PARTICIPATION AGREEMENT
AMONG
EQ ADVISORS TRUST
MONY LIFE INSURANCE COMPANY
AXA DISTRIBUTORS, LLC
AND
AXA ADVISORS, LLC
THIS AGREEMENT, made and entered into as of the 8th day of July 2004 by
and among MONY LIFE INSURANCE COMPANY, a New York insurance company ("MONY"), on
its own behalf and on behalf of the separate accounts set forth on Schedule B
hereto as may be amended from time to time (each an "Account"), EQ ADVISORS
TRUST, a business trust organized under the laws of the State of Delaware
("Trust"), AXA DISTRIBUTORS, LLC, a Delaware limited liability company, and AXA
ADVISORS, LLC, a Delaware limited liability company (the latter two,
collectively, the "Distributors").
WHEREAS, the Trust engages in business as an open-end management
investment company and is available to act as the investment vehicle for the
separate accounts ("Separate Accounts") of both affiliated and unaffiliated life
insurance companies ("Participating Insurance Companies") in connection with the
sale of variable life insurance policies, variable annuity contracts and
certificates relating to such policies or contracts ("Variable Contracts") and
for tax qualified retirement plans ("Qualified Plans") each of whom has entered
into a participation agreement with the Trust and its Distributors; and
WHEREAS, the beneficial interests in the Trust are divided into series
of shares (each a "Portfolio"), each representing the interest in a particular
managed portfolio of securities and other assets, and each Portfolio is divided
or may be divided into one or more classes of shares, i.e., currently the Class
IA shares and the Class IB shares, and such other classes of shares as may be
created in the future (the "Classes"); and
WHEREAS, one or more Portfolios or Classes thereof may be made
available by the Trust to serve as funding vehicles for Participating Insurance
Companies and their Separate Accounts funding Variable Contracts; and
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended ("1940 Act"), and
shares of its Portfolios are registered under the Securities Act of 1933, as
amended ("1933 Act"); and
WHEREAS, the Securities and Exchange Commission ("SEC") has granted
exemptions from the provisions of Sections 9(a), 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 and each of its Portfolios and Classes
to be sold to and held by Separate Accounts funding Variable Contracts of
Participating Insurance Companies and to Qualified Plans ("Shared Funding
Exemptive Order"); and
WHEREAS, MONY has registered each Account as a unit investment trust
under the 1940 Act, and has registered interests in the Account under the 1933
Act; and
176900v1
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of MONY or
through properly delegated authority, and divided into subaccounts, to set aside
and invest assets attributable to the Variable Contracts issued by MONY (the
"MONY Contracts"); and
WHEREAS, each of the Distributors is registered as a broker-dealer with
the SEC under the Securities Exchange Act of 1934, as amended ("1934 Act"), and
is a member in good standing of the National Association of Securities Dealers,
Inc. ("NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, MONY intends to purchase shares in the Portfolios listed on
Schedule A hereto as may be amended from time to time (the "Designated
Portfolios") on behalf of each Account, in order to fund certain MONY Contracts
currently outstanding and each Distributor is authorized to sell such shares to
each Account at the net asset value applicable to such Portfolios and Class
thereof.
NOW, THEREFORE, in consideration of their mutual promises, MONY, the
Trust and each of the Distributors agree as follows:
ARTICLE I. Sale of Trust Shares
1.1. Each of the Distributors agrees to sell to each Account those
shares of the Designated Portfolios and Class thereof for which it serves as the
Trust's principal underwriter and which the Account orders, executing such
orders on a daily basis at the net asset value per share next computed after
receipt by the Trust or its designee of the order for the shares of the
Designated Portfolios and Class thereof. For purposes of this Section 1.1, MONY
or its designee (but not the Account) shall be considered to be the designee of
the Trust for receipt of such purchase orders and, in this regard only, receipt
of such orders by MONY or its designee shall constitute receipt by the Trust for
purposes of calculating each Portfolio's net asset value per share, provided
that: (i) MONY notifies the Trust of such purchase orders by no later than 10:00
a.m. Eastern time on the next Business Day, as defined in this Section 1.1,
following the receipt by MONY of the purchase orders; and (ii) the purchase
orders received by MONY are in good order prior to the time the net asset value
of each Portfolio is calculated. "Business Day" shall mean any day on which the
New York Stock Exchange is open for trading and on which the Trust calculates
its net asset value pursuant to the rules of the SEC.
1.2. The Trust agrees to make its shares of the Designated Portfolios
and Class thereof available for purchase by each Account at the applicable net
asset value per share on those days on which the Trust calculates the net asset
value per share of the Designated Portfolios and Class thereof pursuant to rules
of the SEC. The Trust shall calculate the net asset value per share of the
Designated Portfolios and Class thereof on each day on which the New York Stock
Exchange is open for trading. Notwithstanding the foregoing, the Board of
Trustees of the Trust ("Board") may refuse to sell shares of any Designated
Portfolio or Class thereof to any person, or suspend or terminate the offering
of shares of any Portfolio or Class thereof, if such action is required by law
or by regulatory authorities having jurisdiction or is, in the sole discretion
of the Board acting in good faith and in light of its fiduciary duties under
federal and any applicable state laws, necessary in the best interests of the
shareholders of such Portfolio or Class thereof.
1.3. The Trust and each of the Distributors agree that shares of the
Designated Portfolios and Class thereof will be sold only to Participating
Insurance Companies and/or their separate accounts funding Variable Contracts or
to other persons or entities permitted under Section 817 of the Internal Revenue
Code of 1986, as amended ("Code"), or regulations promulgated thereunder. No
shares of any
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Portfolio will be sold to the general public, except to the extent permitted
under the Code and regulations promulgated thereunder.
1.4. The Trust and each of the Distributors will not sell Trust shares
to any Participating Insurance Company or Separate Account funding Variable
Contracts unless a Participation Agreement containing provisions substantially
the same as Articles I, III, V, and VII and Section 2.4 of Article II of this
Agreement is in effect to govern such sales. The Trust and each of the
Distributors will not sell Trust shares in excess of 10% of the assets of the
Trust to a Qualified Plan unless a Participation Agreement containing provisions
substantially the same as Articles I, III, V and VII of this agreement are in
effect to govern such sales.
