GENERAL AGENT SALES AGREEMENT
AGREEMENT, dated as of June 6, 2005 by and between MONY LIFE INSURANCE
COMPANY OF AMERICA ("MONY America"), a New York life insurance company, having
offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and AXA
NETWORK, LLC ("AXA Network"), a Delaware limited liability company having
offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and the
additional affiliated entities of AXA Network executing this Agreement below
(AXA Network and such other entities being jointly and severally hereinafter
referred to as the "General Agent").
W I T N E S S E T H:
WHEREAS, MONY America is an insurance company which issues insurance
products in the states and other jurisdictions covered by this Agreement;
WHEREAS, the General Agent is a general agent which sells insurance
products in the states and other jurisdictions covered by this Agreement;
WHEREAS, MONY America desires to retain the General Agent to solicit
applications from the general public for MONY America insurance products and to
service the policies and contracts sold pursuant thereto and certain existing
policies and contracts, and the General Agent desires to solicit such
applications and service such policies and contracts;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and promises herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
ss.1.1 Defined Terms. In addition to any terms defined elsewhere in
this Agreement, the terms defined in this Section 1.1, whenever used in this
Agreement, shall have the respective meanings indicated herein.
a. Agent - A person who (i) is either an employee or
independent contractor of the General Agent, (ii) is duly licensed and qualified
to sell the Products and service the Contracts which such person proposes to
sell and service under the insurance laws of all states and jurisdictions in
which such person proposes to make such sales and service such Contracts and
(iii) only with respect to the sale of Variable Products by individuals, is also
a Representative of the Broker-Dealer.
b. Application -- An application for the purchase of a
Contract made on the form from time to time delivered to the General Agent by
MONY America for such purpose in accordance with MONY America's Policies and
Procedures.
c. Appointed Agent -- An Agent appointed by MONY America to
solicit Applications for the Products and to service Contracts in one or more
states or jurisdictions.
d. Bank-Related Sales -- Any Application (i) made on the
premises of a bank, trust company, savings bank, savings and loan association,
thrift, credit union or similar institution (as the case may be, a "Bank"); (ii)
by means of personal, telephone, mail or other oral or written contacts
originating
from the premises of a Bank; or (iii) to persons who are referred to the General
Agent by a Bank pursuant to customer lists, mailings, Bank employee referrals or
otherwise
e. Broker-Dealer -- AXA Advisors, LLC or such other registered
broker-dealer as MONY America may from time to time designate as a Broker-Dealer
hereunder in connection with the sale and servicing of Variable Products.
f. Broker-of-Record -- As to any Contract, the general agent
designated by MONY America from time to time as the entity responsible for
effecting the sale or servicing of such Contract.
g. Contract -- Any policy, contract or certificate evidencing
an insurance or annuity obligation of MONY America in respect of any Product for
which the General Agent is the Broker-of-Record.
h. MONY America Sales Materials -- Sales Materials prepared by
MONY America and delivered to the General Agent or prepared by the General Agent
and approved by MONY America in writing for use by the General Agent in
connection with the solicitation of Applications and the servicing of Contracts.
i. MONY America's Policies and Procedures -- Such policies and
procedures, if any, with respect to the subject matter of this Agreement or any
aspect thereof, including, without limitation, the solicitation and sale of
Products, the solicitation and submission of Applications, the training and
qualification of Appointed Agents and the servicing of Contracts, as MONY
America may from time to time adopt on not less than thirty (30) days prior
written notice to the General Agent.
j. Premium -- Any premium, contribution or other consideration
relating to a Contract.
k. Product -- Any class of insurance policies or annuity
products issued by MONY America which MONY America, in its sole discretion, may
from time to time make available to the General Agent to sell or service.
l. Representative -- An individual who is at one and the same
time (i) an associated person (as that term is defined in Section 3(a)(18) of
the Securities Exchange Act of 1934, as amended) of the Broker-Dealer; (ii) duly
registered with the National Association of Securities Dealers, Inc. and any
applicable state or other jurisdictional securities regulatory authorities as a
registered person of the Broker-Dealer qualified to distribute variable life
insurance policies and annuity contracts such as the Variable Products in the
states or other jurisdictions in which such individual proposes to distribute
such policies and contracts and (iii) not subject to a statutory
disqualification (as that term is defined in the Securities Exchange Act of
1934, as amended).
m. Sales Materials -- All promotional, sales, marketing and
advertising materials relating to MONY America or the Products used or
distributed in connection with the solicitation of Applications and/or servicing
of Contracts, including, without limitation, illustrations, application forms,
contract forms, prospectuses, advertisements (such as material published, or
designed for use in, a newspaper, magazine or other periodical, radio,
television, internet, telephone or tape recording, videotape display, signs or
billboards, motion pictures or other public media), sales literature (i.e., any
written communication distributed or made generally available to customers or
the public, including brochures, circulars, research reports, market letters,
form letters, seminar texts, reprints or excerpts of
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any other advertisement, sales literature or published article), and educational
or training materials or other communications.
n. Securities Laws -- All federal securities laws, including,
without limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, and the Investment Company Act of 1940, as
amended; all applicable state or foreign securities laws; all rules and
regulations promulgated with respect thereto and the Conduct Rules of the
National Association of Securities Dealers, Inc.
o. Variable Product - Any Product which is regulated by the
Securities Laws.
ss.1.2 Cross-references. All references in this Agreement to a Section,
Article or Exhibit are to a section, article exhibit of this Agreement, unless
otherwise indicated.
