NEW
PARTICIPATION AGREEMENT
AMONG
XXXXXX VARIABLE TRUST
XXXXXX RETAIL MANAGEMENT, L.P.
AND
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
THIS AGREEMENT, made and entered into as of this 30th day of April,
2001, among Lincoln Life & Annuity Company of New York (the "Company"), a New
York corporation, on its own behalf and on behalf of each separate account of
the Company set forth on Schedule A hereto, as such Schedule may be amended from
time to time (each such account hereinafter referred to as the "Account"),
PUTNAM VARIABLE TRUST (the "Trust"), a Massachusetts business trust, and XXXXXX
RETAIL MANAGEMENT, L.P. (the "Underwriter"), a Massachusetts limited
partnership.
WHEREAS, the Trust is an open-end diversified management investment
company and is available to act as the investment vehicle for separate accounts
established for variable life insurance policies and variable annuity contracts
(collectively, the "Variable Insurance Products") to be offered by insurance
companies which have entered into Participation Agreements with the Trust and
the Underwriter (the "Participating Insurance Companies"); and
WHEREAS, the beneficial interest in the Trust is divided into several
series of shares, each designated a "Fund" and representing the interest in a
particular managed portfolio of securities and other assets; and
WHEREAS, the Trust has obtained an order from the Securities and
Exchange Commission, dated December 29, 1993 (File No. 812-8612), granting the
variable annuity and variable life insurance separate accounts participating in
the Trust exemptions from the provisions of sections 9(a), 13(a), 15(a) and
15(b) of the Investment Company Act of 1940, as amended (the "1940 Act"), and
Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to
permit shares of the Trust to be sold to and held by variable annuity and
variable life insurance separate accounts of the Participating Insurance
Companies (the "Shared Funding Exemptive Order"); and
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act and the sale of its shares is registered under the
Securities Act of 1933, as amended (the " 1933 Act"); and
WHEREAS, the Company has registered or will register certain variable
life and/or variable annuity contracts under the 1933 Act unless exempt
therefrom and any applicable state securities and insurance law; and
WHEREAS, each Account is a duly organized, validly existing separate
account, established by resolution of the Board of Directors of the Company, on
the date shown for such Account on Schedule A hereto, to set aside and invest
assets attributable to one or more variable insurance contracts (the
"Contracts"); and
WHEREAS, the Company has registered or will register the Account as a
unit investment trust under the 1940 Act unless exempt therefrom; and
WHEREAS, the Underwriter is registered as a broker dealer with the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended (the " 1934 Act"), and is a member in good standing of the National
Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in certain Funds
("Authorized Funds") on behalf of each Account to fund certain of the Contracts
and the Underwriter is authorized to sell such shares to unit investment trusts
such as each Account at net asset value;
NOW, THEREFORE, in consideration of the promises herein, the Company,
the Trust and the Underwriter agree as follows:
ARTICLE 1. SALE OF TRUST SHARES
1.1 The Underwriter agrees, subject to the Trust's rights under Section
1.2 and otherwise under this Agreement, to sell to the Company those Trust
shares representing interests in Authorized Funds which each Account orders,
executing such orders on a daily basis at the net asset value next computed
after receipt by the Trust or its designee of the order for the shares of the
Trust. For purposes of this Section 1.1, the Company shall be the designee of
the Trust for receipt of such orders from each Account and receipt by such
designee shall constitute receipt by the Trust; provided that the Trust receives
notice of such order by 10:00 a.m. New York time on the next following Business
Day. "Business Day" shall mean any day on which the New York Stock Exchange is
open for trading and on which the Trust calculates its net asset value pursuant
to the rules of the Securities and Exchange Commission. The initial Authorized
Funds are set forth in Schedule B, as such schedule is amended from time to
time. The Trust will confirm receipt of each trade (ending share balance by
account and fund) by 2:30 p.m. New York time on the day the trade is placed with
the Trust (using a mutually agreed upon format).
1.2 The Trust agrees to make its shares available indefinitely for
purchase at the applicable net asset value per share by the Company and its
Accounts on those days on which the Trust calculates its net asset value
pursuant to rules of the Securities and Exchange
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Commission and the Trust shall use its best efforts to calculate such net asset
value on each day on which the New York Stock Exchange is open for trading.
Notwithstanding the foregoing, the Trustees of the Trust (the "Trustees") may
refuse to sell shares of any Fund to the Company or any other person, or suspend
or terminate the offering of shares of any Fund if such action is required by
law or by regulatory authorities having jurisdiction over the Trust or if the
Trustees determine, in the exercise of their fiduciary responsibilities, that to
do so would be in the best interests of shareholders.
1.3 The Trust and the Underwriter agree that shares of the Trust will
be sold only to Participating Insurance Companies and their separate accounts.
No shares of any Fund will be sold to the general public.
1.4 The Trust shall redeem its shares in accordance with the terms of
its then current prospectus. For purposes of this Section 1.4, the Company shall
be the designee of the Trust for receipt of requests for redemption from each
Account and receipt by such designee shall constitute receipt by the Trust;
provided that the Trust receives notice of such request for redemption by 10:00
a.m., New York time, on the next following Business Day. Payment shall be made
the same business day that the Trust receives notice of the order in federal
funds initiated by wire no later than 2:30 p.m. New York time as long as the
banking system is open for business. If the banking system is closed, payment
will be transmitted the next day that the banking system is open for business.
1.5 The Company shall purchase and redeem the shares of Authorized
Funds offered by the then current prospectus of the Trust in accordance with the
provisions of such prospectus. Trust shall promptly notify Company of any
changes to such provisions.
1.6 The Company shall pay for Trust shares on the next Business Day
after an order to purchase Trust shares is made in accordance with the
provisions of Section 1.1 hereof. Payment shall be in federal funds initiated by
wire no later than 2:30 p.m. New York time as long as the banking system is open
for business. If the banking system is closed, payment will be transmitted the
next day that the banking system is open for business.
1.7 Issuance and transfer of the Trust's shares will be by book entry
only. Share certificates will not be issued to the Company or any Account.
Shares ordered from the Trust will be recorded as instructed by the Company to
the Underwriter in an appropriate title for each Account or the appropriate
sub-account of each Account.
1.8 The Underwriter shall furnish prompt notice on or before
ex-dividend date (using a mutually agreed upon format) to the Company of the
declaration of any income, dividends or capital gain distributions payable on
the Trust's shares. The Company hereby elects to receive all such income
dividends and capital gain distributions as are payable on the Fund shares in
additional shares of that Fund. The Company reserves the right to revoke this
election and to receive all such income dividends and capital gain distributions
in cash. The Underwriter shall notify the Company of the number of shares so
issued as payment of such dividends and
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distributions. Each year the Underwriter will provide the Company with a
dividend and capital gain payment schedule (using a mutually agreed upon
format).