1.5. The Trust agrees to redeem for cash, at the request of each
Account or MONY or its designee, any full or fractional shares of the Trust held
by the Account or MONY. The Trust will execute such requests on a daily basis at
the net asset value per share of the Designated Portfolios and Class thereof
next computed after receipt by the Trust or its designee of the request for
redemption, without charge. For purposes of this Section 1.5, MONY or its
designee (but not the Account) shall be considered the designee of the Trust for
receipt of requests for redemption, and, in this regard only, receipt of such
requests by MONY or its designee shall constitute receipt by the Trust for
purposes of calculating each Portfolio's net asset value per share, provided
that: (i) MONY notifies the Trust of such redemption requests by no later than
10:00 a.m. Eastern time on the next Business Day, as defined in Section 1.1,
following the receipt by MONY of the redemption requests; and (ii) such
redemption requests received by MONY are in good order prior to the time the net
asset value of each Portfolio is calculated.
1.6. MONY agrees that purchases and redemption of shares of the
Designated Portfolios and Class thereof offered by a then-current prospectus of
the Trust shall be made in accordance with the provisions of such prospectus,
including, without limitation, the Trust's policies and procedures regarding
"market timing" and disruptive transfer activity. MONY agrees to use its best
efforts and to cooperate with the Trust and the Distributors to enforce stated
prospectus policies and procedures regarding transactions in shares of the
Designated Portfolios and Class thereof, including those related to "market
timing" and disruptive transfer activity.
1.7. MONY shall pay for shares of Designated Portfolios and Class
thereof that are purchased for each Account in accordance with Section 1.1
hereof by no later than 1:00 p.m. Eastern time on the same Business Day on which
notice of the purchase order for Trust shares is given to the Trust in
accordance with the provisions of Section 1.1 hereof. The Trust shall pay
redemption proceeds for shares that are redeemed in accordance with Section 1.5
hereof by no later than 1:00 p.m. Eastern time on the same Business Day on which
notice of the redemption request is given to the Trust in accordance with the
provisions of Section 1.5 hereof. Payment shall be in federal funds transmitted
by wire. For purposes of Sections 2.10 and 2.11, upon receipt by the Trust of
the federal funds so wired, such funds shall cease to be the responsibility of
MONY and shall become the responsibility of the Trust; and upon receipt by MONY
of federal funds so wired such funds shall cease to be the responsibility of the
Trust and shall become the responsibility of MONY.
1.8. Issuance and transfer of the shares of the Designated Portfolios
thereof will be by book entry only. Stock certificates will not be issued to
MONY or the Account. Shares ordered from the Trust will be recorded in an
appropriate title for the Account or the appropriate subaccount of the Account.
1.9. The Trust shall furnish same day notice to MONY or its designee
(by wire or telephone, followed by written confirmation) of any income,
dividends or capital gain distributions payable on the shares of the Designated
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Portfolios and Class thereof. MONY and each Account hereby elect to receive all
such income, dividends and capital gain distributions as are payable on the
shares of the Designated Portfolios and Class thereof in additional shares of
the relevant Designated Portfolios and Class thereof. (MONY and the Account
reserve the right to revoke this election and to receive all such income,
dividends and capital gain distributions in cash.) The Trust shall provide
notification by the end of the next Business Day of the number of shares so
issued as payment of such dividends and distributions. The Trust shall provide
advance notice to MONY and the Account or their designee of any date on which
the Trust reasonably expects to make a dividend distribution; normally this
notice will be given at least ten (10) days in advance of the ex-dividend date.
1.10. The Trust shall make the net asset value per share for each
Designated Portfolio and Class thereof available to MONY and the Account or
their designee on each Business Day as soon as reasonably practicable after the
net asset value per share is calculated and shall use its best efforts to make
such net asset value per share available by 7:00 p.m. Eastern time each Business
Day. In the event that the Trust is unable to meet the 7:00 p.m. time stated
herein, it shall provide additional time for MONY to place orders for the
purchase and redemption of shares. Such additional time shall be equal to the
additional time which the Trust takes to make the net asset value available to
MONY. If the Trust provides materially incorrect share net asset value
information, the Trust shall make an adjustment to the number of shares
purchased or redeemed for the Account to reflect the correct net asset value per
share. Any material error in the calculation or reporting of net asset value per
share, dividend or capital gains information shall be reported promptly upon
discovery to MONY or its designee.
1.11. The Trust shall furnish written confirmation to MONY or its
designee of the amount of shares traded and the associated cost per share (NAV),
total trade amount and the outstanding share balances held by the Account in
each Designated Portfolio as of the end of each Business Day. Such confirmation
will be furnished by 1:00 p.m. eastern time on the next Business Day.
1.12. Each party to this Agreement shall have the right to rely on
information or confirmations provided by any other party and shall not be liable
in the event that an error results from incorrect information or confirmations
supplied by any other party.
ARTICLE II. Representations and Warranties
2.1. MONY 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 each Account, prior to any issuance or sale of interests
therein, as a segregated asset account under applicable insurance laws; (c) it
has registered each Account as a unit investment trust in accordance with the
provisions of the 1940 Act to serve as a segregated investment account for the
MONY Contracts; (d) it has registered interests in each Account under the 1933
Act; (e) the MONY Contracts will be issued and sold in compliance in all
material respects with all applicable federal and state laws, including
applicable anti-money laundering laws and regulations; and (f) the sale of the
MONY Contracts will comply in all material respects with state insurance
suitability requirements.
2.2. The Trust represents and warrants that Trust shares sold pursuant
to this Agreement shall be: (a) registered under the 1933 Act; and (b) duly
authorized for issuance; and (c) sold in compliance, in all material respects,
with all applicable federal securities laws. The Trust further represents and
warrants that it is and shall remain registered under the 1940 Act. The Trust
shall amend its registration statement under the 1933 Act and the 1940 Act (the
"Registration Statement") from time to time as required in order to effect the
continuous offering of shares of the Designated Portfolios and Class thereof.
This requirement shall not, however, in any manner limit the Trust's ability to
cease offering shares in one or more of the Designated Portfolios or Class
thereof, provided such action complies with applicable laws and regulations.
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2.3. Subject to Article VI hereof, MONY represents that the MONY
Contracts are currently treated as life insurance contracts under applicable
provisions of the Code and that it will make every effort to maintain such
treatment and that it will notify the Trust and each of the Distributors
immediately upon having a reasonable basis for believing that the MONY Contracts
have ceased to be so treated or that they might not be so treated in the future.
