FUND PARTICIPATION AGREEMENT
THIS AGREEMENT made as of the 11th day of May, 1998, by and between BT
Insurance Funds Trust ("TRUST"), a Massachusetts business trust, Bankers Trust
Company ("ADVISER"), a New York banking corporation, and The Lincoln National
Life Insurance Company ("LIFE COMPANY"), a life insurance company organized
under the laws of the State of Indiana.
WHEREAS, TRUST is registered with the Securities and Exchange Commission
("SEC") under the Investment Company Act of 1940, as amended (the ... 40 Act"),
as an open-end, diversified management investment company; and
WHEREAS, TRUST is comprised of several series funds (each a "Portfolio"),
with those Portfolios currently available being listed on Appendix A hereto; and
WHEREAS, TRUST was organized to act as the funding vehicle for certain
variable life insurance and/or variable annuity contracts ("Variable Contracts")
offered by life insurance companies through separate accounts ("Separate
Accounts") of such life insurance companies ("Participating Insurance
Companies"); and
WHEREAS, TRUST may also offer its shares to certain qualified pension and
retirement plans ("Qualified Plans"); and
WHEREAS, TRUST has received an order from the SEC, granting Participating
Insurance Companies and their separate accounts exemptions from the provisions
of Sections 9(a), 13(a), 15(a) and 15(b) of the '40 Act, and Rules 6e-2(b)(15)
and 6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the
Portfolios of the TRUST to be sold to and held by Variable Contract Separate
Accounts of both affiliated and unaffiliated Participating Insurance Companies
and Qualified Plans ("Exemptive Order"); and
WHEREAS, LIFE COMPANY has established or will establish one or more
Separate Accounts to offer Variable Contracts and is desirous of having TRUST as
one of the underlying funding vehicles for such Variable Contracts; and
WHEREAS, ADVISER is a "bank" as defined in the Investment Advisers Act of
1940, as amended (the "Advisers Act") and as such is excluded from the
definition of "Investment Adviser" and is not required to register as an
investment adviser pursuant to the Advisers Act; and
1
WHEREAS, ADVISER serves as the TRUST's investment adviser; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, LIFE COMPANY intends to purchase shares of TRUST to fund the
aforementioned Variable Contracts and TRUST is authorized to sell such shares to
LIFE COMPANY at such shares' net asset value;
NOW, THEREFORE, in consideration of their mutual promises, LIFE COMPANY,
TRUST, and ADVISER agree as follows:
Article 1. SALE OF TRUST SHARES
1.1 TRUST agrees to make available to the Separate Accounts of LIFE
COMPANY shares of the selected Portfolios as listed on Appendix B for investment
of purchase payments of Variable Contracts allocated to the designated Separate
Accounts as provided in TRUST's Registration Statement.
1.2 TRUST agrees to sell to LIFE COMPANY those shares of the selected
Portfolios of TRUST which LIFE COMPANY orders, executing such orders on a daily
basis at the net asset value next computed after receipt by TRUST or its
designee of the order for the shares of TRUST. For purposes of this Section 1.2,
LIFE COMPANY shall be the designee of TRUST for receipt of such orders from the
designated Separate Account and receipt by such designee shall constitute
receipt by TRUST; provided that LIFE COMPANY receives the order by 4:00 p.m. New
York time and TRUST receives notice from LIFE COMPANY by telephone or facsimile
(or by such other means as TRUST and LIFE COMPANY may agree in writing) of such
order by 9:00 a.m. New York time on the next Business Day. "Business Day" shall
mean any day on which the New York Stock Exchange is open for trading and on
which TRUST calculates its net asset value pursuant to the rules of the SEC.
1.3 TRUST agrees to redeem on LIFE COMPANY's request, any -full or
fractional shares of TRUST held by LIFE COMPANY, executing such requests on a
daily basis at the net asset value next computed after receipt by TRUST or its
designee of the request for redemption, in accordance with the provisions of
this Agreement and TRUST's Registration Statement (in the event of a conflict
between the provisions of this Agreement and the Trust's Registration Statement,
the provisions of the Registration Statement shall govern.) For purposes of this
Section 1.3, LIFE COMPANY shall be the designee of TRUST for receipt of requests
for redemption from the designated Separate Account and receipt by such designee
shall constitute receipt by TRUST; provided that LIFE COMPANY receives the
request for redemption by 4:00 p.m. New York time and TRUST receives notice from
LIFE COMPANY by telephone or facsimile (or by such other means as TRUST and LIFE
COMPANY may agree in
2
writing) of such request for redemption by 9:00 a.m. New York time on the next
Business Day.
1.4 TRUST shall furnish, on or before each ex-dividend date, notice to
LIFE COMPANY of any income dividends or capital gain distributions payable on
the shares of any Portfolio of TRUST. LIFE COMPANY hereby elects to receive all
such income dividends and capital gain distributions as are payable on a
Portfolio's shares in additional shares of the Portfolio. LIFE COMPANY reserves
the right to change such election. TRUST shall notify LIFE COMPANY or its
designee of the number of shares so issued as payment of such dividends and
distributions.
1.5 TRUST shall make the net asset value per share for the selected
Portfolio(s) available to LIFE COMPANY on a daily basis as soon as reasonably
practicable after the net asset value per share is calculated but shall use its
best efforts to make such net asset value available by 6:30 p.m. New York time.
If TRUST provides LIFE COMPANY with materially incorrect share net asset value
information through no fault of LIFE COMPANY, LIFE COMPANY on behalf of the
Separate Accounts, shall be entitled to an adjustment to the number of shares
purchased or redeemed on each day for which such incorrect information was
provided to reflect the correct share net asset value. Any material error in the
calculation of net asset value per share, dividend or capital gain information
shall be reported promptly upon discovery to LIFE COMPANY.
1.6 At the end of each Business Day, LIFE COMPANY shall use the
information described in Section 1.5 to calculate Separate Account unit values
for the day. Using these unit values, LIFE COMPANY shall process each such
Business Day's Separate Account transactions based on requests and premiums
received by it by the close of trading on the floor of the New York Stock
Exchange (currently 4:00 p.m. New York time) to determine the net dollar amount
of TRUST shares which shall be purchased or redeemed at that day's closing net
asset value per share. The net purchase or redemption orders so determined
shall be transmitted to TRUST by LIFE COMPANY by 9:00 a.m. New York Time on the
Business Day next following LIFE COMPANY's receipt of such requests and premiums
in accordance with the terms of Sections 1.2 and 1.3 hereof.
1.7 If LIFE COMPANY's order requests the purchase of TRUST shares, LIFE
COMPANY shall pay for such purchase by wiring federal funds to TRUST or its
designated custodial account by 2:00 pm on the day the order is transmitted by
LIFE COMPANY. If LIFE COMPANY's order requests a net redemption resulting in a
payment of redemption proceeds to LIFE COMPANY, TRUST shall wire the redemption
proceeds to LIFE COMPANY by 2:00 pm that day, unless doing so would require
TRUST to dispose of Portfolio securities or otherwise incur additional costs. In
any event, proceeds shall be wired to LIFE COMPANY within the time period
permitted by the '40 Act or the rules, orders or regulations thereunder, and
TRUST shall notify the
3
person designated in writing by LIFE COMPANY as the recipient for such notice of
such delay by 3:00 p.m. New York Time on the same Business Day that LIFE COMPANY
transmits the redemption order to TRUST. If LIFE COMPANY's order requests the
application of redemption proceeds from the redemption of shares to the purchase
of shares of another Fund advised by ADVISER, TRUST shall so-apply such proceeds
on the same Business Day that LIFE COMPANY transmits such order to TRUST.
1.8 TRUST agrees that all shares of the Portfolios of TRUST will be sold
only to Participating Insurance Companies which have agreed to participate in
TRUST to fund their Separate Accounts and/or to Qualified Plans, all in
accordance with the requirements of Section 817(h)(4) of the Internal Revenue
Code of 1986, as amended ("Code") and Treasury Regulation 1.817-5. Shares of the
TRUSTs Portfolios will not be sold directly to the general public.
1.9 TRUST may refuse to sell shares of any Portfolio to any person, or
suspend or terminate the offering of the shares of or liquidate any Portfolio of
TRUST if such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Board of Trustees of the TRUST
(the "Board"), acting in good faith and in light of its duties under federal and
any applicable state laws, deemed necessary, desirable or appropriate and in the
best interests of the shareholders of such Portfolios.
1. 10 Issuance and transfer of Portfolio shares will -be by book entry
only. Stock certificates will not be issued to LIFE COMPANY or the Separate
Accounts. Shares ordered from Portfolio will be recorded in appropriate book
entry titles for the Separate Accounts.
Article II. REPRESENTATIONS AND WARRANTIES
2.1 LIFE COMPANY represents and warrants that it is an insurance company
duly organized and validly existing under the laws of Indiana and that it has
legally and validly established each Separate Account as a segregated asset
account under such laws, and that LIFE COMPANY, the principal underwriter for
the Variable Contracts, is registered as a broker-dealer under. the Securities
Exchange Act of 1934 (the ... 34 Act").
2.2 LIFE COMPANY represents and warrants that it has registered or, prior
to any issuance or sale of the Variable Contracts, will register each Separate
Account as a unit investment trust ("UIT") in accordance with the provisions of
the '40 Act and cause each Separate Account to remain so registered to serve as
a segregated asset account for the Variable Contracts, unless an exemption from
registration is available.
2.3 LIFE COMPANY represents and warrants that the Variable Contracts will
be registered under the Securities Act of 1933 (the "'33 Act") unless an
exemption from registration is available prior to any issuance or sale of the
Variable Contracts, and that
4
the Variable Contracts will be issued and sold in compliance in all material
respects with all applicable federal and state laws (including all applicable
blue sky laws and further that the sale of the variable contracts shall comply
in all material respects with applicable state insurance law suitability
requirements).
2.4 LIFE COMPANY represents and warrants that the Variable Contracts are
currently and at the time of issuance will be treated as life insurance
policies, endowment or annuity contracts under applicable provisions of the
Code, that it will maintain such treatment and that it will notify TRUST im
mediately Upon having a reasonable basis for believing that the Variable
Contracts have ceased to be so treated or that they might not be so treated in
the future.
2.5 TRUST represents and warrants that the Fund shares offered and sold
pursuant to this Agreement will be registered under the '33 Act and sold in
accordance with all applicable federal laws, and TRUST shall be registered under
the '40 Act prior to and at the time of any issuance or sale of such shares.
TRUST, subject to Section 1.9 above, shall amend its registration statement
under the '33 Act and the '40 Act from time to time as required in order to
effect the continuous offering of its shares. TRUST shall register and qualify
its shares for sale in accorda n with the laws of the various states only if and
to the extent deemed advisable by TRUST.
2.6 TRUST and ADVISER each represents and warrants that each Portfolio
will comply with the diversification requirements set forth in Section 817(h) of
the Code, and the rules and regulations thereunder, including without limitation
Treasury Regulation 1.817-5, and will notify LIFE COMPANY immediately upon
having a reasonable basis for believing any Portfolio has ceased to comply and
will immediately take all reasonable steps to adequately diversify the Portfolio
to achieve compliance.
2.7 TRUST represents and warrants that each Portfolio invested in by the
Separate Account will be treated as a "regulated investment company" under
Subchapter M of the Code, and will notify LIFE COMPANY immediately upon having a
reasonable basis for believing it has ceased to so qualify or might not so
qualify in the future.
2.8 ADVISER represents and warrants that it shall perform its obligations
hereunder in compliance in all material respects with all applicable state and
federal laws.
2.9 TRUST and ADVISER each represents and warrants that all officers,
employees and agents of the TRUST having access to securities or funds of any
Portfolio shall be covered by a blanket fidelity bond in such minimum amount as
the SEC may prescribe under Section 17 (g) of the '40 act.
5
Article Ill. PROSPECTUS AND PROXY STATEMENTS
3.1 TRUST shall prepare and be responsible for filing with the SEC and
any state regulators requiring such filing all shareholder reports, notices,
proxy materials (or similar materials such as voting instruction solicitation
materials), prospectuses and statements of additional information of TRUST.