1.9 The Underwriter shall make the net asset value per share for each
Fund available to the Company on a daily basis as soon as reasonably practical
after the Trust calculates its net asset value per share and each of the Trust
and the Underwriter shall use its best efforts to make such net asset value per
share available by 6:30 p.m. New York time (using a mutually agreed upon
format). The Underwriter will notify Company when and if Underwriter does not
communicate the net asset value per share by 6:30 pm New York time. The Trust
shall indemnify the Company with respect to all costs, expenses and losses
relating to pricing errors or delays in communication of net asset value as may
be required to be corrected by law.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1 The Company represents and warrants that
(a) at all times during the term of this Agreement the Contracts are or
will be registered under the 1933 Act or will be offered and sold in compliance
with exemptions from such registration; the Contracts will be issued and sold in
compliance in all material respects with all applicable laws. The Company
further represents and warrants that it is an insurance company duly organized
and validly existing under applicable law and that it has legally and validly
established each Account prior to any issuance or sale thereof as a separate
account under applicable law and has registered or, prior to any issuance or
sale of the Contracts, will register each Account as a unit investment trust in
accordance with the provisions of the 1940 Act to serve as a segregated
investment account for the Contracts or operate such Account in compliance with
exemption from such registration; and
(b) the Contracts are currently treated as endowment, annuity or life
insurance contracts, under applicable provisions of the Internal Revenue Code of
1986, as amended (the "Code"), and that it will make every effort to maintain
such treatment and that it will notify the Trust and the Underwriter immediately
upon having a reasonable basis for believing that the Contracts have ceased to
be so treated or that they might not be so treated in the future.
2.2 The Trust represents and warrants that
(a) at all times during the term of this Agreement Trust shares sold
pursuant to this Agreement shall be registered under the 1933 Act, duly
authorized for issuance and sold by the Trust to the Company in compliance with
all applicable laws, subject to the terms of Section 2.4 below, and the Trust is
and shall remain registered under the 1940 Act. The Trust shall amend the
Registration Statement for its shares under the 1933 Act and the 1940 Act from
time to time as required in order to effect the continuous offering of its
shares. The Trust shall register and qualify the shares for sale in accordance
with the laws of the various states only if and to the extent deemed advisable
by the Trust or the Underwriter in connection with their sale by the Trust to
the Company and only as required by Section 2.4;
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(b) the Trust is currently qualified as a Regulated Investment
Company under Subchapter M of the Code, and that it will use its best efforts to
maintain such qualification (under Subchapter M or any successor provision) and
that it will notify the Company immediately upon having a reasonable basis for
believing that it has ceased to so qualify or that it might not so qualify in
the future; and
(c) the Trust is lawfully organized and validly existing under the laws
of the Commonwealth of Massachusetts and that it does and will comply in all
material respects with the 1940 Act.
2.3 The Underwriter represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute the Trust shares
in accordance with all applicable securities laws applicable to it, including
without limitation the 1933 Act, the 1934 Act, and the 0000 Xxx.
2.4 Notwithstanding any other provision of this Agreement, the Trust
shall be responsible for the registration and qualification of its shares and of
the Trust itself under the state securities or "blue sky laws only in connection
with the sales of shares directly to the Company through the Underwriter. The
Trust shall not be responsible, and the Company shall take full responsibility,
for determining whether any qualification or registration of Trust shares is
required under such laws in connection with the sale of the Contracts or the
indirect interest of any Contractholder in any shares of the Trust and advising
the Trust thereof at such time and in such manner as is necessary to permit the
Trust to comply.
2.5 The Trust makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states.
ARTICLE III. PROSPECTUSES AND PROXY STATEMENTS; VOTING
3.1 The Trust shall provide such documentation (including a
camera-ready copy of its prospectus) and other assistance as is reasonably
necessary in order for the Company once each year (or more frequently if the
prospectus for the Trust is amended) to have the prospectus for the Contracts
and the Trust's prospectus printed together in one or more documents (such
printing to be at the Company's expense).
3.2 The Trust's Prospectus shall state that the Statement of Additional
Information for the Trust is available from the Underwriter or its designee (or
in the Trust's discretion, the Prospectus shall state that such Statement is
available from the Trust), and the Underwriter (or the Trust), at its expense,
shall print and provide such Statement free of charge to the Company and to any
owner of a Contract or prospective owner who requests such Statement.
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3.3 The Trust, at its expense, shall provide the Company with copies of
its reports to shareholders, proxy material and other communications to
shareholders in such quantity as the Company shall reasonably require for
distribution to the Contract owners, such distribution to be at the expense of
the Trust in the case of proxy material and at the expense of the Company in the
case of shareholder reports.
3.4 The Company shall vote all Trust shares as required by law and the
Shared Funding Exemptive Order. The Company reserves the right to vote Trust
shares held in any separate account in its own right, to the extent permitted by
law and the Shared Funding Exemptive Order. The Company shall be responsible for
assuring that each of its separate accounts participating in the Trust
calculates voting privileges in a manner consistent with all legal requirements
and the Shared Funding Exemptive Order.
3.5 The Trust will comply with all applicable provisions of the 1940
Act requiring voting by shareholders, and in particular the Trust will either
provide for annual meetings or comply with Section 16(c) of the 1940 Act
(although the Trust is not one of the trusts described in Section 16(c) of that
Act) as well as with Sections 16(a) and, if and when applicable, 16(b). Further,
the Trust will act in accordance with the Securities and Exchange Commission's
interpretation of the requirements of Section 16(a) with respect to periodic
elections of trustees and with whatever rules the Commission may promulgate with
respect thereto.
3.6 The Trust and the Underwriter agree to use their best efforts to
provide the Company all Trust proxies, reports, and prospectuses (including
supplements) in HTML, PDF and hard copy in final form no later than 15 calendar
days before they must be mailed: Reports - February 13th and August 14th,
Prospectuses - April 15th. Trust will customize prospectuses (including
supplements) to include only funds offered in the Company's products.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1 Without limiting the scope or effect of Section 4.2 hereof, the
Company shall furnish, or shall cause to be furnished, to the Underwriter each
piece of sales literature or other promotional material (as defined hereafter)
in which the Trust, its investment adviser or the Underwriter is named at least
15 days prior to its use. No such material shall be used if the Underwriter
objects to such use within five Business Days after receipt of such material.