2.4. The Trust currently intends for one or more Classes, particularly
Class IB, to make payments to finance its distribution expenses pursuant to a
Plan adopted under Rule 12b-1 under the 1940 Act, although it may determine to
discontinue such practice in the future. To the extent that any Class of the
Trust finances its distribution expenses pursuant to a Plan adopted under Rule
12b-1, the Trust undertakes to have a Board, a majority of whose members are not
interested persons of the Trust or each of the Distributors (or the then-current
principal underwriters) or The Equitable Life Assurance Society of the United
States, as Investment Manager of the Trust, and to otherwise comply with any
then current SEC and SEC staff interpretations concerning Rule 12b-1 or any
successor provision.
2.5. The Trust makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states,
except that the Trust represents that the investment objectives, policies, fees
and expenses of each of the Designated Portfolios and Class thereof are and
shall at all times remain in compliance with the insurance laws of the State of
New York, and the Trust and each of the Distributors severally represent that
their respective operations are and shall at all times remain in compliance, in
all material respects, with the insurance laws of the State of New York to the
extent required to perform their respective obligations under this Agreement.
2.6. Each of the Distributors represents and warrants that: (a) it is a
member in good standing of the NASD and (b) it is registered as a broker-dealer
with the SEC and all necessary states. Each Distributor further represents that
it will sell and distribute the Trust's shares in accordance with the laws of
the State of New York and all applicable federal and state securities laws,
including without limitation the 1933 Act, the 1934 Act, the 1940 Act, and all
applicable Rules of the NASD.
2.7. The Trust represents that it is lawfully organized and validly
existing under the laws of the State of Delaware and that it does and will
comply, in all material respects, with the 1940 Act.
2.8. The Trust and each of the Distributors severally represent and
warrant that all of their trustees, directors, officers, employees, investment
managers and investment advisers, and other individuals/entities dealing 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 the minimal coverage required by Rule 17g-1
under the 1940 Act or such related provisions as may be promulgated from time to
time. The aforesaid fidelity bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.9. MONY represents and warrants that all of its directors, officers,
employees, and other individuals/entities dealing with the money and/or
securities of the Trust are covered by a blanket fidelity bond or similar
coverage. MONY represents and warrants that said fidelity bond is issued by a
reputable bonding company, includes coverage for larceny and embezzlement, and
is in an amount not less than $5 million. MONY agrees to make all reasonable
efforts to see that this fidelity bond or another bond containing these
provisions is continuously in effect and agrees to notify the Trust and each of
the Distributors in the event that such coverage no longer applies.
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ARTICLE III. Prospectuses and Proxy Statements' Voting
3.1. The Trust or the Distributors shall provide MONY with as many
printed copies of the Trust's current prospectus and Statement of Additional
Information and any supplements thereto for the Designated Portfolios and Class
thereof as MONY may reasonably request. In addition, with respect to
prospectuses, supplements and Statements of Additional Information for the
Designated Portfolios thereof provided by MONY to existing owners of MONY
Contracts ("Contractowners") in order to update information provided to existing
Contractowners, the cost of preparing, printing, mailing and otherwise
distributing such prospectuses and Statements of Additional Information and any
supplements thereto to MONY for its distribution to existing Contractowners
shall be borne by the Trust. If requested by MONY, in lieu of providing MONY
with printed copies of the Trust's prospectus and Statement of Additional
Information and any supplement thereto, the Trust shall provide MONY with a
final copy of the Trust's current prospectus or Statement of Additional
Information or supplement in a form suitable for duplication either in paper
form (a camera ready copy) or on diskette. The Trust and the Distributors shall
also provide such other assistance as is reasonably necessary in order for MONY
to have the Trust's prospectus and Statement of Additional Information or
supplement printed for distribution to existing Contractowners.
MONY agrees to provide the Trust or its designee with such information
as may be reasonably requested by the Trust to assure that the Trust's expenses
or the expenses of its Class shares do not include the cost of printing, mailing
and otherwise distributing any prospectuses, Statements of Additional
Information or supplements thereto for the Designated Portfolios thereof other
than those actually distributed to MONY for its distribution to existing
Contractowners.
3.2. The Trust's prospectus for the Designated Portfolios and Class
thereof shall state that the Statement of Additional Information for the
Designated Portfolios and Class thereof is available from the Distributors (or
in the Trust's discretion, the prospectus shall state that such Statement of
Additional Information is available from the Trust).
3.3. The Trust, at its expense, shall provide MONY with copies of its
proxy statements, Annual and Semi-Annual Reports to shareholders, and other
communications to shareholders in such quantities as MONY shall reasonably
require for its mailing or otherwise distributing such materials to existing
Contractowners and the Trust shall assume all expenses associated with mailing
or otherwise distributing those materials.
3.4. If and to the extent required by law, MONY shall:
(a) solicit voting instructions from Contractowners;
(b) vote the Trust shares for the Designated Portfolios and
Class thereof in accordance with instructions received from
Contractowners; and
(c) vote Trust shares for the Designated Portfolios and Class
thereof for which no instructions have been received in the Account in
the same proportion as Trust shares for the Designated Portfolios and
Class thereof for which instructions have been received so long as and
to the extent that the SEC continues to interpret the 1940 Act to
require pass-through voting privileges for Contractowners. MONY
reserves the right to vote Trust shares held in the Account in its own
right, to the extent permitted by law. Participating Insurance
Companies shall be responsible for assuring that each of their Separate
Accounts participating in the Trust calculates voting privileges in a
manner consistent with the standards adopted by the Board, which
standards will be provided to all other Participating Insurance
Companies.
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3.5. The Trust will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular the Trust will comply with
Section 16(c) of the 1940 Act as well as with Sections 16(a) and, if and when
applicable, Section 16(b). Further, the Trust will act in accordance with the
SEC or SEC staff's written interpretation concerning the requirements of Section
16(a) with respect to periodic elections of Trustees and with whatever rules the
SEC may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
4.1. MONY shall not give any information or make any representations or
statements on behalf of the Trust or concerning the Trust in connection with its
receipt of net premiums in connection with the MONY Contracts other than the
information or representations contained in or accurately derived from the
Registration Statement, prospectus or Statement of Additional Information for
the Trust, as such Registration Statement, prospectus or Statement of Additional
Information 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 or its designee, except with the permission of
the Trust or its designees.