ARTICLE II
Product Sales
ss.2.1 Authority to Solicit and Service. MONY America hereby authorizes
the General Agent to solicit Applications for the Products and to service the
Contracts. The General Agent accepts such authorization and agrees to use its
best efforts to find purchasers for such Products acceptable to MONY America and
to service such Contracts. The General Agent acknowledges that the authorization
to solicit Applications for the Products and service Contracts granted hereunder
is not exclusive and that other agents and general agents will be soliciting
applications for the Products and/or similar products and servicing MONY America
policies and contracts in competition with the General Agent.
ss.2.2 Products Included Under Agreement. The Products which MONY
America makes available to the General Agent are the sole classes of policies
and contracts for which the General Agent is authorized to solicit Applications
and sell Contracts pursuant to this Agreement. The Contracts for which the
General Agent is designated as the Broker-of-Record are the sole policies and
contracts which the General Agent is authorized to service hereunder.
ss.2.3 General Agent Qualifications. The General Agent warrants and
represents that it is a life insurance agent licensed in each state and other
jurisdiction in which it intends to perform its functions and fulfill its
obligations hereunder. The General Agent shall, at all times when performing its
obligations under this Agreement, be duly licensed to sell Products and service
Contracts in each state or other jurisdiction in which it is soliciting
Applications and/or servicing Contracts. The General Agent shall use its best
efforts to become a licensed life insurance agent in all fifty states, the
District of Columbia, the Virgin Islands and Puerto Rico and to continue to be
so licensed throughout the term of this Agreement.
ss.2.4 Limitations on Authority. The General Agent shall not possess or
exercise any authority on behalf of MONY America other than that expressly
conferred pursuant this Agreement. The General Agent shall perform all its
obligations hereunder and shall cause all Agents to act in all respects in
connection with the subject matter hereof in accordance with MONY America's
Policies and Procedures. In particular, and without limiting the foregoing, the
General Agent shall not have any authority, nor shall it permit any Agent, to
(i) alter, modify, waive, forgive, cancel or change any of the terms, rates,
charges or conditions of any Contract or other contract entered into pursuant to
a Contract; (ii) make any representations concerning any of the terms, rates,
charges or provisions of any Contract except as expressly authorized in writing
by MONY America; (iii) extend the time for payment of any Premiums;
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(iv) receive any moneys in payment of Premiums in respect of any Contract
(except for the sole purpose of forwarding the same to MONY America) or (v) make
any representations concerning any of the terms, rates, charges or provisions of
any Contract except as expressly authorized in writing by MONY America.
ss.2.5 Independent Contractor Status. MONY America and the General
Agent agree and confirm that the General Agent shall perform its obligations
hereunder as an independent contractor and nothing herein contained shall
constitute the General Agent, any of the Agents or any of the officers,
directors, employees or representatives of the General Agent as employees of
MONY America. In performing its obligations under this Agreement, the General
Agent shall not be obligated or expected to devote its full time and energies to
the performance of its obligations hereunder or to sell or solicit Applications
for a specified number of Contracts, nor shall the General Agent be obligated or
expected to solicit Applications for or sell the Products or service the
Contracts on an exclusive basis.
ss.2.6 Compliance With Applicable Laws. The General Agent shall perform
its obligations hereunder in compliance with, and cause its Agents to comply
with, all applicable insurance laws and regulations, including, without
limitation, state insurance laws and regulations governing insurance-related
activities and transactions. Notwithstanding the foregoing, MONY America has
retained the Broker-Dealer to oversee compliance with the Securities Laws in
connection with the solicitation, offering and servicing of Variable Products,
but the General Agent shall not violate any of the Securities Laws in performing
its obligations hereunder. The General Agent shall notify MONY America
immediately in writing if it receives notice of any governmental inquiry
concerning its compliance or the compliance of any of its Agents with any laws
or regulations in connection with the performance of its obligations hereunder
or if it otherwise learns that it is not in compliance with any such law or
regulation.
ss.2.7 Restrictions on Sales Activity. The General Agent shall not
offer or attempt to offer any Contract, nor solicit Application for a Contract,
nor deliver any Contract, in any state or other jurisdiction in which such
Contract may not lawfully be sold or offered for sale, or permit any Agent to
make any such offer, attempt to offer, solicitation or delivery. For purposes of
determining where any Product may be offered and Applications solicited, the
General Agent may rely on written notification, as revised from time to time,
received from MONY America.
