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Exhibit (8)(a)
FUND PARTICIPATION AGREEMENT
This Agreement is entered into as of the 15th day of July, 1999,between MONY
LIFE INSURANCE COMPANY OF AMERICA, a life insurance company organized under the
laws of the State of Arizona, MONY LIFE INSURANCE COMPANY, a life insurance
company organized under the laws of the State of New York (MONY Life Insurance
Company of America and MONY Life Insurance Company shall hereafter be referred
to collectively as "Insurance Company"), and ENTERPRISE ACCUMULATION TRUST, an
open-end management investment company organized as a Massachusetts business
trust ("Trust").
ARTICLE I
DEFINITIONS
1.1 "Act" shall mean the Investment Company Act of 1940, as amended.
1.2 "Board" shall mean the Board of Trustees, as the case may be, of the
Trust, which has the responsibility for management and control of the
Trust.
1.3 "Business Day" shall mean any day for which the Trust calculates net
asset value per share as described in the Trust's Prospectus.
1.4 "Commission" shall mean the Securities and Exchange Commission.
1.5 "Contract" shall mean a variable annuity or variable life insurance
contract that uses any Portfolio of the Trust (as defined below) as an
underlying investment medium. Individuals who participate under a group
Contract are "Participants."
1.6 "Contractholder" shall mean any entity that is a party to a Contract
with a Participating Company (as defined below).
1.7 "Disinterested Board Members" shall mean those members of the Board of
the Trust that are not deemed to be "interested persons" of the Trust,
as defined by the Act.
1.8 "Participating Companies" shall mean any insurance company (including
Insurance Company) that offers variable annuity and/or variable life
insurance contracts to the public and that has entered into an
agreement with the Trust.
1.9 "Portfolio" shall mean each portfolio of the Trust, as specified in
Exhibit A, as such Exhibit may be amended from time to time by
agreement of the parties hereto, the shares of which are available to
serve as the underlying investment medium for the aforesaid Contracts.
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1.10 "Prospectus" shall mean the current prospectus and statement of
additional information of the Trust, as most recently filed with the
Commission.
1.11 "Separate Accounts" shall mean MONY America Variable Account A (Policy
Form Numbers B5-98 and B6-98), MONY America Variable Account L (Policy
Form Number B1-96), MONY Variable Account A (Policy Form Numbers
C5-98-2 and C6-98-2) and MONY Variable Account L (Policy Form Numbers
C1-98, C2-98 and C3-98) separate accounts established by Insurance
Company in accordance with the laws of the State of Arizona (MONY
America Variable Accounts A and L) and New York (MONY Variable Accounts
A and L).
1.12 "Insurance Company's General Account(s)" shall mean the general
account(s) of Insurance Company and its affiliates that invest in a
Portfolio.
ARTICLE II
REPRESENTATIONS
2.1 Insurance Company represents and warrants that (a) it is an insurance
company duly organized and in good standing under applicable law; (b)
it has legally and validly established the Separate Accounts pursuant
to the Arizona or New York Insurance Code (as the case may be) for the
purpose of offering to the public certain individual variable life
insurance or variable annuity contracts; (c) it has registered the
Separate Accounts as unit investment trusts under the Act to serve as
the segregated investment account for the Contracts; and (d) the
Separate Accounts are eligible to invest in shares of each Portfolio
without such investment disqualifying any Portfolio as an investment
medium for insurance company separate accounts supporting variable
annuity contracts or variable life insurance contracts.
2.2 Insurance Company represents and warrants that (a) the Contracts will
be described in a registration statement filed under the Securities Act
of 1933, as amended ("1933 Act"); (b) the Contracts will be issued and
sold in compliance in all material respects with all applicable federal
and state laws; and (c) the sale of the Contracts shall comply in all
material respects with state insurance law requirements. Insurance
Company agrees to notify the Trust promptly of any investment
restrictions imposed by any state insurance law and applicable to the
Trust.
