AMENDMENT NO. 5
PARTICIPATION AGREEMENT
The Participation Agreement (the "Agreement"), dated October 15, 1998, by and
among AIM Variable Insurance Funds, a Delaware trust; A I M Distributors, Inc.,
a Delaware corporation, The Lincoln Life & Annuity Company of New York, a New
York life insurance company, and Lincoln Financial Advisors Corporation, is
hereby amended as follows:
Section 2.1 (d) is hereby amended as follows:
(d) In the event of any material error (as determined under SEC guidelines)
in the calculation or communication of net asset value, dividends or capital
gain information, the responsible party or parties shall reimburse the LIFE
COMPANY for any reasonable costs incurred as a result of the error or delay,
including but not limited to, amounts needed to make contract owners whole and
reasonable administrative costs necessary to correct the error.
Section 2.3 of the Agreement is hereby deleted in its entirety and replaced with
the following:
2.3 APPLICABLE PRICE
(a) Share purchase payments and redemption orders that result from
purchase payments, premium payments, surrenders and other transactions
under Contracts (collectively, "Contract transactions") and that LIFE
COMPANY receives prior to the close of regular trading on the New York
Stock Exchange (or such other time set by the Board for purposes of
determining the current net asset value of a Fund in accordance with Rule
22c-1 under the 0000 Xxx) on a Business Day will be executed at the net
asset values of the appropriate Funds next computed after receipt by AVIF
or its designated agent of the orders. For purposes of this Section 2.3(a),
LIFE COMPANY shall be the designated agent of AVIF for receipt of orders
relating to Contract transactions, , in accordance with Section 22(c) and
Rule 22c-1 under the 1940 Act, on each Business Day and receipt by such
designated agent shall constitute receipt by AVIF; provided that AVIF
receives notice of such orders by 9:00 a.m. Central Time on the next
following Business Day or such later time as computed in accordance with
Section 2.1(b) hereof. In connection with this Section 2.3(a), LIFE COMPANY
represents and warrants that it will not submit any order for Shares or
engage in any practice, nor will it allow or suffer any person acting on
its behalf to submit any order for Shares or engage in any practice, that
would violate or cause a violation of applicable law or regulation
including, without limitation Section 22 of the 1940 Act and the rules
thereunder.
(b) All other Share purchases and redemptions by LIFE COMPANY will be
effected at the net asset values of the appropriate Funds next computed
after receipt by AVIF or its designated agent of the order therefor, and
such orders will be irrevocable.
1
(c) Without limiting the scope or effect of Section 1.1 hereof,
pursuant to which the Board may reject a Share purchase order by or on
behalf of LIFE COMPANY under the circumstances described therein, LIFE
COMPANY and UNDERWRITER agree to cooperate with the Fund and AIM to prevent
any person exercising, or purporting to exercise, rights or privileges
under one or more Contracts (including, but not limited to Contract owners,
annuitants, insureds or participants, as the case may be (collectively,
"Participants")) from engaging in any trading practices in any Fund that
the Board or AIM determines, in good faith and in their sole discretion, to
be detrimental or potentially detrimental to the other shareholders of the
Fund, or to be in contravention of any applicable law or regulation
including, without limitation, Section 22 of the 1940 Act and the rules
thereunder. Such cooperation may include, but shall not be limited to,
identifying the person or persons engaging in such trading practices,
facilitating the imposition of any applicable redemption fee on such person
or persons, limiting the telephonic or electronic trading privileges of
such person or persons, and taking such other remedial steps, all to the
extent permitted or required by applicable law.
Section 6.3 of the Agreement is hereby deleted in its entirety and replaced with
the following:
6.3 FUNDS TO REMAIN AVAILABLE
Notwithstanding any termination of this Agreement by LIFE COMPANY,
AVIF will, at the option of LIFE COMPANY, continue to make available
additional shares of the Fund pursuant to the terms and conditions of this
Agreement, for all Contracts in effect on the effective date of termination
of this Agreement (hereinafter referred to as "Existing Contracts"), unless
AIM or the Board determines that doing so would not serve the best
interests of the shareholders of the affected Funds or would be
inconsistent with applicable law or regulation. Specifically, without
limitation, the owners of the Existing Contracts will be permitted to
reallocate investments in the Fund (as in effect on such date), redeem
investments in the Fund and/or invest in the Fund upon the making of
additional purchase payments under the Existing Contracts. The parties
agree that this Section 6.3 will not apply to any (i) terminations under
Section 5 and the effect of such terminations will be governed by Section 5
of this Agreement or (ii) any rejected purchase and/or redemption order as
described in Section 2.3(c) hereof.
2
Section 9. Notices is hereby amended to replace Lincoln Life & Annuity Company
of New York and Lincoln Financial Advisors Corporation information with the
following:
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
0000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
ATTN: Funds Management
LINCOLN FINANCIAL ADVISORS CORPORATION
0000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
ATTN: Funds Management
Section 22 is hereby added to the Agreement:
SECTION 22. FORCE MAJEURE
Each Party shall be excused from the performance of any of its
obligations to the other where such nonperformance is occasioned by any
event beyond its control which shall include, without limitation, any
applicable order, rule or regulation of any federal, state or local body,
agency or instrumentality with jurisdiction, work stoppage, accident,
natural disaster, war, acts of terrorism or civil disorder, provided that
the Party so excused shall use all reasonable efforts to minimize its
nonperformance and overcome, remedy, cure or remove such event as soon as
is reasonably practicable, and such performance shall be excused only for
so long as, in any given case, the force or circumstances making
performance impossible shall exist.
