WHOLESALE LEVEL
SERVICING AGREEMENT
FOR IN-FORCE MONY PRODUCTS
AGREEMENT dated as of October 1, 2013 by and among MONY Life Insurance
Company ("MONY") and Investment Distributors, Inc. ("Distributor" and "IDI")
and AXA Distributors, LLC (the "Broker-Dealer", "Wholesale Servicer" or "ADL").
W I T N E S S E T H :
WHEREAS, prior to April 1, 2005 MONY and/or MONY Securities Corp.
("MSC"), its affiliated broker-dealer, insurance agency and the principal
underwriter of its variable life insurance and annuity products, had authorized
third party insurance agencies to sell and service fixed life insurance
policies and annuity contracts issued by MONY and had authorized third-party
insurance agents, agencies and/or broker-dealers, as the case may be, to sell
and service variable life insurance policies and annuity contracts issued by
MONY pursuant to sales agreements between MONY and/or MSC and such third party
insurance agents, agencies and/or broker-dealers, as the case may be (the
"Pre-4/1/2005 Retail Sales Agreements") and Wholesale Servicer currently acts
as the principal underwriter and wholesale servicer with respect to products
sold pursuant to the Pre-4/1/2005 Retail Sales Agreements;
WHEREAS, on April 1, 2005 MONY and MSC entered into a Wholesaler
Distribution Agreement with the Wholesale Servicer, authorizing the Wholesale
Servicer to distribute fixed and variable MONY life insurance and annuity
products to third party insurance agencies and broker-dealers (the "2005
Distribution Agreement") pursuant to which ADL agreed to act as a principal
underwriter of MONY's variable life insurance and annuity products, to provide
wholesale level services to MONY in respect of in-force MONY fixed and variable
life insurance and annuity products sold by independent third-party insurance
agents, agencies and/or broker-dealers, pursuant to sales agreements between
ADL and independent third-party insurance agents, agencies and/or
broker-dealers (the "ADL Sales Agreements" and together with the Pre-4/1/2005
Retail Sales Agreements, the "In-Force Retail Sales Agreements");
WHEREAS, third party agents, agencies and/or broker-dealers are no longer
permitted to sell MONY life and annuity products pursuant to the In-Force
Retail Sales Agreements but continue to be the broker(s)-of-record (as the same
may change from time to time, the "Brokers-of-Record") of the MONY fixed and
variable life insurance and annuity products that correspond to the policy
forms to be listed on Schedule A upon delivery by ADL pursuant to (S)1.2 hereof
(the "In-Force Policies and Contracts" and individually referred to herein as a
"Policy" or a "Contract") and are currently servicing the In-Force Policies and
Contracts (and selling conversion policies to the owners thereof) pursuant to
the In-Force Retail Sales Agreements;
WHEREAS, the MONY Parties and ADL wish to terminate all of the provisions of
the 2005 Distribution Agreement as of the date hereof;
WHEREAS, the MONY Parties wish to retain the Wholesale Servicer, from and
after the date hereof to pay the compensation, if any, due and payable to the
third party agents, agencies and/or broker-dealers with respect to the In-Force
Policies and Contracts pursuant to the In-Force Retail Sales Agreements,
provide the other wholesale level services with respect to the In-Force
Policies and Contracts more particularly described herein;
WHEREAS, MONY intends that the Distributor will serve as the distributor and
principal underwriter of the variable In-Force Policies and Contracts under
this Agreement after the Distributor has obtained any necessary regulatory
approval;
WHEREAS, MONY further wishes to retain ADL to serve as the distributor and
principal underwriter of the variable In-Force Policies and Contracts (as more
particularly provided in Section 2.1 below), in addition to all the others
services to be provided by ADL hereunder, but only until the Interim Period End
Date (as hereinafter defined);
NOW THEREFORE in consideration of the premises and of the mutual covenants
and promises herein contained, the parties hereto agree as follows:
ARTICLE I
TERMINATION OF THE 2005 DISTRIBUTION AGREEMENT; AUTHORIZATION TO PROVIDE
WHOLESALE SERVICES
(S)1.1 Termination of 2005 Distribution Agreement. MONY and the Wholesale
Servicer hereby agree that all of the provisions of the 2005 Distribution
Agreement are terminated and of no further force or effect from and after the
date hereof and MONY does hereby forever release and discharge the Wholesale
Servicer, and the Wholesale Servicer does hereby forever release and discharge
MONY, from all actions, claims, demands, damages, obligations and/or
liabilities, of any kind or nature whatsoever, whether known or unknown, now
existing or hereafter arising with respect to the 2005 Distribution Agreement.
(S)1.2 Wholesale Level Servicing. The MONY Parties hereby retain the
Wholesale Servicer to provide the wholesale level services more particularly
described on Annex 1 with respect to the In-Force Policies and Contracts in
accordance with the terms and conditions of this Agreement and the In-Force
Retail Sales Agreements. The servicing to be provided by the Wholesale Servicer
shall include, without limitation, the payment of all compensation due and
payable to the Brokers-of-Record pursuant to the In-Force Retail Sales
Agreements. Except to the extent arising out of the negligence or willful
misconduct of the Wholesale Servicer or its Associates with respect to the
services described on Annex 1, the Wholesale Servicer shall have no liability
to the MONY Parties for failure of a Broker-of-Record to perform its
obligations under the In-Force Retail Sales Agreements. The Wholesale Servicer
shall not be responsible for overseeing or supervising the performance of the
Brokers-of-Record of their obligations under the In-Force Retail Sales
Agreements and shall have no obligation hereunder to take any action against a
Broker-of-Record for failing to perform any of its obligations thereunder or
any liability hereunder for failing to do so. Each party shall notify the other
if it becomes aware of material violations of applicable law or of the In-Force
Retail Sales Agreements by the Brokers-of-Record. As promptly as reasonably
practicable (and in any event within 30 days) following the date hereof,
Wholesale Servicer shall provide to the MONY Parties (a) a list of the policy
forms that correspond to the In-Force Policies and Contracts (the "Policy Form
List"), and (b) a representative sample of the In-Force Retail Sales Agreement
(the "Sample Sales Agreements"). The Policy Form List and the Sample Sales
Agreements so provided shall upon delivery be attached hereto as Schedule A and
Schedule E, respectively, and shall be made a part hereof as though attached as
schedules to this Agreement on the date hereof. Wholesale Servicer represents
and warrants to the MONY Parties that, except with respect to compensation
terms, the terms of the In-Force Retail Sales Agreements are consistent in all
material respects with the terms of the Sample Sales Agreements. Wholesale
Servicer agrees that without the prior written consent of the
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MONY Parties (which shall not be unreasonably withheld, conditioned or
delayed), during the term of this Agreement, it will not terminate, assign
(except as provided in the last sentence of this Section 1.2) or enter into a
written amendment or issue any written waiver amending or waiving any of its
rights or obligations under the In-Force Retail Sales Agreements, except such
rights or obligations relating to the rates and terms of compensation payable
to the Brokers-of-Record serviced by Wholesale Servicer hereunder. For the
avoidance of doubt, the prior written consent of the MONY Parties is not
required for the Wholesale Servicer to consent to and effect the assignment of
an In-Force Retail Sales Agreement from one Broker-of-Record to another
Broker-of-Record.
(S)1.3 Conversion Sales. The MONY Parties also authorize the Wholesale
Servicer to distribute the Conversion Policies and Contracts (as hereinafter
defined) to the Brokers-of-Record for sale pursuant to the In-Force Retail
Sales Agreements to the owners of the MONY Policies and Contracts (as
hereinafter defined) who elect to exercise the conversion rights, if any,
available to them thereunder. As used herein, "Conversion Policies and
Contracts" (and, individually, as the case may be, a "Conversion Policy" or
"Conversion Contract") shall mean (i) such MONY life insurance and/or annuity
contracts as MONY is obligated to make available to such owners and (ii) such
other life insurance and/or annuity contracts issued by MONY and/or any of its
affiliated insurance companies. The Wholesale Servicer shall have the exclusive
right to distribute Conversion Policies and Contracts to the Brokers-of-Record
and each Broker-of-Record shall have the exclusive right offer to sell
Conversion Policies and Contracts to its customers who are the owners of the
MONY Policies and Contracts. The MONY Parties shall not offer Conversion
Policies and Contracts directly to the owners of the MONY Policies and
Contracts or authorize, permit or pay compensation or other sums to any other
retail or wholesale insurance agent, insurance agency and/or broker/dealer in
connection with the sale of Conversion Policies and Contracts to the owners of
the MONY Policies and Contracts. The Wholesale Servicer will provide wholesale
level services, including payment of compensation, with respect to all
Conversion Policies and Contracts sold to the owners of the MONY Policies and
Contracts in accordance with the terms and conditions of this Agreement (and
the term "MONY Policies and Contracts" shall include Conversion Policies and
Contracts for such purposes), and the Brokers-of-Record will be permitted to
continue to service the Conversion Policies and Contracts pursuant to the
In-Force Retail Sales Agreement. The MONY Parties will pay first year and
renewal compensation to the Wholesale Servicer on all Conversion Policies and
Contracts sold to owners of MONY Policies and Contracts that is consistent with
the commission paid by the MONY Parties in accordance with their then-current
practice, provided that, in the case of Conversion Policies and Contracts
issued by an affiliated insurance company of MONY, the Wholesale Servicer shall
receive from such affiliated insurance company compensation consistent with the
commission paid by such affiliated insurance company of MONY in accordance with
its then-current practice and the Wholesale Servicer shall enter into selling
agreement with such affiliated insurance company providing protections to such
affiliated insurance company that will issue the Conversion Policy or Contract
substantially similar to the protections provided to MONY hereunder; provided
that such selling agreement shall also include obligations of such affiliated
insurance company substantially similar to the obligations of MONY hereunder.