4.2. The Trust or the Distributors, or their respective designees,
shall furnish, or shall cause to be furnished, to MONY or its designees, the
form of each piece of sales literature or other promotional material in which
MONY is named prior to its use. No such material shall be used if MONY or its
designees reasonably object to its use after receipt of such material.
4.3. The Trust and the Distributors shall not give any information or
make any representations on behalf of MONY or concerning MONY, the Account, or
the MONY Contracts other than the information or representations contained in or
accurately derived from published reports for the Account which are in the
public domain or approved by MONY for distribution to Contractowners, except
with the permission of MONY.
4.4. The Trust shall provide to MONY at least one complete copy of all
Registration Statements, prospectuses, Statements of Additional Information,
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 such document with the SEC, the NASD, or other regulatory
authorities.
4.5. MONY shall provide to the Trust at least one complete copy of all
reports, solicitations for voting instructions, 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 MONY
Contracts or the Account if such document also relates to the Trust,
contemporaneously with the filing of such document with the SEC, the NASD, or
other regulatory authorities.
4.6. For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to, any of the
following that refer to the Trust or any affiliate of the Trust: advertisements
(including materials published or designed for use in a newspaper, magazine, or
other periodical, radio, television, telephone or tape or electronic recording,
videotape display, signs or billboards, motion pictures, electronic messages or
communications or other public media, including a publicly available internet
address or website), sales literature (i.e., any written communication
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distributed or made generally available to customers or the public, including
brochures, circulars, research reports, market letters, form letters, seminar
texts, reprints or excerpts of any other advertisement, sales literature, or
published article or internet site or website), educational or training
materials or other communications distributed or made generally available to
some or all agents or employees, and registration statements, prospectuses,
Statements of Additional Information, shareholder reports, and proxy materials.
However, it is anticipated that materials provided solely: (a) internally to
MONY's or a Distributor's own employees or counsel; or (b) to certain designated
third parties and that are not designed to be provided or communicated in any
manner to the general public (e.g., training materials provided to distributors
or agents) will not be filed with the SEC, the NASD, or any state securities or
insurance regulatory authorities, although such materials will be prepared in
accordance with applicable laws.
ARTICLE V. Fees and Expenses
5.1. The Trust and each of the Distributors shall pay no fee or other
compensation to MONY under this Agreement except for items covered in Article
III. Nevertheless, a Distributor may make payments to MONY or to any principal
underwriter for the MONY Contracts in amounts agreed to by that Distributor in
any writing, and such payments by that Distributor may be made out of existing
fees otherwise payable to that Distributor, past profits of that Distributor, or
other resources available to that Distributor.
5.2. All expenses incident to performance by the Trust under this
Agreement shall be paid by the Trust. Without limiting the foregoing, the Trust
shall see to it that all shares are registered and authorized for issuance prior
to their sale in accordance with applicable federal law, and shall bear all
expenses with respect to: registration and qualification of the Trust's shares;
preparation and filing of the Trust's Registration Statement, prospectus,
Statement of Additional Information, proxy materials, and reports; setting the
prospectus and Statement of Additional Information in type; setting in type,
printing, mailing or otherwise distributing prospectuses, proxy materials and
Semi-Annual and Annual Reports sent by MONY to Contractowners (including the
costs of setting in type, printing, mailing or otherwise distributing a
prospectus that constitutes an Annual Report); the preparation of all statements
and notices required by any federal or state law; and all taxes on the issuance
or transfer of the Trust's shares.
ARTICLE VI. Diversification
6.1. The Trust represents that: (a) the Trust currently has elected to
qualify as a regulated investment company under Subchapter M of the Code; (b)
the Trust will maintain such qualification (under Subchapter M or any successor
or similar provision); (c) the Trust will notify MONY immediately upon having a
reasonable basis for believing that the Trust has ceased to so qualify or that
it might not so qualify in the future; and (d) the Trust will seek to minimize
any damages and to rectify the Trust's failure to so qualify promptly. The Trust
acknowledges that any failure by the Trust to qualify as a regulated investment
company will eliminate the ability of the Account to avail itself of the "look
through" provisions of Section 817(h) of the Code and that, as a result, the
MONY Contracts will almost certainly fail to qualify as life insurance contracts
under Section 817(h) of the Code.
6.2. The Trust further represents that the Trust will at all times
invest money from the Account in such a manner as to assure that the MONY
Contracts will be treated as variable life insurance contracts under the Code
and the regulations issued thereunder. Without limiting the scope of the
foregoing, the Trust represents that the Trust will at all times comply with
Section 817(h) of the Code and Treasury Regulation 1.817-5, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts, and any amendments or other modifications to such Section or
Regulations. In the event of a breach of this Article VI by the Trust, the Trust
warrants that it will take all reasonable steps: (a) to immediately notify MONY
of such breach; and (b) to adequately diversify the Trust's assets so as to
achieve compliance within the grace period afforded by Regulation 1.817-5.
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ARTICLE VII. Potential Conflicts
7.1. The Board will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contractowners of all
variable annuity and variable life insurance separate accounts and Qualified
Plan participants investing in the Trust. A material irreconcilable conflict may
arise for a variety of reasons, including: (a) an action by any state insurance
regulatory authority; (b) a change in applicable federal or state insurance,
tax, or securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or judicial
decision in any relevant proceeding; (d) the manner in which the investments of
any Designated Portfolio are being managed; (e) a difference in voting
instructions given by owners of Variable Contracts; or (f) a decision by an
insurer to disregard the voting instructions of owners of Variable contracts.
The Board shall promptly inform MONY if it determines that a material
irreconcilable conflict exists and the implications thereof.
7.2. MONY will report any potential or existing conflicts of which it
is aware to the Board. MONY will assist the Board in carrying out its
responsibilities under any Shared Funding Exemptive Order, by providing the
Board with all information reasonably necessary for the Board to consider any
issues raised. This includes, but is not limited to, an obligation by MONY to
inform the Board whenever the voting instructions of owners of Variable
Contracts are disregarded. Upon the written request of the Trust, MONY will also
provide to the Board, not more frequently than annually, a written certification
in a format to be determined by mutual agreement of the Trust and MONY, as to
its best knowledge of any events that may result in a material irreconcilable
conflict. MONY's responsibilities under this Section 7.2 will be carried out
with a view only to the interests of its Contractowners.