ARTICLE III
Variable Products
ss.3.1 Sales of Variable Products. Notwithstanding anything to the
contrary contained in this Agreement, solicitations and offers to sell Variable
Products and the servicing of Contracts for Variable Products may only be made
jointly with the Broker-Dealer. The General Agent shall not permit any Appointed
Agent to solicit Applications or sell or service a Contract for any Variable
Product unless such Appointed Agent is at the time of such solicitation, sale
and/or servicing a Representative of the Broker-Dealer. The General Agent may
rely on the instructions of the Broker-Dealer concerning the Securities Laws in
connection with the sale and servicing of the Variable Products.
ss.3.2 Compliance with SEC No Action Letter. The General Agent warrants
and represents that, in connection with the offering of Variable Products
hereunder, it is presently in compliance with ▇▇▇▇▇▇ & ▇▇▇▇▇▇ (sub. nom. First
of America Brokerage Services, Inc.) (avail. Sept. 28, 1995), a no action letter
issued by the staff of the Securities and Exchange Commission with respect to
the non-registration as a broker-dealer of an insurance agency associated with a
registered broker-dealer (the "No Action Letter"). The General Agent shall, at
all times during the term of this Agreement, perform all
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obligations on its part to be performed in compliance with the No Action Letter,
as the same may be hereafter modified and amended by additional no action
letters, legislation and/or regulations. The General Agent shall not at any time
during the term hereof solicit any Application or offer to sell any Contract for
a Variable Product unless the General Agent is then in compliance with the No
Action Letter.
ARTICLE IV
Appointed Agents
ss.4.1 Agent Solicitation. The General Agent shall not permit any
individual to solicit an Application or offer to sell a Contract for a Product
or service any Contract unless such individual is at the time of such
solicitation and/or offer or servicing an Appointed Agent hereunder. The General
Agent shall not permit any Appointed Agent who at any time ceases to satisfy all
of the qualifications set forth in the definitions of Agent and/or Appointed
Agent in Article I above to solicit any Applications or sell or service any
Contracts. The General Agent shall not, and shall not permit any Appointed Agent
to, recommend the purchase of any Product to any customer without having
reasonable grounds to believe that such purchase is suitable for such customer,
based on information supplied by such customer after reasonable inquiry into
such customer's insurance and investment objectives and financial situation and
needs in accordance with applicable state insurance laws, rules or regulations.
ss.4.2 Authority to Recommend Agent Appointments. The General Agent may
recommend Agents to MONY America for appointment as Appointed Agents. MONY
America reserves the right in its sole discretion to refuse to appoint any Agent
proposed by the General Agent as an Appointed Agent. MONY America also reserves
the right, in its sole discretion, to terminate the appointment of any Appointed
Agent. The making of any recommendation by the General Agent shall be deemed to
constitute the warranty and representation of the General Agent that the
individual being recommended (a) satisfies all the criteria set forth in the
definition of "Agent" in this Agreement and (b) has the qualifications, good
character and moral fitness to act as an Appointed Agent and to hold himself or
herself out as such to the general public. The General Agent shall, upon written
request, confirm such warranties and representations in writing and shall
furnish MONY America with evidence of the same, acceptable to MONY America and
including, without limitation, proof of proper licensing and registration. It is
also understood and agreed that all matters concerning the licensing and/or
registration of any individual recommended for appointment as an Appointed Agent
under any applicable state insurance law shall be a matter directly between the
General Agent and such individual. The General Agent shall promptly notify MONY
America if, at any time during the term hereof, any Appointed Agent fails to
satisfy any of the qualifications set forth in the foregoing warranty and
representation. Nothing in this Agreement shall be construed as requiring MONY
America to obtain a license or registration or issue a consent or appointment to
enable any particular individual to sell any Product. MONY America shall have no
obligation or responsibility for licensing insurance agents under applicable
state insurance laws.
ss.4.3 Supervisory Responsibilities. The General Agent shall be
responsible for the training, supervision, control and conduct of the Appointed
Agents in connection with their activities as insurance agents hereunder. The
General Agent shall supervise compliance by the Appointed Agents in respect of
all the terms and conditions of this Agreement in the performance of all
activities with respect to the subject matter hereof. The General Agent shall
not be responsible for the training, supervision, control or conduct of the
Appointed Agents in their capacity as Representatives of the Broker-Dealer.
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ss.4.4 Tax Reporting Responsibility. The General Agent shall be solely
responsible under applicable tax laws for the reporting of compensation paid to
the Agents and for any withholding of taxes from compensation paid to the
Agents, including, without limitation, FICA, FUTA, and federal, state and local
income taxes.
ARTICLE V
Sales Practices
ss.5.1 Applications. Completed Applications shall be promptly delivered
to MONY America at such address as MONY America may from time to time specify.