The Wholesale Servicer will pay first year and renewal compensation to
Brokers-of-Record on all Conversion Policies and Contracts in accordance with
the terms and conditions of the In-Force Retail Sales Agreements.
(S)1.4 Enhancement Offers. The MONY Parties may from time to time during the
term of this Agreement offer directly to any holder of an In-Force Policy or
Contract that is at or near the end of its level-premium term period (an
"Enhanced Policy") an enhancement or modification of the terms of such In-Force
Policy or Contract (collectively, the "Enhancement Offers") (which enhancement
or modification, for the avoidance of doubt, shall not include issuance of a
new policy or contract). The MONY Parties shall notify Wholesale Servicer of
their intention to commence any program for
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Enhancement Offers to holder of such Enhanced Policies no later than 45 days
prior to the start of any such program and such notice shall include reasonable
detail as to the specific Enhanced Policies, or holders thereof, that will
receive such offers and the schedule for contacting such holders; provided
further that if the duration of such program is longer than six months, the
MONY Parties shall deliver a new notice pursuant to this Section 1.4 with the
detail specified above prior to continuing such program for longer than six
months. The MONY Parties will only make Enhancement Offers to owners of
Enhanced Policies directly as the issuer of the Enhanced Policies and shall not
authorize, permit or pay compensation or other sums to any insurance agent or
agency in connection with any Enhancement Offers made to the owners of the
Enhanced Policies or the acceptance of any Enhancement Offers by any of such
owners. The Wholesale Servicer will continue to provide wholesale level
services with respect to all Enhanced Policies, modified and/or amended
pursuant to the Enhancement Offers, in accordance with the terms and conditions
hereof (and the term "MONY Policies and Contracts" shall continue to include
all Enhanced Policies, whether or not so modified or amended), and the
Brokers-of-Record will be permitted to continue to service all Enhanced
Policies, modified and/or amended pursuant to the Enhancement Options, in
accordance with the terms and conditions of the In-Force Retail Sales
Agreements. The MONY Parties will continue to pay compensation, if any, payable
hereunder with respect to such Enhanced Policies as provided in Section 5.1
hereof (but no additional compensation shall be due or payable to the Wholesale
Servicer hereunder as a result of such modifications and/or amendments). MONY
may from time to notify Wholesale Servicer that it proposes to commence any
other program in response to complaints of holders of MONY Policies and
Contracts to make direct offers to holders of MONY Policies and Contracts for
the enhancement or modification of such MONY Policies and Contracts in
situations other than when they are at or near the end of the level-premium
term period, if the commencement of such program would not reasonably be
expected to impact the ability of Wholesale Servicer and its affiliates to sell
contracts to such holders in the future in compliance with the terms of this
Agreement. If MONY proposes to commence any such additional program, Wholesale
Servicer shall consider the proposed commencement of such additional program in
good faith; provided that the MONY Parties may commence any such program only
with the express approval of Wholesale Servicer, and Wholesale Servicer may not
unreasonably withhold, condition or delay its approval of such proposal.
(S)1.5 Limitations on Authority. The Wholesale Servicer shall not possess or
exercise any authority on behalf of the MONY Parties other than that expressly
conferred on them by this Agreement. In particular, and without limiting the
foregoing, the Wholesale Servicer shall not have any authority, nor shall it
grant such authority to any Associate (as hereinafter defined), to alter,
modify, waive or change any of the terms, rates, or conditions of any Policy or
Contract or under any circumstances pay or allow, or offer to pay or allow, any
rebate of premium or consideration in any manner whatsoever, directly or
indirectly.
(S)1.6 Independent Status. The parties acknowledge that the MONY Parties are
retaining the Wholesale Servicer as an independent contractor. Nothing herein
contained shall constitute the Wholesale Servicer or any officers, employees,
agents or representatives thereof as being employees of the MONY Parties or any
affiliate or subsidiary thereof.
ARTICLE II
PRINCIPAL UNDERWRITER; LICENSING AND REGISTRATION
(S)2.1 Principal Underwriter.
(a) MONY hereby retains ADL as the distributor and principal underwriter of
the variable In-Force Policies and Contracts from and after the date hereof
until the Interim Period End Date (as
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defined below). ADL's services as the distributor and principal underwriter of
the variable In-Force Policies and Contracts are in addition to and separate
from the services to be provided by ADL pursuant to Article I above.
(b) MONY acknowledges and confirms that ADL is agreeing to serve as
distributor and principal underwriter of the variable In-Force Policies and
Contracts until the Interim Period End Date.MONY will cause IDI to obtain all
necessary and appropriate power and authority to serve as the distributor and
principal underwriter of the variable In-Force Policies and Contracts as
quickly as reasonably possible. If (i) at any time MONY has reason to believe
that IDI will not be able to obtain the power and authority required to be the
distributor and principal underwriter of the variable In-Force Policies and
Contracts in a timely manner or (ii) IDI has failed to obtain such power and
authority on or before January 1, 2014 for any reason whatsoever, MONY will
promptly retain another broker-dealer (with the Servicer's prior written
consent, which shall not be unreasonably withheld or delayed) to serve as the
distributor and principal underwriter of the variable In-Force Policies and
Contracts.
(c) As soon as (i) IDI has the power and authority to serve as the
distributor and principal underwriter of the variable In-Force Policies and
Contracts or (ii) MONY has retained another broker-dealer to be distributor and
principal underwriter in IDI's place, MONY shall give written notice (the
"Replacement Notice") to ADL stating that IDI or the other broker-dealer, as
the case may be, has all necessary and appropriate power and authority to serve
as the distributor and principal underwriter of the variable In-Force Policies
and Contracts, has been retained by MONY as the distributor and principal
underwriter of the variable In-Force Policies and Contracts as of the effective
date specified therein (the "Replacement Date") and has assumed all the
obligations of the distributor and principal underwriter under this Agreement
from and after such date. If MONY has retained another broker-dealer to serve
as distributor and principal underwriter in place of IDI, MONY shall cause IDI
and the other broker-dealer to execute and deliver an assignment and assumption
of IDI's rights and obligations under this Agreement in accordance with
Section 9.2 below and deliver original executed counterparts of such assignment
and assumption to ADL with the Replacement Notice, and ADL shall not
unreasonably withhold or delay its consent to such assignment and assumption.
(d) ADL shall cease to serve as the distributor and principal underwriter of
the variable In-Force Policies and Contracts from and after the first to occur
of the Replacement Date or the date of termination of that certain Interim
Principal Underwriter Agreement for In-Force MONY Products Being Serviced by
AXA Advisors, LLC, dated as of the date hereof, by and between MONY and ADL
(the "Interim Period End Date") and shall thereafter have no further rights or
obligations hereunder as the distributor and principal underwriter on account
of any period during the term hereof from and after the Replacement Date. The
foregoing notwithstanding, nothing contained herein shall effect or limit the
rights or obligations of the parties hereto with respect to ADL's services as
the distributor and principal underwriter of the variable In-Force Policies
under this Agreement arising and/or accruing prior to the Replacement Date.
(e) The giving of the Replacement Notice shall constitute the warranty and
representation of MONY that IDI or its assignee, as the case may be, is a
broker-dealer registered with the United States Securities and Exchange
Commission ("SEC") under the Securities Exchange Act of 1934 (the "1934 Act")
and is a member in good standing of the Financial Industry Regulatory Authority
("FINRA"). IDI or its assignee, as the case may be, will, from and after the
Replacement Date and at all times thereafter during the term hereof, be duly
registered as a broker-dealer under the 1934 Act and in each state or other
jurisdiction in which it is required to be so registered to perform its
functions and fulfill its obligations hereunder, and be a member in good
standing of FINRA.
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(f) As used in this Agreement, the term "MONY Parties" shall mean (i) MONY
as to all In-Force Policies and Contracts which are not variable In-Force
Policies and Contracts; (ii) MONY as to all variable In-Force Policies and
Contracts prior to the Interim Period End Date and (iii) MONY and IDI or its
assignee, as the case may be, jointly as to all variable In-Force Policies and
Contracts from and after to the Replacement Date for the remainder of the term
hereof.
(g) MONY will, as promptly as practical following the Interim Period End
Date, file amendments to the registration statements of each variable Policy
and Contract to remove ADL as the principal underwriter of such Policy or
Contract and, as promptly as practical following the Replacement Date, disclose
the appointment of IDI or its assignee, as the case may be, as the principal
underwriter and distributor thereof in place of ADL.
(h) MONY agrees that during the term hereof IDI or its assignee, as the case
may be, or a permitted successor hereunder will be the distributor and
principal underwriter of the variable In-Force Policies and Contracts from and
after the Replacement Date and at all times thereafter for the balance of the
term.
(i) The Broker-Dealer will not be, or have any of the obligations of, the
distributor or principal underwriter of any variable In-Force Policies and
Contracts, including without limitation, any variable Conversion Policies or
Conversion Contracts, except for the limited purpose expressly provided in this
Section 2.1.
(S)2.2 Broker-Dealer Qualifications. The Wholesale Servicer warrants and
represents that it is a broker-dealer registered with the SEC under the 1934
Act, and is a member in good standing of FINRA. The Wholesale Servicer will, at
all times during the term hereof, be duly registered as a broker-dealer under
the 1934 Act and in each state or other jurisdiction in which it is required to
be so registered to perform its functions and fulfill its obligations, and be a
member in good standing of FINRA.
