vice President and /s/ Xxxx X. Xxxxx
Assistant Treasurer
Xxx X. Xxxxxxxxx Vice President and /s/ Xxx X. Xxxxxxxxx
Assistant Secretary
By: /s/ Xxxxxx X. Xxxxx
-----------------------
Secretary
Dated
JNL Variable Fund LLC
Fee Schedule
April 20, 1999
Safekeeping & Transaction Fees:
United States
3/4 (.000075) basis point on U.S. assets
$7 per DTC, Fed or PTC transaction
$25 per physical transaction
Developed
Category I
Canada Japan 4.0 basis points on the market value
Cedel The Netherlands $20 per buy/sell transaction
Euroclear United Kingdom
Germany Switzerland
Category II
Belgium New Zealand 5.5 basis points on the market value
Denmark Norway $40 per buy/sell transaction
France South Africa
Ireland Spain
Italy Sweden
Australia
Category III
Austria Argentina 8.0 basis points on market value
Finland Brazil $50 per buy/sell transaction
Malaysia Singapore
Mexico Thailand
S. Korea Sri Lanka
Hong Kong
Intermediate
Category IV
Greece Czech Republic 14.0 basis points on market value
Philippines Israel $50 per buy/sell transaction
Turkey Portugal
Zimbabwe
Indonesia
Category V
Botswana Luxembourg 22.0 basis points on market value
Poland China $60 per buy/sell transaction
Slovak Republic Taiwan
Ghana
Emerging
Category VI
Egypt Uruguay 42.0 basis points on market value
Bermuda Kenya $85 per buy/sell transaction
Colombia Peru
Bangladesh Cyprus
Hungary Mauritius
Jordan Venezuela
Pakistan India
Russia Estonia
Chile Ecuador
Other Fees:
- $30 per foreign exchange contract executed outside Boston Safe Deposit
& Trust
- $5.00 per wire transfer (out)
- $5.00 per paydown
Client Reporting Service Includes 2 User ID's.
Options and Futures $250 per broker relationship
(Assumes utilization of Boston Safe
boilerplate agreement)
$7 per futures transaction
$5 per margin variation wire
$20 per options round-trip
Comments:
o Boston Safe/Mellon Trust will pass through all out-of-pocket costs
associated with international custody including, but not limited to,
registration fees, stamp duties, etc.
o Any communication and hardware expenses incurred by JNL Variable Fund
LLC required to support a data transmission between Boston Safe/Mellon
Trust and any operating unit or agent of JNL Variable Fund LLC
including terminals, printers, leased lines, will be the responsibility
of JNL Variable Fund LLC.
o Boston Safe/Mellon Trust guarantees this fee schedule for three (3)
years from inception.
o Fees are payable monthly.
BOSTON SAFE DEPOSIT AND TRUST COMPANY
By: /s/ Xxxxxxxxxxx Xxxxxx
----------------------------
Title: Vice President
----------------------------
Date: 5-6-99
----------------------------
JNL Variable Fund LLC
By: /s/ Xxxx Xxxxx
----------------------------
Title: Vice President
----------------------------
Date: 4/23/99
----------------------------