2.3 Insurance Company represents and warrants that the income, gains and
losses, whether or not realized, from assets allocated to the Separate
Accounts are, in accordance with the applicable Contracts, to be
credited to or charged against such Separate Accounts without regard to
other income, gains or losses from assets allocated to any other
accounts of Insurance Company. Insurance Company represents and
warrants that the assets of the Separate Accounts are and will be kept
separate from Insurance Company's General Account and any other
separate accounts Insurance Company may have, and will not be charged
with liabilities from any business that Insurance Company may conduct
or the liabilities of any companies affiliated with Insurance Company.
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2.4 The Trust represents and warrants that the Trust shares offered and
sold pursuant to this Agreement will be registered under the 1933 Act
and the Trust shall be registered under the 1940 Act prior to any
issuance or sale of such shares. The Trust shall amend its registration
statement 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 does and will comply in all material respects with the
requirements of the 1940 Act and the rules thereunder. The Trust's 1933
Act registration statement, including its prospectus, together with any
amendments thereto, will at all times comply in all material respects
with the requirements of the 1933 Act and the rules thereunder. The
Trust shall register and qualify its shares for sale in accordance with
the laws of the various states only if and to the extent advisable by
the Trust.
2.5 Insurance Company represents and agrees that the Contracts are
currently, and at the time of issuance will be, treated as life
insurance policies or annuity contracts, whichever is appropriate,
under applicable provisions of the Internal Revenue Code of 1986, as it
may now or hereafter be amended (the "Code"), and that it will make
every effort to maintain such treatment and that it will notify each
participating Portfolio, the Trust, and Enterprise (as hereafter
defined) 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.
2.6 The Trust represents and warrants that the investments of each
Portfolio shall be managed and invested in a manner that complies with
the requirements of Section 817(h) of the Code of 1986 as amended, and
the rules and regulations thereunder.
2.7 Insurance Company agrees that the Trust's shares may be made available
to other Participating Companies and Contractholders provided, however,
that each of the Participating Companies shall have executed an
agreement containing, among other things, representations and
warranties in substantially the same form as contained in Section 2.1,
2.2, and 2.3 hereof.
2.8 The Trust represents and warrants that any of its directors, trustees,
officers, employees, investment advisers, and other
individuals/entities who deal with the money and/or securities of the
Trust are and shall continue to be at all times covered by a blanket
fidelity bond or similar coverage for the benefit of the Trust in an
amount not less than that required by Rule 17g-1 under the Act. The
aforesaid Bond shall include coverage for larceny and embezzlement and
shall be issued by a reputable bonding company.
2.9 Insurance Company represents and warrants that all of its employees and
agents who deal with the money and/or securities of the Trust are and
shall continue to be at all times covered by a blanket fidelity bond or
similar coverage in an amount not less than the coverage required to be
maintained by the Trust. The aforesaid Bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable bonding
company. It is agreed that this Agreement contemplates that no such
employee or agent of the Insurance Company will deal with money and/or
securities of the Trust.
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2.10 Insurance Company agrees that Enterprise Capital Management, Inc.
("Enterprise"), a corporation organized under the laws of the State of
Georgia and the investment adviser to the Trust, shall be deemed a
third party beneficiary under this Agreement and may enforce any and
all rights conferred by virtue of this Agreement.
ARTICLE III
PORTFOLIO SHARES
3.1 The Contracts will provide for allocation of premium payments for and
cash values of the Contracts among subaccounts of the Separate
Accounts, including subaccounts which purchase shares of each
Portfolio.
3.2 The Trust agrees to make its shares available for purchase at the then
applicable net asset value per share by Insurance Company and the
Separate Accounts on each Business Day pursuant to rules of the
Commission. Notwithstanding the foregoing, the Trust may refuse to sell
its shares to any person, or suspend or terminate the offering of its
shares, if such action is required by law or by regulatory authorities
having jurisdiction or is, in the sole discretion of its Board, acting
in good faith and in light of its fiduciary duties under federal and
any applicable state laws, necessary and in the best interests of the
Trust's shareholders.