(S)2.3 General Agent Qualifications. The Wholesale Servicer will, at all
times when performing its functions and fulfilling its obligations under this
Agreement, be duly licensed in each state and other jurisdictions in which the
Wholesale Servicer is required by law or regulation to be licensed to perform
its functions and fulfill its obligations hereunder.
(S)2.4 Qualifications of the Wholesale Servicer's Associates. The Wholesale
Servicer represents and warrants that each officer, employee, agent or
representative of the Wholesale Servicer (any officer, employee, agent or
representative of the Wholesale Servicer being hereinafter referred to as an
"Associate") who is required by law or regulation to be registered with the
SEC, FINRA and any applicable state securities regulatory authority to provide
wholesale services with respect to variable In-Force Policies and Contracts,
including Policy conversion transactions, on behalf of the Wholesale Servicer
is so registered, and Wholesale Servicer agrees that no Associate will provide
such services requiring registration unless such Associate is so registered.
Wholesale Servicer shall be responsible for all fees, including registration
and examination fees, necessary to maintain the Associates' continuing
compliance with applicable securities registration requirements. As used
herein, the term "Associates" shall not include any Broker-of-Record or any
officer, employee, agent or representative of a Broker-of-Record.
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(S)2.5 Qualifications and Appointment of Associates. The Wholesale Servicer
represents and covenants that each Associate who is providing services with
respect to fixed or variable In-Force Policies and Contracts in any state or
jurisdiction who is required by law or regulation to be licensed and/or
appointed in such state or jurisdiction to provide such services, including
Policy conversion transactions, on behalf of the Wholesale Servicer is licensed
in such state or other jurisdiction and Wholesale Servicer agrees that no
Associate will provide such services unless such Associate is so licensed
and/or appointed. Wholesale Servicer may designate Associates to be appointed
as agents of MONY and MONY shall appoint the Associates designated from time to
time by the Wholesale Servicer for appointment. The Wholesale Servicer shall
assist MONY and the Principal Underwriter in the appointment of Associates
under applicable insurance laws to service the Policies and Contracts. MONY
reserves the right to refuse to appoint any such Associate or, once appointed,
to terminate or refuse to renew such Associate's appointment but only if MONY
has a bona fide reason to believe that such Associate is not competent or
qualified to sell and/or service life insurance and annuity products or that
renewal of such license or appointment would violate applicable law, and MONY
reasonably in advance gives written notice of such reason to the Wholesale
Servicer. MONY shall bear the cost of appointing and renewing the appointment
of each such Associate in all states and other jurisdictions in which such
Associate does business. By proposing an Associate for appointment, the
Wholesale Servicer shall be deemed to warrant and represent to MONY that such
Associate is competent and qualified to act as an insurance agent for MONY and
to hold himself or herself out in good faith as such to the general public.
ARTICLE III
COMPLIANCE WITH LAWS
(S)3.1 Supervisory Responsibilities of Wholesale Servicer. The Wholesale
Servicer will train, supervise and be responsible for the conduct of the
Associates to ensure their compliance with the terms and conditions of this
Agreement, all federal and state securities laws and regulations and FINRA
rules and requirements and all insurance laws and regulations and the
applicable rules and regulations of all governmental or other insurance
authorities that have jurisdiction over insurance contract activities including
without limitation applicable federal, state and FINRA requirements regarding
compliance programs and procedures. The Wholesale Servicer shall be solely
responsible for background investigations of each of its Associates to
determine his or her qualifications, good character and moral fitness.
Notwithstanding anything to the contrary contained herein, the Wholesale
Servicer shall have no obligation hereunder with respect to, and no liability
for, the suitability under insurance law, securities law or otherwise of any
sales of Conversion Policies and Contracts, whether sold by the MONY Parties
directly or through the Wholesale Servicer, except to the extent that the
Wholesale Servicer makes a recommendation or participates in making a
recommendation in connection with the sale of Conversion Policies and Contracts
or as imposed under applicable law in the absence of a recommendation.
(S)3.2 Compliance With Applicable Laws. Each party hereto warrants and
represents that it is in compliance in all material respects with all
applicable federal and state laws and regulations, including, without
limitation, all applicable securities and insurance laws and regulations and
FINRA rules relating to variable annuities and life insurance products, and has
adequate supervisory systems in place reasonably designed to detect and prevent
violations of such laws, regulations, rules and requirements by their
Associates. All parties hereto will perform their obligations under this
Agreement in continuous compliance in all material respects with all applicable
laws and regulations.
(S)3.3 Misdirected Payments. In the event that premiums, contributions or
loan repayments are sent to the Wholesale Servicer, rather than to MONY, the
Wholesale Servicer shall promptly remit such premiums, considerations and loan
repayments to MONY. The Wholesale Servicer agrees that if at any time it holds
any premium or other payment, such premium, contribution or other payment shall
be held on behalf of the client and will segregate such payment from their own
funds and promptly remit such premium, consideration or other payment to MONY.
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(S)3.4 Restrictions on Communications. The Wholesale Servicer will not, and
will not permit any of the Associates to, give any information or make any
representations or statements, written or oral, concerning the In-Force
Policies and Contracts to the Brokers-of-Record or the owners or beneficiaries
thereof which are contrary to or inconsistent with the information contained in
the In-Force Policies and Contracts themselves, the prospectuses and statements
of additional information for the variable In-Force Policies and Contracts
and/or in any reports or proxy statements therefor, or in promotional, product
or advertising material or other information supplied and approved in writing
by the MONY Parties. Wholesale Servicer and its Associates may not modify or
represent that they are authorized to modify any such prospectus, statement of
additional information or other materials authorized by the MONY Parties for
use in connection with servicing the Policies and Contracts; provided that the
Wholesale Servicer may review and comment on such materials as provided in the
Administrative Services Agreement.
(S)3.5 Tax Reporting Responsibility. The Wholesale Servicer shall be solely
responsible for fulfilling all reporting obligations under applicable tax laws
with respect to compensation paid to the Associates and Brokers-of-Record and
for any withholding of taxes from compensation paid to the Associates,
including, without limitation, FICA, FUTA, and federal, state and local income
taxes.
(S)3.6 Bonding of Wholesale Servicer's Associates. The Wholesale Servicer
warrants and represents that all its Associates who have or may have access to
funds of MONY are, and agrees that they will continue to be, covered during the
term hereof by a blanket fidelity bond, including coverage for larceny and
embezzlement, issued by a reputable bonding company. This bond shall be
maintained by the Wholesale Servicer at the Wholesale Servicer's expense. Such
bond shall be, at least, of the form, type and amount required under the FINRA
Rules of Fair Practice. The MONY Parties may require evidence, satisfactory to
it, that such coverage is in force, and the Wholesale Servicer shall give
prompt written notice to the MONY Parties of any cancellation or change of
coverage. The Wholesale Servicer assigns any proceeds received from the
fidelity bonding company to MONY to the extent of MONY's loss due to activities
covered by the bond. If there is any deficiency amount, as a result of a
deductible provision or otherwise, the Wholesale Servicer shall promptly pay
MONY such amount on demand, and the Wholesale Servicer hereby indemnifies and
holds harmless MONY from any such deficiency and from the costs of collection
thereof (including reasonable attorneys' fees).
(S)3.7 Professional Liability Insurance. The Wholesale Servicer will at all
times during the term hereof maintain, or cause to be maintained, professional
liability insurance for the Wholesale Servicer in the amount of at least $1
million per occurrence and at least $1 million in the aggregate, issued by an
insurer having an A.M. Best's rating of A- or better.
ARTICLE IV
PRODUCT MATERIALS
(S)4.1 Product Materials. The Wholesale Servicer will not use, and will not
permit any of the Associates to use, any product materials other than those
provided by the MONY Parties or approved in writing by the MONY Parties. The
then serving principal underwriter will file such materials or will cause such
materials to be filed with the SEC and FINRA, and applicable state securities
regulatory authorities, as required. For purposes of this Agreement, all
references to product materials shall 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
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billboards, motion pictures or other public media), product 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, product literature or published article), prospectuses,
applications and other forms, and educational or training materials or other
communications distributed or made generally available to or approved for use
by the Wholesale Servicer. The MONY Parties reserve the right to require at any
time for any reason the recall of any material approved by them, and the
Wholesale Servicer shall promptly comply with any such request, shall not use
such material thereafter and shall forward notice of such request to the
Brokers- of-Record.
ARTICLE V
COMPENSATION AND EXPENSES
(S)5.1 Compensation.
(a) MONY will pay the Wholesale Servicer, as full compensation for the
services (exclusive of its services as distributor and principal underwriter
pursuant to Section 2.1 above) being performed by the Wholesale Servicer
hereunder with respect to the In-Force Policies and Contracts pursuant to this
Agreement (exclusive of its services as distributor and principal underwriter)
and the sale of Conversion Policies and Contracts, the compensation more
specifically set forth in Schedule B attached hereto and made a part hereof
and, with respect to Conversion Policies and Contracts, as set forth in
Section 1.3.