MONY America shall have the right in its sole discretion to reject any
Application and refund any Premium received.
ss.5.2 Sales Materials. MONY America will provide all MONY America
Sales Materials (other than MONY America Sales Materials prepared by the General
Agent and approved by MONY America) to be used and/or distributed by the General
Agent and the Appointed Agents in connection with the solicitation of
Applications and sale or servicing of Contracts pursuant to this Agreement. The
General Agent shall not, and shall not permit any Appointed Agent to, solicit
any Application or offer to sell or service any Contract without delivering all
MONY America Sales Materials to the prospective purchaser required by applicable
state insurance laws, rules or regulations and MONY America's Policies and
Procedures. All MONY America Sales Materials shall be and remain the sole and
exclusive property of MONY America and shall be used or distributed by the
General Agent and the Appointed Agents solely and exclusively in connection with
the solicitation of Applications and/or servicing of Contracts. The General
Agent shall not, and shall not permit anyone to, distribute any Sales Materials
with respect to MONY America and/or the Products other than MONY America Sales
Materials and the General Agent shall not permit anyone other than Appointed
Agents to use or distribute MONY America Sales Materials. No MONY America Sales
Materials shall be used or distributed in any state or other jurisdiction unless
approved by MONY America for use and/or distribution in such state or other
jurisdiction. Notwithstanding the foregoing, to the extent MONY America Sales
Materials with respect to any Variable Product may only be used and/or
distributed by a registered broker-dealer and its registered representative, the
General Agent shall have no obligation hereunder with respect to such Sales
Materials. Upon the termination of this Agreement, the General Agent will
promptly destroy or return to MONY America all MONY America Sales Materials and
other materials and supplies furnished by MONY America to the General Agent,
except in each case to the extent copies are required for the maintenance of
records.
ss.5.3 Limitations on Advertising. The General Agent shall not, and
shall not permit any Appointed Agent to, advertise for, on behalf of, or with
respect to MONY America or any of the Products without prior approval and
authorization from MONY America.
ss.5.4 Restrictions on Bank Sales. The General Agent shall not, without
the prior consent of MONY America in each instance, offer or attempt to offer
any Product nor solicit any Application for any Product (i) by means of
personal, telephone, mail or other oral or written contacts originating from the
premises of a bank, trust company, savings bank, savings and loan association,
thrift, credit union or similar institution or (ii) to persons referred to them
by any such institution or through any customer lists, mailings, employee
referrals or any other sources of any such institution.
ss.5.5 Replacements of MONY America Products. The General Agent shall
not, and shall not permit any Agent to encourage any customer to, surrender or
replace a life insurance policy or annuity contract issued by MONY America in
order to purchase a Contract or, conversely, to surrender or
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exchange a Contract in order to purchase another life insurance policy or
annuity contract issued by MONY America, except to the extent such surrenders or
exchanges are made in accordance with MONY America's Policies and Procedures. In
the event that a life insurance policy or annuity contract issued by MONY
America is surrendered or exchanged in order to purchase a Contract, no
compensation shall be paid under this Agreement except as expressly provided to
the contrary in Exhibit A.
ss.5.6 Premiums. All payments on account of Premiums for any Contract
shall be made in accordance with the relevant Contracts and other MONY America
Sales Materials as well as MONY America's Policies and Procedures. MONY America
shall not be liable for any error made in the investment of any Premium
forwarded to MONY America by the General Agent unless written instructions for
investing such Premium were delivered to MONY America simultaneously with or
prior to the time such Premium was forwarded to MONY America and such error
resulted from MONY America's negligence, gross negligence or intentional
misconduct.
ss.5.7 Misdirected Payments. In the event that Premiums or loan
repayments are sent to the General Agent or any Agent, rather than to MONY
America, the General Agent shall, or shall cause such Agent to, promptly remit
such Premiums or loan repayments to MONY America.
ss.5.8 Delivery of Contracts. Upon the acceptance of an Application by
MONY America and receipt of the appropriate Premium therefor, MONY America will
forward the Contract applied for to the General Agent for delivery to the
purchaser thereof, and the General Agent shall deliver the Contract to the
purchaser within such period as may be allowed or required by MONY America's
Policies and Procedures. Each Contract delivered to a purchaser shall be
accompanied by a form of acknowledgment of receipt and such additional materials
as MONY America may from time to time require. The General Agent shall request
that the purchaser execute and return such acknowledgment of receipt and other
materials to MONY America within ten (10) days following receipt of the Contract
and shall inform such owner in writing that, unless and until such
acknowledgment of receipt is executed and returned to MONY America, no financial
transactions with respect to the Contract requested by such owner shall be
effected by MONY America except upon receipt of written instructions signed by
such owner, accompanied by a signature guaranty, in form acceptable to MONY
America. For purposes of this provision, no Contract shall be deemed to be
issued by MONY America until delivered by the General Agent to the purchaser
thereof, together with the acknowledgment and other materials provided for
herein.
ss.5.9 Refunds of Premiums. In the event that MONY America rejects an
Application or a customer exercises his or her free look right under a Contract
in a timely manner, MONY America will refund any Premium received by MONY
America on account of such Application or Contract to the applicant or customer,
as the case may be, unless any portion of the Premium was paid to MONY America
by another insurance company as part of a 1035 exchange, in which case such
portion shall be refunded to such other insurance company. MONY America will
promptly notify the General Agent of all Premiums refunded and the party to whom
such refunds were paid.
ss.5.10 Directions Given on Behalf of Customers. MONY America may from
time to time in accordance with MONY America's Policies and Procedures accept
transfer or other instructions with respect to Contracts given by an Appointed
Agent on behalf of his or her customers, provided that the Appointed Agent has
first obtained from the customer written authorization therefor in form
acceptable to MONY America. The General Agent shall be solely responsible for
the accuracy and propriety of any instruction given or action taken by an Agent
on behalf of a customer. MONY America shall not have any responsibility or
liability for any action taken or omitted by it in good faith in reliance on or
by
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acceptance of such an instruction or action. No instructions shall be given or
actions taken by an Agent on behalf of a customer except in accordance with MONY
America's Policies and Procedures.
ss.5.11 Restrictions on Certain Investment Services. Without the prior
consent of MONY America in each instance, the General Agent shall not, nor shall
it permit any Agent to, adopt, implement or offer any program, plan, arrangement
or service to allocate Premiums and/or Variable Account investments for market
timing purposes, whether conducted under powers of attorney or otherwise.