3.3 The Trust agrees that shares of the Trust will be sold only to (a)
Participating Companies and their separate accounts or (b) "qualified
pension or retirement plans" as determined under Section 817(h)(4) of
the Code. Except as otherwise set forth in this Section 3.3, no shares
of the Trust will be sold to the general public.
3.4 The Trust shall provide closing net asset value, dividend and capital
gain information on a per-share basis to Insurance Company by 5:50 p.m.
Eastern time on each Business Day. Any material errors in the
calculation of net asset value, dividend and capital gain information
shall be reported immediately upon discovery to Insurance Company.
Non-material errors will be corrected in the next Business Day's net
asset value per share.
3.5 At the end of each Business Day, Insurance Company will use the
information described in Sections 3.2 and 3.4 to calculate the unit
values of the Separate Accounts for the day. Using this unit value,
Insurance Company will process the day's Separate Account transactions
received by it by the close of trading on the floor of the New York
Stock Exchange (currently 4:00 p.m. Eastern time), or at such other
earlier time as it may determine, to determine the net dollar amount of
each Portfolio's shares that will be purchased or redeemed at that
day's closing net asset value per share. The net purchase or redemption
orders with respect to each Portfolio of the Trust will be transmitted
to the Trust by Insurance Company by 11:00 a.m. Eastern time on the
Business Day next following Insurance Company's receipt of that
information. Subject to Sections 3.6 and 3.8, all purchase and
redemption orders for Separate Accounts shall be effected at the net
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asset value per share of each Portfolio next calculated after receipt
of the order by the Trust or its Transfer Agent.
3.6 The Trust appoints Insurance Company as its agent for the limited
purpose of accepting orders for the purchase and redemption of Trust
shares for the Separate Accounts. The Trust will execute orders at the
applicable net asset value per share determined as of the close of
trading on the day of receipt of such orders by Insurance Company
acting as agent ("effective trade date"), provided that the Trust
receives notice of such orders by 11:00 a.m. Eastern time on the next
following Business Day and, if such orders request the purchase of
Trust shares, the conditions specified in Section 3.8, as applicable,
are satisfied. A redemption or purchase request that does not satisfy
the conditions specified above and in Section 3.8, as applicable, will
be effected at the net asset value per share computed on the Business
Day immediately preceding the next following Business Day upon which
such conditions have been satisfied in accordance with the requirements
of this Section and Section 3.8. With respect to the payment of the
purchase price by Insurance Company and of redemption proceeds by the
Trust, Insurance Company and the Trust shall remit gross purchase and
sale orders with respect to each Portfolio and shall transmit one net
payment per Portfolio in accordance with the provisions of this Article
III.
3.7 Insurance Company will make its best efforts to notify the Trust in
advance of any unusually large purchase or redemption orders and all
collections of mortality and expense charges through redemptions.
3.8 If Insurance Company's order requests the purchase of Trust shares,
Insurance Company will pay for such purchases by wiring Federal Funds
to the Trust or its designated custodial account on the day the order
is transmitted. Insurance Company shall make all reasonable efforts to
transmit to the Trust payment in Federal Funds by 5:00 p.m. Eastern
time on the Business Day the Trust receives the notice of the order
pursuant to Section 3.5. The Trust will execute such orders at the
applicable net asset value per share determined as of the close of
trading on the effective trade date if the Trust receives payment in
Federal Funds by 12:00 midnight Eastern time on the Business Day the
Trust receives the notice of the order pursuant to Section 3.5. If
payment in Federal Funds for any purchase is not received or is
received by the Trust after 5:00 p.m. Eastern time on such Business
Day, Insurance Company shall promptly, upon the Trust's request,
reimburse the Trust for any charges, costs, fees, interest or other
expenses incurred by the Trust in connection with any advances to, or
borrowings or overdrafts by, the Trust, or any similar expenses
incurred by the Trust, as a result of portfolio transactions effected
by the Trust based upon such purchase request. If Insurance Company's
order requests the redemption of any Trust shares valued at or greater
than $1 million dollars, the Trust will wire such amount to Insurance
Company within seven days of the order.