(b) MONY will pay the Wholesale Servicer, in addition to the compensation to
be paid pursuant to Section 5.1(a) above, as full compensation for the services
being performed by the Wholesale Servicer hereunder as distributor and
principal underwriter with respect to the In-Force Policies and Contracts
pursuant to Section 2.1 above the following compensation until it is replaced
as the distributor and principal underwriter of such Policies and Contracts as
provided in such Section:
(i) $5,000, on account of the period from and after the date hereof
until October 31, 2013;
(ii) $7,500, on account of the period from November 1, 2013 until
November 30, 2013, or a pro rata portion thereof for any part of the month if
the Interim Period End Date falls between such dates;
(iii) $10,000, on account of the period from December 1, 2013 until
December 31, 2013, or a pro rata portion thereof for any part of the month if
the Interim Period End Date falls between such dates;
(iv) $17,500, on account of the period from January 1, 2014 until
January 31, 2014, or a pro rata portion thereof for any part of the month if
the Interim Period End Date falls between such dates;
(v) $22,500, on account of the period from February 1, 2014 until
February 28, 2014, or a pro rata portion thereof for any part of the month if
the Interim Period End Date falls between such dates; and
(vi) $50,000 for each full month, and a pro rata portion thereof for
each partial month, on account of any period from and after March 1, 2014 and
the Interim Period End Date if the Interim Period End Date is on or after
March 1, 2014.
9
(S)5.2 Payment of Compensation. All compensation due and payable hereunder
shall be paid in the manner and in accordance with the time periods set forth
in Schedule C attached hereto.
(S)5.3 Total Compensation. The Wholesale Servicer acknowledges and agrees
that the compensation due and payable pursuant to this Article constitutes the
total compensation due and payable by MONY and its affiliates on account of the
services being provided by Wholesale Servicer pursuant hereto, and the
Wholesale Servicer shall make payments to the Brokers-of-Record of all
compensation due and payable to such Brokers-of-Record pursuant to the In-Force
Retail Sales Agreements; provided that in the event that the Wholesale Servicer
is not permitted by applicable law to pay such compensation to a
Broker-of-Record, the Wholesale Servicer and the MONY Parties shall cooperate
to develop a payment structure for compensation to such Broker-of-Record that
complies with applicable law. The MONY Parties shall not have any obligation to
pay any compensation to the Wholesale Servicer's Associates or the
Brokers-of-Record.
(S)5.4 Expenses. Neither the MONY Parties nor the Wholesale Servicer shall,
directly or indirectly, expend or contract for the expenditure of any funds of
any other party. Except as otherwise provided herein to the contrary, each
party shall be solely responsible for all expenses incurred by such party in
the performance of its obligations pursuant to this Agreement.
(S)5.6 Repayment. The Wholesale Servicer will promptly repay any
compensation received by the Wholesale Servicer from the MONY Parties with
respect to this Agreement which it is not entitled to retain pursuant to the
terms and conditions hereof.
(S)5.7 Right of Set-Off. The MONY Parties may, in addition to any other
remedies available, set off against any compensation due and payable hereunder
any compensation previously received by the Wholesale Servicer from the MONY
Parties with respect to this Agreement they are not entitled to retain.
ARTICLE VI
ACCOUNTING, REPORTS AND AUDIT RIGHTS
(S)6.1 Accounting. Each of the parties hereto shall keep true and accurate
books and records with respect to the subject matter of this Agreement in
accordance with applicable laws and regulations and (x) Generally Accepted
Accounting Principles ("GAAP"), in the case of MONY and the Distributor, and
(y) GAAP or International Financial Reporting Standards ("IFRS"), in the case
of the Wholesale Servicer.
(S)6.2 Reports and Interface. The MONY Parties shall furnish such data,
reports, interfaces and other information and perform such automated and manual
procedures as may be reasonably requested from time to time by the Wholesale
Servicer (collectively "Reports and Processes") in order to track and verify
the proper payment of sums due and payable to the Wholesale Servicer hereunder.
The MONY Parties shall provide such information to the Wholesale Servicer in
accordance herewith as is necessary to enable the Wholesale Servicer to provide
Brokers-of-Record with the information necessary to service customers with
respect to the In-Force Policies and Contracts and to provide Associates with
the information necessary to perform the services described in Annex 1. The
parties shall promptly furnish each other any reports or information that
another party may reasonably request consistent with industry practice (a) to
reflect transactions effected under the Policies and Contracts and proper
payment of sums due and payable to the Wholesale Servicer hereunder and (b) for
the purpose of meeting its reporting and recordkeeping requirements under the
insurance laws of any state, applicable federal or state securities
10
laws, rules or regulations, under the rules of FINRA or under applicable
federal or state tax law. All reports and information will be provided in such
electronic and/or manual format as may be reasonably agreed upon by the parties
and shall include, without limitation, the journal entry, reports, interfaces
and information indicated in a separate interface and accounting requirements
more particularly described in Schedule D attached hereto. All reports and
information provided under this Section 6.2 shall be accurate in all material
respects. If additional reports or information are required by the Wholesale
Servicer from time to time as a result of changes in applicable state insurance
laws, federal or state securities laws, rules or regulations, FINRA rules, or
U.S. accounting pronouncements, the MONY Parties shall provide such reports or
information.
(S)6.3 Audit Rights. (a) The Wholesale Servicer will have the right (but not
the obligation), upon not less than ten (10) days prior written notice and at
its own expense, to conduct reasonable periodic inspections, during normal
business hours, of all books and records maintained by the MONY Parties
relating to the servicing of the Policies and Contracts pursuant to this
Agreement. The Wholesale Servicer may request access on an expedited basis if
expedited access is needed for such party to conduct its day-to-day business or
to satisfy its obligations to maintain books and records under applicable law.
The MONY Parties shall permit the Wholesale Servicer, during normal business
hours and upon reasonable advance notice and at its own expense, to audit the
MONY Parties' records to verify their compliance with their obligations under
Section 6.2 and Articles V and X of this Agreement, but the Wholesale Servicer
may not conduct such audit more frequently than once every six months.
(b) The MONY Parties will have the right (but not the obligation), upon not
less than ten (10) days prior written notice and at their own expense, to
conduct reasonable periodic inspections, during normal business hours, of all
books and records maintained by the Wholesale Servicer relating to the
servicing of the Policies and Contracts pursuant to this Agreement. The MONY
Parties may request access on an expedited basis if expedited access is needed
for such party to conduct its day-to-day business or to satisfy its obligations
to maintain books and records under applicable law. The Wholesale Servicer
shall permit the MONY Parties, during normal business hours and upon reasonable
advance notice and at their own expense, to audit the Wholesale Servicer's
records to verify its compliance with its obligations under Sections 2.4, 2.5,
3.5 and 6.2 and Articles V and X of this Agreement, but the MONY Parties may
not conduct such audit more frequently than once every six months. In addition,
Wholesale Servicer shall permit the MONY Parties during normal business hours
and upon reasonable advance notice and at their own expense, (1) to interview
its service center or home office employees to review compliance by Wholesale
Servicer and its affiliates with the covenants set forth in Section 14.9 and
(2) if following such interviews the MONY Parties have a reasonable good faith
basis to believe Wholesale Servicer and its affiliates are not in compliance
with such covenants, to audit their records to verify compliance with such
covenants, but such audits may not be conducted more frequently than once every
six months.
ARTICLE VII
TERM AND TERMINATION
(S)7.1 Term. The term of this Agreement will commence on the date hereof and
continue in full force and effect for as long as any of the Policies and/or
Contracts remains in force.
(S)7.2 Termination with respect to Policies and Contracts. This Agreement
will terminate as to any individual Policy or Contract on the date such Policy
or Contract is cancelled or surrendered in accordance with the terms thereof or
on the date the In-Force Retail Sales Agreement with respect to such Policy or
Contract is terminated by any party thereto in accordance with the terms
thereof, subject to Section 1.2 hereof.
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(S)7.3 Termination.
(a) This Agreement may be terminated at any time upon the mutual written
consent of the Parties hereto, which written consent shall state the effective
date and relevant terms of termination.
(b) This Agreement is subject to immediate termination at the option of the
MONY Parties at any time, and by ADL at any time prior to the Interim Period
End Date, upon written notice to the other party, in the event that such other
party becomes insolvent or is placed into liquidation, rehabilitation,
conservation, supervision, receivership or similar proceedings (whether
voluntary or involuntary), or there is instituted against it proceedings for
the appointment of a receiver, liquidator, rehabilitator, conservator or
trustee in bankruptcy, or other agent known by whatever name, to take
possession of its assets or assume control of its operations, and, in any case,
such proceeding shall continue undismissed for 45 days.
(c) (i) This Agreement is subject to immediate termination at the option of
the MONY Parties or ADL (but only with respect its obligations as principal
underwriter and distributor under Section 2.1 hereof), if there is a material
and continuing breach by the other party and such breach is not cured within
twenty business days following receipt by the relevant Wholesale Servicer of
written notice of such breach from the other party; provided, however, if such
material breach is not curable within such twenty business day period, the
non-breaching party may not terminate this Agreement if breaching party has,
within such twenty business day period, provided the non-breaching party with a
detailed, written description of the breaching party's good faith plan to cure
such material and continuing breach; provided, further, if such material and
continuing breach is not cured within 45 days following the breaching party's
delivery to the non-breaching party of such plan, the non-breaching party may
terminate this Agreement.
(S)7.4 Survival. Notwithstanding the other provisions of this Article VII,
Articles X and XII and Sections 5.4, 14.4 and 14.5 of this Agreement shall
remain in full force and effect after the termination of this Agreement.
ARTICLE VIII
COMPLAINTS AND INVESTIGATIONS
(S)8.1 Cooperation in Investigations and Proceedings. Each party hereto
shall, except to the extent their interests are adverse, cooperate in all
insurance or securities regulatory investigations, proceedings and inquiries
and in all judicial proceedings concerning any other party hereto or any of its
parents or affiliates with respect to the In-Force Policies and Contracts.