TRUST shall bear the costs of registration and qualification of shares of the
Portfolios, preparation and filing of the documents listed in this Section 3.1
and all taxes and filing fees to which an issuer is subject on the issuance and
transfer of its shares.
3.2 TRUST or its designee shall provide LIFE COMPANY, free of charge,
with as many copies of the current prospectus (or prospectuses), statements of
additional information, annual and semi-annual reports and proxy statements for
the shares of the Portfolios as LIFE COMPANY may reasonably request for
distribution to existing Variable Contract owners whose Variable Contracts are
funded by such shares. TRUST or its designee shall provide LIFE COMPANY, at LIFE
COMPANY's expense, with as many copies of the current prospectus (or
prospectuses) for the shares as LIFE COMPANY may reasonably request for
distribution to prospective purchasers of Variable Contracts. If requested by
LIFE COMPANY, TRUST or its designee shall provide such documentation [including
a "camera ready" copy of the current prospectus (or prospectuses) for the
Portfolios used in THE LIFE COMPANY'S Variable Contracts as set in type or, at
the request of LIFE COMPANY, as a diskette in the form sent to the financial
printer] and other assistance as is reasonably necessary in order for the
parties hereto once a year [or more frequently if the prospectus (or
prospectuses), for such Portfolios for the shares is supplemented or amended] to
have the prospectus for the Variable Contracts and the prospectus (or
prospectuses) for the TRUST shares printed together in one document. The
expenses of such printing will be apportioned between LIFE COMPANY and TRUST in
proportion to the number of pages of the Variable Contract and TRUST prospectus,
taking account of other relevant factors affecting the expense of printing, such
as covers, columns, graphs and charts; TRUST shall bear the cost of printing the
TRUST prospectus portion of such document for distribution only to owners of
existing Variable Contracts funded by the' TRUST shares and LIFE COMPANY shall
bear the expense of printing the portion of such documents relating to the
Separate Account; provided, however, LIFE COMPANY shall bear all printing
expenses of such combined documents where used for distribution to prospective
purchasers or to owners of existing Variable Contracts not funded by the shares.
In the event that LIFE COMPANY requests that TRUST or its designee provide
TRUST's prospectus in a "camera ready" or diskette format, TRUST shall be
responsible for providing the prospectus (or prospectuses) in the format in
which it is accustomed to formatting prospectuses and shall bear the expense of
providing the prospectus (or prospectuses) in such format (e.g. typesetting
expenses), and LIFE COMPANY shall bear the expense of adjusting or changing the
format to conform with any of its prospectuses.
6
3.3 TRUST will provide LIFE COMPANY with at least one complete copy of
all prospectuses, statements of additional information, proxy statements,
exemptive applications and all amendments or supplements to any of the above
that relate to the Portfolios and any other material constituting sales
literature or advertising under NASD rules, the 40 Act or the 33 Act within 20
days of the date of such material and annual and semi-annual reports and any
amendments or supplements thereto within 80 days of the date of such report or
amendment or supplement thereto. LIFE COMPANY will provide TRUST with at least
one complete copy of all prospectuses, statements of additional information,
proxy statements, exemptive applications and all amendments or supplements to
any of the above that relate to a Separate Account and its investment in Trust
and any other material constituting sales literature or advertising under NASD
rules, the 40 Act or the 33 Act within 20 days of the date of such material and
annual and semi-annual reports and any amendments within 80 days of the date of
such report or amendment or supplement thereto.
Article IV. SALES MATERIALS
4.1 LIFE COMPANY will furnish, or will cause to be furnished, to TRUST
and ADVISER, each piece of sales literature or other promotional material in
which TRUST or ADVISER is named, at least ten (10) Business Days prior to its
intended use. No such material will be used if TRUST or ADVISER objects to its
use in writing within seven (7) Business Days after receipt of such material.
4.2 TRUST and ADVISER will furnish, or will cause to be furnished, to
LIFE COMPANY, each piece of sales literature or other promotional material in
which LIFE COMPANY or its Separate Accounts are named, at least ten (10)
Business Days prior to its intended use. No such material will be used if LIFE
COMPANY objects to its use in writing within seven (7) Business Days after
receipt of such material.
4.3 TRUST and its affiliates and agents shall not give any information or
make any representations on behalf of LIFE COMPANY or concerning LIFE COMPANY,
the Separate Accounts, or the Variable Contracts issued by LIFE COMPANY, other
than the information or representations contained in a registration statement or
prospectus for such Variable Contracts, as such registration statement and
prospectus may be amended or supplemented from time to time, or in reports of
the Separate Accounts or reports prepared for distribution to owners of such
Variable Contracts, or in sales literature or other promotional material
approved by LIFE COMPANY or its designee, except with the written permission of
LIFE COMPANY.
4.4 LIFE COMPANY and its affiliates and agents shall not give any
information or make any representations on behalf of TRUST or concerning TRUST
other than the information or representations contained in a registration
statement or prospectus for
7
TRUST, as such registration statement and prospectus may be amended or
supplemented from time to time, or in sales literature or other promotional
material approved by TRUST or its designee, except with the written permission
of TRUST or ADVISER.
4.5 For purposes of this Agreement, the phrase "sales literature or other
promotional material" or words of similar import include, without limitation,
advertisements (such as material published, or designed for use, in a newspaper,
magazine or other periodical, radio, television, telephone or tape recording,
videotape display, signs or billboards, motion pictures or other public media),
sales literature (such as any written communication distributed or made
generally available to customers or the public, including brochures, circulars,
research reports, market letters, form letters, seminar texts, or reprints or
excerpts of any other advertisement, sales literature, or published article),
educational or training materials or other communications distributed or made
generally available to some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder reports and
proxy materials, and any other material constituting sales literature or
advertising under National Association of Securities Dealers, Inc. ("NASD")
rules, the '40 Act, the '33 Act or rules thereunder.
Article V. POTENTIAL CONFLICTS
5.1 The parties acknowledge that TRUST has received an order from the SEC
granting relief from various provisions of the '40 Act and the rules thereunder
to the extent necessary to permit TRUST shares to be sold to and held by
Variable Contract separate accounts of both affiliated and unaffiliated
Participating Insurance Companies and Qualified Plans. The Exemptive Order
requires TRUST and each Participating Insurance Company to comply with
conditions and undertakings substantially as provided in this Section 5. The
TRUST will not enter into a participation agreement with any other Participating
Insurance Company unless it imposes the same conditions and undertakings as are
imposed on LIFE COMPANY hereby.
5.2 The Board will monitor TRUST for the existence of any material
irreconcilable conflict between the interests of Variable Contract owners of all
separate accounts and with participants of Qualified Plans investing in TRUST.
An irreconcilable material conflict may arise for a variety of reasons, which
may include: (a) an action by any state insurance regulatory authority; (b) a
change in applicable federal or state insurance, tax, or securities laws or
regulations, or a public ruling, private letter ruling or any similar action by
insurance, tax or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the manner in which the
investments of TRUST are being managed; (e) a difference in voting instructions
given by Variable Contract owners; (f) a decision by a Participating Insurance
Company
8
to disregard the voting instructions of Variable Contract owners and (g) if
applicable, a decision by a Qualified Plan to disregard the voting instructions
of plan participants.
5.3 LIFE COMPANY will report any potential or existing conflicts of which
it becomes aware to the Board. LIFE COMPANY will be responsible for assisting
the Board in carrying out its duties in this regard by providing the Board with
all information reasonably necessary for the Board to consider any issues
raised. The responsibility includes, but is not limited to, an obligation by the
LIFE COMPANY to inform the Board whenever it has determined to disregard
Variable Contract owner voting instructions. These responsibilities of LIFE
COMPANY will be carried out with a view only to the interests of the Variable
Contract owners.
5.4 If a majority of the Board or majority of its disinterested Trustees,
determines that a material irreconcilable conflict exists affecting LIFE
COMPANY, LIFE COMPANY, at its expense and to the extent reasonably practicable
(as determined by a majority of the Board's disinterested Trustees), will take
any steps necessary to remedy or eliminate the irreconcilable material conflict,
up to and including; (a) withdrawing the assets allocable to some or all of the
Separate Accounts from TRUST or any Portfolio thereof and reinvesting those
assets in a different investment medium, which may include another Portfolio of
TRUST, or another investment company; (b) submitting the question as to whether
such segregation should be implemented to a vote of all affected Variable
Contract owners and as appropriate, segregating the assets of any appropriate
group (i.e variable annuity, or variable life insurance Contract owners of one
or more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected Variable Contract owners the option of
making such a change; and (c) establishing a new registered management
investment company (or series thereof) or managed separate account. If a
material irreconcilable conflict arises because of LIFE COMPANY's decision to
disregard Variable Contract owner voting instructions, and that decision
represents a minority position or would preclude a majority vote, LIFE COMPANY
may be required, at the election of TRUST, to withdraw the Separate Account's
investment in TRUST, and no charge or penalty will be imposed as a result of
such withdrawal. The responsibility to take such remedial action shall be
carried out with a view only to the interests of the Variable Contract owners.
For the purposes of this Section 5.4, a majority of the disinterested
members of the Board shall determine whether or not any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
TRUST or ADVISER (or any other investment adviser of TRUST) be required to
establish a new funding medium for any Variable Contract. Further, LIFE COMPANY
shall not be required by this Section 5.4 to establish a new funding medium for
any Variable Contracts [if any offer to do so has been declined by a vote of a
majority of Variable Contract owners materially and adversely affected by the
irreconcilable material conflict.]
9
5.5 The Board's determination of the existence of an irreconcilable
material conflict and its implications shall be made known promptly and in
writing to LIFE COMPANY.
5.6 LIFE COMPANY shall from time to time submit to the Board such
reports, materials or data as the Board may reasonably request so that the Board
may fully carry out its obligations under this Article V.
Article VI. VOTING
6.1 LIFE COMPANY will provide pass-through voting privileges to all
Variable Contract owners so long as and to the extent the SEC continues to
interpret the '40 Act as requiring pass-through voting privileges for Variable
Contract owners. Accordingly, LIFE COMPANY, where applicable, will vote shares
of the Portfolio held in its 40 Act registered Separate Accounts in a manner
consistent with voting instructions timely received from its Variable Contract
owners. LIFE COMPANY will be responsible for assuring that each of its Separate
Accounts that participates in TRUST calculates voting privileges in a manner
consistent with other Participating Insurance Companies. LIFE COMPANY will vote
shares in a registered Separate Account for which it has not received timely
voting instructions in the same proportion as it votes those shares in that
Separate Account for which it has received voting instructions.
6.2 If and to the extent Rule 6e-2 and Rule 6e-3(T) are amended, or if
Rule 6e-3 is adopted, to provide exemptive relief from any provision of the '40
Act or the rules thereunder with respect to mixed and shared funding on terms
and conditions materially different from any exemptions granted in the Exemptive
Order, then TRUST, and/or the Participating Insurance Companies, as appropriate,
shall take such steps as may be necessary to comply with Rule 6e-2 and Rule
6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such Rules are
applicable.