ARTICLE VI
Confidentiality, Reporting and Recordkeeping
ss.6.1 Confidentiality. MONY America and the General Agent shall
maintain the confidentiality of all client lists, operations manuals, training
manuals and materials, products manuals or any other proprietary information
acquired from the other as a result of the contractual relationship contemplated
in this Agreement and shall not use such information for any purpose except in
furtherance of the purposes hereof without prior consent. Neither MONY America
nor the General Agent shall use, disclose, reveal or publish any confidential
information so acquired to market products or services for itself directly or
indirectly without the prior consent of the other. Nothing contained in this
Section 6.1 to the contrary shall prohibit either party hereto from disclosing
any information which such party is, in the opinion of such party's counsel,
compelled to disclose by law, regulation, court action or similar process.
ss.6.2 Names and Trademarks. The General Agent shall not shall use, nor
permit any Agent to use, the MONY America name or any other name, trademark,
service ▇▇▇▇, symbol or trade style that is now or may hereafter be owned by
MONY America, except in the manner and to the extent that such use is
specifically authorized by MONY America.
ss.6.3 Maintenance of Books and Records. The General Agent shall
maintain such books and records concerning the activities of the Agents as may
be required by state insurance departments and other regulatory agencies to
reflect adequately the Contracts processed and/or serviced pursuant hereto. The
General Agent shall make such books and records available to MONY America, its
accountants, auditors and other representatives and all state and federal
regulators at any reasonable time upon written request. Each party shall be and
remain sole owner of its records, including but not limited to business and
corporate records, regardless of the use or possession by either party of the
other party's records. The books, accounts and records of MONY America and the
General Agent as to all transactions between them under this agreement shall be
maintained so as to clearly and accurately disclose the nature and details of
the transactions, including such accounting information as is necessary to
support the reasonableness of the charges under this Agreement. MONY America and
the General Agent shall each individually maintain separate books, accounts and
records in respect to personnel, property and services provided under this
Agreement and shall cooperate and use reasonable efforts to prepare and/or
obtain in a timely fashion any and all books, accounts, records or other
documentation as may be necessary or desirable in connection with this Agreement
and/or the personnel, property or services provided hereunder.
ss.6.4 Reports to Insurers. The General Agent shall promptly furnish to
MONY America at any reasonable time upon written request any reports and
information which MONY America may reasonably require for the purpose of meeting
its reporting and record keeping requirements under the insurance laws of any
state, under any applicable federal or state securities laws, rules or
regulations, or the rules of the National Association of Securities Dealers,
Inc.
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ARTICLE VII
Compensation, Fees and Expenses
ss.7.1 Compensation Schedule. MONY America shall pay to the General
Agent, as compensation for the Contracts for which the General Agent is then the
Broker-of-Record, the amounts with respect such Contracts provided in the
schedules set forth in Exhibit A attached hereto and made a part hereof, as the
same may be modified and amended from time to time by MONY America in its sole
discretion on not less than ten (10) days prior written notice. In no event
shall any compensation due and payable hereunder be in excess of any limitations
on compensation imposed by Section 4228 of the New York Insurance Law or any
other applicable law or regulation.
ss.7.2 Limitations on Compensation. The compensation provided in
Section 7.1 above shall constitute compensation in full for all services to be
performed by the General Agent hereunder. No compensation or reimbursement of
any kind shall be due and payable to the General Agent pursuant to this
Agreement except as expressly set forth in Exhibit A, as the same may be amended
from time to time as above provided. Except as provided in MONY America's
Policies and Procedures, no compensation or reimbursement of any kind otherwise
due and payable hereunder in respect of any Contract shall be due and payable
unless and until all Premiums then due and payable to MONY America pursuant to
such Contract have been received and accepted by MONY America. No compensation
will be due and payable hereunder in respect of any Application rejected by MONY
America or any Contract for which the free look right has been exercised, except
as otherwise provided to the contrary in Exhibit A attached hereto, and the
General Agent shall promptly reimburse MONY America for the amount of any
compensation previously paid to the General Agent in connection therewith.
ss.7.3 Costs and Expenses Paid by General Agent. Except as expressly
provided in this Agreement to the contrary, the General Agent shall be solely
responsible for the payment of all costs and expenses incurred by it in the
performance of its obligations under this Agreement, including, without
limitation, all costs and expenses from time to time of appointing and
reappointing Appointed Agents.