(S)8.2 Customer Complaints. Each party hereto shall cooperate in
investigating and responding to all customer complaints with respect to the
In-Force Policies and Contracts received by another party.
(S)8.3 Notification. Each party hereto will promptly notify the other
parties of any customer complaint or notice of a regulatory investigation,
proceeding or inquiry or of a judicial proceeding received by such party. Each
party shall promptly deliver to the other parties copies of all such customer
complaints and notices and all other documents received by such party in
connection therewith.
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ARTICLE IX
AMENDMENT, ASSIGNMENT AND SUB-SERVICING
(S)9.1 Amendments and Modifications. Neither this Agreement nor any of the
schedules hereto may be modified or amended in whole or part except in a
writing signed by all parties hereto.
(S)9.2 Assignments.
(a) Except as otherwise expressly permitted in this (S)9.2, this
Agreement may not be assigned by any party hereto without the prior written
consent of all the other parties.
(b) MONY may assign all of its right, title and interest under this
Agreement, without the prior written consent of any other party, to another
United States insurance company into which it is being merged or to which all
or substantially all of its assets, including, without limitation, the In-Force
Policies and Contracts, are being transferred; provided that (i) the merger or
transfer is approved by the New York State Department of Financial Services,
(ii) the insurance company into which it is being merged or which is acquiring
its assets has an A.M. Best rating equal to or better than MONY's then current
A.M. Best rating, (iii) Distributor or a permitted successor continues to be
the distributor and principal underwriter of the variable In-Force Policies and
Contracts or Distributor or a permitted successor simultaneously assigns it
rights hereunder, as permitted herein, to another broker-dealer and (iv) MONY
and the other insurance company comply with the provisions of (S)9.2(e) below.
(c) Distributor may assign all of its right, title and interest under
this Agreement, without the prior written consent of any other party, to
another registered broker-dealer wholly owned by MONY, a MONY parent or
affiliate thereof or by any insurance company (or parent thereof) into which
MONY is being simultaneously merging or to which all, or substantially all, of
its assets are being transferred in accordance with the provisions of (S)9.2(b)
above, provided that (i) such broker-dealer is, or simultaneously becomes, the
distributor and principal underwriter of all of the variable In-Force Policies
and Contracts and (ii) Distributor and the other broker-dealer comply with the
provisions of (S)9.2(e) below.
(d) The Wholesale Servicer may assign all of its right, title and
interest under this Agreement, without the prior written consent of any other
party, to (i) an entity which is both a registered broker-dealer and a licensed
insurance agency into which the Wholesale Servicer is being merged or which is
acquiring all or substantially all of the assets of the Wholesale Servicer;
provided that (i) all or substantially all of the registered representatives
and insurance agents of the Wholesale Servicer are becoming registered
representatives and insurance agents of the entity; (ii) the entity is owned by
the Wholesale Servicer or a parent of the Wholesale Servicer and (iii) the
Wholesale Servicer and the other entity comply with the provisions of
Section 9.2(e) below. The Wholesale Servicer may also assign all of its right,
title and interest under this Agreement, without the prior written consent of
any other party, jointly and severally to two entities, one of which is a
registered broker-dealer and the second of which is a licensed insurance
agency; provided that (i) all of the assets of the Wholesale Servicer are being
transferred, by merger or otherwise, to one or both of the entities, (ii) all
or substantially all of the Associates become registered representatives of the
broker-dealer and insurance agents of the insurance agency, (iii) both entities
are owned by the Wholesale Servicer or a parent of the Wholesale Servicer and
(iv) the Wholesale Servicer and the two entities comply with the provisions of
(S)9.2(e) below.
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(e) No assignment permitted hereunder will be of any force or effect,
notwithstanding anything to the contrary contained herein, unless and until an
original assignment and assumption executed by both the assignor and the
assignee is delivered to the other parties to this Agreement, pursuant to which:
(i) The assignor assigns all of its right, title and interest in, to
and under this Agreement to the assignee;
(ii) The assignee accepts such assignment and assumes and agrees to
perform all of the undertakings and obligations of the assignor under this
Agreement, whether absolute or contingent, presently existing or thereafter
arising;
(iii) The assignee warrants and represents for the benefit of the
other parties to this Agreement that (1) the assignment satisfies all the
conditions with respect thereto set forth above and (2) all warranties and
representations made by the assignor (or the predecessor in interest of the
assignor, as the case may be) in this Agreement are true and complete as to the
assignee as of the date of the assignment; and
(iv) The assignor and assignee each warrants and represents for the
benefit of the other parties to this Agreement that it has full power and
authority to enter into the assignment and assumption, this Agreement is in
full force and effect in accordance with its terms and all consents and
approvals, if any, from governmental entities, owners of the In-Force Policies
and Contracts and others required by law or regulation with respect to the
transaction of which the assignment is a part have been obtained.
(S)9.3 Subservicing. The Wholesale Servicer may from time to time enter into
agreements with third parties to provide all or part of the services which the
Wholesale Servicer has agreed to provide hereunder. Such sub-contracting shall
not relieve the Wholesale Servicer of any of its obligations to the MONY
Parties hereunder, and the MONY Parties shall not be liable to such third
parties for any of the Wholesale Servicer's obligations to such third parties
under their sub-servicing agreements, including without limitation the payment
of any compensation and other sums due and payable to such third parties
thereunder.
ARTICLE X
CONFIDENTIALITY AND PRIVACY
(S)10.1 Confidentiality.
(a) As used herein, "Confidential Information" of a party shall mean all
confidential or proprietary information, including trade secrets, expressions,
ideas, business practices and agents of such party in any medium, as well as
the terms of this Agreement, but shall not include Nonpublic Personal
Information (as defined below) which is subject to separate provisions of this
Agreement. For purposes of this Agreement and unless otherwise indicated,
reference to each party shall include their affiliates and the officers,
directors, employees, agents and representatives of such party and its
affiliates.
(b) All Confidential Information relating to a party shall be held in
confidence by the other party to the same extent and in at least the same
manner as such party protects its own confidential or proprietary information,
but in no case to a lesser extent than reasonable care under the circumstances
requires. Except as otherwise provided herein, no Confidential Information
shall be used by any party hereto or disclosed by any party to any third party
for any purpose other than to carry out the transactions contemplated under
this Agreement, provided that either party may provide Confidential Information
to
14
any regulator as provided in clause (c). No party shall disclose, publish,
release, transfer or otherwise make available Confidential Information of any
other party in any form to, or for the use or benefit of, any person or entity
without the other parties' consent. Each party shall, however, be permitted to
disclose relevant aspects of the other parties' Confidential Information to its
officers, directors, employees, agents and representatives to the extent that
such disclosure is reasonably necessary for the performance of its duties and
obligations under this Agreement; provided, however, that such party shall take
all reasonable measures to ensure that Confidential Information of the other
party or parties is not disclosed or duplicated in contravention of the
provisions of this Agreement by such officers, directors, employees, agents and
representatives. A party may share Confidential Information of the other
parties or its affiliates with a third party that is performing services for
the party sharing such Confidential Information only if the Party sharing such
Confidential Information has in place a written agreement with such third party
that includes a confidentiality provision prohibiting disclosure or use of
Confidential Information other than to carry on the purposes for which the
information was provided.
(c) The confidentiality obligations of this Section shall not restrict
disclosure by any party to (i) any regulatory authority having jurisdiction
over such party, pursuant to any applicable state or federal laws, as part of
any regulatory inspection, review or audit in the ordinary course or (ii) any
regulatory authority having jurisdiction over such party, pursuant to any
applicable state or federal laws, other than as part of a regulatory
inspection, review or audit in the ordinary course or (iii) by order of any
court or government agency (provided that the disclosing party shall give
prompt notice to the non-disclosing party or parties of such order) and
(iv) shall not apply with respect to Confidential Information which (1) is
developed by the other party independently of the Confidential Information of
the disclosing party without violating the disclosing party's proprietary
rights, (2) is or becomes publicly known (other than through unauthorized
disclosure), (3) is disclosed by the owner of such information to a third party
free of any obligation of confidentiality, (4) is already known by such party
from a source other than the disclosing party without an obligation of
confidentiality to the disclosing party, or (5) is rightfully received by a
party from a source other than the disclosing party without an obligation of
confidentiality to the disclosing party or from publicly available sources
without an obligation of confidentiality to the disclosing party. If a party is
requested or compelled to disclose Confidential Information of the other party
or its affiliates as provided in clauses (i), (ii) or (iii) above, the
disclosing party shall, to the extent reasonably feasible under the
circumstances, promptly notify in writing the party whose Confidential
Information or whose affiliate's Confidential Information is to be disclosed to
enable such party or the affected affiliate to seek to prevent or limit such
disclosure as it deems appropriate; provided, however, that nothing contained
herein shall require such notification if the disclosing party is required by
law or requested by a governmental authority to maintain the confidentiality of
an ongoing investigation or prevent the disclosing party from disclosing such
Confidential Information if as and when counsel for the disclosing party
advises the disclosing party that it is required to do so.
(S)10.2. Privacy.
(a) As used herein, "Nonpublic Personal Information" shall include all
information about customers and potential customers subject to the protections
of Title V of the Xxxxx-Xxxxx-Xxxxxx Act or any other federal or state laws or
regulations relating to or protecting the privacy of customers and/or
consumers, including Regulation S-P of the Exchange Act any comparable state
insurance laws (the "Privacy Laws").