3.9 The Trust has the obligation to ensure that its shares are registered
with applicable federal agencies at all times.
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3.10 The Trust will confirm each purchase or redemption order made by
Insurance Company. Transfer of trust shares will be by book entry only.
No share certificates will be issued to Insurance Company. Insurance
Company will record shares ordered from the Trust in an appropriate
title for the corresponding account.
3.11 The Trust shall credit Insurance Company with the appropriate number of
shares.
3.12 At least two days in advance of each ex-dividend date of the Trust or,
if not a Business Day, on the first Business Day thereafter, each
participating Portfolio shall communicate to Insurance Company the
amount of dividend and capital gain, if any, per share. All dividends
and capital gains shall be automatically reinvested in additional
shares of the applicable Portfolio at the net asset value per share on
the ex-dividend date. The Trust shall, on the day after the ex-dividend
date or, if not a Business Day, on the first Business Day thereafter,
notify Insurance Company of the number of shares so issued.
ARTICLE IV
STATEMENTS AND REPORTS
4.1 The Trust shall provide monthly statements of account as of the end of
each month for all of Insurance Company's accounts by the fifteenth
(15th) Business Day of the following month.
4.2 The Trust shall distribute to Insurance Company copies of the Trust's
Prospectuses, proxy materials, notices, periodic reports and other
printed materials (which the Trust customarily provides to its
shareholders) in quantities as Insurance Company may reasonably request
for distribution to each Contractholder and Participant. In the event
that Insurance Company elects to print the Trust's Prospectus, periodic
reports, or other printed materials as a part of the Contractholder
Prospectus or reports or other document, the Trust shall provide such
document, at the election of the Insurance Company, in such electronic
format as the Insurance Company reasonably may request or in camera
ready copy and shall bear the reasonable pro rata cost of printing such
document. Camera-ready or diskette copies of annual and semi-annual
reports shall be provided to Insurance Company no later than 45 days
after the end of the Trust's reporting periods.
4.3 The Trust will provide to Insurance Company at least one complete copy
of all registration statements, Prospectuses, reports, proxy
statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to the Trust or its shares,
contemporaneously with the filing of any such document with the
Commission or other regulatory authorities.
4.4 Insurance Company will provide to the Trust at least one copy of all
registration statements, Prospectuses, reports, proxy statements, sales
literature and other promotional materials, applications for
exemptions, requests for no-action letters, and all amendments to any
of the above, that relate to the Contracts or the Separate Accounts,
contemporaneously with the filing of such document with the Commission.
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ARTICLE V
EXPENSES
5.1 The charge to the Trust for all expenses and costs of the Trust,
including but not limited to management fees, administrative expenses
and legal and regulatory costs, will be made in the determination of
the Trust's daily net asset value per share so as to accumulate to an
annual charge at the rate set forth in the Trust's Prospectus. Excluded
from the expense limitation described herein shall be brokerage
commissions and transaction fees and extraordinary expenses.
5.2 Except as provided in this Article V and, in particular in the next
sentence, Insurance Company shall not be required to pay directly any
expenses of the Trust or expenses relating to the distribution of its
shares. Insurance Company shall pay the following expenses or costs:
a. Such amount of the production expenses of any Trust materials,
including the cost of printing the Trust's Prospectus, or
marketing materials for prospective Insurance Company
Contractholders and Participants as Enterprise, the Trust and
Insurance Company shall agree from time to time.
b. Expenses of distributing Trust materials (other than Trust
Prospectuses, Reports to Shareholders or proxy materials) or
marketing materials to prospective Insurance Company
Contractholders and Participants.
c. Expenses of distributing Trust materials (other than Trust
Prospectuses, Reports to Shareholders or proxy materials) or
marketing materials for Insurance Company Contractholders and
Participants.
Except as provided herein, all other expenses of the Trust shall not be
borne by Insurance Company.
