EX-99.h.5
JNLNY VARIABLE FUND I LLC
TRANSFER AGENCY AGREEMENT
AGREEMENT made as of this 16th day of May, 2002, by and between JNLNY
Variable Fund I LLC, a Delaware limited liability corporation (the "Variable
Fund"), and ▇▇▇▇▇▇▇ National Asset Management, LLC, a Michigan limited liability
corporation ("JNAM").
WITNESSETH
WHEREAS, the Variable Fund is an open-end, management company registered
under the Investment Company Act of 1940 (the "1940 Act"); and
WHEREAS, the Variable Fund is empowered to issue units of beneficial
interest ("Units") in separate series ("Series"), each such Series, pursuant to
Section 18(f)(2) of the 1940 Act, being preferred over all other Series in
respect of the assets specifically allocated to such Series; and
WHEREAS, the Variable Fund presently intends to offer to insurance company
separate accounts and certain qualified retirement plans Units of 12 Series of
the Variable Fund, listed in Exhibit A, (the "Current Portfolios") but may
create additional Series from time to time; and
WHEREAS, the Variable Fund desires to retain JNAM to render the transfer
agency and other services contemplated hereby with respect to each Series of
Units and the owners of record thereof ("Unitholders") and JNAM is willing to
render such services.
NOW, THEREFORE, in consideration of the premises and mutual convenants
hereinafter set forth, the parties hereto agree as follows:
1. Appointment. The Variable Fund hereby appoints JNAM to provide the
transfer agency and other services contemplated hereby with respect to each
Series of Units and Unitholders for the periods and on the terms set forth. JNAM
accepts such appointment and agrees to render such transfer agency and other
services for the compensation herein provided.
2. Duties to JNAM. JNAM will act as transfer agent with respect to each
Series of Units, provide information in connection with the Variable Fund's
preparation of various regulatory reports and prepare reports to the Managers
and management of the Variable Fund. In this connection, JNAM, subject to
Section 3 below, shall perform the following services (as may be from time to
time further specified in or modified by Exhibit A attached hereto by mutual
written consent of the parties):
(a) process purchase orders and redemption requests from Unitholders,
furnish confirmations and disburse redemption proceeds;
(b) act as the income disbursing agent of the Variable Fund;
(c) provide periodic statements of account to each Unitholder;
(d) furnish necessary office space, facilities and personnel;
(e) maintain all records relating to its activities and obligations
under this Agreement in such manner as will enable the Variable
Fund and JNAM to meet their respective obligations under: (i) the
current prospectus; (ii) the 1940 Act, particularly Sections 30
and 31 thereof, and the rules and regulations thereunder; (iii)
applicable Federal and state tax laws; and (iv) any other law or
administrative rule or procedure which may be applicable to the
Variable Fund or JNAM. JNAM shall preserve all records and other
data created and maintained pursuant to this Agreement in
accordance with Instructions from the Variable Fund;
(f) prepare and file with the Internal Revenue Service and with the
appropriate state agencies, and mail to the Unitholders of
record, such returns for reporting, and information as to the
Federal income tax consequences of, dividends and distributions
paid, created or withheld as are required on the part of the
Variable Fund or JNAM by the current prospectus or applicable law
or regulation to be so filed and mailed. Without limiting the
generality of the foregoing, such returns and information shall
be prepared in conformity with such Instructions, if any, from
the Variable Fund as may be given to JNAM from time to time, and;
(g) render to the Variable Fund such periodic and special reports as
it may reasonably request.
3. Subcontracting. Upon written consent of the Variable Fund, JNAM may
subcontract certain obligations hereunder. JNAM shall remain responsible on a
primary basis to the Variable Fund for the timely and proper performance of such
obligations in accordance with the terms of this Agreement.
4. Fees and Expenses. For the services provided and the expenses assumed by
JNAM pursuant to this Agreement, the Variable Fund will pay JNAM through the
Advisory Fee.