4.2 The Company shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for the
Trust shares, as such registration statement and prospectus may be amended or
supplemented from time to time, or in annual or semi-annual reports or proxy
statements for the Trust, or in sales literature or other promotional material
approved by the Trust or its designee or by the Underwriter, except with the
written permission of the Trust or the Underwriter or the designee of either or
as is required by law.
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4.3 The Underwriter or its designee shall furnish, or shall cause to be
furnished, to the Company or its designee, each piece of sales literature or
other promotional material prepared by the Underwriter in which the Company
and/or its separate account(s) is named at least 15 days prior to its use. No
such material shall be used if the Company or its designee objects to such use
within five Business Days after receipt of such material.
4.4 Neither the Trust nor the Underwriter shall give any information or
make any representations on behalf of the Company or concerning the Company,
each Account, or the Contracts other than the information or representations
contained in a registration statement or prospectus for the Contracts, as such
registration statement and prospectus may be amended or supplemented from time
to time, or in published reports for each Account which are in the public domain
or approved by the Company for distribution to Contract owners, or in sales
literature or other promotional material approved by the Company or its
designee, except with the written permission of the Company or as is required by
law.
4.5 For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to, 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 (i.e. any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, 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 registered representatives.
4.6 The Underwriter will support onsite visits by Company no less
frequently than biannually and visit the Company no less frequently than
annually. The Trust or Underwriter will provide a signed compliance report as
reasonably requested by the Company or its designee, on a quarterly basis to
include but not limited to: 817 (h), subchapter M, and Prospectus guidelines.
The Trust or Underwriter will provide State of California Bulletin 97-2
compliance certification upon reasonable request. The Trust or Underwriter will
provide fund statistics and commentaries (as reasonably required by Company) in
electronic format each calendar quarter, no later than the 17th of the month
following quarter-end. The Underwriter will support the Company's marketing and
due diligence efforts by granting reasonable requests for visits to the
Underwriter's and its affiliates' offices by representatives of the Company.
ARTICLE V. FEES AND EXPENSES
5.1 Except as provided in Article VI, the Trust and Underwriter shall
pay no fee or other compensation to the Company under this agreement.
5.2 All expenses incident to performance by the Trust under this
Agreement
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shall be paid by the Trust. The Trust shall bear the expenses for the cost of
registration and qualification of the Trust's shares, preparation and filing of
the Trust's prospectus and registration statement, proxy materials and reports,
setting the prospectus and shareholder reports in type, setting in type and
printing the proxy materials, and the preparation of all statements and notices
required by any federal or state law, in each case as may reasonably be
necessary for the performance by it of its obligations under this Agreement.
5.3 The Trust shall bear the expenses of printing and distributing the
Trust's proxy materials to existing Contract owners. The Trust will bear the
expense of printing its shareholder reports sent to existing Contract owners.
The Company will pay the costs of distributing such reports.
5.4 The Company shall bear the expenses of printing and distributing
materials, including the Trust's prospectus, used in connection with the sales
of the Contracts. The Company shall also bear the expenses of printing and
distributing the Account's prospectus (including supplements) to existing
Contract owners.
ARTICLE VI. SERVICE FEES
6.1 So long as the Company complies with its obligations in this
Article VI, the Underwriter shall pay such Company a service fee (the "Service
Fee") on shares of the Funds held in the Accounts at the annual rates specified
in Schedule B, subject to Section 6.2 hereof. In this Article VI only, use of
the term Company shall also include Company's designee, Lincoln Financial
Advisors Corporation. The Company represents and warrants that any Service Fees
paid to the Company with respect to the Company's own retirement plans will be
used in compliance with the Employee Retirement Income Security Act of 1974, as
amended.
6.2 The Company understands and agrees that all Service Fee payments
are subject to the limitations contained in each Fund's Distribution Plan, which
may be varied or discontinued at any time and hereby waives the right to receive
such service fee payments with respect to the Fund if the Fund ceases to pay
12b-1 fees to the Underwriter.
6.3 (a) The Company's failure to provide the services described in
Section 6.4 or otherwise comply with the terms of this Agreement will render it
ineligible to receive Service Fees; and
(b) the Underwriter may, without the consent of the Company,
amend this Article VI to change the terms of the Service Fee payments with 90
days prior written notice to the Company.
6.4 The Company will provide the following services to the
Contract Owners purchasing Fund shares:
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(i) Maintaining regular contact with Contract owners and assisting
in answering inquiries concerning the Funds;
(ii) Assisting in printing and distributing shareholder reports and
prospectuses provided by the Underwriter;
(iii) Assisting the Underwriter and its affiliates in the
establishment and maintenance of investor accounts and records;
(iv) Assisting Contract owners in effecting administrative changes,
such as exchanging shares in or out of the Funds;
(v) Assisting in processing purchasing purchase and redemption
transactions; and
(vi) Providing any other information or services as the Contract
owners or the Underwriter may reasonably request.
6.5 The Company's compliance with the service requirement set forth in
this Agreement will be evaluated from time to time by monitoring redemption
levels of Fund shares held in any Account and by such other methods as the
Underwriter deems appropriate.
6.6 The provisions of this Article VI shall remain in effect for not
more than one year from the date hereof and thereafter for successive annual
periods only so long as such continuance is specifically approved at least
annually by the Trustees in conformity with Rule 12b-1. This Article VI shall
automatically terminate in the event of this Agreement' assignment (as defined
by the 1940 Act). In addition, this Article VI may be terminated at any time,
without the payment of any penalty, with respect to any Fund or the Trust as a
whole by any party upon written notice delivered or mailed by registered mail,
postage prepaid, to the other party, or , as provided in Rule 12b-1 under the
1940 Act by the Trustees or by the vote of the holders of the outstanding voting
securities of any Fund.
6.7 The Underwriter shall provide the Trustees of each of the Funds,
and such Trustees shall review at least quarterly, a written report of the
amounts paid to the Company under this Article VI and the purposes for which
such expenditures were made.
The Company will support the Underwriter's marketing efforts by
granting reasonable requests for visits to the Company's offices by
representatives of the Underwriter.
6.8 For purposes of computing the payment to Company contemplated under
this Section 6, the average aggregate net asset value of shares of the Trust
held by the Accounts over a one-month period shall be computed by totaling each
Account's aggregate investment (share net asset value multiplied by total number
of shares held by each Account) on each calendar day during the month, and
dividing by the total number of calendar days during such month. The payment
shall be calculated by Trust at the end of each calendar quarter and will be
paid to the
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Company within thirty (30) calendar days thereafter. The payment will be
accompanied by a statement showing the calculation of the quarterly amounts
payable by Trust and such other supporting data as may be reasonably requested
by Company. The Company reserves the right to audit the calculations made by
Trust.