Article VII. INDEMNIFICATION
7.1 INDEMNIFICATION BY LIFE COMPANY. LIFE COMPANY agrees to indemnify and
hold harmless TRUST, ADVISER and each of their Trustees, directors, principals,
officers, employees and agents and each person, if any, who controls TRUST or
ADVISER within the meaning of Section 15 of the '33 Act (collectively, the
"Indemnified Parties") against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of LIFE COMPANY,
which consent shall not be unreasonably withheld) or litigation or threatened
litigation (including reasonable legal and other expenses), to which the
Indemnified Parties may become subject under any statute, regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of TRUST's shares or the Variable Contracts and:
10
(a) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the
Registration Statement or prospectus or sales literature for the
Variable Contracts or contained in the Variable Contracts (or any
amendment or supplement to any of the foregoing), or arise out of
or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified Party
if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with
information furnished in writing to LIFE COMPANY by or on behalf
of TRUST for use in the registration statement or prospectus for
the Variable Contracts or in the Variable Contracts or sales
literature (or any amendment or supplement to any of the
foregoing) or otherwise for use in connection with the sale of the
Variable Contracts or TRUST shares; or
(b) arise out of or result from (i) untrue statements or
representations (other than statements or representations
contained in the registration statement, prospectus or sales
literature of TRUST not supplied by LIFE COMPANY, or persons under
its control) or (ii) willful misfeasance, bad faith or gross
negligence of LIFE COMPANY or persons under its control, with
respect to the sale or distribution of the Variable Contracts or
TRUST shares; or
(c) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus,
or sales literature of TRUST or any amendment thereof or
supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading if such statement or
omission or such alleged statement or omission was made in
reliance upon and in conformity with information furnished in
writing to TRUST by or on behalf of LIFE COMPANY; or
(d) arise as a result of any failure by LIFE COMPANY to provide
substantially the services and furnish the materials under the
terms of this Agreement; or
(e) arise out of or result from any material breach of any
representation and/or warranty made by LIFE COMPANY in this
Agreement or arise out of or result from any other material breach
of this Agreement by LIFE COMPANY.
11
7.2 LIFE COMPANY shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or litigation incurred
or assessed against an Indemnified Party to the extent that such losses, claims,
damages, liabilities or litigation are attributable to such Indemnified Party's
willful misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations or duties under this Agreement.
7.3 LIFE COMPANY shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified LIFE COMPANY in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify LIFE COMPANY of
any such claim shall not relieve LIFE COMPANY from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision. In case any such action is brought
against an Indemnified Party, LIFE COMPANY shall be entitled to participate at
its own expense in the defense of such action. LIFE COMPANY also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from LIFE COMPANY to such party of LIFE
COMPANY's election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, and LIFE
COMPANY will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation.
7.4 INDEMNIFICATION BY TRUST AND ADVISER. TRUST and ADVISER each agree to
indemnify and hold harmless LIFE COMPANY and each of its directors, officers,
employees, and agents and each person, if any, who controls LIFE COMPANY within
the meaning of Section 15 of the '33 Act (collectively, the "Indemnified
Parties") against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of TRUST or ADVISER (which
consent shall not be unreasonably withheld) or litigation or threatened
litigation (including reasonable legal and other expenses) to which the
Indemnified Parties may become subject under any statute, or regulation, at
common law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of TRUST's shares for the Variable Contracts and:
(a) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement or
prospectus or sales literature of TRUST (or any amendment or supplement
to any of the foregoing), or arise out of
12
or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity with
information furnished in writing to ADVISER I or TRUST by or on behalf of LIFE
COMPANY for use in the registration statement or prospectus for TRUST or in
sales literature (or any amendment or supplement to any of the foregoing) or
otherwise for use in connection with the sale of the Variable Contracts or TRUST
shares; or
(b) arise out of or result from (i) untrue statements or representations
(other than statements or representations contained in the registration
statement, prospectus or sales literature for the Variable Contracts not
supplied by ADVISER or TRUST or persons under its control) or (ii) gross
negligence, bad faith or willful misfeasance of TRUST or ADVISER or persons
under its control, with respect to the sale or distribution of the Variable
Contracts or TRUST shares; or
(c) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, or sales
literature covering the Variable Contracts, or any amendment thereof or
supplement thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if such statement or omission or such alleged statement
or omission was made in reliance upon and in conformity with information
furnished in writing to LIFE COMPANY for inclusion therein by or on behalf of
TRUST; or
(d) arise as a result of (i) a failure by TRUST or ADVISER to provide
substantially the services and furnish the materials under the terms of this
Agreement; or (ii) a failure by a Portfolio(s) invested in by the Separate
Account to comply with the diversification requirements of Section 817(h) of the
Code; or (iii) a failure by a Portfolio(s) invested in by the Separate Account
to qualify as a
regulated investment company" under Subchapter M of the Code; or
13
(e) arise out of or result from any material breach of any representation
and/or warranty made by TRUST or ADVISER in this Agreement or arise out
of or result from any other material breach of this Agreement by TRUST or
ADVISER.
7.5 TRUST and ADVISER shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party to the extent that such
losses, claims, damages, liabilities or litigation are attributable to such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations and duties under this Agreement.
7.6 TRUST and ADVISER shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified TRUST and ADVISER in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify TRUST and ADVISER
of any such claim shall not relieve TRUST and ADVISER from any liability which
it may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case any such
action is brought against the Indemnified Parties, TRUST and ADVISER shall be
entitled to participate at their own expense in the defense thereof. TRUST and
ADVISER also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from TRUST or
ADVISER to such party of TRUST's or ADVISER's election to assume the defense
thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and TRUST and/or ADVISER as the case may be
will not be liable to such party under this Agreement for any legal or other
expenses subsequently incurred by such party independently in connection with
the defense thereof other than reasonable costs of investigation.
Article Vill. TERM; TERMINATION
8.1 This Agreement shall be effective as of the date hereof and shall
continue in force until terminated in accordance with the provisions herein.
8.2 This Agreement shall terminate in accordance with the following provisions:
(a) At the option of LIFE COMPANY or TRUST At any time from the date hereof
upon 180 days' written notice, unless a shorter time is agreed to by the
parties;
14
(b) At the option of LIFE COMPANY, if TRUST shares are not reasonably
available to meet the requirements of the Variable Contracts as
determined by LIFE COMPANY. Prompt notice of election to terminate shall
be furnished by LIFE COMPANY, said termination to be effective ten days
after receipt of notice unless TRUST makes available a sufficient number
of shares to reasonably meet the requirements of the Variable Contracts
within said ten-day period;
(c) At the option of LIFE COMPANY, upon the institution of formal proceedings
against TRUST or ADVISER or any sub-adviser by the SEC, the NASD, or any
other regulatory body, the expected or anticipated ruling, judgment or
outcome of which would, in LIFE COMPANY's reasonable judgment, after
affording TRUST and ADVISER reasonable opportunity for consultation with
LIFE COMPANY, materially impair TRUST's ability to meet and perform
TRUST's obligations and duties hereunder, or result in material harm to
the Separate Accounts, LIFE COMPANY, or owners of Variable Contracts.
Prompt notice of election to terminate shall be furnished by LIFE COMPANY
with said termination to be effective upon receipt of notice;
(d) At the option of TRUST or ADVISER, upon the institution of formal
proceedings against LIFE COMPANY by the SEC, the NASD, or any other
regulatory body, the expected or anticipated ruling, judgment or outcome
of which would, in TRUST's or ADVISER's reasonable judgment, after
affording LIFE COMPANY reasonable opportunity for consultation with TRUST
and ADVISER, materially impair LIFE COMPANY's ability to meet and perform
its obligations and duties hereunder. Prompt notice of election to
terminate shall be furnished by TRUST with said termination to be
effective upon receipt of notice;
(e) In the event TRUST's shares are not registered, issued or sold in
accordance with applicable state or federal law, or such law precludes
the use of such shares as the underlying investment medium of Variable
Contracts issued or to be issued by LIFE COMPANY. Termination shall be
effective upon such occurrence without notice;
(f) At the option of TRUST if the Variable Contracts cease to- qualify as
annuity contracts or life insurance- contracts, as applicable,
15
under the Code, or if TRUST reasonably believes that the Variable Contracts may
fail to so qualify. Termination shall be effective upon receipt of notice by
LIFE COMPANY;
(g) At the option of LIFE COMPANY, upon TRUST's or ADVISER's breach of any
material provision of this Agreement, which breach has not been cured to
the reasonable satisfaction of LIFE COMPANY within ten days after written
notice of such breach is delivered to TRUST;
(h) At the option of TRUST or ADVISER, upon LIFE COMPANY's breach of any
material provision of this Agreement, which breach has not been cured to
the satisfaction of TRUST within ten days after written notice of such
breach is delivered to LIFE COMPANY;
(i) At the option of TRUST or ADVISER, if the Variable Contracts are not
registered, issued or sold in accordance with applicable federal and/or
state law. Termination shall be effective immediately upon such
occurrence without notice;
At the option of LIFE COMPANY, upon 75 days written notice of a vote of Variable
Contract owners having an interest in a Portfolio and upon written approval of
LIFE COMPANY, to substitute the shares of another investment company for the
corresponding shares of a Portfolio in accordance with the terms of the Variable
Contracts;
(k) In the event this Agreement is assigned without the prior written consent
of LIFE COMPANY, TRUST, and ADVISER,
termination shall be effective immediately upon such occurrence without notice.
8.3 Notwithstanding any termination of this Agreement pursuant to Section
8.2 hereof, TRUST at LIFE COMPANY'S option shall continue to make available
additional TRUST shares, as provided below, for so long as TRUST desires
pursuant to the terms and conditions of this Agreement, for all Variable
Contracts in effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts").
Specifically, without limitation, if TRUST makes additional TRUST shares
available, the owners of the Existing Contracts or LIFE COMPANY, whichever shall
have legal authority to do so, shall be permitted to reallocate investments in
TRUST, redeem investments in TRUST and/or invest in TRUST upon the payment- of
additional premiums under the Existing Contracts. If TRUST shares continue to be
made
16
available after such termination, the provisions of this Agreement shall remain
in effect and thereafter either TRUST or LIFE COMPANY may terminate the
Agreement, as so continued pursuant to this Section 8.3, upon sixty (60) days
prior written notice to the other party.
8.4 Except as necessary to implement Variable Contract owner initiated
transactions, or as required by state insurance laws or regulations, LIFE
COMPANY shall not redeem the shares attributable to the Variable Contracts (as
opposed to the shares attributable to LIFE COMPANY's assets held in the Separate
Accounts), and LIFE COMPANY shall not prevent Variable Contract owners from
allocating payments to a Portfolio that was otherwise available under the
Variable Contracts until thirty (30) days after the LIFE COMPANY shall have
notified TRUST of its intention to do so.
Article IX. NOTICES
Any notice hereunder shall be given by registered or certified mail
return receipt requested to the other party at the address of such party set
forth below or at such other address as such party may from time to time specify
in writing to the other party.
If to TRUST:
BT Insurance Funds Trust c/o First Data Investor Services Group, Inc. One
Exchange Place 53 State Street, Mail Stop BOS865 Xxxxxx, XX 00000
AND
c/o BT Xxxx Xxxxx
One South Street, Mail Stop 1-18-6
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
If to ADVISER:
Bankers Trust Company
000 Xxxxxxx Xxxxxx, Mail Stop 2355
Xxx Xxxx, XX 00000
Attn.: Xxxxx Xxxxxxxxxx
17
If to LIFE COMPANY:
Lincoln National Life Insurance
Xxxxx X. Xxxxxxxxx
0000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000-0000
Notice shall be deemed given on the date of receipt by the addressee as
evidenced by the return receipt.
Article X. MISCELLANEOUS
10.1 The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
10.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
10.3 If any provision of this Agreement shall be held or made invalid by
a -court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
10.4 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York. It
shall also be subject to the provisions of the federal securities laws and the
rules and regulations thereunder and to any orders of the SEC granting exemptive
relief therefrom and the conditions of such orders.
10.5 It is understood and expressly stipulated that neither the
shareholders of shares of any Portfolio nor the Trustees or officers of TRUST or
any Portfolio shall be personally liable hereunder. No Portfolio shall be liable
for the liabilities of any other Portfolio. All persons dealing with TRUST or a
Portfolio must look solely to the property of TRUST or that Portfolio,
respectively, for enforcement of any claims against TRUST or that Portfolio. It
is also understood that each of the Portfolios shall be deemed to be entering
into a separate Agreement with LIFE COMPANY so that it is as if each of the
Portfolios had signed a separate Agreement with LIFE COMPANY and that a single
document is being signed simply to facilitate the execution and administration
of the Agreement.