ARTICLE VI
POTENTIAL CONFLICTS
6.1 The Trust has received an order from the Securities and Exchange
Commission granting Participating Companies and their separate accounts
exemptions under Sections 9(a),
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13(a), 15(a) and 15(b) of 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 both affiliated and unaffiliated life
insurance companies and certain qualified pension and retirement plans
("Exemptive Order"). The parties acknowledge that the Trust's shares
may be made available for investment to other Participating Companies.
In such event, the Trustees will monitor the Trust for the existence of
any material irreconcilable conflict between the interests of the
Contractholders of all Participating Companies. Insurance Company
agrees to report any potential or existing conflicts promptly to the
Board of the Trust and to assist the Trustees in carrying out their
responsibilities under the Trust's Exemptive Order.
6.2 If a majority of the Board, or a majority of Disinterested Board
Members, determines that a material irreconcilable conflict exists with
regard to Contractholder investments in the Trust, the Board shall give
prompt notice to all Participating Companies. If the Board determines
that Insurance Company is responsible for causing or creating said
conflict, Insurance Company shall at its sole cost and expense, and to
the extent reasonably practicable (as determined by a majority of the
Disinterested Board Members), take such action as is necessary to
remedy or eliminate the irreconcilable material conflict. Such
necessary action may include, but shall not be limited to:
a. Withdrawing the assets allocable to the Separate Accounts from
the Portfolio and reinvesting such assets in another Portfolio
(if applicable) or a different investment medium, or
submitting the question of whether such segregation should be
implemented to a vote of all affected Contractholders; and/or
b. Establishing a new registered investment management company.
6.3 If a material irreconcilable conflict arises as a result of a decision
by Insurance Company to disregard Contractholder voting instructions
and said decision represents a minority position or would preclude a
majority vote by all Contractholders having an interest in the Trust,
Insurance Company may be required, at the Board's election to withdraw
the investments of the Separate Accounts in the Trust Portfolio.
6.4 For the purpose of this Article, a majority of the Disinterested Board
Members shall determine whether or not any proposed action adequately
remedies any irreconcilable material conflict, but in no event will the
Trust be required to bear the expense of establishing a new funding
medium for any Contract. Insurance Company shall not be required by
this Article to establish a new funding medium for any Contract if an
offer to do so has been declined by vote of a majority of the
Contractholders materially adversely affected by the irreconcilable
material conflict.
6.5 No action by Insurance Company taken or omitted, and no action by the
Separate Accounts or the Trust taken or omitted as a result of any act
or failure to act by Insurance
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Company pursuant to this Article VI, shall relieve Insurance Company of
its obligations under, or otherwise affect the operation of, Article V.
ARTICLE VII
VOTING OF TRUST SHARES
7.1 The Trust shall provide Insurance Company with copies, at no cost to
Insurance Company, of the Trust's proxy material, reports to
shareholders and other communications to shareholders in such quantity
as Insurance Company shall reasonably require for distributing to
Contractholders or Participants.
Insurance Company shall:
a. solicit voting instructions from Contractholders or
Participants on a timely basis and in accordance with
applicable law;
b. vote the Trust's shares in accordance with instructions
received from Contractholders or Participants; and
c. vote the Trust's shares for which no instructions have been
received in the same proportion as Trust shares for which
instructions have been received.
Insurance Company agrees at all times to vote its Separate Account
shares in the same proportion as the Trust shares for which
instructions have been received from Contractholders or Participants.
7.2 The Trust shall bear the cost of mailing and tabulating proxies for
meetings of its shareholders.
ARTICLE VIII
MARKETING AND REPRESENTATIONS
8.1 The Trust or its underwriter shall periodically furnish Insurance
Company with the following documents, in quantities as Insurance
Company may reasonably request:
a. Current Prospectus and any supplements thereto; and
b. other marketing materials.
Expenses for the production of such documents shall be borne by the
parties to this Agreement in accordance with Articles IV and V of this
Agreement.
8.2 Insurance Company shall designate certain persons or entities that
shall have the requisite licenses to solicit applications for the sale
of Contracts. No representation is made as to
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the number or amount of Contracts that are to be sold by Insurance
Company. Insurance Company shall make reasonable efforts to market the
Contracts and shall comply with all applicable federal and state laws
in connection therewith.