ARTICLE VII. DIVERSIFICATION
7.1 The Trust and the Underwriter represent and warrant that the Trust
will at all times comply with Section 817(h) of the Code and Treasury Regulation
1.817-5, relating to the diversification requirements for variable annuity,
endowment, and life insurance contracts and any amendments or other
modifications to such Section or Regulations. Trust will notify Company
immediately upon failure to comply with the diversification requirements and
take all steps necessary to remedy the failure.
ARTICLE VIII. POTENTIAL CONFLICTS
8.1 The Trustees will monitor the Trust for the existence of any
material irreconcilable conflict between the interests of the contract owners of
all separate accounts investing in the Trust. A material irreconcilable conflict
may arise for a variety of reasons, including: (a) an action by any state
insurance regulatory authority; (b) a change in applicable federal or state
insurance, tax, or securities law or regulations, or a public ruling, private
letter ruling, no-action or interpretative letter, 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 any Fund are being managed; (e) a difference in voting
instructions given by variable annuity contract and variable life insurance
contract owners; or (f) a decision by an insurer to disregard the voting
instructions of contract owners. The Trust shall promptly inform the Company if
the Trustees determine that a material irreconcilable conflict exists and the
implications thereof.
8.2 The Company will report any potential or existing conflicts of
which it is aware to the Trustees. The Company will assist the Trustees in
carrying out their responsibilities under the Shared Funding Exemptive Order, by
providing the Trustees with all information reasonably necessary for the
Trustees to consider any issues raised. This includes, but is not limited to, an
obligation by the Company to inform the Trustees whenever Contract owner voting
instructions are disregarded.
8.3 If it is determined by a majority of the Trustees, or a majority of
the disinterested Trustees, that a material irreconcilable conflict exists, the
Company shall to the extent reasonably practicable (as determined by a majority
of the disinterested Trustees), take, at the Company's expense, whatever steps
are necessary to remedy or eliminate the material irreconcilable conflict, up to
and including: (1) withdrawing the assets allocable to some or all of the
Accounts from the Trust or any Fund and reinvesting such assets in a different
investment medium, including (but not limited to) another Fund of the Trust, or
submitting the question whether such segregation should be implemented to a vote
of all affected contract owners and, as
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appropriate, segregating the assets of any appropriate group (i.e., annuity
Contract owners, life insurance Contract owners, or variable Contract owners of
one or more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected Contract owners the option of making
such a change; and (2) establishing a new registered management investment
company or managed separate account.
8.4 If a material irreconcilable conflict arises because of a decision
by the Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Trust's election, to withdraw the affected Account's
investment in one or more portfolios of the Trust and terminate this Agreement
with respect to such Account; provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the disinterested
Trustees. No charge or penalty shall be imposed as a result of such withdrawal.
Any such withdrawal and termination must take place within six (6) months after
the Trust gives written notice that this provision is being implemented , and
until the end of that six month period the Underwriter and Trust shall, to the
extent permitted by law and any exemptive relief previously granted to the
Trust, continue to accept and implement orders by the Company for the purchase
(or redemption) of shares of the Trust.
8.5 If a material irreconcilable conflict arises because of a
particular state insurance regulator's decision applicable to the Company to
disregard Contract owner voting instructions and that decision represents a
minority position that would preclude a majority vote, then the Company may be
required, at the Trust's direction, to withdraw the affected Account's
investment in one or more Authorized Funds of the Trust; provided, however, that
such withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested Trustees. Any such withdrawal and termination must take place
within six (6) months after the Trust gives written notice that this provision
is being implemented , unless a shorter period is required by law, and until the
end of the foregoing six month period (or such shorter period if required by
law), the Underwriter and Trust shall, to the extent permitted by law and any
exemptive relief previously granted to the Trust, continue to accept and
implement orders by the Company for the purchase (and redemption) of shares of
the Trust. No charge or penalty will be imposed as a result of such withdrawal.
8.6 For purposes of Sections 8.3 through 8.6 of this Agreement, a
majority of the disinterested Trustees shall determine whether any proposed
action adequately remedies any material irreconcilable conflict. Neither the
Trust nor the Underwriter shall be required to establish a new finding medium
for the Contracts, nor shall the Company be required to do so, if an offer to do
so has been declined by vote of a majority of Contract owners materially
adversely affected by the material irreconcilable conflict. In the event that
the Trustees determine that any proposed action does not adequately remedy any
material irreconcilable conflict, then the Company will withdraw the Account's
investment in one or more Authorized Funds of the Trust and terminate this
Agreement within six (6) months (or such shorter period as may be required by
law or any exemptive relief previously granted to the Trust) after the Trustees
inform the
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Company in writing of the foregoing determination; provided, however, that such
withdrawal and termination shall be limited to the extent required by any such
material irreconcilable conflict as determined by a majority of the
disinterested Trustees. No charge or penalty will be imposed as a result of such
withdrawal.
8.7 The responsibility to take remedial action in the event of the
Trustees' determination of a material irreconcilable conflict and to bear the
cost of such remedial action shall be the obligation of the Company, and the
obligation of the Company set forth in this Article VII shall be carried out
with a view only to the interests of Contract owners.
8.8 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended,
or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the Shared Funding Exemptive Order) on terms and
conditions materially different from those contained in the Shared Funding
Exemptive Order, then (a) the Trust and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary to comply
with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable; and (b) Sections 3.4, 3.5, 8.1, 8.2, 8.3, 8.4
and 8.5 of this Agreement shall continue in effect only to the extent that terms
and conditions substantially identical to such Sections are contained in such
Rule(s) as so amended or adopted.
8.9 The Company has reviewed the Shared Funding Exemption Order and
hereby assumes all obligations referred to therein which are required,
including, without limitation, the obligation to provide reports, material or
data as the Trustees may request as conditions to such Order, to be assumed or
undertaken by the Company.