5. Duration and Termination.
a. Subject to the provisions hereinafter set forth, this Agreement
shall commence on the date hereof and shall continue in force and
effect until terminated by either party by giving to the other
party written notice at least ninety (90) days in advance.
b. If either of the parties hereto shall breach this Agreement or be
in default in the performance of any of its duties and
obligations hereunder, the non-defaulting party may give written
notice thereof to the defaulting party and if such default or
breach shall not have been remedied within thirty (30) days after
such written notice is given, then the party giving such written
notice may terminate this Agreement at the end of such thirty
(30) day period. Termination of this Agreement by one party by
reason of default or breach of the other party shall not
constitute a waiver by the terminating party of any other rights
it might have under this Agreement against the other party,
including without limitation rights with reference to services
performed or not performed prior to such terminating or rights of
JNAM to be reimbursed for out-of-pocket expenditures or equipment
or communication circuit termination fees, if any.
c. If this Agreement is terminated for any reason, JNAM will act in
good faith to cooperate in an orderly transition to a successor
transfer agent or in an orderly termination of the operations of
the Variable Fund, as the case may be.
6. Representations, Warranties and Covenants.
a. JNAM represents and warrants to the Variable Fund, and covenants
to the Variable Fund for the duration of this Agreement, as
follows:
(i) It is a limited liability company duly organized and
existing and in good standing under the laws of the State of
Michigan;
(ii) It is empowered under applicable laws and regulations and by
its Operating Agreement to enter into and perform the
services contemplated in this Agreement;
(iii)All requisite proceedings have been taken to authorize it
to enter into and perform this Agreement;
(iv) It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties
and obligations under this Agreement;
(v) It has obtained all federal and state regulatory approvals,
authorizations and licenses required to perform its duties
and obligations under this Agreement and will keep current
such approvals, authorizations and licenses; and
(vi) Various procedures and systems which it has implemented with
regard to safeguarding from loss or damage attributable to
fire, theft or any other cause the Variable Fund's records
and other data and JNAM's records, data, equipment,
facilities and other property used in the performance of its
obligations hereunder are adequate and that it will make
such changes therein from time to time as in its judgment
are required for the secure performance of its obligations
hereunder.
b. The Variable Fund represents and warrants to JNAM, and covenants
to JNAM for the duration of this Agreement, as follows:
(i) It is a limited liability company duly organized under the
laws of the State of Delaware;
(ii) It is, and at all times relevant hereto will continue to be,
an open-end management company registered under the
Investment Company Act of 1940:
(iii)A registration statement under the Securities Act of 1933
has been declared effective by the Securities and Exchange
Commission and will remain effective at all time relevant
hereto, and, if necessary, appropriate state securities laws
filings will have been made and will continue to be made at
all times relevant hereto; and
(iv) It is empowered under applicable laws and regulations and by
its Operating Agreement to enter into and perform this
Agreement; and all requisite proceedings have been taken to
authorize it to enter into and perform under this Agreement.
7. Instructions.
a. JNAM shall be deemed to have received Instructions (as that term
is used herein) upon receipt of written instructions (including
receipt by facsimile), which may be continuing instructions,
signed by one or more persons the Managers shall have from time
to time authorized to give the particular class of Instructions
in question. Different persons may be authorized to give
Instructions for different purposes, and Instructions may be
general or specific in terms. A certified copy of a bylaw,
resolution or action of the Managers of the Variable Fund may be
received and accepted by JNAM as conclusive evidence of the
authority of any such persons to act and may be considered to be
in full force and effect until receipt of written notice (or oral
notice followed by written confirmation within seven days) to the
contrary.
b. One or more designated persons may be authorized to issue oral
(such term as used herein including, without limitation,
telephoned) instructions, specifying the type or types of
instructions that may be so issued, in which case the Variable
Fund shall deliver to JNAM resolutions of the Managers to such
effect. Such oral instructions shall promptly be confirmed in
writing to JNAM. Such instructions when given in accordance with
the provisions hereof and with such resolutions shall be deemed
Instructions hereunder. In the case of conflict between oral
Instructions given by a person designated in the resolution of
the Managers referred to in the first sentence of this
subparagraph (b) and any written Instructions, the Instructions
most recently received by JNAM shall prevail following such
receipt, and in case of conflict between oral Instructions given
by a person designated in such resolution and any written
confirmation or purported confirmation of oral Instructions, such
written confirmation or purported confirmation shall prevail
following receipt thereof by JNAM; provided that any transaction
initiated by JNAM pursuant to such oral Instructions, may, but
need not, be completed by JNAM notwithstanding JNAM's receipt of
conflicting subsequent Instructions hereunder or written
confirmation or purported confirmation of oral Instructions
hereunder subsequent to JNAM's initiation of such transaction.