8.3 Insurance Company shall furnish, or shall cause to be furnished, to the
Trust or its designee, each piece of sales literature or other
promotional material in which the Trust, its investment adviser or the
administrator is named, at least ten Business Days prior to its use. No
such material shall be used unless the Trust or its designee approves
such material. Such approval (if given) must be in writing and shall be
presumed not given if not received within ten Business Days after
receipt of such material. The Trust or its designee, as the case may
be, shall use all reasonable efforts to respond within six days of
receipt.
8.4 Insurance 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, as it may be amended or supplemented from time to time,
or in reports or proxy statements for the Trust, or in sales literature
or other promotional material approved by the Trust.
8.5 The Trust shall furnish, or shall cause to be furnished, to Insurance
Company, each piece of the Trust's sales literature or other
promotional material in which Insurance Company or the Separate
Accounts are named, at least ten Business Days prior to its use. No
such material shall be used unless Insurance Company approves such
material. Such approval (if given) must be in writing and shall be
presumed not given if not received within ten Business Days after
receipt of such material. Insurance Company shall use all reasonable
efforts to respond within six days of receipt.
8.6 The Trust shall not, in connection with the sale of Trust shares, give
any information or make any representations on behalf of Insurance
Company or concerning Insurance Company, the Separate Accounts, or the
Contracts other than the information or representations contained in a
registration statement or prospectus for the Contracts, as may be
amended or supplemented from time to time, or in published reports for
the Separate Accounts that are in the public domain or approved by
Insurance Company for distribution to Contractholders or Participants,
or in sales literature or other promotional material approved by
Insurance Company.
8.7 For purposes of this Agreement, the phrase "sales literature or other
promotional material" or words of similar import include, without
limitation, advertisements (such as material published, or designed for
use, in a newspaper, magazine or other periodical, radio, television,
telephone or tape recording, videotape display, signs or billboards,
motion pictures or other public media), sales literature (such as any
written communication distributed or made generally available to
customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, or reprints or
excerpts of any other advertisement, sales literature, or published
article),
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educational or training materials or other communications distributed
or made generally available to some or all agents or employees,
registration statements, prospectuses, statements of additional
information, shareholder reports and proxy materials, and any other
material constituting sales literature or advertising under National
Association of Securities Dealers, Inc. rules, the Act or the 1933 Act.
ARTICLE IX
INDEMNIFICATION
9.1 Insurance Company agrees to indemnify and hold harmless the Trust,
Enterprise, and each Portfolio's sub-investment adviser (if
applicable), the Trust's distributor, and their respective affiliates,
and each of their directors, trustees, officers, employees, agents and
each person, if any, who controls or is associated with any of the
foregoing entities or persons within the meaning of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of Section 9.1),
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)
for which the Indemnified Parties may become subject, under the 1933
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect to thereof) (i) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in information furnished by Insurance Company
for use in the registration statement or Prospectus or sales literature
or advertisements of the Trust with respect to the Separate Accounts or
Contracts, 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;
(ii) arise out of or as a result of conduct, statements or
representations (other than statements or representations contained in
the Prospectus and sales literature or advertisements of the Trust) of
Insurance Company or its agents, with respect to the sale and
distribution of Contracts for which the Trust's shares are an
underlying investment; (iii) arise out of the wrongful conduct of
Insurance Company or persons under its control with respect to the sale
or distribution of the Contracts or the Trust's shares; (iv) arise out
of Insurance Company's incorrect calculation and/or untimely reporting
of net purchase or redemption orders; or (v) arise out of any breach by
Insurance Company of a material term of this Agreement or as a result
of any failure by Insurance Company to provide the services and furnish
the materials or to make any payments provided for in this Agreement.