ARTICLE IX. INDEMNIFICATION
9.1. INDEMNIFICATION BY THE COMPANY
9.1 (a). The Company shall indemnify and hold harmless the Trust and
the Underwriter and each of the Trustees, directors of the Underwriter,
officers, employees or agents of the Trust or the Underwriter and each person,
if any, who controls the Trust or the Underwriter within the meaning of Section
15 of the 1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 9.1) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Company which consent
may not be unreasonably withheld) or 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 the Trust's shares or the Contracts or
the performance by the parties of their obligations hereunder and:
(i) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in a Registration
Statement, Prospectus or Statement of
12
Additional Information for the Contracts or contained in the Contracts
or sales literature for the 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 to the Company by or
on behalf of the Trust for use in the Registration Statement,
Prospectus or Statement of Additional Information for the Contracts or
in the Contracts or sales literature (or any amendment or supplement)
or otherwise for use in connection with the sale of the Contracts or
Trust shares; or
(ii) arise out of or as a result of written statements or
representations (other than statements or representations contained
in the Trust's Registration Statement or Prospectus, or in sales
literature for Trust shares not supplied by the Company, or persons
under its control) or wrongful conduct of the Company or persons
under its control, with respect to the sale or distribution of the
Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement,
Prospectus, or sales literature of the 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 a
statement or omission was made in reliance upon information
furnished to the Trust or the Underwriter by or on behalf of the
Company; or
(iv) arise out of or result from any breach of any representation
and/or warranty made by the Company in this Agreement or arise out
of or result from any other breach of this Agreement by the
Company, as limited by and in accordance with the provisions of
Sections 9.1(b) and 9.1(c) hereof.
9.1 (b) The 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 such may arise
from 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 or to the Trust, whichever is applicable.
9.1 (c) The 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 the 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), on the basis of which the Indemnified
Party should reasonably know of
13
the availability of indemnity hereunder in respect of such claim but failure to
notify the Company of any such claim shall not relieve the 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 the Indemnified Parties, the Company shall be
entitled to participate, at its own expense, in the defense of such action. The
Company also shall be entitled to assume the defense thereof, with counsel
satisfactory to the Indemnified Party named in the action. After notice from the
Company to such Indemnified Party of the 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 the Company will not be liable to such
Indemnified Party under this Agreement for any legal or other expenses
subsequently incurred by such Indemnified Party independently in connection with
the defense thereof other than reasonable costs of investigation.
9.1 (d) The Underwriter shall promptly notify the Company of the
commencement of any litigation or proceedings against the Trust or the
Underwriter in connection with the issuance or sale of the Trust Shares or the
Contracts or the operation of the Trust.
9. 1 (e) The provisions of this Section 9.1 shall survive any
termination of this Agreement.
9.2 INDEMNIFICATION BY THE UNDERWRITER
9.2 (a) The Underwriter shall indemnify and hold harmless the Company
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act and any director, officer, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes of this Section 9.2)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Underwriter which consent may not
be unreasonably withheld) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may become subject under any statute,
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 the Trust's shares or the Contracts or the performance by
the parties of their obligations hereunder and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the sales
literature of the Trust prepared by or approved by the Trust or
Underwriter (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 to the Underwriter or Trust by or on behalf of the Company
for use in sales literature (or any
14
amendment or supplement) or otherwise for use in connection with the
sale of the Contracts or Trust shares; or
(ii) arise out of or as a result of written statements or
representations (other than statements or representations contained in
the Registration Statement, Prospectus, Statement of Additional
Information or sales literature for the Contracts not supplied by the
Underwriter or persons under its control) of the Underwriter or
persons under its control, with respect to the sale or distribution of
the Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement, Prospectus,
Statement of Additional Information or sales literature covering the
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 statement or
statements therein not misleading, if such statement or omission was
made in reliance upon information furnished to the Company by or on
behalf of the Underwriter; or
(iv) arise out of or result from any breach of any representation
and/or warranty made by the Underwriter in this Agreement or arise
out of or result from any other breach of this Agreement by the
Underwriter; as limited by and in accordance with the provisions of
Sections 9.2(b) and 9.2(c) hereof.
9.2 (b) The Underwriter 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 as such may arise from 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 or to
each Company or the Account, whichever is applicable.
9.2 (c) The Underwriter 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 the Underwriter 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) on the basis of which the Indemnified
Party should reasonably know of the availability of indemnity hereunder in
respect of such claim, but failure to notify the Underwriter of any such claim
shall not relieve the Underwriter 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, the Underwriter will be entitled to participate, at its
own expense, in the defense thereof. The Underwriter also shall be entitled to
assume the defense thereof, with counsel satisfactory to the Indemnified Party
named in the action. After notice from the Underwriter to such Indemnified Party
of the Underwriter's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by it,
and the Underwriter will not
15
be liable to such Indemnified Party under this Agreement for any legal or other
expenses subsequently incurred by such Indemnified Party independently in
connection with the defense thereof other than reasonable costs of
investigation.
9.2 (d) The Company shall promptly notify the Underwriter of the Trust
of the commencement of any litigation or proceedings against it or any of its
officers or directors, in connection with the issuance or sale of the Contracts
or the operation of each Account.
9.2 (e) The provisions of this Section 9.2 shall survive any
termination of this Agreement.
9.3 INDEMNIFICATION BY THE TRUST
9.3 (a) The Trust shall indemnify and hold harmless the Company, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act and any director, officer, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes of this Section 9.3)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Trust which consent may not be
unreasonably withheld) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may become subject under any statute,
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
operations of the Trust and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in a Registration
Statement, Prospectus and Statement of Additional Information of the
Trust (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 to the Underwriter or Trust by or on
behalf of the Company for use in the Registration Statement,
Prospectus, or Statement of Additional Information for the Trust (or
any amendment or supplement) or otherwise for use in connection with
the sale of the Contracts or Trust shares; or
(ii) arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this Agreement or
arise out of or result from any other material breach of this
Agreement by the Trust, as limited by and in accordance with the
provisions of Sections 9.3(b) and 9.3(c) hereof.
9.3 (b) The Trust shall not be liable under the indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party as such may arise from such
Indemnified Party s willful misfeasance, bad
16
faith, or gross negligence or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement or to the Company, the
Trust, the Underwriter or each Account, whichever is applicable.
9.3 (c) The Trust shall not be liable under this indemnification
provision with respect to any claim made against any Indemnified Party unless
such Indemnified Party shall have notified the Trust 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) on the basis of which the Indemnified
Party should reasonably know of the availability of indemnity hereunder in
respect of such claim, but failure to notify the Trust of any such claim shall
not relieve the Trust 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, the Trust will be entitled to participate, at its own
expense, in the defense thereof. The Trust also shall be entitled to assume the
defense thereof, with counsel reasonably satisfactory to the Indemnified Party
named in the action. After notice from the Trust to such Indemnified Party of
the Trust's election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, and the
Trust will not be liable to such Indemnified Party under this Agreement for any
legal or other expenses subsequently incurred by such Indemnified Party
independently in connection with the defense thereof other than reasonable costs
of investigation.