8. Status of JNAM as Independent Contractor. JNAM shall for all
purposes herein be deemed to be an independent contractor and shall, unless
otherwise expressly provided herein or authorized by the Managers of the
Variable Fund from time to time, have no authority to act for or represent
the Variable Fund in any way or otherwise be deemed an agent of the
Variable Fund.
9. Managers, Officer and Unitholder Liability. This Agreement is
executed by or on behalf of the Variable Fund and the obligations hereunder
are not binding upon any of the Managers, Officers or Unitholders of the
Variable Fund individually but are binding only upon the Variable Fund and
its assets and property. All obligations of the Variable Fund under this
Agreement shall apply only on a Series by Series basis, and the assets of
one Series shall be liable for the obligations of another Series.
10. Indemnification.
a. JNAM shall not be responsible for, and the Variable Fund
shall indemnify and hold JNAM harmless from and against, any
and all losses, damages, costs, charges, counsel fees,
payments, expenses and liability which may be asserted
against JNAM or for which JNAM may be held to be liable,
arising out of or attributable to:
(i) All actions of JNAM required to be taken by it pursuant
to this Agreement provided that JNAM has not acted in
bad faith, gross negligence or willful misconduct;
(ii) The Variable Fund's refusal or failure to comply with
the terms of this Agreement, the Variable Fund's gross
negligence or willful misconduct, or the breach of any
representation or warranty of the Variable Fund
hereunder;
(iii)The good faith reliance on, or the carrying out of,
any written or oral Instructions or requests of persons
designated pursuant to Section 7 hereof as persons who
are authorized to give instruction on behalf of the
Variable Fund, or representatives of the Variable
Fund's investment adviser or sponsor, or JNAM's good
faith reliance on, or use of, information, data,
records and documents received them, or which have been
prepared and/or maintained by the Variable Fund, its
investment adviser or sponsor;
(iv) Any non-payment for Unit orders previously entered;
(v) The offer or sale of the Variable Fund's Units in
violation of any requirement under federal securities
laws or regulations or the securities laws or
regulations of any state or in violation of any stop
order or other determination or ruling by any federal
agency or state with respect to the offer or sale of
such Units in such state;
(vi) The Variable Fund's errors and mistakes in the use of
any information provided by JNAM;
(vii)Errors, inaccuracies and omissions in, or errors,
inaccuracies or omissions of JNAM arising out of or
resulting from such errors, inaccuracies and omissions
in, the Variable Fund's records, Unitholders and other
records, delivered to JNAM hereunder by the Variable
Fund or its agent(s); and
(viii) The condition of any endorsements, markings or the
like on any redemption order or other writing submitted
by any Unitholder or other person or entity in
connection with JNAM's duties hereunder, provided that
notwithstanding the foregoing JNAM shall be responsible
for losses arising out of the forgery on a redemption
order or other written redemption request of the
signature of the Unitholder whose Units are sought to
be redeemed if by only if: (A) such losses resulted
from and no losses would have occurred if not for
JNAM's own bad faith, gross negligence or willful
misconduct; (B) the particular Unitholder or the
Variable Fund notifies JNAM in writing of such forgery
or the suspicion thereof within fifteen (15) days after
JNAM sends the monthly statement on which the item
first appears to the Unitholder and the Variable Fund;
(C) the Variable Fund and the Unitholder have
themselves acted in good faith and exercised reasonable
care in connection with such redemption order in all
respects; and (D) prior to JNAM's processing of such
redemption order JNAM has been furnished with a
current, legible signature card (or mutually agreed
upon substitute therefor) for such Unitholder.
b. JNAM shall indemnify and hold the Variable Fund harmless
from and against any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability
arising out of JNAM's failure to comply with the terms of
this Agreement or arising out of or attributable to JNAM's
bad faith, gross negligence or willful misconduct or breach
of any representation or warranty of JNAM hereunder.