7.3. If it is determined by a majority of the Board, or a majority of
its disinterested Trustees, that a material irreconcilable conflict exists, MONY
and other Participating Insurance Companies and Qualified Plans shall, at their
expense and to the extent reasonably practicable (as determined by a majority of
the disinterested Trustees), take whatever steps are necessary to remedy or
eliminate the material irreconcilable conflict, up to and including: (a)
withdrawing the assets allocable to some or all of the variable annuity and
variable life insurance separate accounts from the Trust or any Portfolio and
reinvesting such assets in a different investment medium, including (but not
limited to) another Portfolio of the Trust, or submitting the question of
whether such withdrawal should be implemented to a vote of all affected owners
of Variable Contracts and, as appropriate, withdrawing the assets of any
appropriate group (i. e., owners of variable annuity contracts or owners of
variable life insurance contracts of one or more Participating Insurance
Companies) that votes in favor of such withdrawal, or offering to the affected
owners of Variable Contracts the option of making such a change; and (b)
establishing a new registered management investment company or managed separate
account. MONY's responsibilities under this Section 7.3 will be carried out with
a view only to the interests of Contractowners.
7.4. If a material irreconcilable conflict ever were to arise because
of a decision by MONY to disregard Contractowner voting instructions and that
decision represents a minority position or would preclude a majority vote, MONY
may be required, at the Trust's election, to withdraw the affected Account's (or
subaccount's) investment in the Trust and terminate this Agreement with respect
to such Account (or subaccount); provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the disinterested members
of the Board. No charge or penalty shall be imposed as a result of such
withdrawal. Any such withdrawal and termination must take place within six (6)
months after the Trust gives written notice that this provision is being
implemented and, until the end of that six (6) month period, the
9
Distributors and Trust shall continue to accept and implement orders by MONY for
the purchase (and redemption) of shares of the Trust.
7.5. If a material irreconcilable conflict were ever to arise because a
particular state insurance regulator's decision applicable to MONY conflicts
with the majority of other state regulators, then MONY shall withdraw the
affected Account's (or subaccount's) investment in the Trust and terminate this
Agreement with respect to such Account (or subaccount) within six (6) months
after the Board informs MONY in writing that it has determined that such
decision has created a material irreconcilable conflict; provided, however, that
such withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested members of the Board. Until the end of the foregoing six (6) month
period, the Distributors and Trust shall continue to accept and implement orders
by MONY for the purchase (and redemption) of shares of the Trust.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a
majority of the disinterested members of the Board shall determine whether any
proposed action adequately remedies any material irreconcilable conflict, but in
no event will the Trust be required to establish a new funding medium for the
MONY Contracts. MONY shall not be required by Section 7.3 to establish a new
funding medium for the MONY Contracts if an offer to do so has been declined by
vote of a majority of Contractowners materially adversely affected by the
material irreconcilable conflict. In the event that the Board determines that
any proposed action does not adequately remedy any material irreconcilable
conflict, then MONY will withdraw the Account's (or subaccount's) investment in
the Trust and terminate this Agreement within six (6) months after the Board
informs MONY in writing of the foregoing determination; provided, however, that
such withdrawal and termination shall be limited to the extent required by any
such material irreconcilable conflict as determined by a majority of the
disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3 (T) are amended,
or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the Shared Funding Exemptive Order) on terms and
conditions materially different from those contained in the Shared Funding
Exemptive Order, then: (a) the Trust and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary to comply
with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable; (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and
7.5 of this Agreement shall continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained in such
Rule(s) as so amended or adopted; and (c) this Agreement shall be otherwise
amended by the Trust, without the need for any consent of the other parties, as
required by such change in law.
ARTICLE VIII. Indemnification
8.1. Indemnification By MONY
8.1(a). MONY agrees to indemnify and hold harmless the Trust, each
member of the Board of the Trust, each of the Distributors, and the directors
and officers and each person, if any, who controls any such person within the
meaning of Section 15 of the 1933 Act (collectively, the "Indemnified Parties"
for purposes of this Section 8.1) against any and all losses, claims, damages,
liabilities (including, without limitation thereto, amounts paid in settlement
with the written consent of MONY), investigation of claims or litigation
(including, without limitation thereto, legal and other expenses), to which the
Indemnified Parties may become subject under any statute, regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Trust's shares or the MONY Contracts or interests in the
Account and:
10
(i) arise out of or as a result of statements or
representations (other than statements or representations contained in
the Registration Statement, prospectus or Statement of Additional
Information, or sales literature of the Trust not supplied by MONY or
persons under its control) or wrongful conduct of MONY or persons under
its control, with respect to the sale or distribution of Trust shares;
or
(ii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement,
prospectus, or Statement of Additional Information, or sales literature
of the Trust or any amendment thereof or supplement thereto or the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading if such a statement or omission was made in reliance upon
written information furnished to the Trust by or on behalf of MONY; or
(iii) arise as a result of any failure by MONY to provide the
services and furnish the materials required to be provided or furnished
by it under the terms of this Agreement; or
(iv) arise out of or result from any material breach of any
representation and/or warranty made by MONY in this Agreement or arise
out of or result from any other material breach of this Agreement by
MONY;
as limited by and in accordance with the provisions of Sections 8.1 (b) and 8.1
(c) hereof.
8.1(b). MONY shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities, or litigation incurred
or assessed against an Indemnified Party as such may arise from such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations or duties under this Agreement or to the
Trust, whichever is applicable.
8.1(c). MONY shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified MONY in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify MONY of any such claim shall not relieve MONY from
any liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification provision.
In case any such action is brought against the Indemnified Parties, MONY shall
be entitled to participate, at its own expense, in the defense of such action.
MONY also shall be entitled to assume the defense thereof, with counsel
reasonably satisfactory to the party named in the action and to settle the claim
at its own expense provided that, unless the Indemnified Parties' written
consent is obtained, (1) no such settlement shall include any factual
stipulations referring to the Indemnified Parties or their conduct and (2) any
such settlement must involve a complete and unconditional release of all claims
against such Indemnified Parties. After notice from MONY to such party of MONY's
election to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it, and MONY will not be
liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
8.1(d). The Indemnified Parties shall promptly notify MONY of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of the Trust's shares or the operation of the Trust.