18
10.6 Each party shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the SEC, the NASD and
state insurance regulators) and shall permit such authorities reasonable access
to its books and records in connection with any investigation or inquiry
relating to this Agreement or the transactions contemplated hereby.
10.7 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
10.8 If the Agreement terminates, the parties agree that Article 7 and
Sections 10.5, 10.6 and 10.7 shall remain in effect after termination.
10.9 No provision of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by TRUST,
ADVISER and the LIFE COMPANY.
10.10 No failure or delay by a party in exercising any right or remedy
under this Agreement will operate as a waiver thereof and no single or partial
exercise of rights shall preclude a further or subsequent exercise. The rights
and remedies provided in this Agreement are cumulative and not exclusive of any
rights or remedies provided by law.
IN WITNESS WHEREOF, the parties have caused their duly authorized
officers to execute this Fund Participation Agreement as of the date and year
first above written.
BT INSURANCE FUNDS TRUST
By: /s/ Xxxxxxxxx Xxxxxxx
Name: Xxxxxxxxx Xxxxxxx
Title: Secretary
19
BANKERS TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
THE LINCOLN NATIONAL LIFE INSURANCE
COMPANY
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
20
Appendix A
BT Insurance Funds Trust Portfolios
Equity 500 Index Fund
Small Cap Index Fund
APPENDIX B
SEPARATE ACCOUNTS
LINCOLN LIFE FLEXIBLE PREMIUM VARIABLE LIFE SEPARATE ACCOUNT M
LINCOLN LIFE FLEXIBLE PREMIUM VARIABLE LIFE SEPARATE ACCOUNT R
AMENDMENT NO. 2
to the
FUND PARTICIPATION AGREEMENT
AMENDMENT, dated as of May 1, 1999, to the Fund Participation Agreement
dated 11th day of May, 1998 (the "Agreement"), by and between BT Insurance Funds
Trust ("Trust"), Bankers Trust Company ("Adviser"), and The Lincoln National
Life Insurance Company ("Life Company").
WHEREAS, Trust, Life Company and Adviser wish to revise Appendices A and B
to the Agreement;
NOW, THEREFORE, in accordance with Section 10.9 of the Agreement, Trust,
Life Company and Adviser hereby agree as follows:
I. Appendix A to the Agreement is hereby amended, and restated in its
entirety, by the Appendix A attached to this Amendment.
2. Appendix B to the Agreement is hereby amended, and restated in its
entirety, by the Appendix B attached to this Amendment.
Except as expressly set forth above, all other terms and provisions of the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Amendment as of the date and year first above written.
BT INSURANCE FUNDS TRUST
By /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
THE LINCOLN NATIONAL LIFE INSURANCE
COMPANY
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
BANKERS TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
APPENDIX A
(Revised effective May 1, 1999)
BT INSURANCE FUNDS TRUST PORTFOLIOS
Equity 500 Index Fund
Small Cap Index Fund
EAFE Equity Index Fund
APPENDIX B
(Revised effective May 1, 1999)
SEPARATE ACCOUNTS
LINCOLN NATIONAL VARIABLE ANNUITY ACCOUNT C
LINCOLN LIFE VARIABLE ANNUITY ACCOUNT N
LINCOLN NATIONAL VARIABLE ANNUITY ACCOUNT Q
LINCOLN NATIONAL LIFE INSURANCE COMPANY SEPARATE ACCOUNT 53
LINCOLN LIFE FLEXIBLE PREMIUM VARIABLE LIFE SEPARATE ACCOUNT M
LINCOLN LIFE FLEXIBLE PREMIUM VARIABLE LIFE SEPARATE ACCOUNT R
LINCOLN LIFE FLEXIBLE PREMIUM VARIABLE LIFE ACCOUNT S
LINCOLN NATIONAL LIFE INSURANCE COMPANY SEPARATE ACCOUNT 36
(EFFECTIVE AUGUST 13, 1999)
AMENDMENT TO APPENDIX B
AS OF NOVEMBER 1, 1998
Lincoln National Variable Annuity Account C
Lincoln Life Flexible Premium Variable Life Account M
Lincoln Life Variable Annuity Account N
Lincoln National Variable Annuity Account Q
Lincoln Life Flexible Premium Variable Life Account R
Lincoln National Life Insurance Company Separate Account 27
Lincoln National Life Insurance Company Separate Account 53
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
Schedule A to be executed in its name and behalf by its duly authorized officer
on the date specified below.
Date: BT INSURANCE FUNDS TRUST
By: Xxxxxxxxx Xxxxxxx,
Secretary
Date: BANKERS TRUST COMPANY
By: Xxxxx X. Xxxxxxxxx,
Vice President
Date: THE LINCOLN NATIONAL LIFE INSURANCE COMPANY,
on behalf of itself and its separate accounts
and as principal underwriter for its separate
accounts
By: Xxxxx X. Xxxxxxxxx,
Vice President
Exhibit A
Funds Available to Name of Separate Accounts
THE SEPARATE ACCOUNTS UTILIZING SOME OR ALL OF THE FUNDS
Please amend Please add Lincoln Life Flexible
Appendix A of the FPA Premium Variable Life Account
and Exhibit A of the S and Lincoln National Life
Admin Services Letter Insurance Company Separate
to include the EAFE Account 36
Index Fund
AMENDMENT NO. 4
to the
FUND PARTICIPATION AGREEMENT
AMENDMENT, dated as of May 1, 2001, to the Fund Participation Agreement
dated as of the 1st day of October, 1998 (the "Agreement"), by and between BT
Insurance Funds Trust (now known as Deutsche Asset Management VIT Funds )
("Trust"), Bankers Trust Company ("Adviser"), and Lincoln Life & Annuity Company
of New York ("Life Company").
WHEREAS, effective May 1, 2001 Deutsche Asset Management, Inc. ("DAMI")
will replace Adviser as investment adviser to the Trust;
WHEREAS, effective May 1, 2001 Adviser wishes to transfer all of its
rights, responsibilities and duties under the Agreement to ("DAMI");
WHEREAS, DAMI is duly registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act");
WHEREAS, Trust, Life Company and Adviser wish to revise Appendix A to the
Agreement in its entirety;
WHEREAS, Trust, Life Company and Adviser wish to revise Appendix B to the
Agreement in its entirety;
NOW, THEREFORE, in accordance with Section 10.9 of the Agreement, Trust,
Life Company, Adviser and DAMI hereby agree as follows:
1. Effective May 1, 2001 DAMI will replace Adviser and assume all of the
Adviser's rights, responsibilities and duties under the Agreement.
2. Life Company agrees to the replacement of Adviser with DAMI
3. Article IX. NOTICES is hereby amended such that the addresses for Trust
and Adviser are replaced in their entirety with the following:
If to TRUST:
Deutsche Asset Management VIT Funds
c/o PFPC Global Fund Services
0000 Xxxxxxx Xxxxx
Xxxx xx Xxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxxxx, Legal Department
AND
c/o Deutsche Asset Management Mutual Fund Services
One South Street, Mail Stop 1-18-6
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx
If to ADVISER:
Deutsche Asset Management, Inc.
000 Xxxxxxx Xxxxxx, Mail Stop 2355
Xxx Xxxx, XX 00000
Attn: Legal Department
4. Appendix A to the Agreement is hereby amended, and restated in its
entirety, by the Appendix A attached to this Amendment.
5. Appendix B to the Agreement is hereby amended, and restated in its
entirety, by the Appendix B attached to this Amendment.
Except as expressly set forth above, all other terms and provisions of the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Amendment as of the date and year first above written.
DEUTSCHE ASSET MANAGEMENT VIT FUNDS
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Secretary
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Second Vice President
BANKERS TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
DEUTSCHE ASSET MANAGEMENT, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
APPENDIX A
(Revised effective May 1, 2001)
DEUTSCHE ASSET MANAGEMENT VIT FUNDS
Deutsche Asset Management VIT Funds - Equity 500 Index Fund
Deutsche Asset Management VIT Funds - Small Cap Index Fund
Deutsche Asset Management VIT Funds - EAFE Equity Index Fund
APPENDIX B
(Revised effective May 1, 2001)
SEPARATE ACCOUNTS
1. Lincoln Life & Annuity Variable Annuity Account L
2. Lincoln Life & Annuity Flexible Premium Variable Life Account M
3. Lincoln New York Separate Account N for Variable Annuities
4. LLANY Separate Account R for Flexible Premium Variable Life Insurance
5. LLANY Separate Account S for Flexible Premium Variable Life Insurance
AMENDMENT NO. 4
to the
FUND PARTICIPATION AGREEMENT
AMENDMENT, dated as of August 1, 2002, to the Fund Participation Agreement
dated as of the 11th day of May, 1998 (the "Agreement"), is between Deutsche
Asset Management VIT Funds ("Trust"), Deutsche Asset Management, Inc.
("Adviser"), and The Lincoln National Life Insurance Company ("Life Company").
1. Section 1.5 to the Agreement shall be deleted in its entirety and
replaced with the following:
1.5 TRUST shall make the net asset value per share for the selected
Portfolio(s) available to LIFE COMPANY on a daily basis as soon as
reasonably practicable after the net asset value per share is
calculated but shall use its best efforts to make such net asset value
available by 6:30 p.m. New York time. If TRUST provides LIFE COMPANY
with materially incorrect share net asset value information through no
fault of LIFE COMPANY, LIFE COMPANY on behalf of the Separate
Accounts, shall be entitled to an adjustment to the number of shares
purchased or redeemed on each day for which such incorrect information
was provided to reflect the correct share net asset value. Any
material errors in the calculation of the net asset value, dividends
or capital gain information shall be reported immediately upon
discovery to the Life Company. In the event of any material error in
the calculation or communication of net asset value, dividends or
capital gain information or any delay in the communication, the
responsible party or parties shall reimburse the Life Company for any
losses or reasonable costs incurred as a result of the error or delay,
including but not limited to, amounts needed to make contractowners
whole and reasonable administrative costs necessary to correct the
error.
In accordance with Section 10.9 of the Agreement, Trust, Life Company and
Adviser hereby agree as follows:
2. Article IX. NOTICES is hereby amended such that the addresses for
the Life Company are replaced in their entirety with the
following:
If to the LIFE COMPANY:
Lincoln National Life Insurance Company
Attn: Xxxxxx X. Xxxxxxx, 2nd Vice President
0000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxx XX 00000
Facsimile: (000) 000-0000
3. Appendix B to the Agreement is hereby amended, and restated in
its entirety, by the Appendix B attached to this Amendment.
Except as expressly set forth above, all other terms and provisions of the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Amendment as of the date and year first above written.
DEUTSCHE ASSET MANAGEMENT VIT FUNDS
By:____/s/ Xxxxx Bader_____________________
Name: Xxxxx Xxxxx
Title: Director
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By:___/s/ Xxxxxx X. Kluever________________
Name: Xxxxxx X. Xxxxxxx
Title: Second Vice President
DEUTSCHE ASSET MANAGEMENT, INC.
By:___/s/ Xxxxx Bader______________________
Name: Xxxxx Xxxxx
Title: Director
APPENDIX B
(Revised effective August 1, 2002)
SEPARATE ACCOUNTS
1) Lincoln National Variable Annuity Account C
2) Lincoln National Variable Annuity Account L
3) Lincoln Life Flexible Premium Variable Life Separate Account M
4) Lincoln Life Variable Annuity Account N
5) Lincoln National Variable Annuity Account Q
6) Lincoln Life Flexible Premium Variable Life Separate Account R
7) Lincoln Life Flexible Premium Variable Life Account S
8) Lincoln Life Variable Annuity Account W
9) Lincoln National Life Insurance Company Separate Account 27
10) Lincoln National Life Insurance Company Separate Account 36
11) Lincoln National Life Insurance Company Separate Account 40
12) Lincoln National Life Insurance Company Separate Account 53
AMENDMENT NO. 5
to the
FUND PARTICIPATION AGREEMENT
AMENDMENT, dated as of April 2, 2003, to the Fund Participation Agreement
dated as of the 11th day of May, 1998 (the "Agreement"), by and between Xxxxxxx
Investments VIT Funds (formerly Deutsche Asset Management VIT Funds) ("Trust"),
Deutsche Asset Management, Inc. ("Adviser"), and The Lincoln National Life
Insurance Company ("Life Company").