(b) Each party hereto shall comply with applicable Privacy Laws with
respect to the In-Force Policies and Contracts. Each party shall maintain
appropriate policies and procedures relating to administrative, technical, and
physical safeguards (i) to ensure the confidentiality of Nonpublic Personal
15
Information; (ii) to protect against any anticipated threats or hazards to the
security or integrity of Nonpublic Personal Information; and (iii) to protect
against unauthorized access to or use of Nonpublic Personal Information.
(c) Except as otherwise provided herein, no Nonpublic Personal
Information shall be used by any party hereto or disclosed by any party to any
third party for any purpose other than to carry out the transactions
contemplated under this Agreement, the Master Agreement, dated as of April 10,
2013, among Parent, AXA Equitable Financial Services, LLC (the "Seller") and
Protective Life Insurance Company (the "Master Agreement") or the Ancillary
Agreements (as defined in the Master Agreement) or as otherwise required or
permitted under the Privacy Laws. For the avoidance of doubt, among other
things, the MONY Parties and the Wholesale Servicer may use the Nonpublic
Personal Information to service the Contracts and Policies as permitted by
Section 5.2 and Section 5.14 of the Master Agreement.
(d) Each party hereto shall inform the other of any violation of this
Section by such individual or entity, and the other parties hereto shall be
entitled to take, or require such party to take, any reasonable measures to
mitigate any harm, whether potential or actual, to customers or consumers
resulting from any violation of this Section, including, but not limited to,
termination of this Agreement.
ARTICLE XI
PATRIOT ACT
(S)11.1 Patriot Act. Each party hereto warrants and represents that it is,
and agrees that it will remain throughout the term hereof, in compliance with
all applicable provisions of the USA Patriot Act of 2001 and the regulations
adopted with respect thereto (collectively, the "Patriot Act") and the
applicable requirements of the SEC and FINRA with respect thereto, including to
the extent applicable the obligations therein to establish and maintain an
anti-money laundering (AML) program in accordance with Section 352 of the
Patriot Act and a customer identification program in accordance with the
Section 326 of the Patriot Act. The parties agree to reasonably cooperate with
each other in their compliance with the Patriot Act and related SEC and FINRA
requirements, including providing each other with such information as they may
reasonably request in order to comply with suspicious activity reporting
requirements and maintaining appropriate records and documentation
demonstrating compliance with the Patriot Act for the periods prescribed by
applicable laws and regulations.
ARTICLE XII
INDEMNIFICATION AND REMEDIES
(S)12.1 Indemnification by Wholesale Servicer.
(a) ADL shall indemnify and hold harmless the MONY Parties, and each person
who controls or is associated with either of them within the meaning of such
term under the federal securities laws, and any officer, director, employee or
agent of the foregoing (collectively, the "MONY Indemnified Parties") against
any and all losses, claims, damages or liabilities, joint or several (including
any investigative, legal and other expenses reasonably incurred in connection
with, and any amounts paid in settlement of, any action, suit or proceeding or
any claim asserted), insofar as such losses, claims, damages or liabilities
arise out of or are based upon ADL's service as distributor and principal
underwriter hereunder and acts or omissions incidental thereto ("Principal
Underwriting Activities"), but only insofar as such losses, claims, damages or
liabilities arise out of or are based upon the gross negligence, willful
misconduct or violation of applicable law by ADL or any Associate thereof in
performing ADL's undertakings and/or obligations hereunder with respect to the
variable In-Force
16
Policies and Contracts, and except to the extent such losses, claims, damages
or liabilities are directly caused by the act or omission of MONY or any
officer, employee, agent or representative thereof. Other than claims of, or
causes of action arising from, fraud, the remedies provided for in this
Section 12.1(a) shall be the sole and exclusive remedies of the MONY
Indemnified Parties for any breach of or inaccuracy in any representation or
warranty or any breach, nonfulfillment or default in the performance of any of
the covenants or agreements contained in this Agreement, in each case, solely
in respect of ADL's Principal Underwriting Activities.
(b) The Wholesale Servicer shall indemnify and hold harmless the MONY
Indemnified Parties against any and all losses, claims, damages or liabilities,
joint or several (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amounts paid in settlement of,
any action, suit or proceeding or any claim asserted), insofar as such losses,
claims, damages or liabilities arise out of or are based upon the failure of
the Wholesale Servicer to perform any of its undertakings and/or obligations
hereunder (including losses resulting from a violation of an In-Force Retail
Sales Agreement by a Broker-of-Record, to the extent arising out of or based
upon such a failure by the Wholesale Servicer), the inaccuracy of any warranty
or representation of the Wholesale Servicer herein in any material respect
(including without limitation the representation set forth in the second to
last sentence of (S)1.2), any claim for compensation by any Associate, any
claim for compensation under any In-Force Retail Sales Agreement by any
Broker-of-Record or any officer, employee agent or representative of a
Broker-of-Record and/or any negligence or willful misconduct or violation of
applicable law by the Wholesale Servicer or any Associate thereof in performing
the Wholesale Servicer's undertakings and/or obligations hereunder with respect
to the In-Force Policies and Contracts, in each case, other than with respect
to the Principal Underwriting Activities. This indemnification will be in
addition to any liability that the Wholesale Servicer may otherwise have
hereunder at law or equity.
(S)12.2 Indemnification by the MONY Parties.
(a) MONY shall indemnify and hold harmless ADL and each person who controls
or is associated with it within the meaning of such term under the federal
securities laws, and any officer, director, employee or agent of the foregoing
(collectively, the "ADL Indemnified Parties") against any and all losses,
claims, damages or liabilities, joint or several (including any investigative,
legal and other expenses reasonably incurred in connection with, and any
amounts paid in settlement of, any action, suit or proceeding or any claim
asserted), to which they or any of them may become subject under any statute or
regulation, at common law or otherwise, arising out of or based upon ADL's
Principal Underwriting Activities, except to the extent such losses, claims,
damages or liabilities are directly caused by the gross negligence, willful
misconduct or violation of applicable law by such ADL Indemnified Party with
respect to the variable In-Force Policies and Contracts. This indemnification
will be in addition to any liability that the MONY Parties may otherwise have
hereunder at law or equity.
(b) The MONY Parties jointly and severally shall indemnify and hold harmless
the ADL Indemnified Parties against any and all losses, claims, damages or
liabilities, joint or several (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amounts paid in
settlement of, any action, suit or proceeding or any claim asserted), to which
they or any of them may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon the failure of MONY and/or Distributor to
perform any of their obligations hereunder, the inaccuracy of any warranty or
representation of the MONY Parties herein in any material respect and/or any
negligence or willful misconduct or violation of applicable law by MONY and/or
Distributor and/or any officer, employee, agent or representative thereof
17
with respect to the In-Force Policies and Contracts, in each case, other than
in respect of Principal Underwriting Activities. This indemnification will be
in addition to any liability that the MONY Parties may otherwise have hereunder
at law or equity.
(S)12.3 Limitation of Liability. No party shall be liable to any other party
for any indirect, punitive, or consequential (other than lost profits to the
extent provided in the third sentence of this Section 12.3) damages for claims
arising under or in connection with the performance of this Agreement, except
for indemnification claims under Sections 12.1 and 12.2 of this Agreement of
amounts recovered by or payable to third parties in connection with third party
claims. This limitation shall not apply to claims of fraud on the part of any
of the parties or their affiliates. Notwithstanding the foregoing, at any time
that the Wholesale Servicer ceases to be an affiliate of the Parent, liability
for claims arising under or in connection with the performance of this
Agreement may include damages for (or calculated on the basis of) lost profits,
but only to the extent that (i) such damages for lost profits are recoverable
under the laws of the State of New York and (ii) such lost profits can be
demonstrated by reference to the actuarial report prepared by Xxxxxxxx, Inc.
with respect to, among other things, the In-Force Policies and Contracts dated
November 5, 2012 (the "Actuarial Report") and therefore are within the
reasonable contemplation of the parties to this Agreement; provided further
that lost profits with respect to the reduction or elimination of any profits
contemplated by the Actuarial Report shall in no event exceed the present value
ascribed to any such remaining profits contemplated by the Actuarial Report as
of the date of the loss giving rise to the related claim, calculated based on
the assumptions on which the Actuarial Report was prepared and discounted using
a 10% discount rate.
(S)12.4 Specific Performance; Jurisdiction.
(a) The parties agree that irreparable damage would occur if any provision
of this Agreement were not performed in accordance with the terms hereof and
that the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement or to enforce specifically the performance of the
terms and provisions hereof in any court specified in this Section 12.4, in
addition to any other remedy to which they are entitled at law or in equity.
The parties hereby waive, in any action for specific performance, the defense
of adequacy of a remedy at law and the posting of any bond or other security in
connection therewith.
(b) The parties each irrevocably submit to the jurisdiction of the courts of
the State of New York or federal court of the United States of America located
in the State, City and County of New York solely in respect of the
interpretation and enforcement of the provisions of this Agreement and in
respect of the transactions contemplated hereby. The parties irrevocably agree
that all claims in respect of the interpretation and enforcement of the
provisions of this Agreement and in respect of the transactions contemplated
hereby shall be heard and determined in such a New York State or federal court,
and that such courts shall have exclusive jurisdiction with respect to such
actions, except solely to the extent that all such courts shall lawfully
decline to exercise such jurisdiction. Each of the parties hereby waives, and
agrees not to assert, as a defense in any such action that it is not subject to
such jurisdiction. The parties hereby waive, and agree not to assert, to the
maximum extent permitted by law, as a defense in any such action, that such
action may not be brought or is not maintainable in such courts or that the
venue thereof may not be appropriate or that this Agreement may not be enforced
in or by such courts. The parties hereby consent to and grant any such court
jurisdiction over the person of such parties and over the subject matter of any
such dispute and agrees that mailing of process or other papers is connection
with any such action in the manner provided in Section 14.4 or in such other
manner as may be permitted by law, shall be valid and sufficient service
thereof. Notwithstanding the foregoing, any party to this Agreement may assert
a cross-claim or a third party claim against another party to this Agreement in
any pending litigation filed by a third party.