9.3 (d) The Company agrees promptly to notify the Trust of the
commencement of any litigation or proceedings against it or any of its officers
or, directors, in connection with this Agreement, the issuance or sale of the
Contracts or the sale or acquisition of shares of the Trust.
9.3 (e) The provisions of this Section 9.3 shall survive any
termination of this Agreement.
ARTICLE X. APPLICABLE LAW
10.1 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
10.2 This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the
Securities and Exchange Commission may grant (including, but not limited to, the
Shared Funding Exemptive Order) and the terms hereof shall be interpreted and
construed in accordance therewith.
ARTICLE XI. TERMINATION
11.1.This Agreement shall terminate:
17
(a) at the option of any party upon six months advance written
notice to the other parties; or
(b) at the option of the Trust or the Underwriter in the event that
formal administrative proceedings are instituted against the Company by the
NASD, the Securities and Exchange Commission, any State Insurance Commissioner
or any other regulatory body regarding the Company's duties under this Agreement
or related to the sales of the Contracts, with respect to the operation of any
Account, or the purchase of the Trust shares, provided, however, that the Trust
or the Underwriter determines in its sole judgment exercised in good faith, that
any such administrative proceedings will have a material adverse effect upon the
ability of the Company to perform its obligations under this Agreement; or
(c) at the option of the Company in the event that formal
administrative proceedings are instituted against the Trust or Underwriter by
the NASD, the Securities and Exchange Commission, or any state securities or
insurance department or any other regulatory body regarding the Trust's or
Underwriter's duties under this Agreement or with respect to the operation of
any Trust, or the sale of shares of the Trust to the Company, provided, however,
that the Company determines in its sole judgment exercised in good faith, that
any such administrative proceedings will have a material adverse effect upon the
ability of the Trust or Underwriter to perform its obligations under this
Agreement; or
(d) with respect to any Account, upon requisite vote of the Contract
owners having an interest in such Account (or any subaccount) to substitute the
shares of another investment company for the corresponding Fund shares of the
Trust in accordance with the terms of the Contracts for which those Fund shares
had been selected to serve as the underlying investment media. The Company will
give 30 days' prior written notice to the Trust of the date of any proposed vote
to replace the Trust's shares; or
(e) with respect to any Authorized Fund, upon 90 days advance written
notice from the Underwriter to the Company, upon a decision by the Underwriter
to cease offering shares of the Fund for sale; or
(f) at the option of the Company in the event that the Trust fails to
maintain its status as a Registered Investment Company or fails to comply with
Section 817(h) of the Code.
11.2. It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 11.1 (a) may be exercised for any
reason or for no reason.
11.3 No termination of this Agreement shall be effective unless and
until the party terminating this Agreement gives prior written notice to all
other parties to this Agreement of its intent to terminate, which notice shall
set forth the basis for such termination. Such prior written notice shall be
given in advance of the effective date of termination as required by this
Article XI.
18
11.4 Notwithstanding any termination of this Agreement, subject to
Section 1.2 of this Agreement, the Trust and the Underwriter shall, at the
option of the Company, continue to make available additional shares of the Trust
pursuant to the terms and conditions of this Agreement, for all Contracts in
effect on the effective date of termination of this Agreement (hereinafter
referred to as "Existing Contracts"). Specifically, without limitation, subject
to Section 1.2 of this Agreement, the owners of the Existing Contracts shall be
permitted to reallocate investments in the Trust, redeem investments in the
Trust and/or invest in the Trust upon the making of additional purchase payments
under the Existing Contracts. The parties agree that this Section 11.4 shall not
apply to any termination under Article VIII and the effect of such Article VIII
termination shall be governed by Article VIII of this Agreement.
11.5 The Company shall not redeem Trust shares attributable to the
Contracts (as opposed to Trust shares attributable to the Company's assets held
in either Account) except (i) as necessary to implement Contract owner initiated
transactions, or (ii) as required by state and/or federal laws or regulations or
judicial or other legal precedent of general application (hereinafter referred
to as a "Legally required Redemption"). Upon request, the Company will promptly
furnish to the Trust and the Underwriter an opinion of counsel for the Company,
reasonably satisfactory to the Trust, to the effect that any redemnification
pursuant to clause (ii) above is a Legally Required Redemption. Furthermore,
except in cases where permitted under the terms of the Contracts, subject to
Section 1.2 of this Agreement, the Company shall not prevent Contract owners
from allocating payments to an Authorized Fund that was otherwise available
under the Contracts without first giving the Trust or the Underwriter 45 days
notice of its intention to do.
ARTICLE XII. NOTICES
Any notice shall be sufficiently given when sent by registered or
certified mail 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 the Trust:
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
If to the Underwriter:
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
19
If to the Company:
Lincoln Life & Annuity Company of New York
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
ARTICLE XIII. MISCELLANEOUS
13.1 A copy of the Agreement and Declaration of Trust of the Trust is
on file with the Secretary of State of the Commonwealth of Massachusetts, and
notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of or arising out of this instrument, including without limitation Article VII,
are not binding upon any of the Trustees or shareholders individually but
binding only upon the assets and property of the Trust.
13.2 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.
13.3 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
13.4 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.
13.5 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the
Securities and Exchange Commission, 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.
13.6 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.
13.7 Notwithstanding any other provision of this Agreement, the
obligations of the Trust and the Underwriter are several and, without limiting
in any way the generality of the foregoing, neither such party shall have any
liability for any action or failure to act by the other party, or any person
acting on such other party's behalf.
20
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
Lincoln Life & Annuity Company of New York
By its authorized officer,
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Second Vice President
XXXXXX VARIABLE TRUST
By its authorized officer,
------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
XXXXXX RETAIL MANAGEMENT, L.P.