WHEREAS, Trust, Life Company and Adviser wish to revise Appendix A to the
Agreement in its entirety;
NOW, THEREFORE, in accordance with Section 10.9 of the Agreement, Trust,
Life Company, and Adviser hereby agree as follows:
Appendix A to the Agreement is hereby amended, and restated in its
entirety, by the Appendix A attached to this Amendment.
Appendix B to the Agreement is hereby amended, and restated in its
entirety, by the Appendix B attached to this Amendment.
Except as expressly set forth above, all other terms and provisions of the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Amendment as of the date and year first above written.
XXXXXXX INVESTMENTS VIT FUNDS
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Secretary
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By: /s/ Rise Xxxxxx
------------------------------------------
Name: Rise Xxxxxx
Title: Vice President
DEUTSCHE ASSET MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, III
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, III
Title: Managing Director and Senior Counsel
APPENDIX A
To the Participation Agreement by and among Xxxxxxx Investments VIT Funds,
Deutsche Asset Management, Inc. and The Lincoln National Life Insurance Company.
List of Portfolios:
Equity 500 Index Fund - Class A Shares
Equity 500 Index Fund - Class B Shares
Small Cap Index Fund - Class A Shares
Small Cap Index Fund - Class B Shares
EAFE Equity Index Fund - Class A Shares
EAFE Equity Index Fund - Class B Shares
APPENDIX B
(Revised effective April 2, 2003)
1) Lincoln National Variable Annuity Account C
2) Lincoln National Variable Annuity Account L
3) Lincoln Life Flexible Premium Variable Life Separate Account M
4) Lincoln Life Variable Annuity Account N
5) Lincoln Life Variable Annuity Account Q
6) Lincoln Life Flexible Premium Variable Life Separate Account R
7) Lincoln Life Flexible Premium Variable Life Account S
8) Lincoln Life Variable Annuity Account T
9) Lincoln Life Variable Annuity Account W
10) Lincoln National Life Insurance Company Separate Account 27
11) Lincoln National Life Insurance Company Separate Account 36
12) Lincoln National Life Insurance Company Separate Account 40
13) Lincoln National Life Insurance Company Separate Account 53
AMENDMENT NO. 6
to the
FUND PARTICIPATION AGREEMENT
AMENDMENT, dated as of July 30, 2003, to the Fund Participation Agreement
dated as of the 11th day of May, 1998 (the "Agreement"), by and between Xxxxxxx
Investments VIT Funds (formerly Deutsche Asset Management VIT Funds) ("Trust"),
Deutsche Asset Management, Inc. ("Adviser"), and The Lincoln National Life
Insurance Company ("Life Company").
WHEREAS, Trust, Life Company and Adviser wish to revise Appendix B to the
Agreement in its entirety;
NOW, THEREFORE, in accordance with Section 10.9 of the Agreement, Trust,
Life Company, and Adviser hereby agree as follows:
Appendix B to the Agreement is hereby amended, and restated in its
entirety, by the Appendix B attached to this Amendment.
Except as expressly set forth above, all other terms and provisions of the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Amendment as of the date and year first above written.
XXXXXXX INVESTMENTS VIT FUNDS
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Secretary
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By: /s/ Rise X. X. Xxxxxx
------------------------------------------
Name: Rise X. X. Xxxxxx
Title: Vice President
DEUTSCHE ASSET MANAGEMENT, INC.
By: /s/ Xxxx X. Xxx
------------------------------------------
Name: Xxxx X. Xxx
Title: Assistant Secretary
APPENDIX B
(Revised effective July 30, 2003)
1) Lincoln National Variable Annuity Account C
2) Lincoln National Variable Annuity Account L
3) Lincoln Life Flexible Premium Variable Life Separate Account M
4) Lincoln Life Variable Annuity Account N
5) Lincoln Life Variable Annuity Account Q
6) Lincoln Life Flexible Premium Variable Life Separate Account R
7) Lincoln Life Flexible Premium Variable Life Account S
8) Lincoln Life Variable Annuity Account T
9) Lincoln Life Variable Annuity Account W
10) Lincoln Life Flexible Premium Variable Life Account Z
11) Lincoln National Life Insurance Company Separate Account 27
12) Lincoln National Life Insurance Company Separate Account 36
13) Lincoln National Life Insurance Company Separate Account 40
14) Lincoln National Life Insurance Company Separate Account 53
AMENDMENT NO. 7
to the
FUND PARTICIPATION AGREEMENT
AMENDMENT, dated as of July 30, 2005, to the Fund Participation Agreement
dated as of the 11th day of May, 1998 (the "Agreement"), by and between Xxxxxxx
Investments VIT Funds (formerly Deutsche Asset Management VIT Funds) ("Trust"),
Deutsche Asset Management, Inc. ("Adviser"), and The Lincoln National Life
Insurance Company ("Life Company").
WHEREAS, Trust, Life Company and Adviser wish to revise Appendix A and
Appendix B to the Agreement in their entirety;
NOW, THEREFORE, in accordance with Section 10.9 of the Agreement, Trust,
Life Company, and Adviser hereby agree as follows:
Appendix A to the Agreement is hereby amended, and restated in its
entirety, by the Appendix A attached to this Amendment.
Appendix B to the Agreement is hereby amended, and restated in its
entirety, by the Appendix B attached to this Amendment.
Except as expressly set forth above, all other terms and provisions of the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Amendment as of the date and year first above written.
XXXXXXX INVESTMENTS VIT FUNDS
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer & Treasurer
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By: /s/ Rise X. X. Xxxxxx
-------------------------------------
Name: Rise X.X. Xxxxxx
Title: Vice President
DEUTSCHE ASSET MANAGEMENT, INC.
By: /s/ A. Xxxxxx Xxxxx, III
-------------------------------------
Name: A. Xxxxxx Xxxxx, III
Title: Secretary & Chief Legal Officer
APPENDIX A
(Revised effective July 30, 2005)
To the Participation Agreement by and among Xxxxxxx Investments VIT Funds,
Deutsche Asset Management, Inc. and The Lincoln National Life Insurance Company.
List of Portfolios:
Equity 500 Index Fund - Class A Shares
Equity 500 Index Fund - Class B Shares
Small Cap Index Fund - Class A Shares
Small Cap Index Fund - Class B Shares
APPENDIX B
(Revised effective July 30, 2005)
1) Lincoln National Variable Annuity Account C
2) Lincoln National Variable Annuity Account L
3) Lincoln Life Flexible Premium Variable Life Separate Account M
4) Lincoln Life Variable Annuity Account N
5) Lincoln Life Variable Annuity Account Q
6) Lincoln Life Flexible Premium Variable Life Separate Account R
7) Lincoln Life Flexible Premium Variable Life Account S
8) Lincoln Life Variable Annuity Account T
9) Lincoln Life Variable Annuity Account W
10) Lincoln Life Flexible Premium Variable Life Account Z
11) Lincoln National Life Insurance Company Separate Account 27
12) Lincoln National Life Insurance Company Separate Account 36
AMENDMENT NO. 8
to the
FUND PARTICIPATION AGREEMENT
This AMENDMENT to the Fund Participation Agreement dated as of the 11th
day of May, 1998, and as amended (the "Agreement"), by and between DWS
Investments VIT Funds (formerly, Xxxxxxx Investments VIT Funds and prior to
that Deutsche Asset Management VIT Funds) ("Trust"), Deutsche Investment
Management Americas Inc. (assignee by merger with Deutsche Asset Management,
Inc.) ("Adviser"), and The Lincoln National Life Insurance Company ("Life
Company") is effective as of May 1, 2007, regardless of when executed.
WHEREAS, Lincoln Financial Distributors, Inc. will serve as the
Principal Underwriter for the Variable Contracts;
NOW, THEREFORE, in accordance with Section 10.9 of the Agreement, Trust,
Life Company, and Adviser hereby agree as follows:
Section 2.1 of the Agreement is deleted and replaced in its entirety as
follows:
2.1 LIFE COMPANY represents and warrants that it is an insurance company
duly organized and validly existing under the laws of Indiana and that it has
legally and validly established each Separate Account as a segregated asset
account under such laws, and that Lincoln Financial Distributors, Inc., a
broker-dealer registered with the SEC under the Securities Exchange Act of
1934 and a member in good standing of the National Association of Securities
Dealers, Inc., is the principal underwriter for the Variable Contracts.
Except as expressly set forth above, all other terms and provisions of
the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused their duly authorized
officers to execute this Amendment as of the date and year first above
written.
DWS INVESTMENTS VIT FUNDS
By: /s / Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx Xxxxx
Title: President
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. XXxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
By: /s Xxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxx Xxxxx
Title: COO
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Director
Dear Financial Services Firm ("you" or Intermediary"),
As principal underwriter of the DWS Funds, we (or a predecessor firm)
or our affiliate have entered into a selling group or other agreement or
agreements (the "Agreement") with you to permit you, as applicable, to sell,
service, or facilitate trading in shares of the DWS Funds (collectively, the
"Shares").
This amendment to the Agreement is entered into as of the dated
indicated in the signature block below, with an effective date of October 16,
2007, or such earlier date as of which you begin providing the Shareholder
information described below, and includes the following provisions:
1. Agreement to Provide Information. Intermediary agrees to provide the
Fund or its designee, upon written request, the taxpayer identification
number ("TIN"), the Individual/International Taxpayer Identification Number
("ITIN"), or other government-issued identifier ("GII") and the Contact
owner number or participant account number associated with the Shareholder,
if known, of any or all Shareholder(s) of the account, and the amount, date
and transaction type (purchase, redemption, transfer, or exchange) of every
purchase, redemption, transfer, or exchange of Shares held through an
account maintained by the Intermediary during the period covered by the
request. Unless otherwise specifically requested by the Fund, the
Intermediary shall only be required to provide information relating to
Shareholder-Initiated Transfer Purchases or Shareholder-Initiated Transfer
Redemptions.
2. Period Covered by Request. Requests must set forth a specific period,
not to exceed 90 days from the date of the request, for which transaction
information is sought. The Fund may request transaction information older
than 90 days from the date of the request as it deems necessary to
investigate compliance with policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the
outstanding shares issued by the Fund.
3. Form and Timing of Response.
a. Intermediary agrees to provide, promptly upon request of the Fund
or its designee, the requested information specified in paragraph 1
above. If requested by the Fund or its designee, Intermediary agrees
to use best efforts to determine promptly whether any specific
person about whom it has received the identification and transaction
information specified in paragraph 1 is itself a financial
intermediary ("indirect intermediary") and, upon further request of
the Fund or its designee, promptly either (i) provide (or arrange to
have provided) the information set forth in paragraph 1 for those
shareholders who hold an account with an indirect intermediary or
(ii) restrict or prohibit the indirect intermediary from purchasing,
in nominee name on behalf of other persons, securities issued by the
Fund. Intermediary additionally agrees to inform the Fund whether it
plans to perform (i) or (ii).
b. Responses required by this paragraph must be communicated in writing
and in a format mutually agreed upon by the parties.
c. To the extent practicable, the format for any transaction
information provided to the Fund should be consistent with the NSCC
Standardized Data Reporting Format.
4. Limitations on Use of Information. The Fund agrees not to use the
information received pursuant to this Amendment for any purpose other than
as necessary to comply with the provisions of Rule 22c-2 or to fulfill
other regulatory or legal requirements subject to the privacy provisions of
Title V of the Xxxxx-Xxxxx-Xxxxxx Act (Public Law 106-102) and comparable
state laws.