Insurance Company will reimburse any Indemnified Party in connection
with investigating or defending any such loss, claim, damage, liability
or action; provided, however, that with respect to clauses (i) and (ii)
above Insurance Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon any untrue statement or omission or alleged omission made
in such registration statement, prospectus, sales literature approved
in writing by Insurance Company, or advertisement in conformity with
written information furnished to Insurance Company by the Trust
specifically for use therein. This indemnity agreement will be in
addition to any liability which Insurance Company may otherwise have.
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9.2 The Trust agrees to indemnify and hold harmless Insurance Company and
each of its directors, officers, employees, agents and each person, if
any, who controls Insurance Company within the meaning of the 1933 Act
against any losses, claims, damages or liabilities to which Insurance
Company or any such director, officer, employee, agent or controlling
person may become subject, under the 1933 Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) (1) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
registration statement or Prospectus or sales literature or
advertisements of the Trust; (2) arise out of or are based upon the
omission to state in the registration statement or Prospectus or sales
literature or advertisements of the Trust any material fact required to
be stated therein or necessary to make the statements therein not
misleading; or (3) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the
registration statement or Prospectus or sales literature or
advertisements with respect to the Separate Accounts or the Contracts
and such statements were based on information provided to Insurance
Company by the Trust; and the Trust will reimburse any legal or other
expenses reasonably incurred by Insurance Company or any such director,
officer, employee, agent or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Trust will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or omission or
alleged omission made in such registration statement, Prospectus, sales
literature or advertisements in conformity with written information
furnished to the Trust by Insurance Company specifically for use
therein. This indemnity agreement will be in addition to any liability
which the Trust may otherwise have.
9.3 The Trust shall indemnify and hold Insurance Company harmless against
any and all liability, loss, damages, costs or expenses which Insurance
Company may incur, suffer or be required to pay due to the Trust's (a)
failure to comply with the diversification requirements specified in
Article II of this Agreement; and (b) (1) incorrect calculation of the
daily net asset value, dividend rate or capital gain distribution rate;
(2) incorrect reporting of the daily net asset value, dividend rate or
capital gain distribution rate; and (3) untimely reporting of the net
asset value, dividend rate or capital gain distribution rate; provided
that the Trust shall have no obligation to indemnify and hold harmless
Insurance Company if the incorrect calculation or incorrect or untimely
reporting was the result of incorrect information furnished by
Insurance Company or information furnished untimely by Insurance
Company or otherwise as a result of or relating to a breach of this
Agreement by Insurance Company.
9.4 Promptly after receipt by an indemnified party under this Article of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Article, notify the indemnifying party of the
commencement thereof. The omission to so notify the indemnifying party
will not relieve the indemnifying party from any liability under this
Article IX, except to the extent that the omission results in a failure
of actual notice to the indemnifying party and such indemnifying party
is damaged solely as a result of the failure to give such
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notice. In case any such action is brought against any indemnified
party, and it notified the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein
and, to the extent that it may wish, assume the defense thereof, with
counsel satisfactory to such indemnified party, and to the extent that
the indemnifying party has given notice to such effect to the
indemnified party and is performing its obligations under this Article,
the indemnifying party shall not be liable for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof, other than reasonable costs of investigation.
Notwithstanding the foregoing, in any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent.
A successor by law of the parties to this Agreement shall be entitled
to the benefits of the indemnification contained in this Article IX.
The provisions of this Article IX shall survive termination of this
Agreement.
9.5 Insurance Company shall indemnify and hold the Trust, Enterprise and
the sub-investment adviser of each Portfolio harmless against any tax
liability incurred by the Trust under Section 851 of the Code arising
from purchases or redemptions by Insurance Company's General Accounts
or the account of its affiliates.
ARTICLE X
COMMENCEMENT AND TERMINATION
10.1 This Agreement shall be effective as of the date hereof and shall
continue in force until terminated in accordance with the provisions
herein.
10.2 This Agreement shall terminate without penalty:
a. At the option of any party to this Agreement for any reason by
sixty (60) days advance written notice delivered to the other
party.
b. At the option of any party to this Agreement, upon another
party's breach of any material provision of this Agreement;
c. At the option of the Trust, if the Contracts are not
registered, issued or sold in accordance with applicable
federal and/or state law; or
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d. Upon assignment of this Agreement, unless made with the
written consent of every other non-assigning party.