By its authorized officer,
------------------------------------------
Name: Xxxx Xxxx
Title: Senior Vice President
21
SCHEDULE A
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK SEPARATE ACCOUNTS
SEPARATE ACCOUNT NAME DATE ESTABLISHED FUNDS USED CONTRACT NAME
Lincoln Life & Annuity Variable July 24, 1996 Growth and Income - Class XX Xxxxxxx Life Group Variable
Annuity Account L Annuity
Health Sciences - Class XX
Xxxxxxx New York Separate Account March 11, 1999 Growth and Income - Class XX Xxxxxxx ChoicePlus II
N for Variable Annuities
Health Sciences - Class XX Xxxxxxx ChoicePlus Access II
Lincoln Life & Annuity Flexible November 24, 1997 Growth and Income - Class XX Xxxxxxx Variable Universal Life
Premium Variable Life Account M (CV) and (CV2)
Health Sciences - Class XX
Xxxxxxx Variable Universal Life
(DB) and (DB2)
Lincoln Variable Universal Life
MoneyGuard
LLANY Separate Account R for January 29, 1998 Growth and Income - Class XX Xxxxxxx Survivor Variable
Flexible Premium Variable Life Universal Life
Health Sciences - Class XX
Xxxxxxx Survivor Variable
Universal Life II
LLANY Separate Account S for Xxxxx 0, 0000 Xxxxxx and Income - Class XX Xxxxxxx Corporate-owned Variable
Flexible Premium Variable Life Universal Life Series III
Health Sciences - Class IB
SCHEDULE B
SERVICE FEE PAYMENTS ON CLASS IB SHARES
FUND RATE
---- ----
Xxxxxx VT Health Sciences Fund 0.25% per annum
Xxxxxx VT Growth & Income Fund 0.25% per annum
NEW JOB
(FORM OF)
SCHEDULE A
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK SEPARATE ACCOUNTS
SEPARATE ACCOUNT NAME DATE ESTABLISHED FUNDS USED CONTRACT NAME
Lincoln Life & Annuity Variable July 24, 1996 Growth and Income - Class XX Xxxxxxx Life Group Variable Annuity
Annuity Account L
Health Sciences - Class XX
Xxxxxxx New York Separate Account March 11, 1999 Growth and Income - Class XX Xxxxxxx ChoicePlus II
N for Variable Annuities
Health Sciences - Class XX Xxxxxxx ChoicePlus II Access
Lincoln ChoicePlus II Advance
Lincoln Life & Annuity Flexible November 24, 1997 Growth and Income - Class XX Xxxxxxx Variable Universal Life (CV)
Premium Variable Life Account M and (CV2)
Health Sciences - Class XX
Xxxxxxx Variable Universal Life (DB)
and (DB2)
Lincoln Variable Universal Life
MoneyGuard
LLANY Separate Account R for January 29, 1998 Growth and Income - Class XX Xxxxxxx Survivor Variable Universal
Flexible Premium Variable Life Life
Health Sciences - Class XX
Xxxxxxx Survivor Variable Universal
Life II
LLANY Separate Account S for Xxxxx 0, 0000 Xxxxxx and Income - Class XX Xxxxxxx Corporate-owned Variable
Flexible Premium Variable Life Universal Life Series III
Health Sciences - Class IB
AMENDMENT NO. 1
TO THE
PARTICIPATION AGREEMENT
AMONG
XXXXXX VARIABLE TRUST
XXXXXX RETAILMANAGEMENT, L.P.
AND
LINCOLN LIFE AND ANNUITY COMPANY OF NEW YORK
THIS AMENDMENT is made and executed as of the 23rd day of July, 2002 among
Lincoln Life and Annuity Company of New York (the "Company"), Xxxxxx Variable
Trust (the "Trust") and Xxxxxx Retail Management, L.P. (the "Underwriter).
WHEREAS, the Company, the Trust and the Underwriter have executed a
Participation Agreement dated as of April 30, 2001 (the "Fund
Participation
Agreement");
Wherefore, each of the parties hereto wish to amend the Fund
Participation
Agreement as follows:
1. ARTICLE I, Section 1.9, shall be deleted in its entirety and replaced
with the following:
SECTION 1.9. The underwriter shall make the net asset value per share
for each Fund available to the Company on a daily basis as soon as reasonably
practical after the Trust calculates its net asset value per share and each of
the Trust and the Underwriter shall use its best efforts to make such net asset
value per share available by 6:30 p.m. New York time (using a mutually agreed
upon format). The Underwriter will notify Company when and if Underwriter does
not communicate the net asset value per share by 6:30 p.m. New York time. Any
material errors in the calculation of the net asset value, dividends or capital
gain information shall be reported immediately upon discovery to the Company.
The Trust shall indemnify the Company with respect to all costs, expenses and
losses relating to pricing errors or delays in communication of net asset value
as may be legally required.
2. ARTICLE XII. NOTICES If to the Company shall be replaced with:
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
C/O The Lincoln National Life Insurance Company
0000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Funds Management
Facsimile 000-000-0000
3. Schedule A of the Fund
Participation Agreement shall be deleted and
replaced with the attached Schedule A.
4. All other terms of the Fund
Participation Agreement remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the first
above-written date.
XXXXXX RETAIL MANAGEMENT, X.X. XXXXXX VARIABLE TRUST
By /s/ Xxxx X. Xxxx By /s/ Xxxx X. Xxxxxx
---------------------------- ----------------------------
Xxxx X. Xxxx Xxxx X. Xxxxxx
Its Managing Director Its Vice President
Duly Authorized Duly Authorized
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By /s/ Xxxxxx X. Xxxxxxx
----------------------------
Xxxxxx X. Xxxxxxx
Its 2nd Vice President
Duly Authorized
2
AMENDMENT TO
SCHEDULE A
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK SEPARATE ACCOUNTS
SEPARATE ACCOUNT NAME DATE ESTABLISHED FUNDS USED CONTRACT NAME
Lincoln Life & Annuity Variable July 24, 1996 Growth and Income - Lincoln Life Group Variable
Annuity Account L Class IB Annuity
Health Sciences - Class XX
Xxxxxxx New York Separate Account N March 11, 1999 Growth and Income - Lincoln ChoicePlus II
for Variable Annuities Class XX
Xxxxxxx ChoicePlus II Access
Health Sciences - Class XX
Xxxxxxx ChoicePlus II Advance
Lincoln ChoicePlus II Bonus
Lincoln Life & Annuity Flexible November 24, 1997 Growth and Income - Lincoln Variable Universal Life
Premium Variable Life Account M Class IB (CV), (CV2) and (CV3)
Health Sciences - Class XX
Xxxxxxx Variable Universal Life
(DB) and (DB2)
Lincoln Variable Universal Life
MoneyGuard
LLANY Separate Account R for January 29, 1998 Growth and Income - Lincoln Survivor Variable
Flexible Premium Variable Life Class IB Universal Life
Health Sciences - Lincoln Survivor Variable Universal
Class IB Life II
Lincoln Survivor Variable Universal
Life III
LLANY Separate Account S for Xxxxx 0, 0000 Xxxxxx and Income - Lincoln Corporate-owned
Flexible Premium Variable Life Class IB Variable Universal Life Series III
Health Sciences - Class IB
3
Effective Date: August 1, 2002
4
AMENDMENT NO. 2
TO THE
PARTICIPATION AGREEMENT
AMONG
XXXXXX VARIABLE TRUST
XXXXXX RETAILMANAGEMENT, L.P.