5. Agreement to Restrict Trading. Intermediary agrees to execute written
instructions from the Fund to restrict or prohibit further purchases or
exchanges of shares by a Shareholder that has been identified by the Fund
as having engaged in transactions of the Fund's Shares (directly or
indirectly through the Intermediary's account) that violate policies
established by the Fund for the purpose of eliminating or reducing any
dilution of the value of the outstanding Shares issued by the Fund, except
that this provision shall not require the Intermediary to breach any terms
of its existing Contracts with Contract Owners or violate any state
insurance law or regulation. Unless otherwise directed by the Fund, any
such restrictions or prohibitions shall only apply to Shareholder-Initiated
Transfer Purchases or Shareholder-Initiated Transfer Redemptions that are
effected directly or indirectly through Intermediary. Instructions must be
received by Intermediary at the following address, or such other address
that Intermediary may communicate to Fund in writing from time to time,
including, if applicable, an e-mail and/or facsimile telephone number:
6. Form of Instructions. Instructions must include the TIN, ITIN, or GII
and the specific individual Contract owner number or participant account
number associated with the Shareholder, if known, and the specific
restriction(s) to be executed, including how long the restriction(s)
is(are) to remain in place. If the TIN, ITIN, GII or the specific
individual Contract owner number or participant account number associated
with the Shareholder is not known, the instructions must include an
equivalent identifying number of the Shareholder(s) or account(s) or other
agreed upon information to which the instruction relates.
7. Timing of Response. Intermediary agrees to execute instructions from
the Fund to restrict or prohibit trading as soon as reasonably practicable,
but not later than ten business days after receipt of the instructions by
the Intermediary.
8. Confirmation by Intermediary. Intermediary must provide written
confirmation to the Fund that instructions from the Fund to restrict or
prohibit trading have been executed. Intermediary agrees to provide
confirmation as soon as reasonably practicable, but not later than ten
business days after the instructions have been executed.
a. Restrictions Prohibited by Contract: To the extent there is a legal
or contractual impediment to restricting or prohibiting trading by
the Contract Owner, Intermediary agrees to take the following steps
and the Fund or its designee has to restrict or prohibit trading by
a Contract Owner:
i. Review the terms of the Contract and Contract prospectus as
well as applicable law to determine the extent of the legal
rights of the Contract Owner to trade into and out of Accounts
that purchase shares of Fund portfolios.
ii. If upon review there does not exist any legal or contractual
impediment to restricting or prohibiting trading by the
Contract Owner then Intermediary will comply with the request.
If upon review there does not exist any legal or contractual impediment to
restricting or prohibiting trading by the Contract Owner then Intermediary will
review the availability of any alternatives that may be implemented to ensure
that policies of the Funds established for the purpose of eliminating or
reducing any dilution of the value of the outstanding Shares issued by the Funds
are not violated. Such alternatives may include requiring that trades be
submitted by the Contract Owner in writing by mail; imposition of fees for
transfers between subaccounts as may be permitted under the terms of the
Contract and/or Contract prospectus; limitations on the total number of trades
in a calendar year as permitted under the terms of the Contract and/or Contract
prospectus. Working in conjunction with the Fund or its designee Company will
implement mutually agreed to measures to achieve the goal of preventing dilution
of the value of the Fund's outstanding Shares.
9. Construction of the Agreement; Fund Participation Agreements. The
parties have entered into one or more Fund Participation Agreements between
or among them for the purchase and redemption of shares of the Funds by the
Accounts in connection with the Contracts. To the extent the terms of this
Amendment conflict with the terms of a Fund Participation Agreement, the
terms of this Amendment shall control.
10. Termination. This Amendment will terminate upon the termination of the
Fund Participation Agreement.
11. Definitions. As used in this Amendment, the following terms shall
have the following meanings, unless a different meaning is clearly required
by the contexts:
The term "intermediary" shall mean (i) any broker, dealer, bank, or other
entity that holds securities of record issued by the Fund in nominee name;
(ii) in the case of a participant-directed employee benefit plan that owns
securities issued by the Fund (1) a retirement plan administrator under
ERISA or (2) any entity that maintains the plan's participant records; and
(iii) an insurance company separate account.
The term "Fund" shall mean an open-ended management investment company
that is registered or required to register under section 8 of the
Investment Company Act of 1940 and includes (i) an investment adviser to
or administrator for the Fund; (ii) the principal underwriter or
distributor for the Fund; or (iii) the transfer agent for the Fund. The
term not does include any "excepted funds" as defined in SEC Rule 22c-2(b)
under the Investment Company Act of 1940.
The term "Shares" means the interests of Shareholders corresponding to the
redeemable securities of record issued by the Fund under the Investment
Company Act of 1940 that are held by the Intermediary.
The term "Shareholder" means the holder of interests in a variable annuity
or variable life insurance contract issued by the Intermediary
("Contract"), or a participant in an employee benefit plan with a
beneficial interest in a contract.
The term "Shareholder-Initiated Transfer Purchase" means a transaction
that is initiated or directed by a Shareholder that results in a transfer
of assets within a Contract to a Fund, but does not include transactions
that are executed: (i) automatically pursuant to a contractual or
systematic program or enrollment such as transfer of assets within a
Contract to a Fund as a result of "dollar cost averaging" programs,
insurance company approved asset allocation programs, or automatic
rebalancing programs; (ii) pursuant to a Contract death benefit; (iii)
one-time step-up in Contract value pursuant to a Contract death benefit;
(iv) allocation of assets to a Fund through a Contract as a result of
payments such as loan repayments, scheduled contributions, retirement plan
salary reduction contributions, or planned premium payments to the
Contract; or (v) pre-arranged transfers at the conclusion of a required
free look period.
The term "Shareholder-Initiated Transfer Redemption" means a transaction
that is initiated or directed by a Shareholder that results in a transfer
of assets within a Contract out of a Fund, but does not include
transactions that are executed: (i) automatically pursuant to a
contractual
or systematic program or enrollments such as transfers of assets within a
Contract out of a Fund as a result of annuity payouts, loans, systematic
withdrawal programs, insurance company approved asset allocation programs
and automatic rebalancing programs; (ii) as a result of any deduction of
charges or fees under a Contract: (iii) within a Contract out of a Fund as
a result of scheduled withdrawals or surrenders from a Contract; or (iv)
as a result of payment of a death benefit from a Contract.
The term "written" includes electronic writings and facsimile
transmissions.
The term "purchase" does not include the automatic reinvestment of
dividends.
The term "promptly" as used in paragraph 3(a) shall mean as soon as
practicable but in no event later than ten business days from the
Intermediary's receipt of the request of information from the Fund or its
designee.
DWS XXXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
FIRM: The Lincoln National Life Insurance Company
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Date: 4/3/07
FIRM: Lincoln Life & Annuity Company of New York
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Second Vice President
Date: 4/3/07
FIRM: Jefferson Pilot Financial Insurance Company
And Jefferson Pilot LifeAmerica Insurance Company
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
Date: 4/2/07
-----------------------
* As defined in SEC Rule 22c-2(b), the term "excepted fund" means any: (1)
money market fund; (2) fund that issues securities that are listed on a
national exchange; and (3) fund that affirmatively permits short-term trading
of its securities, if its prospectus clearly and prominently discloses that
the fund permits short-term trading of its securities and that such trading
may result in additional costs for the fund.
AMENDMENT NO. 9
to the
FUND PARTICIPATION AGREEMENT
This AMENDMENT to the Fund Participation Agreement dated as of the
11th day of May, 1998 and as amended (the "Agreement"), by and between DWS
Investments VIT Funds, Deutsche Investment Management Americas Inc. (assignee
by merger with Deutsche Asset Management, Inc.) (together, "DWS/Deutsche"),
and The Lincoln National Life Insurance Company ("Life Company") is effective
as of December 15, 2008, regardless of when executed.
WHEREAS, the Life Company and DWS/Deutsche are parties to that
certain Fund Participation Agreement dated May 11, 1998, as amended (the
"Agreement"); and
WHEREAS, effective July 2, 2007, Jefferson Pilot Financial Insurance
Company ("JPFIC") merged into its affiliated insurance company, The Lincoln
National Life Insurance Company, and ceased all legal existence. The Life
Company and DWS/Deutsche agree that the Fund Participation Agreement between
DWS/Deutsche and JPFIC dated April 30, 2002, shall be of no further effect;
and
WHEREAS, the parties to the Agreement have determined to amend said
Agreement to insert a new section to the Agreement relating to processing
orders via the National Securities Clearing Corporation ("NSCC"); and
WHEREAS, the parties have agreed to make Funds available as investment
options as set forth in the attached Appendix A; and
WHEREAS, the parties have agreed to amend the Agreement to revise the
list of separate accounts for which Funds are made available under the
Agreement, as set forth in the attached Appendix B.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, and intending to be legally bound, the Agreement shall be amended
as follows:
1. A new Paragraph 1.11 shall be added to Article I as follows:
1.11. If transactions in Shares are to be settled through the Fund/SERV
system, the following provisions shall apply:
(1) Each party to this Agreement represents that it or one of its
affiliates has entered into the Standard Networking Agreement with the
NSCC and it desires to participate in the programs offered by the NSCC
Fund/SERV system which provide (i) an automated process whereby
shareholder purchases and redemptions, exchanges and transactions of
mutual fund shares are executed through the Fund/SERV system, and (ii) a
centralized and standardized communication system for the exchange of
customer-level information and account activity through the Fund/SERV
Networking system ("Networking").
(2) For each Fund/SERV transaction, including transactions
establishing accounts with DWS/Deutsche or its affiliates, the Company
shall provide the Funds and DWS/Deutsche or its affiliates with all
information necessary or appropriate to establish and maintain each
Fund/SERV transaction (and any subsequent changes to such information),
which the Company hereby certifies is and shall remain true and correct.
The Company shall
maintain documents required by DWS/Deutsche or the Funds to effect
Fund/SERV transactions. Each instruction shall be deemed to be
accompanied by a representation by the Company that it has received
proper authorization from each person whose purchase, redemption, account
transfer or exchange transaction is effected as a result of such
instruction.
(3) At all times each party shall maintain insurance coverage
that is reasonable and customary in light of all its responsibilities
hereunder and under applicable law. Such coverage shall insure for
losses resulting from the criminal acts, errors or omissions of each
party's employees and agents.
(4) In addition, each of the parties or its designee has entered
into a FUND/SERV AND NETWORKING SUPPLEMENT TO PARTICIPATION AGREEMENT.
2. Appendix A is hereby amended and replaced with the attached
Appendix A.
3. Appendix B is hereby amended and replaced with the attached
Appendix B.
Except as provided herein, the terms and conditions contained in the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused their duly authorized
officers to execute this Amendment as of the date and year first above
written.
DWS INVESTMENTS VIT FUNDS
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Chief Operating Officer
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: Director
APPENDIX A
(Revised effective December 15, 2008)
To the Participation Agreement by and among DWS Investments VIT Funds,
Deutsche Asset Management, Inc. and The Lincoln National Life Insurance
Company.
List of Portfolios:
DWS INVESTMENTS VIT FUNDS
Equity 500 Index VIP - Class A Shares
Equity 500 Index VIP - Class B Shares
Small Cap Index VIP - Class A Shares
Small Cap Index VIP - Class B Shares
APPENDIX B
(Revised effective December 15, 2008)
1) Lincoln National Variable Annuity Account C
2) Lincoln National Variable Annuity Account L
3) Lincoln Life Flexible Premium Variable Life Separate Account M
4) Lincoln Life Variable Annuity Account N
5) Lincoln Life Variable Annuity Account Q
6) Lincoln Life Flexible Premium Variable Life Separate Account R
7) Lincoln Life Flexible Premium Variable Life Account S
8) Lincoln Life Variable Annuity Account T
9) Lincoln Life Variable Annuity Account W
10) Lincoln Life Flexible Premium Variable Life Account Z
11) Lincoln Life Flexible Premium Variable Life Account JF-A
12) Lincoln Life Flexible Premium Variable Life Account JF-C
13) Lincoln Life Variable Annuity Account JF-I
14) Lincoln Life Variable Annuity Account JF-II
FUND/SERV AND NETWORKING SUPPLEMENT TO PARTICIPATION AGREEMENT
THIS FUND/SERV AND NETWORKING SUPPLEMENT (the "Supplement") is made and
entered into this 1st day of November, 2012, by and between DWS Investments
Service Company ("DWS-ISC"), the transfer agent of the DWS Variable Series I,
DWS Variable Series II and DWS Investments VIT Funds (each, and collectively,
the "Fund"), and The Lincoln National Life Insurance Company and Lincoln
Life & Annuity Company of New York(each, and collectively, "Insurance
Company"), on its own behalf and on behalf of each separate account of the
Insurance Company (each, an "Account") identified in the Participation
Agreement (as defined below).