Any such termination pursuant to Section 10.2a or 10.2c herein shall
not affect the operation of Article V of this Agreement. Any
termination of this Agreement shall not affect the operation of Article
IX of this Agreement.
10.3 Notwithstanding any termination of this Agreement pursuant to Section
10.2 hereof, each participating Portfolio and the Trust may, at the
option of the participating Portfolio, continue to make available
additional shares of that participating Portfolio for as long as the
participating Portfolio desires pursuant to the terms and conditions of
this Agreement as provided below, for all Contracts in effect on the
effective date of termination of this Agreement (hereinafter referred
to as "Existing Contracts"). Specifically, without limitation, if the
Trust and Enterprise so elect to make additional Portfolio shares
available, the owners of the Existing Contracts or Insurance Company,
whichever shall have legal authority to do so, shall be permitted to
reallocate investments in that Portfolio, redeem investments in that
Portfolio and/or invest in that Portfolio upon the making of additional
purchase payments under the Existing Contracts. In the event of a
termination of this Agreement pursuant to Section 10.2 hereof, the
Trust and Enterprise, as promptly as is practicable under the
circumstances, shall notify Insurance Company whether the Trust,
Enterprise and that Portfolio will continue to make that Portfolio's
shares available after such termination. If such Portfolio's shares
continue to be made available after such termination, the provisions of
this Agreement shall remain in effect and thereafter either the Trust
or Insurance Company may terminate the Agreement as to that Portfolio,
as so continued pursuant to this Section 10.3, upon prior written
notice to the other party, such notice to be for a period that is
reasonable under the circumstances but, if given by the Trust, need not
be for more than six months.
10.4 Termination of this Agreement as to any one Portfolio shall not be
deemed a termination as to any other Portfolio unless Insurance Company
or the Trust, as the case may be, terminates this Agreement as to such
other Portfolio in accordance with this Article X.
ARTICLE XI
AMENDMENTS
11.1 Any other changes in the terms of this Agreement, except for the
addition or deletion of any Portfolio as specified in Exhibit A, shall
be made by agreement in writing between Insurance Company and the
Trust.
ARTICLE XII
NOTICE
12.1 Each notice required by this Agreement shall be given by certified
mail, return receipt requested, to the appropriate parties at the
following addresses:
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Insurance Company: MONY Life Insurance Company of America
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Secretary
And
MONY Life Insurance Company
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Secretary
The Trust: Enterprise Accumulation Trust
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxxxx X. XxXxxxxxx, Secretary
Notice shall be deemed to be given on the date of receipt by the
addressees as evidenced by the return receipt.
ARTICLE XIII
MISCELLANEOUS
13.1 This Agreement has been executed on behalf of the Trust by the
undersigned officer of the Trust in his or her capacity as an officer
of the Trust. The obligations of this Agreement shall only be binding
upon the assets and property of the Trust and shall not be binding upon
any director, trustee, officer or shareholder of the Trust
individually. This Agreement may be executed in multiple duplicate
counterparts, each of which shall be deemed an original.
ARTICLE XIV
LAW
14.1 This Agreement shall be construed in accordance with the internal laws
of the State of New York, without giving effect to principles of
conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be duly
executed and attested as of the date first above written.
[SIGNATURES ON FOLLOWING PAGE]
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MONY LIFE INSURANCE COMPANY OF AMERICA
By: ______________________________
Its: ______________________________
Attest: _____________________
MONY LIFE INSURANCE COMPANY
By: ______________________________
Its: ______________________________
Attest: _____________________
ENTERPRISE ACCUMULATION TRUST
By: ______________________________
Its: ______________________________
Attest: _____________________
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EXHIBIT A
LIST OF PARTICIPATING PORTFOLIOS
Growth
Growth & Income
Equity
Equity Income
Capital Appreciation
Multi-Cap Growth
Small Company Growth
Small Company Value
International Growth
High-Yield Bond
Balanced
Managed
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