11
8.2. Indemnification by the Distributors
8.2(a). Each of the Distributors agrees to indemnify and hold harmless
MONY, the principal underwriter for the MONY Contracts and the Trust and each of
their directors and officers and each person, if any, who controls MONY within
the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 8.2) against any and all losses, claims,
damages, liabilities (including, without limitation thereto, amounts paid in
settlement with the written consent of the Distributors), investigation of
claims or litigation (including, without limitation thereto, legal and other
expenses) to which the Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements are
related to the sale or acquisition of the Trust's shares or the MONY Contracts
or interests in the Account and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, prospectus or Statement of Additional
Information, or sales literature of the Trust (or any amendment or
supplement to any of the foregoing), or arise out of or are based upon
the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to indemnify shall
not apply as to any Indemnified Party if such statement or omission or
such alleged statement or omission was made in reliance upon and in
conformity with written information furnished to the Distributors or
Trust by or on behalf of MONY for use in the Registration Statement,
prospectus, or Statement of Additional Information for the Trust, or
otherwise for use in connection with the sale of the MONY Contracts or
Trust shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in
the Registration Statement, prospectus, or Statement of Additional
Information for the MONY Contracts not supplied by the Trust, the
Distributors or persons under their control) or wrongful conduct of the
Trust or the Distributors or persons under their control, with respect
to the sale or distribution of the Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement,
prospectus, Statement of Additional Information covering the MONY
Contracts, or any amendment thereof or supplement thereto or the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statement or statements
therein not misleading, if such statement or omission was made in
reliance upon information furnished in writing to MONY by or on behalf
of the Trust or the Distributors; or
(iv) arise as a result of any failure by the Distributors or
the Trust to provide the services and furnish the materials required to
be provided or furnished by the Distributors or the Trust under the
terms of this Agreement (including a failure, whether unintentional or
in good faith or otherwise, to comply with the diversification or other
qualification requirements specified in Article VI of this Agreement);
or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Distributors in this
Agreement or arise out of or result from any other material breach of
this Agreement by the Distributors;
as limited by and in accordance with the provisions of Sections 8.2(b) and
8.2(c) hereof.
12
8.2(b). Each of the Distributors shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities, or litigation incurred or assessed against an Indemnified Party as
such may arise from such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to MONY or the Account, whichever is applicable.
8.2(c). Each of the Distributors shall not be liable under this
indemnification provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have notified each of the Distributors
in writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been served
upon such Indemnified Party (or after such Indemnified Party shall have received
notice of such service on any designated agent), but failure to notify the
Distributors of any such claim shall not relieve the Distributors from any
liability which either of them or both may have to the Indemnified Party against
whom such action is brought otherwise than on account of this indemnification
provision. In case any such action is brought against the Indemnified Parties,
each Distributor will be entitled to participate, at its own expense, in the
defense thereof. Each Distributor also shall be entitled to assume the defense
thereof, with counsel reasonably satisfactory to the party named in the action,
and to settle the claim at its own expense provided that, unless the Indemnified
Parties' written consent is obtained, (1) no such settlement shall include any
factual stipulations referring to the Indemnified Parties or their conduct and
(2) any such settlement must involve a complete and unconditional release of all
claims against such Indemnified Parties. After notice from a Distributor to such
party of that Distributor's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and that Distributor will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation.
8.2(d). MONY agrees promptly to notify each of the Distributors of the
commencement of any material litigation or proceedings against it or any of its
officers or directors in connection with the issuance or sale of the MONY
Contracts or the operation of the Account.
8.3. Indemnification By the Trust
8.3(a). The Trust agrees to indemnify and hold harmless MONY, the
principal underwriter for the MONY Contracts and each of their directors and
officers and each person, if any, who controls MONY within the meaning of
Section 15 of the 1933 Act (collectively, the "Indemnified Parties" for purposes
of this Section 8.3) against any and all losses, claims, damages, liabilities
(including, without limitation thereto, amounts paid in settlement with the
written consent of the Trust), investigation of claims or litigation (including,
without limitation thereto, legal and other expenses) to which the Indemnified
Parties may become subject under any statute, regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements are related to the operations of the
Trust and:
(i) arise as a result of any failure by the Trust to provide
the services and furnish the materials required to be provided or
furnished by it under the terms of this Agreement (including a failure
to comply with the diversification and other qualification requirements
specified in Article VI of this Agreement); or
13
(ii) arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this Agreement or
arise out of or result from any other material breach of this Agreement
by the Trust;
as limited by and in accordance with the provisions of Sections 8.3(b) and 8.3
(c) hereof.
8.3(b). The Trust shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities, or
litigation incurred or assessed against an Indemnified Party as such may arise
from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason of
such Indemnified Party's reckless disregard of obligations and duties under this
Agreement or to MONY, the Trust, the Distributors, or the Account, whichever is
applicable.
8.3(c). The Trust shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Trust in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Trust of any
such claim shall not relieve the Trust from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Trust will be entitled to participate, at
its own expense, in the defense thereof. The Trust also shall be entitled to
assume the defense thereof, with counsel reasonably satisfactory to the party
named in the action. After notice from the Trust to such party of the Trust's
election to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it, and the Trust will
not be liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
8.3(d). MONY and each of the Distributors agree promptly to notify the
Trust of the commencement of any material litigation or proceedings against it
or any of its respective officers or directors in connection with this
Agreement, with respect to the operation of the Account, or the sale or
acquisition of shares of the Trust.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York.