WHEREAS, Insurance Company and the Fund (along with other parties) have
entered into various Participation Agreements, dated as of May 11, 1998 and
October 30, 1998, each as amended from time-to-time (each a "Participation
Agreement" and together the "Participation Agreements"), each of which
provides that the Fund will make available shares of certain portfolios
("Portfolios") for purchase, exchange and redemption by the Insurance
Company, on behalf of the Accounts, in order to fund variable annuity
contracts and/or variable life insurance contracts ("Contracts") purchased by
its customers ("Contract Holders"); and
WHEREAS, Insurance Company and DWS-ISC (the "Fund Agent"), or their
respective affiliates, are members in good standing of the National
Securities Clearing Corporation ("NSCC") or otherwise have access to the
NSCC's Fund/SERV system, which permits the transmission of trade and
registration data between Insurance Company and the Fund; and
WHEREAS, the parties wish to supplement the Participation Agreements as
necessary to permit the transmission of purchase, exchange and redemption
orders of Fund shares using the NSCC Fund/SERV system; and
WHEREAS, any party may decide to not use or to stop using NSCC Fund/SERV or
Networking and to instead use manual processing. This supplement is only in
effect when both parties agree to use NSCC.
WHEREAS, it is intended that the parties will participate with each other in
NSCC's Networking system ("NETWORKING") to enable the transmission of
shareholder data between Fund Agent and Insurance Company with respect to the
Fund, pursuant to certain matrix levels as described in the standard
Networking agreement ("Standard Networking Agreement") on file with the NSCC
and incorporated herein by reference.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained, which consideration is full and complete, Fund Agent and Insurance
Company hereby agree to supplement each Participation Agreement as follows:
1
1. TRANSACTIONS SUBJECT TO FUND/SERV AND NETWORKING.
(a) On each business day that the New York Stock Exchange is open for
business and on which the Fund's Portfolios determine their per share net
asset values ("Business Day"), Fund Agent shall accept, and effect changes in
its records upon receipt of purchase, redemption, exchanges, and registration
instructions from Insurance Company electronically through Fund/SERV
("Instructions"), without supporting documentation.
(b) Each party hereby agrees to participate in NETWORKING with the other
party pursuant to a mutually agreeable matrix or trust level established by
the NSCC, in accordance with the terms and conditions of the Standard
NETWORKING Agreement, as amended by this Supplement. In the event of any
conflict between the terms of the Standard NETWORKING Agreement and the terms
of this Supplement, the terms of this Supplement shall govern.
(c) Fund Agent acknowledges that Insurance Company may engage one or more
agents to fulfill some or all of Insurance Company's responsibilities
hereunder and that said agent(s) shall be authorized to act on Insurance
Company's behalf and shall be entitled to collect, receive and transmit
information directly to and from Fund Agent on Insurance Company's behalf.
As between the Fund Agent and Insurance Company, Insurance Company represents
and warrants that such agents have appropriate agreements in place with
Insurance Company and, if required, with the NSCC, to assume such delegated
responsibilities.
2. OPERATING PROCEDURES.
The Operating Procedures governing the responsibilities of the Fund and the
Company under the Participation Agreement and this Supplement with respect to
the purchase and redemption of Fund Portfolio shares and share price
communications are hereby incorporated into the Participation Agreement, as
Schedule A thereto. In the event that the NSCC's Fund/SERV system is not
available, the parties agree that orders will be processed in accordance with
the Manual Procedures set forth in Schedule A.
3. AS OF TRANSACTIONS.
Processing errors which result from any delay or error caused by Insurance
Company may be adjusted through Fund/SERV by Insurance Company by the
necessary corrective transactions on an as-of basis ("As Of Trade");
provided, however, that prior authorization must be obtained from Fund Agent
for any As Of Trade and any such request must be received by Fund Agent by
10:30 a.m. Central Time in order to receive same day processing. Insurance
Company shall promptly pay each Fund Portfolio for any loss incurred by the
Fund Portfolio as a result of the As of Trade that results from a delay or
error caused by the Insurance Company. Fund Agent shall have complete and
sole discretion as to whether or not to accept an As Of Trade. If an As Of
Trade is allowed by Fund Agent to be processed as of a particular trade date,
Insurance Company warrants that the trade relates only to Instructions
received by Insurance Company by the Close of Trading on such trade date.
Fund Agent reserves the right to process any As of Trade outside of
Fund/SERV.
2
4. TRADE CONFIRMATION.
Any information provided by Fund Agent to Insurance Company electronically
through Fund/SERV and pursuant to this Supplement, shall satisfy the
confirmation delivery obligations as outlined by SEC Rule 10b-10. Insurance
Company hereby provides its informed consent to suppress the delivery of this
information using paper-media. Insurance Company will promptly verify the
accuracy of confirmations of transactions and records received by Fund Agent
through Fund/SERV.
5. OVERPAYMENTS
(a). OVERPAYMENTS TO INSURANCE COMPANY. In the event of overpayment to
Insurance Company upon a redemption, where such overpayment is caused by Fund
Agent's error, Insurance Company agrees to use commercially reasonable
efforts to collect such overpayment from the Contract Holder. If, after such
efforts, Insurance Company is not able to recover all of such overpayment,
Insurance Company will cooperate with the attempts of Fund Agent or the
relevant Fund Portfolio to recover any portion of the overpayment, including
as permitted by applicable law providing Fund Agent or a Fund Portfolio with
information reasonably available to Insurance Company as to the identity of
the Contract Holder(s) from whom such remainder has not been recovered. If
the overpayment proceeds are still in the custody of Insurance Company or the
Contract Holder's account with Insurance Company, or if the overpayment is
caused by Insurance Company's error, Insurance Company shall promptly repay
such overpayment to Fund Agent after Insurance Company receives notice of
such overpayment.
(b) OVERPAYMENTS TO FUND AGENT. In the event any overpayment is made to
Fund Agent by Insurance Company, Fund Agent shall promptly repay such
overpayment to Insurance Company after Fund Agent receives notice of such
overpayment.
(c) ERRORS AND DELAYS. In the event of any error or delay with respect to
information regarding the pricing, purchase, redemption, transfer or
registration of Fund Portfolio shares (including As of Trades), the parties
agree that each is obligated to make the Accounts and the Fund Portfolio,
respectively, whole for any error or delay that it causes or that has been
caused in connection with any transactions or trade it has transmitted or
submitted, subject in each case to the Fund's policies on materiality of
pricing errors, if applicable. In addition, each party agrees that neither
will receive compensation from the other for the costs of any reprocessing
necessary as a result of an error or delay of the type referred to in this
paragraph. Finally, each party agrees to provide the other with prompt
notice of any errors or delays of the type referred to in this Section 5.
3
6. NETWORKING
This section 6 shall apply only between parties using the NSCC's NETWORKING
service with each other from time to time:
(a) Each party represents to the other that it, its affiliate or its agent
has executed and filed with the NSCC, and has not terminated, the Standard
Networking Agreement and that it, its affiliate or its agent is eligible to
use the NSCC's NETWORKING service. Each party agrees to participate in
NETWORKING with the other under the terms of the networking Agreement and in
accordance with the rules, standards and procedures of the NSCC as in effect
from time-to-time.
(b) The terms of the NETWORKING Agreement, as supplemented by this Section
6, shall be incorporated by reference herein. The term "Fund Agent" has the
meaning assigned thereto in the NETWORKING Agreement; the term "Firm" as used
therein shall be deemed to refer to the Insurance Company or its agent. The
provisions of Article III of the NETWORKING Agreement as incorporated by
reference herein shall survive termination of this Agreement with respect to
acts or omissions occurring prior to such termination and actions, claims,
suits, complaints, proceedings or investigations resulting from or arising
out such acts or omissions.
(c) Insurance Company shall be responsible for obtaining and maintaining
all documentation and information (together, "Information"), and any changes
to such Information, necessary to ensure that all Networking accounts are
established and maintained in compliance with applicable laws and
regulations, including, without limitation, tax laws and regulations.
Insurance Company represents and warrants that (i) all such Information is,
and shall remain, true and correct; (ii) each taxpayer identification number
provided by Insurance Company to the Fund or Fund Agent has been certified,
under penalties of perjury, by the Shareholder on the appropriate Internal
Revenue Service form or a legally acceptable substitute; and (iii) Insurance
Company shall hold available for provision to, or inspection by, regulatory
authority, all Information required by law or regulation to be so held.
7. REPRESENTATIONS AND WARRANTIES
(a) Fund Agent and Insurance Company each represents, warrants, and
covenants to the other that:
(i) it shall perform any and all duties, functions, procedures and
responsibilities assigned to it under this Supplement and as otherwise
established by the NSCC in a competent manner and in compliance with (a)
all applicable laws, rules and regulations, including NSCC rules and
procedures relating to Fund/SERV and NETWORKING; and (b) the then current
prospectuses and statements of additional information of the Fund;
(ii) it shall maintain facilities, equipment and skilled personnel
sufficient to perform the foregoing activities and to otherwise comply
with the terms of this Supplement;
(iii) all trades, confirmations and other information provided by one
party to the other party through the NSCC and pursuant to this Supplement
shall be accurate, complete and, in the format prescribed by the NSCC.
Each party shall adopt, implement and maintain
4
procedures reasonably designed to ensure the accuracy of all
transmissions through Fund/SERV and NETWORKING and to limit the access
to, and the inputting of data into, Fund/SERV and NETWORKING to persons
specifically authorized by such party; and
(iv) it or its affiliate has duly executed and delivered the
Networking Agreement, and has filed such Agreement with the NSCC.
(b) To the extent Insurance Company has engaged one or more third parties
(including affiliates of Insurance Company) to act as subcontractor(s) or
agent(s) ("Agents") to perform services that Insurance Company is responsible
for performing under this Supplement, Insurance Company has determined that
each such Agent is capable of performing such services and shall take
measures as may be necessary to ensure that such Agents perform such services
in accordance with the terms of this Supplement and applicable law.
Insurance Company shall be responsible for, and assume all liability for
(including any obligation for indemnification) the actions and inactions of
such Agents as if such services had been provided by Insurance Company.
8. TERMINATION; AMENDMENT.
This Supplement shall continue in effect until terminated, but shall
terminate automatically if the Participation Agreement is terminated. Fund
Agent or Insurance Company may terminate this Supplement at any time by
written notice to the other at least thirty (30) days prior to the
termination date, but such termination shall not affect the payment or
repayment of fees on transactions, if any, prior to the termination date, or
the Participation Agreement. This Supplement may be amended at any time by
mutual written agreement of both parties.
9. CONFLICTING AGREEMENTS.
Except for the Participation Agreement and the Standard Networking Agreement,
this Supplement sets forth the entire agreement and understanding of the
parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral, among the
parties. In the event there is any conflict between this Supplement and the
Standard Networking Agreement, the terms and conditions of this Supplement
shall control. In the event there is any conflict between this Supplement
and the applicable Participation Agreement, the terms and conditions of the
Participation Agreement shall control.
10. ASSIGNMENT.
Neither Fund Agent nor Insurance Company may assign this Supplement without
the prior written consent of the other party, and any attempted assignment
without such consent shall be null and void; provided, however, a change in
control of either party shall not constitute an assignment of this
Supplement. Fund Agent acknowledges that Insurance Company may engage one
or more agents to fulfill some or all of Insurance Company's responsibilities
hereunder, which shall not constitute an assignment for the purposes of this
Supplement.
