EX-99.23(h)(16)
AMENDED AND RESTATED ADMINISTRATION AGREEMENT
This Agreement is made as of December 15, 2004, 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;
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 LICENSE FEES. For all license fees the Administrator will pay
the license fee minimums and fixed annual fees;
2.1.14 JNAM CHIEF COMPLIANCE OFFICER. For all expenses related to
his/her position as JNAM's Chief Compliance Officer; and
2.1.15 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 ASSET-BASED LICENSE FEES. All asset-based license fees for the
Funds;
2.2.10 FUNDS' CHIEF COMPLIANCE OFFICER. For all expenses related to
his/her position as the Fund's Chief Compliance Officer; and
2.2.11 MANAGERS' ERRORS AND OMISSION POLICY. For all expenses of the
Managers' Errors & Omission Policy.
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: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------- --------------------------------------------------
Xxxxx X. Xxxx Xxxxxx X. Xxxxxx
Secretary President
XXXXXXX NATIONAL ASSET MANAGEMENT, LLC
Attest: /s/ Xxxxx X. Xxxx By: /s/ Xxxx X. Xxxxx
-------------------------------------------- --------------------------------------------------
Xxxxx X. Xxxx Xxxx X. Xxxxx
Secretary Chief Financial Officer
SCHEDULE A
DATED DECEMBER 15, 2004
JNL/Mellon Capital Management The DowSM 10 Fund
JNL/Mellon Capital Management The S&P(R) 10 Fund
JNL/Mellon Capital Management Global 15 Fund
JNL/Mellon Capital Management 25 Fund
JNL/Mellon Capital Management Select Small-Cap Fund
JNL/Mellon Capital Management Nasdaq(R) 15 Fund
JNL/Mellon Capital Management VIP Fund
JNL/Mellon Capital Management Value Line(R) 25 Fund
JNL/Mellon Capital Management JNL 5 Fund
JNL/Mellon Capital Management Communications Sector Fund
JNL/Mellon Capital Management Consumer Brands Sector Fund
JNL/Mellon Capital Management Energy Sector Fund
JNL/Mellon Capital Management Financial Sector Fund
JNL/Mellon Capital Management Pharmaceutical/Healthcare Sector Fund
JNL/Mellon Capital Management Technology Sector Fund
SCHEDULE B
DATED DECEMBER 15, 2004
FUNDS FEE
JNL/Mellon Capital Management The DowSM 10 Fund .15%
JNL/Mellon Capital Management The S&P(R) 10 Fund .15%
JNL/Mellon Capital Management Global 15 Fund .20%
JNL/Mellon Capital Management 25 Fund .15%
JNL/Mellon Capital Management Select Small-Cap Fund .15%
JNL/Mellon Capital Management Nasdaq(R) 15 Fund .15%
JNL/Mellon Capital Management VIP Fund .15%
JNL/Mellon Capital Management Value Line(R) 25 Fund .15%
JNL/Mellon Capital Management JNL 5 Fund .15%
JNL/Mellon Capital Management Communications Sector Fund .15%
JNL/Mellon Capital Management Consumer Brands Sector Fund .15%
JNL/Mellon Capital Management Energy Sector Fund .15%
JNL/Mellon Capital Management Financial Sector Fund .15%
JNL/Mellon Capital Management Pharmaceutical/Healthcare Sector Fund .15%
JNL/Mellon Capital Management Technology Sector Fund .15%