c. At any time JNAM may apply to any person authorized pursuant
to Section 7 hereof for instructions, and may, with the
prior consent of the Variable Fund, consult with legal
counsel for the Variable Fund, its investment adviser or
sponsor, or with JNAM's own legal counsel, all at the
expense of the Variable Fund, with respect to any matter
arising in connection with the services to be performed by
JNAM under this Agreement, and JNAM shall not be liable and
shall be indemnified by the Variable Fund for any action
taken or omitted by it in good faith in reliance upon such
instructions or upon the opinion of such counsel. JNAM shall
be protected and indemnified in acting upon any paper or
document reasonably believed by it to be genuine and to have
been signed by any person or persons whom JNAM reasonably
believes to have been authorized to represent the Variable
Fund and shall not be held to have notice of any change of
authority of any person until receipt of written notice
thereof from the Variable Fund. JNAM shall also be protected
and indemnified in recognizing stock certificates which JNAM
reasonably believes to bear the proper manual or facsimile
signatures of the officers of the Variable Fund, and proper
counter signature of any former transfer agent or registrar,
or of a co-transfer agent or co-registrar.
d. In the event that either party is unable to perform its
obligations under the terms of this Agreement because of
acts of God, strikes, failure or damage of primary and
secondary equipment, utility or transmission facilities
resulting from circumstances beyond the control of such
party, or other causes reasonably beyond its control, such
party shall be liable for damages to the other resulting
from such failure to perform, provided that each party shall
in all cases fully cooperate with the other and take such
measures as may be reasonably requested so as to enable the
Variable Fund to continue operations.
e. Each party shall promptly notify the other in writing of any
situation which presents or appears to involve a claim which
may be subject to indemnification hereunder and the
indemnifying party shall have the option to defend against
any such claim. In the event the indemnifying party so
elects, it will notify the indemnified party and shall
assume the defense of such claim, and the indemnified party
shall cooperate fully with the indemnifying party, at the
indemnifying party's expense, in the defense of such claim.
Notwithstanding the foregoing, the indemnified party shall
be entitled to participate in the defense of such claim at
its own expense through counsel of its own choosing. Neither
party shall confess any claim nor make any compromise in any
action or proceeding in which the other party shall be named
or for which indemnification may be sought under this
Agreement without the other party's prior written consent.
f. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL EITHER PARTY TO
THIS AGREEMENT, OR EITHER PARTY'S DIRECTORS OR MANAGERS,
OFFICERS EMPLOYEES OR AGENTS, BE LIABLE TO ANYONE INCLUDING,
WITHOUT LIMITATION, THE OTHER PARTY OR SUCH OTHER PARTY'S
DIRECTORS OR VARIABLE FUNDEES, OFFICERS, EMPLOYEES OR
AGENTS, FOR CONSEQUENTIAL DAMAGES FOR ANY ACT OR FAILURE TO
ACT UNDER ANY PROVISION OF THIS AGREEMENT EVEN IF ADVISED OF
THE POSSIBILITY THEREOF.
11. Books, Records and Other Proprietary Information.
a. As required by Section 31 of the Investment Company Act of
1940 and Rules thereunder, JNAM agrees that all records
maintained by JNAM relating to the services to be performed
by JNAM under this Agreement are the property of the
Variable Fund and will be preserved and will be surrendered
promptly to the Variable Fund or made available for
inspection by persons designated by the Variable Fund on
request.
b. JNAM and the Variable Fund agree that all books, records,
information and data pertaining to the business of the other
party or relating to the design, structure or operation of
any computer systems which are exchanged or received or
disclosed pursuant to the negotiation of and the carrying
out of this Agreement (including Proprietary Information, as
defined in Subsection c below) are and shall remain
confidential, and shall be voluntarily disclosed to any
other person without the written consent of the other. Upon
termination of this Agreement, each party shall return to
the other all such books, records and written information
and data pertaining to the business of the other. JNAM shall
notify the Variable Fund of any request or demand to inspect
the records of the Variable Fund and will act upon the
instructions of the Variable Fund as to permitting or
refusing such inspection, except where otherwise required by
law.
c. The Variable Fund acknowledges that any software programs,
supporting documentation or procedures relating to or making
up any system developed by JNAM in connection with the
services provided by JNAM hereunder "Proprietary
Information") are confidential and are proprietary to and
trade secrets of JNAM and that any unauthorized use, misuse,
disclosure or taking of any Proprietary Information residing
or existing internal or external to a computer, computer
system or computer network, or the knowing and unauthorized
accessing or causing to be accessed of any computer,
computer system or computer network, may be subject to civil
liabilities and criminal penalties under applicable state
law. The Variable Fund will, and will cause its investment
adviser and sponsor to, so advise each of their employees
and agents who have access to any Proprietary Information or
to any computer equipment capable of accessing the same. The
Variable Fund further agrees that it, its investment adviser
and sponsor will use and employ the Proprietary Information
in accordance with the procedures set forth in the reference
manuals delivered thereto, each of the foregoing shall
utilize the control procedures set forth and described
therein, and each of the foregoing shall verify promptly
reports received through use of the Proprietary Information.