ss.7.4 Broker-Dealer Fees and Expenses. All fees and other
compensation, if any, due and payable to the Broker-Dealer in connection with
the solicitation and sale of Variable Products as contemplated herein shall be
the sole and exclusive obligation of MONY America, and the General Agent shall
have no obligation to pay any such fees or other compensation or reimburse the
Broker-Dealer for any costs or expenses incurred by the Broker-Dealer in
connection therewith, except as the General Agent and the Broker-Dealer may from
time to time agree to the contrary.
ss.7.5 No Rights of Agents to Compensation Paid by MONY America. No
Agent, director, officer, employee or representative of the General Agent shall
have any interest in this Agreement or any right to any compensation or other
sums dues and payable hereunder. The General Agent shall be solely responsible
for the payment of all commissions and other consideration of any kind to the
Agents.
ARTICLE VIII
Complaints and Investigations
ss.8.1 Customer Complaints. MONY America and the General Agent shall
give prompt notice to the other of any customer complaint (as such term is
defined in MONY America's Policies and Procedures) received by such party or any
affiliate thereof in connection with, relating to or arising out of any Product,
the solicitation of Applications pursuant hereto, any Contract issued pursuant
to this
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Agreement or any activity or conduct pertaining to the subject matter of this
Agreement. A copy of the customer complaint received (or a written summary
thereof if made orally) shall accompany such notice. Copies of all materials
relevant to such customer complaint shall, upon the written request of any other
party hereto, be promptly provided to the party requesting the same. MONY
America and the General Agent will cooperate in investigating all customer
complaints, will consult with each other prior to responding to a customer
complaint received by any of them and will attempt in good faith to reach
agreement on the response to each such customer complaint. If the parties are
unable to agree on the response to any customer complaint, each party shall have
the right, upon prior notice to the other parties, to issue its own response to
such customer complaint, whether or not such complaint was originally addressed
to such party. Each party shall promptly give the other parties copies of each
response issued by such party.
ss.8.2 Regulatory and Judicial Proceedings. MONY America and the
General Agent shall give prompt notice to the other of the commencement of any
regulatory investigation, proceeding or inquiry or of any judicial action or
proceeding in connection with, relating to or arising out of the solicitation of
Applications pursuant hereto, any Contract issued pursuant to this Agreement or
any activity or conduct pertaining thereto of which such party or any affiliate
thereof has knowledge. The parties shall each cooperate fully in any such
regulatory investigation, proceeding or inquiry or of any judicial action or
proceeding. Copies of all materials relevant to any such regulatory
investigation, proceeding or inquiry or of any judicial action or proceeding in
the possession of any party hereto shall, upon the written request of any other
party hereto, be promptly provided to the party requesting the same.
ARTICLE IX
Term of Agreement
ss.9.1 Term. This Agreement shall become effective as of the date first
above written and shall continue in full force and effect from year to year
thereafter, until terminated as herein provided.
ss.9.2 Termination. This Agreement may be terminated by any party
hereto on default or, absent default, on not less than sixty (60) days' prior
written notice to the other parties or by an agreement in writing signed by all
of the parties hereto, specifying the effective date of termination, provided
that any electronic data processing services provided pursuant to this Agreement
shall not be terminated by either party until one hundred and eighty (180) days
or more advance written notice of termination. Subject to the terms (including
any limitations and restrictions) of any applicable software licensing agreement
then in effect between General Agent and any licensor, General Agent shall, upon
termination of this Agreement, grant to MONY America a perpetual license,
without payment of any fee, in any electronic data processing software developed
or used by General Agent in connection with the services provided to General
Agent hereunder, if such software is not commercially available and is
necessary, in MONY America's reasonable judgment, for MONY America to perform
subsequent to termination the functions provided by General Agent hereunder.
ss.9.3 Survival. Upon termination of this Agreement, all
authorizations, rights, and obligations shall cease except as expressly provided
to the contrary herein and except for the obligations of the parties to settle
accounts hereunder, including the settlement of monies due in connection with
Products in effect at the time of termination or issued pursuant to applications
received by MONY America prior to termination, and the agreements contained in
Articles VI, VIII and X.
10
ARTICLE X
Indemnification
ss.10.1 Indemnification of MONY America. The General Agent shall
indemnify and hold harmless, MONY America, all direct and indirect MONY America
subsidiaries and all officers, directors, employees and representatives of the
foregoing from and against any and all losses, claims, damages or liabilities,
joint or several (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amounts paid in settlement of,
any action, suit or proceeding or any claim asserted), to which they or any of
them may become subject, at common law or otherwise, insofar as such losses,
claims, damages or liabilities arise out of or are based upon any breach of any
warranty or representation by the General Agent hereunder or any default or
other failure on the General Agent's part to perform any of its obligations
hereunder.