3
Schedule A of the Agreement is hereby deleted in its entirety and replaced with
the following:
SCHEDULE A
FUNDS AVAILABLE UNDER THE CONTRACTS
AIM V.I. Aggressive Growth Fund
AIM V.I. Balanced Fund
AIM V.I. Basic Value Fund
AIM V.I. Blue Chip Fund
AIM V.I. Capital Appreciation Fund
AIM V.I. Capital Development Fund
AIM V.I. Core Equity Fund
AIM V.I. Dent Demographic Trends Fund
AIM V.I. Diversified Income Fund
AIM V.I. Government Securities Fund
AIM V.I. Growth Fund(1)
AIM V.I. High Yield Fund(1)
AIM V.I. International Growth Fund
AIM V.I. Large Cap Growth Fund
AIM V.I. Mid Cap Core Equity Fund
AIM V.I. Money Market Fund
AIM V.I. Premier Equity Fund
AIM V.I. Real Estate Fund(2)
AIM V.I. Small Cap Equity Fund
INVESCO VIF - Core Equity Fund
INVESCO VIF - Dynamics Fund
INVESCO VIF - Financial Services Fund
INVESCO VIF - Health Sciences Fund
INVESCO VIF - Leisure Fund
INVESCO VIF - Small Company Growth Fund
INVESCO VIF - Technology Fund(1)
INVESCO VIF - Total Return Fund
INVESCO VIF - Utilities Fund(1)
(1) Effective April 30, 2004, AIM V.I. Growth Fund acquired the assets of
INVESCO VIF - Growth Fund; AIM V.I. High Yield Fund acquired the assets of
INVESCO VIF - High Yield Fund; INVESCO VIF - Utilities Fund acquired the
assets of AIM V.I. Global Utilities Fund; and INVESCO VIF - Technology Fund
acquired the assets of AIM V.I. New Technology Fund and INVESCO VIF -
Telecommunications Fund.
(2) Formerly, INVESCO VIF - Real Estate Opportunities Fund
SEPARATE ACCOUNTS UTILIZING THE FUNDS
- Lincoln Life & Annuity Flexible Premium Variable Life Account M
- LLANY Separate Account R for Flexible Premium Variable Life Insurance
- Lincoln New York Separate Account N for Variable Annuities
- LLANY Separate Account S for Flexible Premium Variable Life Insurance
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS
- The Lincoln Life & Annuity Company of New York: Flexible Premium Variable
Life Insurance Policy LN615NY; LN660NY; :LN665NY; LN670NY; LN680NY; LN690NY
- The Lincoln Life & Annuity Company of New York: Flexible Premium Variable
Life Insurance Policy On the Lives of Two Insureds LN650NY; LN655NY
- Lincoln Life & Annuity Company of New York: Lincoln Choice Plus Variable
Annuity AN426NY; Lincoln Choice Plus Access Variable Annuity 30296NY
- Lincoln Life & Annuity Company of New York: Lincoln ChoicePlus II Variable
Annuity, Lincoln Choice Plus II Access Variable Annuity, Lincoln ChoicePlus
II Advance Variable Annuity, Lincoln ChoicePlus II Bonus Variable Annuity
30070BNYMVA3
4
- Lincoln Life & Annuity Company of New York: Lincoln ChoicePlus Assurance (B
Share) Variable Annjuity 30070BNYBA; Lincoln ChoicePlus Assurance (C Share)
Variable Annuity 30070BNYC; Lincoln ChoicePlus Assurance (L Share) Variable
Annuity 30070BNYAL; Lincoln ChoicePlus Assurance (Bonus) Variable Annuity
30070BNYN
- The Lincoln National Life Insurance Company: Corporate-owned Group Variable
Universal Life Policies LN925NY
5
All other terms and provisions of the Agreement not amended herein shall remain
in full force and effect.
Effective date: April 30, 2004
AIM VARIABLE INSURANCE FUNDS
Attest: /s/ Xxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
----------------------------- ------------------------------------
Name: Xxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxx
------------------------------- ----------------------------------
Title: Assistant Secretary Title: President
------------------------------ ---------------------------------
A I M DISTRIBUTORS, INC.
Attest: /s/ Xxx X. Xxxxxxxx By: /s/ Xxxx X. Needles
----------------------------- ------------------------------------
Name: Xxx X. Xxxxxxxx Name: Xxxx X. Needles
------------------------------- ----------------------------------
Title: Assistant Secretary Title: President
------------------------------ ---------------------------------
LINCOLN LIFE ANNUITY COMPANY OF NEW YORK
Attest: By: /s/ Rise X. X. Xxxxxx
----------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
LINCOLN FINANCIAL ADVISORS CORPORATION
Attest: By: /s/ Xxxx X. Xxxx
----------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
6