18
(S)12.5 Applicability of the Master Agreement. The limitations, procedures
and qualifications set forth in Sections 10.2, 10.3 (other than the last
sentence thereof, which shall not apply), 10.4, and Sections 10.5(d) through
(f) of the Master Agreement shall apply, mutatis mutandi, to losses, claims,
damages or liabilities indemnified under this Article XII.
(S)12.6 No Duplication; Exclusive Remedy. If any losses, claims, damages or
liabilities are indemnified under Section 10.1 of the Master Agreement, the ADL
Indemnified Parties or the MONY Indemnified Parties, as appropriate, shall not
be entitled to indemnification with respect to such losses, claims, damages or
liabilities pursuant to Section 12.1 of this Agreement.
ARTICLE XIII
ARBITRATION
(S)13.1 Arbitration. To the extent required by FINRA, any controversy, claim
or dispute of any kind whatsoever arising out of or relating to this Agreement
or any actual or alleged breach thereof shall be resolved by submitting such
controversy, claim or dispute to binding arbitration administered by the FINRA
under the arbitration rules of FINRA then in effect. In the event FINRA
declines to hear such controversy, claim or dispute, it shall be resolved in
accordance with Section 12.4(b).
ARTICLE XIV
MISCELLANEOUS
(S)14.1 Headings. The headings 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.
(S)14.2 Counterparts. This Agreement may be executed in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
(S)14.3 Severability. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
(S)14.4 Notices. All notices under this Agreement shall be given in writing
and addressed as follows:
if to MONY and Distributor:
MONY Life Insurance Company and Investment Distributors, Inc.
0000 Xxxxxxx 000 Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: President
with a copy to:
Protective Life Corporation
0000 Xxxxxxx 000 Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Senior Associate Counsel - Variable Products
19
If to ADL:
AXA Distributors, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
with a copy to:
AXA Equitable Life Insurance Company
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
or to such other address or addresses as such party may hereafter specify in
writing. Each such notice shall be either hand delivered or transmitted by
certified United States mail, return receipt requested, and shall be effective
upon delivery.
(S)14.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, excluding its conflict of
laws provisions to the extent such provisions are not mandatorily applicable by
statute and would permit or require the application of the laws of the another
jurisdiction. This Agreement shall also be subject to the rules of FINRA,
including its By-Laws.
(S)14.6 Merger. This Agreement constitutes the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes any and all prior understandings or agreements between
the parties with respect thereto.
(S)14.7 No Waiver of Rights. 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. Failure of any party to insist upon
strict compliance with any of the conditions of this Agreement shall not be
construed as a waiver of any of the conditions, but the same shall remain in
full force and effect. No waiver of any of the provisions of this Agreement
shall be deemed, or shall constitute, a waiver of any other provisions, whether
or not similar, nor shall any waiver constitute a continuing waiver.
(S)14.8 Use of Information. Except as set forth in the last sentence of this
Section 14.8, the MONY Parties shall, and shall cause their affiliates to, use
any information relating to the In-Force Policies and Contracts or the holders
of the In-Force Policies and Contracts only for the purposes of servicing
customers with respect to the In-Force Policies and Contracts and operating and
administering the Business (as defined in the Master Agreement) (including any
purpose relating to compliance by the MONY Parties or any of their affiliates
with any applicable law, or to dealings with any governmental authority,
relating to MONY's operation or administration of the Business), and for the
other purposes contemplated or required by this agreement and, for the
avoidance of doubt, the MONY Parties shall not make such information available
to their insurance agents, insurance agencies and brokers. Except as set forth
in the last sentence of this Section 14.8 or Section 5.14(f) of the Master
Agreement, the Wholesale Servicer shall, and shall cause its affiliates to, use
any information relating to the Business or the holders
20
of such Policies and Contracts only for the purpose of complying, or causing
its applicable Affiliates to comply, with the obligations of the Wholesale
Servicer under this Agreement (including any purpose relating to compliance
with applicable law or to dealings with any governmental authority). Neither
the MONY Parties, the Wholesale Servicer, nor any of their respective
affiliates, may include any information relating to the In-Force Policies and
Contracts in any "data mining" program or process that is designed or intended
to identify any holder of an In-Force Policy or Contract for targeted marketing
or solicitation of other products offered, distributed or administered by such
person; provided that, notwithstanding the foregoing, neither the MONY Parties,
the Wholesale Servicer, nor any of their respective affiliates, shall be
prohibited from including information relating to insurance or annuity
contracts not included in the Business, and any holder thereof, in any such
"data mining" program or process even though such holder of such insurance or
annuity contract that is not included in the Business is also a holder of an
In-Force Policy or Contract.
(S)14.9 Additional Covenants of the MONY Parties. Neither the MONY Parties
nor any of their affiliates shall, whether directly or indirectly, support or
sponsor a program that is intended or would reasonably be expected to result in
the replacement of the Wholesale Servicer and its Associates as servicers or
brokers of record for the In-Force Policies and Contracts. Without the prior
written consent of the Wholesale Servicer, neither the MONY Parties nor any of
their affiliates shall, whether directly or indirectly, solicit or endeavor to
entice or induce any Associate to terminate any existing relationship with the
Wholesale Servicer or its affiliates as a result of knowledge obtained by the
MONY Parties and their affiliates from the negotiation of or consummation of
this agreement or the information about Associates obtained from the In-Force
Policies and Contracts.
(S)14.11 Additional Covenants of the Wholesale Servicer. (a) The Wholesale
Servicer shall not, and shall cause each of its affiliates not to, directly or
indirectly: (i) solicit or endeavor to entice or induce any Associate,
Broker-of-Record or other person who has placed, marketed, sold, administered
or provided services with respect to any In-Force Policy or Contract to alter
its relationship with MONY, other than terminations for cause or for
underperformance effected in the ordinary course of business consistent with
past practice or consistent with the then-current practices that Wholesale
Servicer and its affiliates generally employ with respect to persons who place,
market, sell, administer or provide services with respect to the Reference
Business (as hereinafter defined); (ii) solicit or endeavor to entice or induce
any such Associate, Broker-of-Record or other person to replace any In-Force
Policy or Contract (or any insurance policy or other contract issuable upon
conversion of any such In-Force Policy or Contract) with a policy or contract
issued by an affiliate of Wholesale Servicer or any other person; or
(iii) target any In-Force Policy or Contract for replacement with a policy or
contract issued by an affiliate of Wholesale Servicer or any other person
(pursuant to any directed, programmatic or systematic exchange or replacement
program or otherwise, and through the use of information or data of MONY in the
possession of the Wholesale Servicer or any of its affiliates); provided,
however, that the restrictions in this Section 14.11 shall not restrict general
marketing and solicitation activities (x) not specifically targeted or directed
to such holders (as applicable) or (y) targeted or directed to holders of
insurance policies and contracts not included in the Business regardless of
whether such holders are also holders of In-Force Policies or Contracts;
provided, further that for the avoidance of doubt the restrictions in this
Section 14.11 shall not restrict the Wholesale Servicer and its affiliates from
paying compensation to Associates and Brokers-of-Record consistent with past
practice or the then-current practices that Wholesale Servicer and its
Affiliates generally employ with respect to persons who place, market, sell,
administer or provide services with respect to the Reference Business. For
purposes of hereof, the "Reference Business" means (1) the life insurance,
annuity, investment or other contracts written, issued or sold by affiliates of
Wholesale Servicer in the United States, if such affiliates write, issue or
sell such contracts or (2) the life insurance, annuity, investment or other
contracts written, issued or sold by Parent,
21
Seller or any of their respective affiliates in the United States, irrespective
of whether Parent, Seller or any of their affiliates has disposed of all or a
material portion of such business, whether by means of a stock or asset sale,
merger, reinsurance transaction, spin-off transaction, initial public offering
or otherwise or whether all or any portion of such business continues to be
owned by Parent, Seller or any their affiliates as of the date hereof,
otherwise.
(b) Wholesale Servicer shall, and shall cause its affiliates to employ
practices, policies and procedures (including with respect to the review and
application of replacement suitability requirements to proposed replacements of
the In-Force Policies and Contracts) to prevent Associates and
Brokers-of-Record from soliciting or causing holders of In-Force Policies and
Contracts to surrender (in whole or in part), exchange, replace, terminate or
permit to lapse any In-Force Policy or Contract which practices, policies and
procedures are substantially similar to the then-current practices, policies
and procedures employed with respect to the surrender (in whole or in part),
exchange, replacement, termination or lapse of contracts included in the
Reference Business.
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers.
MONY Life Insurance Company Investment Distributors, Inc.