ss.10.2 Indemnification of General Agent. MONY America shall indemnify
and hold harmless the General Agent, its parent AXA Distribution Holding
Company, all direct and indirect subsidiaries of AXA Distribution Holding
Company and all officers, directors, employees and representatives of the
foregoing from and against any and all losses, claims, damages or liabilities,
joint or several (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amounts paid in settlement of,
any action, suit or proceeding or any claim asserted), to which they or any of
them may become subject, at common law or otherwise, insofar as such losses,
claims, damages or liabilities arise out of or are based upon any breach of any
warranty or representation by the MONY America hereunder or any default or other
failure on MONY America's part to perform any of its obligations hereunder:
ss.10.3 Notification and Procedures. After receipt by a party entitled
to indemnification ("Indemnified Party") under this Article X of notice of the
commencement of any action or threat of such action, if a claim in respect
thereof is to be made against any person obligated to provide indemnification
under this Article X ("Indemnifying Party"), such Indemnified Party will notify
the Indemnifying Party in writing of the commencement thereof as soon as
practicable thereafter, provided that the omission so to notify the Indemnifying
Party will not relieve it from any liability under this Article X, 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 notice. The Indemnifying Party, upon the request of the
Indemnified Party, shall retain counsel reasonably satisfactory to the
Indemnified Party to represent the Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. 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, but if
such proceeding is settled with such consent or if final judgment is entered in
such proceeding for the plaintiff, the Indemnifying Party shall indemnify the
Indemnified Party from and against any loss or liability by reason of such
settlement or judgment.
11
ARTICLE XI
Audit Rights
ss.11.1 MONY America, AXA Network and any governmental agency having
jurisdiction over either or both of the companies, at the companies' expense,
shall each have the right to conduct an audit of the other's books, records and
accounts with respect to services provided hereunder, giving reasonable notice
of its intent to conduct such an audit. In the event of such an audit, each
shall give to the other reasonable cooperation and access to all books, records
and accounts necessary to the audit.
ss.11.2 MONY America and AXA Network shall be and remain sole owner of
their respective records, including but not limited to business and corporate
records, regardless of the use or possession by either of the other's records.
MONY America and AXA Network shall each individually maintain separate books,
accounts and records in respect to the services provided under this Agreement
and shall cooperate and use reasonable efforts to prepare and/or obtain in a
timely fashion and all books, accounts, records or other documentation as may be
necessary or desirable in connection with this Agreement and/or the services
provided hereunder. All records shall be maintained in accordance with
applicable law and regulation, including but not limited to, New York Insurance
Department Regulation No. 152.
ss.11.3 The books, accounts and records of MONY America and AXA Network
as to all transactions between them under this Agreement shall be maintained so
as to clearly and accurately disclose the nature and details of the
transactions, including such accounting information as is necessary to support
the reasonableness of the charges under this Agreement. The companies shall keep
such books, records and accounts insofar as they pertain to the computation of
charges hereunder available for audit, inspection and copying by the companies
and persons authorized by it or any governmental agency having jurisdiction over
either or both of the companies during all reasonable business hours.
ARTICLE XI
Miscellaneous
ss.12.1 Headings. The headings in this Agreement are included for
convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
ss.12.2 Prior Agreements and Amendments. This Agreement constitutes the
entire agreement between the parties hereto and supersedes all prior agreements,
either oral or written, between the parties with respect to the Products, the
solicitation of Applications and the sale and servicing of Contracts and may not
be modified or amended in any way except in writing signed by both parties
hereto unless expressly provided to the contrary herein.
ss.12.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
ss.12.4 Severability. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby.
ss.12.5 Arbitration. Should an irreconcilable difference of opinion
between MONY America and AXA Network arise with respect to the interpretation of
any matter respecting this Agreement, it is hereby mutually agreed that such
differences shall be submitted to arbitration as the sole remedy available to
the parties. Such arbitration shall be by three arbitrators in accordance with
the rules of the
12
American Arbitration Association, such arbitrators shall have extensive
experience in the insurance industry, and the arbitration shall take place in
New York, New York. Each party shall bear its own expense in connection with the
arbitration, and the fees and expenses of the arbitrators and any other expenses
of the arbitration shall be shared equally by the parties.
ss.12.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, excluding its
conflict of laws provisions.
ss.12.7 No Waiver of Rights. The rights, remedies and obligations
contained in this Agreement are cumulative and are in addition to any and all
rights, remedies and obligations, at law or in equity, which the parties hereto
are entitled to under state and federal laws. Failure of any party to insist
upon strict compliance with any of the terms and/or conditions of this Agreement
shall not be construed as a waiver of any of the terms and/or conditions, but
the same shall remain in full force and effect. No waiver of any of the
provisions of this Agreement shall be deemed, or shall constitute, a waiver of
any other provisions, whether or not similar, nor shall any waiver constitute a
continuing waiver.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers.
MONY LIFE INSURANCE COMPANY AXA NETWORK, LLC
OF AMERICA AXA NETWORK OF ALABAMA, LLC
AXA NETWORK OF CONNECTICUT,
By: ______________________________ MAINE AND NEW YORK, LLC
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ AXA NETWORK INSURANCE
Vice Chairman and AGENCY OF MASSACHUSETTS, LLC
Chief Financial Officer AXA NETWORK OF PUERTO RICO, INC.
AXA NETWORK INSURANCE AGENCY
OF TEXAS, INC.