AND
LINCOLN LIFE AND ANNUITY COMPANY OF NEW YORK
THIS AMENDMENT is made and executed as of the 1st day of May, 2003 among Lincoln
Life & Annuity Company of New York (the "Company"), Xxxxxx Variable Trust (the
"Trust") and Xxxxxx Retail Management, L.P. (the "Underwriter).
WHEREAS, the Company, the Trust and the Underwriter have executed a
Participation Agreement dated as of April 30, 2001 (the "Fund Participation
Agreement");
Wherefore, each of the parties hereto wish to amend the Fund Participation
Agreement as follows:
1. Schedule A of the Fund Participation Agreement shall be deleted and
replaced with the attached Schedule A.
2. All other terms of the Fund Participation Agreement remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the first
above-written date.
XXXXXX RETAIL MANAGEMENT, X.X. XXXXXX VARIABLE TRUST
By /s/ Xxxx X. Xxxx By /s/ Xxxx X. Xxxxx
---------------------------------- -----------------------------
Xxxx X. Xxxx Xxxx X. Xxxxx
Its Managing Director Its Senior Vice President
Duly Authorized Duly Authorized
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By /s/ Rise X. X. Xxxxxx
----------------------------------
Rise X. X. Xxxxxx
Its 2nd Vice President
Duly Authorized
AMENDMENT TO
SCHEDULE A
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK SEPARATE ACCOUNTS
SEPARATE ACCOUNT NAME DATE ESTABLISHED FUNDS USED CONTRACT NAME
------------------------------------------------------------------------------------------------------------------------------------
Lincoln Life & Annuity Variable July 24, 1996 Growth and Income - Lincoln Life Group Variable Annuity
Annuity Account L Class IB
Health Sciences -
Class XX
Xxxxxxx New York Account N for March 11, 1999 Growth and Income - Lincoln ChoicePlus
Variable Annuities Class XX Xxxxxxx ChoicePlus II
Lincoln ChoicePlus II Access
Health Sciences - Lincoln ChoicePlus II Advance
Class XX Xxxxxxx ChoicePlus II Bonus
ChoicePlus Assurance (B Share)
ChoicePlus Assurance (C Share)
ChoicePlus Assurance (L Share)
ChoicePlus Assurance (Bonus)
Lincoln Life & Annuity Flexible November 24, 1997 Growth and Income - Lincoln Variable Universal Life (CV),
Premium Variable Life Account M Class IB (CV)-II and (CV)-III
Health Sciences - Lincoln Variable Universal Life (DB)
Class IB and (DB)-II
LLANY Separate Account R for January 29, 1998 Growth and Income - Lincoln Survivor Variable Universal Life
Flexible Premium Variable Life Class XX
Xxxxxxx Survivor Variable Universal
Health Sciences - Life II
Class XX
Xxxxxxx Survivor Variable Universal
Life III
LLANY Separate Account S for Xxxxx 0, 0000 Xxxxxx and Income - Lincoln Corporate-owned Variable
Flexible Premium Variable Life Class IB Universal Life Series III
Health Sciences -
Class IB
Effective Date: May 1, 2003
2
AMENDMENT NO. 3
TO THE
PARTICIPATION AGREEMENT
AMONG
XXXXXX VARIABLE TRUST
XXXXXX RETAIL MANAGEMENT LIMITED PARTNERSHIP
AND
LINCOLN LIFE AND ANNUITY COMPANY OF NEW YORK
THIS AMENDMENT is made and executed as of the 31st day of October, 2006 among
Lincoln Life & Annuity Company of New York (the "Company"), Xxxxxx Variable
Trust (the "Trust") and Xxxxxx Retail Management Limited Partnership (the
"Underwriter).
WHEREAS, the Company, the Trust and the Underwriter have executed a
Participation Agreement dated as of April 30, 2001, as amended on July 23, 2002
and as further amended on May 1, 2003 (the "Fund Participation Agreement");
Wherefore, each of the parties hereto wish to amend the Fund Participation
Agreement as follows:
1. Schedule A of the Fund Participation Agreement shall be deleted and
replaced with the attached Schedule A.
2. All other terms of the Fund Participation Agreement remain in full force
and effect.
3. This Amendment shall be deemed to be effective as of October 1, 2006.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the first
above-written date.
XXXXXX RETAIL MANAGEMENT XXXXXX VARIABLE TRUST
LIMITED PARTNERSHIP
By /s/ Xxxx Xxxxxxx By /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------- -------------------------------------
Xxxx Xxxxxxx Xxxxxxxx X. Xxxxxxx
Its Managing Director Its Treasurer
Duly Authorized Duly Authorized
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxxx
Its 2nd Vice President
Duly Authorized
2
AMENDMENT TO
SCHEDULE A
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK SEPARATE ACCOUNTS
SEPARATE ACCOUNT NAME DATE ESTABLISHED FUNDS USED CONTRACT NAME
-----------------------------------------------------------------------------------------------------------------------------
Lincoln Life & Annuity Variable July 24, 1996 Growth and Income - Class XX Xxxxxxx Life Group Variable Annuity
Annuity Account L
Health Sciences - Class XX
Xxxxxxx New York Account N for March 11, 1999 Growth and Income - Class XX Xxxxxxx ChoicePlus
Variable Annuities Lincoln ChoicePlus II
Health Sciences - Class XX Xxxxxxx ChoicePlus II Access
Lincoln ChoicePlus II Advance
Lincoln ChoicePlus II Bonus
ChoicePlus Assurance (B Share)
ChoicePlus Assurance (C Share)
ChoicePlus Assurance (L Share)
ChoicePlus Assurance (Bonus)
Lincoln Life & Annuity Flexible November 24, 1997 Growth and Income - Class XX Xxxxxxx Variable Universal Life (CV),
Premium Variable Life Account M (CV)-II and (CV)-III
Health Sciences - Class XX Xxxxxxx Variable Universal Life DB and
(DB)-II
LLANY Separate Account R for January 29, 1998 Growth and Income - Class XX Xxxxxxx Survivor Variable Universal Life
Flexible Premium Variable Life
Health Sciences - Class XX Xxxxxxx Survivor Variable Universal
Life II
Lincoln Survivor Variable Universal
Life III
LLANY Separate Account S for Xxxxx 0, 0000 Xxxxxx and Income - Class XX Xxxxxxx Corporate-owned Variable
Flexible Premium Variable Life Universal Life Series III
Health Sciences - Class XX
Xxxxxxx Life & Annuity Flexible June 21, 2006 Growth and Income - Class XX Xxxxxxx Corporate Private Solution
Premium Variable Life Account M Health Science - Class IB
3