9.2. This Agreement shall be subject to the provisions of the 1933,
1934, and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules, and regulations as the SEC
may grant (including, but not limited to, any Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE X. Termination
10.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party, with or without cause, upon six (6)
months' advance
14
written notice delivered to the other parties; provided, that
the Trust and the Distributors shall not give such notice of
termination without cause earlier than one year following the
date of this Agreement; or
(b) termination by MONY upon thirty (30) days written notice to
the Trust and each of the Distributors with respect to any
Designated Portfolio and Class based upon MONY's determination
that shares of such Designated Portfolio are not reasonably
available to meet the requirements of the MONY Contracts or
are not consistent with MONY's obligations to Contractowners;
or
(c) termination by MONY upon thirty (30) days written notice to
the Trust and each of the Distributors with respect to any
Designated Portfolio in the event any of the Designated
Portfolio's shares are not registered, issued or sold in
accordance with applicable federal and/or state law or such
law precludes the use of such shares as the underlying
investment media of the MONY Contracts issued or to be issued
by MONY; or
(d) termination by MONY by written notice to the Trust and each of
the Distributors with respect to any Designated Portfolio in
the event that such Designated Portfolio ceases to qualify as
a regulated investment company under Subchapter M of the Code
or any other failure under Section 817 of the Code, or under
any successor or similar provision of either, or if MONY
reasonably believes that the Trust may fail to so qualify; or
(e) termination by either the Trust or the Distributors by written
notice to MONY,
if the Trust or the Distributors shall determine, in their
sole judgment, exercised in good faith, that MONY and/or its
affiliated companies have suffered a material adverse change
in their business, operations, financial condition, or
prospects since the date of this Agreement or are the subject
of material adverse publicity; but no termination shall be
effective under this subsection (e) until MONY has been
afforded a reasonable opportunity to respond to a statement by
the Trust or the Distributors concerning the reason for notice
of termination hereunder; or
(f) termination by MONY by written notice to the Trust and each of
the Distributors, if MONY shall determine, in its sole
judgment exercised in good faith, that either the Trust or the
Distributors have suffered a material adverse change in its or
their business, operations, financial condition, or prospects
since the date of this Agreement or is the subject of material
adverse publicity; but no termination shall be effective under
this subsection (f) until the Trust or the Distributors have
been afforded a reasonable opportunity to respond to a
statement by MONY concerning the reason for notice of
termination hereunder; or
(g) termination by MONY upon receipt of any necessary regulatory
authority approvals and/or the vote of the Contractowners
having an interest in the Account (or any subaccounts) to
substitute the shares of another investment company for the
corresponding shares of a Designated Portfolio in accordance
with the terms of the MONY Contracts for which those
Designated Portfolio shares had been selected to serve as the
underlying investment media. MONY shall give thirty (30) days'
prior written notice to the Trust and the Distributors of the
date of any proposed vote or other action taken to replace the
Designated Portfolio shares.
10.2. Notwithstanding any termination of this Agreement, the Trust
and the Distributors shall, at the option of MONY, continue to make available
additional shares of the Trust pursuant to the terms and
15
conditions of this Agreement, for all MONY Contracts in effect on the
effective date of termination of this Agreement (hereinafter referred to as
"Existing MONY Contracts"). Specifically, without limitation, the owners of
the Existing MONY Contracts shall be permitted to reallocate investments in
the Trust, redeem investments in the Trust, and/or invest in the Trust upon
the making of additional purchase payments under the Existing MONY Contracts.
The parties agree that this Section 10.2 shall not apply to any terminations
under Article VII and the effect of such Article VII terminations shall be
governed by Article VII of this Agreement.
10.3. MONY shall not redeem Trust shares attributable to the MONY
Contracts (as opposed to Trust shares attributable to MONY's assets held in
the Account) except: (a) as necessary to implement Contractowner initiated or
approved transactions; or (b) as required by federal and/or state laws or
regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption"); or (c) as
permitted pursuant to contractowner vote or Section 26(b) of the 1940 Act or
otherwise pursuant to an order of the SEC that permits MONY to redeem Trust
shares attributable to MONY Contracts. Upon request, MONY shall promptly
furnish to the Trust and the Distributors the opinion of counsel for MONY
(which counsel shall be reasonably satisfactory to the Trust and the
Distributors) to the effect that any redemption pursuant to clause (b) above
is a Legally Required Redemption or any redemption pursuant to clause (b) is
permitted without first obtaining an order of the SEC pursuant to Section
26(b) or any other provision of the 1940 Act. Furthermore, except in cases
where permitted under the terms of the MONY Contracts, and as may be in the
best interests of Contractowners, as determined by MONY, MONY shall not
prevent Contractowners from allocating payments to a Designated Portfolio
that was otherwise available under the MONY Contracts without first giving
the Trust or the Distributors ninety (90) days' notice of its intention to do
so.
10.4. Notwithstanding any termination of this Agreement for any
reason, the terms and conditions of the following provisions of this
Agreement shall remain in effect with respect to any Existing MONY Contract,
for so long as any assets invested in the Trust are attributable to such
Existing MONY Contract: Sections 1.3 to 1.10 of Article I (governing the
pricing and redemption of shares); Article II (Representations and
Warranties); Sections 3.1 through 3.3 and 3.5 of Article III (Prospectuses
and Proxy Statements, and Voting); Articles IV through IX (Sales Material and
Information; Fees and Expenses; Diversification; Potential Conflicts;
Indemnification; and Applicable Law); Article XI (Notices); and Sections
12.1, 12.2, and 12.5 through 12.8 of Article XII (Miscellaneous). Further,
notwithstanding any termination of this Agreement for any reason, the terms
and conditions of the following provisions of this Agreement shall remain in
effect with regard to MONY Contracts whose assets were previously invested in
the Trust: Article II (Representations and Warranties), Article VI
(Diversification) and Article VII (Indemnification).
10.5. If for any reason the shares of any Designated Portfolio are
no longer to be made available, then, at the request of MONY, the Trust and
the Distributors shall cooperate with MONY so that the provisions of Section
26(b) of the 1940 Act will be complied with as soon as reasonably practicable
and substitution of an underlying funding medium accomplished without
disruption of sales of securities to the Account or a division thereof, as
the case may be, in connection with the MONY Contracts.
ARTICLE XI. Notices
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
16
If to the Trust:
EQ Advisors Trust
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
If to MONY:
MONY Life Insurance Company
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
If to the Distributors:
AXA Distributors, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
AXA Advisors, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
ARTICLE XII. Miscellaneous
12.1. All persons dealing with the Trust must look solely to the
property of the Trust for the enforcement of any claims against the Trust as
neither the Board (or its members), officers, agents, or shareholders shall
assume any personal liability for obligations entered into on behalf of the
Trust.