12. Notice. Without limiting the other provisions hereof, notices and other
writings delivered or mailed postage prepaid as follows: (a) if to the Variable
Fund, to ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇ ▇. ▇▇▇▇; (b)
if to JNAM, to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇; or (c) to such other address as the Variable Fund or
JNAM may hereafter specify by written notice to the most recent address
specified by the party to whom such notice is addressed, shall be deemed to have
been properly delivered or given hereunder to the respective addresses.
13. Forum. THE VARIABLE FUND IRREVOCABLY AGREES THAT, SUBJECT TO THE
AGENT'S SOLE AND ABSOLUTE ELECTION, ALL SUITS, ACTIONS OR OTHER PROCEEDINGS IN
ANY WAY, MANNER OR RESPECT, ARISING OUT OF OR FROM CONNECTION HEREWITH SHALL BE
SUBJECT TO LITIGATION IN COURTS HAVING SITUS WITHIN THE STATE OF MICHIGAN. THE
VARIABLE FUND HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY LOCAL,
STATE OR FEDERAL COURT LOCATED WITHIN SAID CITY AND STATE. THE VARIABLE FUND
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO REQUEST OR DEMAND TRIAL BY JURY, TO
TRANSFER OR CHANGE THE VENUE OF ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT
AGAINST THE VARIABLE FUND BY JNAM IN ACCORDANCE WITH THIS SECTION, OR TO CLAIM
THAT ANY SUCH PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE VARIABLE
FUND ACKNOWLEDGES THAT ITS WAIVER OF JNAM TO ENTER INTO THIS AGREEMENT.
14. Miscellaneous. The Operating Agreement of Variable Fund as amended is
on file with the Secretary of The State of Delaware. The captions in 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. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby. Any provision in this Agreement requiring
compliance with any statute or regulation shall mean such statute or regulation
as amended and in effect from time to time. This Agreement shall be construed in
accordance with the laws of the State of Michigan (except as to paragraph 9
hereof which shall be construed in accordance with the laws of the State of
Delaware) and, subject to the other provisions hereof, shall be binding upon and
inure to the benefit of the parties hereto and their respective successors.
Neither this Agreement nor any rights or obligations hereunder may be assigned
by either party without the prior written consent of the other. This Agreement
constitutes the entire agreement between the parties hereto and supersedes any
prior agreement with respect to the subject matter hereof, whether oral or
written. This Agreement (including any exhibits or schedules hereto) may not be
amended except by written instrument executed by both parties, and any such
amendment which increases or otherwise alters JNAM's duties or obligations shall
not apply to any transaction or matter arising or occurring prior to such
amendment.
IN WITNESS WHEREOF, the parties have caused this instrument to be executed
as of the day and year first above written.
ATTEST: JNLNY VARIABLE FUND I LLC
___________________________ By:______________________________
▇▇▇▇ ▇. ▇▇▇▇▇
As Its Vice President & Assistant
Treasurer
ATTEST: ▇▇▇▇▇▇▇ NATIONAL ASSET
MANAGEMENT, LLC
___________________________ By:______________________________
▇▇▇▇▇ ▇. ▇▇▇▇
As Its Secretary
EXHIBIT A
First Trust/JNL the Dow(SM) Target 5 Fund
First Trust/JNL the Dow(SM) Target 10
Fund First Trust/JNL the S&P(R) Target 10 Fund
First Trust/JNL Global Target 15 Fund
First Trust/JNL Target 25 Fund
First Trust/JNL Target Small Cap Fund
First Trust/JNL Technology Sector Fund
First Trust/JNL Pharmaceutical & Healthcare Sector Fund
First Trust/JNL Financial Sector Fund
First Trust/JNL Energy Sector Fund
First Trust/JNL Leading Brands Fund
First Trust/JNL Communications Sector Fund