By: By:
---------------------------------- ---------------------------------
Name: Name:
Title: Title:
AXA Distributors, LLC
By:
----------------------------------
Name:
Title:
23
SCHEDULES
Schedule A: In-Force Policies and Contracts
Schedule B: Compensation Schedules
Schedule C: Payment Details
Schedule D: Reports and Processes
ANNEX
Annex 1: Services
24
SCHEDULE A
IN-FORCE POLICIES AND CONTRACTS
POLICY FORMS
25
SCHEDULE B
COMPENSATION SCHEDULES
COMPENSATION DUE AND PAYABLE PURSUANT TO SECTION 5.1(A) OF THIS AGREEMENT WILL
BE CALCULATED AS A PERCENTAGE OF THE PREMIUMS/CONSIDERATIONS RECEIVED BY MONY
IN THE AGGREGATE BY EACH LINE OF BUSINESS SHOWN BELOW AND THE ASSETS UNDER
MANAGEMENT OF MONY POLICIES IN THE AGGREGATE BY EACH LINE OF BUSINESS SHOWN
BELOW AS MORE PARTICULARLY SET FORTH IN THE FOLLOWING TABLE:
% of Assets under
% of Premiums Management
Received (annual)
--------------- -----------------
All Closed Block Life business 1.15% n/a
Whole Life* 3.50% n/a
Term Life* 0.50% n/a
Variable Universal Life* 2.50% 0.10%
Universal Life* 3.80% 0.10%
Fixed Annuity 5.50% n/a
Variable Annuity 3.50% 0.20%
Disability Income 7.00% n/a
Major Medical (actual
commission
generated x 1.4) n/a
* Other than closed block
26
SCHEDULE C
PAYMENT DETAILS
Pursuant to Schedules B and D and Section 5.1 of this agreement, payment should
be remitted to the Wholesale Servicer no later than the 15th business day
following the end of each month.
Payment information:
Bank: JPMorgan Chase
ABA 000000000
Name: AXA Distributors LLC--Concentration
Acct # 000-0-000000
The method of remittance may be updated at any time by the Wholesale Servicer
upon written notice to MONY.
An accrual should be provided on the fourth business day following the end of
each month, to allow Wholesale Servicer and its affiliates to close their IFRS
books on schedule. MONY will have time to review the detail and reconcile fully
to the underlying records and submit the final report for the month with the
cash payment on business day 15.
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SCHEDULE D
REPORTS AND PROCESSES
1) REQUIRED REPORTS AND PROCESSES (MONY TO WHOLESALE SERVICER) FOR
ADMINISTRATION BY WHOLESALE SERVICER OF WHOLESALE COMPENSATION PAYMENTS AND
RELATED MATTERS
The four major MONY/MLOA policy administrative systems (plus SciCom) must
continue to provide the source data needed by the seller's commissions systems
to calculate commission by agent, broker, or firm. Specifically, by Policy
Admin system, the following feeds:
. TOPS: Daily feed for commission transactions, plus quarterly feed for
trails:
TS2200 & TS2200P - DAILY
TOPS.PB.TS2011.CCSFUSS.BKUPGDG.FILE(0)
TOPS.PB.TS0260.TSMSFEES.FILE(0)
TS2200Q & TS2200L - QUARTERLY - TOPS.PB.TS0200.QTRTRLS.OUTPUT.FILE(0)
. CYBERLIFE: Daily feed for commission transactions, plus quarterly feed for
trails.
MT7171 - DAILY - MONYTS.PB.PROD.MTTCEN07.FILE(0)
MT7177 - QUARTERLY - MONYTS.PB.PROD.MTTTEN07.FILE(0)
MT7177W - QUARTERLY - MONYTS.PB.PROD.MTTWEN07.FILE(0)
. EPIC: Daily feed for commission transactions
AN5305U - DAILY - COMMISSIONS.XML
. GUL: Daily Feed for commission transactions
GU0264 - DAILY - GUL.PB.MYCOMXTR.ROLLUP.FILE(0)
. SCICOM: Daily feed for commission transactions (old Group Association -
less than 30 per month)
TC2200U DAILY
SCICOM.TXT
. DISABILITY MANAGEMENT SERVICES: same feed format and frequency currently
provided by DMS.
These systems are to continue transmitting policy compensation data to IBM
middleware which is used to transform data into the TrueComp MS SQL server
environment. The following data items should be included in the data feeds as
they are currently (not all items for all transactions):
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ContrNo AddrLine1 TrgtPremAmt
FPNo AddrLine2 RplcmntContrNo
TransDte AddrLine3 RplcmntTypeCd
CreateChkInd AddrCityName RplcdPremAmt
AccumInd AddrStCd SubProdCdDesc
CrRptngInd AddrZipCd SubProdCd
HeldCommInd BtchNo PymntModeCd
RecapInd AcctShortName ModalPremAmt
StmntDtlInd AgyOfRecCd PymntDueDte
StmntDesc IssueAge UnitValAmt
Text1Ind ContrIssueDte TotUnits
Text2Ind InsdFullName TransTypeCd
HonorClubInd RltnshpCd CvrgCd
MDRTInd CaseNo TotValAmt
TotFundValAmt MSCAcctNo NoOfMnthsPd
BuySellCd NFSAcctNo FinActvtyDte
CoCd FinActvtyFeeAmt ProdCdDesc
SubsidId PayoutAmt PlanName
PremPstngDte SplitPctAmt ProdCd
AdminSrcSysCd SplitRepNo RnwlInd
ContrCd GDCAmt DrtnCd
AppRecDte FYCEquivAmt PremTypeCd
AppCrAmt GridPayoutCd PymntTypeCd
AppJrsdctnCd FinActvtyNetAmt IntrnlCntlNo
PremPymntAmt CommRate ExtrctDte
LineOfBusCd CommSchedCd RecTypeCd
WrtngFPNo CommonRmtrNo AdvncCommInd
AltTaxId CusipNo RstrctnCd
CarrCd CusipDesc RgnDrctrId
GrossCncssnsAmt CommPrdStartDte LifeAnntyCd
ContrStatCd CommPrdEndDte LAProdName
ContrStatEffDte StlmntDte CompProdName
AnnlzdPymntAmt TradeDte ProcDte
MBIAsgnNo ExamName
AddrLine1 FaceAmt
Compensation data for older MONY systems should continue to be transmitted
manually via spreadsheet in the circumstances of a commissionable event:
29
PASS CURRENT
NATURE OF FEED M-MANUAL TRANSACTION THROUGH COMMISSION RATE TRANSACTION
SOURCE SYSTEM A-AUTOMATIC TYPE FREQUENCY FLAG HOUSING. FREQUENCY
------------- ----------------------- ------------ --------- ------- --------------------- -----------------
CAPS M / Key-in by User Calculate Monthly Y NA Years since the
through GUI into Compensation last transaction
ValidTransaction
IVA M / Key-in by User Raw Premium Monthly N Send along with Several
through GUI into transaction in transactions per
ValidTransaction Discount- percentage year to one FP
Field.
MONY Accum M / Key-in by User Raw Premium Semi- N Send along with Years since the
through GUI into Month transaction in last transaction
ValidTransaction Discount- percentage
Field.
MONY MAX M / Key-in by User Raw Premium Semi- N Send along with Several
through GUI into Month transaction in transactions per
ValidTransaction Discount- percentage year to one FP
Field.
2) REQUIRED REPORTS AND PROCESSES (BOTH WAYS) FOR ACCOUNTING
MONY shall provide an estimate for amounts due under this Agreement for
Schedule B for MONY (By Legal Entity) no later than the 4/th/ business day
following the close of each month that will provide the estimated amounts due
to Wholesale Servicer. Such estimate will be based on preliminary, unverified
data and could be different from the amount ultimately funded as described in
Schedule C.
MONY shall provide a report that supports the cash settlement as outlined
in Schedule B of the Servicing Agreement to the Wholesale Servicer's Treasury
and Controller's Area due on the same day as the cash settlement to Wholesale
Servicer as described in Schedule C. Such report will include premiums and
asset balances summarized by component as described in Schedule C for the
payment month. The premium and asset summary balances will be accumulated from
and reconciled to the daily feeds, as described in 1) above correlating to the
period being covered by the cash settlement.
3) REQUIRED REPORTS AND PROCESSES FOR MANAGEMENT OF SERVICE AGENT ASSIGNMENTS
ON MONY/MLOA POLICIES
The only service agent assignment changes processed on wholesale business are
client requests. These would come into the policy service unit and managed by
the buyer.
4) REQUIRED REPORTS AND PROCESSES (BOTH WAYS) FOR MANAGEMENT OF AGENT
APPOINTMENTS AND TERM CONVERSIONS
It is anticipated that there will be few and rare appointments to MONY. To the
extent such appointment becomes necessary, Wholesale Servicer will communicate
the need, relevant names, dates, etc., to the designated party at MONY.
With regard to appointments to MONY and its affiliates of Brokerage General
Agents and/or their representatives, for the sole purpose of sale of a product
of MONY or its affiliates in concert with a term conversion, a process will
need to be developed whereby the rep initiates the request with Wholesale
Servicer and Wholesale Servicer subsequently communicates with its MONY
counterpart.
30
ANNEX 1
SERVICES
1) pay commissions to Brokers-of-Record consistent with the In-Force Retail
Sales Agreements in place, and any amendment thereto or new selling
agreement necessary or appropriate in connection with the sale of a
Conversion Policy issued by an affiliated insurance company of MONY;
2) maintain records regarding such payments;
3) tax reporting of compensation paid to Brokers-of-Record, to the extent MLOA
has any such obligation under applicable law.
4) accept calls to the sales desk and refer them to MONY, as appropriate; and
5) provide website access and functionality to Brokers-of-Record to access
information with respect to In-Force Policies and Contracts consistent with
such support provided for products issued by AXA Equitable Life Insurance
Company, to the extent that MONY's and its affiliates' administrative
systems provide required data feeds to Wholesale Servicer, and for as long
as AXA Equitable Life Insurance Company provides such support for its own
products.
31