12.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the Contractowners and all information reasonably identified as confidential
in writing by any other party hereto and, except as permitted by this Agreement,
shall not disclose, disseminate, or utilize such names and addresses and other
confidential information until such time as it may come into the public domain
without the express written consent of the affected party. Without limiting the
foregoing, no party hereto shall disclose any information that such party has
been advised is proprietary, except such information that such party is required
to disclose by any appropriate governmental authority (including without
limitation the SEC, the NASD, and state securities or insurance regulators).
12.3. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
17
12.5. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule, or otherwise, the remainder of the Agreement
shall not be affected thereby.
12.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
12.7. The rights, remedies, and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies, and
obligations, at law or in equity, to which the parties hereto are entitled under
federal and state laws.
12.8. This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all parties
hereto; provided, however, that:
(a) each Distributor may assign this Agreement or any of its rights or
obligations hereunder to any affiliate of or company under common control with
that Distributor (but in such event that Distributor shall continue to be liable
under Article VIII of this Agreement for any indemnification due to MONY, and
the assignee shall also be liable), if such assignee is duly licensed and
registered to perform the obligations of that Distributor under this Agreement,
upon thirty (30) days advance written notice to MONY; and
12.9. Upon reasonable request, MONY shall furnish, or shall cause to be
furnished, to the Trust or its designee copies of the following reports:
(a) MONY's annual statements (prepared under statutory accounting
principles) and annual reports (prepared under generally accepted accounting
principles, if any), as soon as practicable and in any event within ninety (90)
days after the end of each fiscal year;
(b) any material financial statement, proxy statement, notice, or
report of MONY sent to Contractowners, as soon as practicable after the delivery
thereof to stockholders;
(c) any registration statement (without exhibits) and financial reports
of MONY filed with the SEC or any state insurance regulator, as soon as
practicable after the filing thereof; and
(d) any other report submitted to MONY by independent accountants in
connection with any annual, interim, or special audit made by them of the books
of MONY, as soon as practicable after the receipt thereof; but nothing in this
subsection shall require MONY to disclose any information that is privileged or
which, if disclosed, would put MONY at a competitive disadvantage or is both:
(a) confidential; and (b) not material to MONY's financial condition.
12.10. At the request of any party to this Agreement, each other party
will make available to the requesting party's independent auditors and/or
representatives of the appropriate regulatory agencies, all records, data, and
access to operating procedures that may be reasonably requested in connection
with compliance and regulatory requirements related to this Agreement or any
party's obligations under this Agreement.
12.11. Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration in a forum jointly
selected by the relevant parties (but if applicable law requires some other
forum, then such other forum) in accordance with the Commercial Arbitration
Rules
18
of the American Arbitration Association, and judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
12.12. Except as otherwise expressly provided in this Agreement,
neither the Trust, the Distributors or any affiliates thereof shall use any
trademark, trade name, service xxxx or logo of MONY or any of its affiliates, or
any variation of any such trademark, trade name, service xxxx or logo, without
MONY's prior written consent, the granting of which shall be at MONY's sole
option.
12.13. Except as otherwise expressly provided in this Agreement,
neither MONY nor any of its affiliates shall use any trademark, trade name,
service xxxx or logo of the Trust or any affiliates thereof, or any variation of
any such trademark, trade name, service xxxx or logo, without the Trust's prior
written consent, the granting of which shall be at the Trust's sole option.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative as of the date specified below.
EQ ADVISORS TRUST
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
MONY LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
AXA DISTRIBUTORS, LLC
By: /s/Xxxxxx X. Xxxxxxx
--------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
AXA ADVISORS, LLC
By: /s/Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
Title: Executive Vice President
SCHEDULE A
DESIGNATED PORTFOLIOS AND CLASSES
PORTFOLIOS OF
EQ ADVISORS TRUST
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Portfolios Classes
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EQ/Enterprise Capital Appreciation IA and IB
EQ/Enterprise Deep Value IA and IB
EQ/MONY Equity Growth IA and IB
EQ/Enterprise Equity Income IA and IB
EQ/MONY Equity Income IA and IB
EQ/Enterprise Equity IA and IB
EQ/Enterprise Global Socially Responsive IA and IB
EQ/Enterprise Growth and Income IA and IB
EQ/Enterprise Growth IA and IB
EQ/Enterprise Mergers and Acquisitions IA and IB
EQ/Enterprise Multi-Cap Growth IA and IB
EQ/Enterprise Small Company Growth IA and IB
EQ/Enterprise Small Company Value IA and IB
EQ/Enterprise International Growth IA and IB
EQ/MONY Government Securities IA and IB
EQ/Enterprise High-Yield Bond IA and IB
EQ/MONY Intermediate Term Bond IA and IB
EQ/MONY Long Term Bond IA and IB
EQ/MONY Money Market IA and IB
EQ/Enterprise Short Duration Bond IA and IB
EQ/Enterprise Total Return IA and IB
EQ/MONY Diversified IA and IB
EQ/Enterprise Managed IA and IB
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SCHEDULE B
SEPARATE ACCOUNTS
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SEPARATE ACCOUNTS AND DATES ESTABLISHED CONTRACTS
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MONY Variable Account A - 811-06218 FLEXIBLE PAYMENT VARIABLE ANNUITY
Established March 27, 1987 o MONY Variable Annuity
o MONY C Variable Annuity
o MONY L Variable Annuity
o MONY Custom Master
o The MONYMaster (FPVA II)
o The MONYMaster (FPVA I)
o The ValueMaster
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MONY Variable Account L - 811-06215 FLEXIBLE PREMIUM VARIABLE UNIVERSAL LIFE
Established February 19, 1985 o MONY Variable Universal Life (2003)
o MONY Variable Universal Life (2002)
o MONY Custom Equity Master
o The MONYEquity Master
o Corporate Sponsored VUL - NY
o The Strategist
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LAST SURVIVOR FLEXIBLE PREMIUM VARIABLE
UNIVERSAL LIFE
o MONY Survivorship Variable Universal Life
o MONY Custom Estate Master
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MONY Variable Account S - 811-06717 VARIABLE LIFE INSURANCE WITH ADDITIONAL PREMIUM OPTION
Established March 27, 1987 o The MONYVestor
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Keynote Series Account - 811-05457 INDIVIDUAL VARIABLE ANNUITY
Established December 16, 1987 o IVA Subaccount
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