11. SEVERABILITY.
If any provision of this Supplement is held to be invalid, the remaining
provisions of the Supplement shall continue to be valid and enforceable.
5
12. NOTICE.
Any notice or amendment required or permitted hereunder shall be in writing
and shall be given by personal service, mail, or facsimile to the other party
at the address set forth below (or such other address as the parties may
specify by written notice). Notice shall be effective upon receipt if by
mail, on the date of personal delivery (by private messenger, courier service
or otherwise), or upon receipt of facsimile (upon oral confirmation of
receipt), whichever occurs first at:
Fund Agent:
DWS INVESTMENTS SERVICE COMPANY
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, TA Oversight
With a copy to: Deutsche Asset Management
Legal Dept. (U.S. Retail Division)
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
And a copy to:
DST SYSTEMS
000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: DWS Investments Account
Insurance Company:
The Lincoln National Life Insurance Company
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Lincoln Life & Annuity Company of New York
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
6
13. WAIVER.
The failure of a party to insist upon strict adherence to any provision of
this Supplement on any occasion shall not be considered a waiver nor shall it
deprive such party of the right thereafter to insist upon strict adherence to
that provision or any other provision of this Supplement.
IN WITNESS WHEREOF, the undersigned have caused this Supplement to be
executed as of the date first above written.
DWS INVESTMENTS SERVICE COMPANY
By: /s/ Xxxxxxx Xxxxx
-------------------------
Name: Xxxxxxx Xxxxx
Title: President
By: /s/ Xxxx Xxxxxxx
-------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
THE LINCOLN NATIONAL LIFE INSURANCE
COMPANY
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
LINCOLN LIFE & ANNUITY COMPANY OF
NEW YORK
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
7
SCHEDULE A
OPERATING PROCEDURES
Unless otherwise defined below, all capitalized terms have the meanings
specified in the Supplement and/or the Participation Agreement, each of which
this Exhibit is a part.
I. FUND/SERV AND NETWORKING PROCEDURES
A. TRANSMITTAL OF PORTFOLIO INFORMATION. With respect to each
Portfolio, the Fund or its transfer agent will provide the Company with (i)
the Share Price determined as of the Close of Trading on each Business Day;
(ii) dividend and capital gains distribution information on ex-date; and
(iii) in the case of fixed income and money market Portfolios which declare
dividends daily, the daily accrual interest rate factor. The Fund will use
commercially reasonable efforts to communicate, or have its transfer agent
communicate, such information to the Company or its designee via automated
feed and email by 7:00 p.m. Eastern Time each Business Day.
B. TRANSMITTAL OF ORDERS. The Company agrees that, unless otherwise
agreed to in writing with the Fund, orders for the purchase, exchange or
redemption of Fund Portfolio shares ("Instructions") received by the Company
prior to the Close of Trading on any Business Day ("Day 1") will be
transmitted to Fund/SERV by 9:30 a.m. Eastern Time on the following Business
Day ("Day 2") (such orders are referred to as "Day 1 Trades"). Each
transmission by the Company or its designee of a purchase, exchange or
redemption order relating to a Business Day ("Order") will constitute a
representation by the Company that such Order was based on Instructions that
the Company received and accepted as being in good order prior to the Close
of Trading on that Business Day, and that the Order included all purchase,
exchange and redemption Instructions so received by the Company.
In the event that Orders for any Business Day are not transmitted to
Fund/SERV by 9:30 a.m. Eastern Time on Day 2, the Company or its designee
shall transmit such Orders to the Fund in accordance with the Manual
Procedures below. If such Orders are not transmitted to the Fund in
accordance with the Manual Procedures, the Fund reserves the right, in its
sole discretion, to reject, reverse or re-price the Orders (notwithstanding
that the Company may have received Fund/SERV confirmation of the Orders) and
the Company will be responsible for reimbursement of any loss sustained by
the Fund that may arise out of the improper transmittal of such Orders.
All Orders transmitted to the Fund via Fund/SERV will be communicated in
accordance with Fund/SERV rules, guidelines and procedures. The Company
acknowledges that certain cash flows may be known on or before a trade date,
and the Company agrees to use its reasonable efforts to notify the Fund of
such cash flows before such trade date.
C. FUND/SERV CONFIRMATION. The Fund, acting through the Fund's
transfer agent, has established one or more master accounts on its mutual
fund shareholder account recordkeeping system (each, a "T/A Account")
reflecting the aggregate ownership of shares of each Portfolio of the Fund
and all transactions involving such shares by the Company on behalf
8
of the Accounts. The Fund's transfer agent will transmit a confirmation via
Fund/SERV that will set forth the number of Portfolio shares purchased,
exchanged and redeemed, the beginning and ending share balances, and the net
asset value per share.
D. PRICING OF ORDERS. Day 1 Trades communicated to the Fund as
provided under Section C of these Fund/SERV Procedures will be effected at
the Share Price for the applicable Portfolio on Day 1.
E. SETTLEMENT. Day 1 Trades confirmed by the Fund via Fund/SERV
will settle in U.S. dollars in accordance with the Fund's profile within
Fund/SERV applicable to the Company. Settlement shall occur via the NSCC in
accordance with NSCC procedures.
F. DIVIDENDS AND OTHER DISTRIBUTIONS. The Fund or its transfer
agent will furnish the Company or its designee written notice of any
dividends or other distributions payable on the shares of each Portfolio, via
email, which email addresses shall be provided by the Company and updated by
the Company as necessary. Dividends and distributions with respect to a
Portfolio will be automatically reinvested in additional shares of the
Portfolio held by the T/A Account(s) and the Fund or its transfer agent will
notify the Company or its agent, via Networking, as to the number of shares
so issued.
G. ACTIVITY REPORTING AND VERIFICATION. The Fund or its transfer
agent will transmit or make available to the Company, via Networking
(including DST Vision), a report containing any transactions or other
activity occurring in a T/A Account on a Business Day, including any
Fund/SERV transactions, and the share balance for each T/A Account in
accordance with Fund/SERV's Networking guidelines. The Company will promptly
review and verify this information and immediately advise the Fund or its
transfer agent in writing of any discrepancies between the Company's records
and the balance in the T/A Account(s).
The Company will, immediately on receipt of any activity or position file
concerning an Account, verify the information contained therein against the
information contained on the Company's record-keeping system and immediately
advise the Fund in writing of any discrepancies between such information.
The Fund and the Company will cooperate to resolve any such discrepancies as
soon as reasonably practicable.
H. PROCESSING ADJUSTMENTS. In the event of any error or delay with
respect to these Fund/SERV and Networking Procedures that is caused by the
Fund or its transfer agent, the Fund will make any adjustments on its (or its
transfer agent's) accounting system necessary to correct such error or delay.
The Company will make the corresponding adjustments on its record-keeping
system. The Company and the Fund will each provide the other with prompt
notice of any errors or delays of the type referred to in these Fund/SERV and
Networking Procedures.
9
I. FUND/SERV UNAVAILABILITY. If the Fund/SERV and Networking
systems are unavailable for any reason, or if it is otherwise impracticable
to operate in accordance with these Fund/SERV and Networking Procedures,
transactions shall be processed in accordance with the Manual Procedures
outlined below.
II. MANUAL PROCEDURES
A. TRANSMITTAL OF PORTFOLIO INFORMATION. With respect to each
Portfolio, the Fund or its transfer agent will provide the Company with (i)
the Share Price determined as of the Close of Trading on each Business Day;
(ii) dividend and capital gains distribution information on ex-date; and
(iii) in the case of fixed income and money market Portfolios which declare
dividends daily, the daily accrual interest rate factor. The Fund will use
commercially reasonable efforts to communicate, or have its transfer agent
communicate, such information to the Company or its designee via automated
feed and email by 7:00 p.m. Eastern Time each Business Day.
B. TRANSMITTAL OF ORDERS. The Company agrees that, unless otherwise
agreed to in writing with the Fund, Instructions received by the Company
prior to the Close of Trading on any Business Day ("Day 1") will be
transmitted to the Fund by facsimile no later than 10:00 a.m. Eastern Time on
the following Business Day ("Day 2") (such Orders are referred to as "Day 1
Trades"). Each transmission by the Company or its designee of a purchase,
exchange or redemption order relating to a Business Day ("Order") will
constitute a representation by the Company that such Order was based on
Instructions that the Company received and accepted as being in good order
prior to the Close of Trading on that Business Day, and that the Order
included all purchase, exchange and redemption Instructions so received by
the Company.
All Orders transmitted to the Fund will be communicated in U.S. dollars
and will indicate the date of the transaction. On Business Days where there
are no Orders, or where the net dollar amount for purchases and redemptions
for an Account equals zero, the communication will so indicate. The Company
acknowledges that certain cash flows may be known on or before a trade date,
and the Company agrees to use its reasonable efforts to notify the Fund of
such cash flows before such trade date.
C. CONFIRMATION. All Orders transmitted in accordance with Section
B of these Manual Procedures are subject to acceptance by the Fund and shall
become effective only upon confirmation by the Fund, which confirmation shall
be sent to the Company or its designee.
D. PRICING OF ORDERS. Day 1 Trades communicated to the Fund by
10:00 a.m. Eastern Time on Day 2 will be effected at the Share Price for the
applicable Portfolio on Day 1.
E. SETTLEMENT.
1. PURCHASE ORDERS. In the case of Day 1 Trades that
constitute a net purchase (including exchanges) Order, the Company or its
designee will arrange for a federal funds wire transfer of the net purchase
amount to a custodial account designated by the Fund as designated in the
applicable Portfolio's Prospectus.
10
2. REDEMPTION ORDERS. In the case of Day 1 Trades that
constitute a net redemption (including exchanges) Order, the Fund or its
transfer agent will arrange for a federal funds wire transfer of the net
redemption amount to a bank account designated by the Company on Day 2, in no
instance later than the time provided for in the applicable Portfolio's
Prospectus.
3. GENERALLY. Settlements will be in U.S. dollars. On any
Business Day when the Federal Reserve Wire Transfer System is closed, all
communication and processing rules will be suspended for the settlement of
Orders. Orders will be settled on the next Business Day on which the Federal
Reserve Wire Transfer System is open. Transactions that are the subject of
such Orders will be processed at the Share Price for the applicable Portfolio
on the Business Day to which the Orders originally relate.
F. DIVIDENDS AND OTHER DISTRIBUTIONS. The Fund or its transfer
agent will furnish the Company or its designee written notice of any
dividends or other distributions payable on the shares of each Portfolio, via
email, which email addresses shall be provided by the Company and updated by
the Company as necessary. Dividends and distributions with respect to a
Portfolio will be automatically reinvested in additional shares of the
Portfolio held by the T/A Account(s) and the Fund or its transfer agent will
notify the Company or its designee as to the number of shares so issued.
G. ACTIVITY REPORTING AND VERIFICATION. The Fund or its transfer
agent will deliver to the Company or its designee in writing, via facsimile
or other method agreed upon by the parties (e.g., DST Vision) a statement for
the preceding calendar month reflecting the shares of each Portfolio held by
the T/A Account(s) as of the end of such preceding month and all purchases,
exchanges and redemptions by the Company of shares of a Portfolio during such
preceding month. The Company will, immediately upon receipt of any activity
or position file concerning a T/A Account, verify the information contained
therein against the information contained on the Company's record-keeping
system and immediately advise the Fund or its transfer agent, in writing, of
any discrepancies between such information. The Fund and the Company will
cooperate to resolve any such discrepancies as soon as reasonably
practicable.
H. PROCESSING ADJUSTMENTS. In the event of any error or delay with
respect to these Manual Procedures that is caused by the Fund or its transfer
agent, the Fund will make any adjustments on its (or its transfer agent's)
recordkeeping system necessary to correct such error or delay. The Company
will make the corresponding adjustments on its record-keeping system. The
Company and the Fund will each provide the other with prompt notice of any
errors or delays of the type referred to in these Manual Procedures.
11