By: ___________________________
▇▇▇▇▇▇ ▇▇▇▇▇
Chairman of the Board
13
EXHIBIT A
SCHEDULE 1
EFFECTIVE AS OF June 6, 2005
General Agent Compensation
For
Life Insurance Products
Compensation to General Agent in connection with the sale and servicing of life
insurance policies will be calculated on a policy by policy basis. Total
compensation to General Agent in respect of the sale and servicing of each life
insurance policy will be a percentage of the premiums received by MONY America
and, where applicable, fund-based basis points as more particularly set forth in
the following tables:
Commissions on New Sales of Individual Permanent Life Insurance Products:
---------------------------------------------------- ---------------------------
Type of Premium Percentage
---------------------------------------------------- ---------------------------
MONY VUL
---------------------------------------------------- ---------------------------
First policy year up to Target 110.0%
---------------------------------------------------- ---------------------------
Excess Premiums (Policy Year 1) 4.0%
---------------------------------------------------- ---------------------------
Renewals(1) 5.0%
---------------------------------------------------- ---------------------------
Asset Based Trailer 0.0%
---------------------------------------------------- ---------------------------
---------------------------------------------------- ---------------------------
MONY ISWL
---------------------------------------------------- ---------------------------
First policy year up to Target 110.0%
---------------------------------------------------- ---------------------------
Excess Premiums (Policy Year 1) 4.0%
---------------------------------------------------- ---------------------------
Renewals(1) 4.0%
---------------------------------------------------- ---------------------------
---------------------------------------------------- ---------------------------
Group UL
---------------------------------------------------- ---------------------------
First Policy Year up to Target 110%
---------------------------------------------------- ---------------------------
Excess Premiums (Policy Year 1) 4.0%
---------------------------------------------------- ---------------------------
Renewals(1) 4.8%
---------------------------------------------------- ---------------------------
----------
(1) Policy Year 2 and later
14
---------------------------------------------------- ---------------------------
Type of Premium Percentage
--------------- ----------
---------------------------------------------------- ---------------------------
---------------------------------------------------- ---------------------------
Corporate Owned Life Insurance
---------------------------------------------------- ---------------------------
First Policy Year up to Target 30.8%
---------------------------------------------------- ---------------------------
Excess Premiums (Policy Year 1) 13.6%
---------------------------------------------------- ---------------------------
Renewals(2) 15.0%
---------------------------------------------------- ---------------------------
Asset Based Trailer(2) 0.20%(3)
---------------------------------------------------- ---------------------------
---------------------------------------------------- ---------------------------
Bank Owned Life (BOLI)
---------------------------------------------------- ---------------------------
Single Premium 5.0%
---------------------------------------------------- ---------------------------
Asset Based Trailer(2) 0.25%(3)
---------------------------------------------------- ---------------------------
---------------------------------------------------- ---------------------------
All Other MLOA Products
---------------------------------------------------- ---------------------------
First Policy Year up to Target 110.0%
---------------------------------------------------- ---------------------------
Excess Premiums (Policy Year 1) 4.0%
---------------------------------------------------- ---------------------------
Renewals(2) 5.0%
---------------------------------------------------- ---------------------------
Asset Based Trailer 0.0%
---------------------------------------------------- ---------------------------
Commissions on New Sales of Individual Term Life Insurance Products:
------------------------------------------- ------------------------------------
Type of Premium Percentage
--------------- ----------
------------------------------------------- ------------------------------------
First Year
------------------------------------------- ------------------------------------
10 Year Level Term 110%
------------------------------------------- ------------------------------------
15 Year Level Term 120%
------------------------------------------- ------------------------------------
20 Year Level Term 130%
------------------------------------------- ------------------------------------
30 Year Level Term 130%
------------------------------------------- ------------------------------------
Yearly Renewable Term 95%
------------------------------------------- ------------------------------------
Renewals 0.0%
------------------------------------------- ------------------------------------
Commissions on In-force Permanent Life Insurance Products (except COLI and
BOLI):
------------------------------------------- ------------------------------------
Type of Premium Percentage
--------------- ----------
------------------------------------------- ------------------------------------
------------------------------------------- ------------------------------------
Renewals(2) 5.0%
------------------------------------------- ------------------------------------
Asset Based Trailer 0.0%
------------------------------------------- ------------------------------------
----------
(2) Policy Year 2 and later.
(3) Based on unloaned policy account value.
15
Commissions on In-force COLI:
------------------------------------------- ------------------------------------
Type of Premium Percentage
--------------- ----------
------------------------------------------- ------------------------------------
------------------------------------------- ------------------------------------
Renewals(4) 15.0%
------------------------------------------- ------------------------------------
Asset Based Trailer(4) 0.20%(5)
------------------------------------------- ------------------------------------
Commissions on In-force BOLI:
------------------------------------------- ------------------------------------
Type of Premium Percentage
--------------- ----------
------------------------------------------- ------------------------------------
------------------------------------------- ------------------------------------
Asset Based Trailer(4) 0.25%(5)
------------------------------------------- ------------------------------------
Commissions on In-force Term Life Insurance Products:
------------------------------------------- ------------------------------------
Type of Premium Percentage
--------------- ----------
------------------------------------------- ------------------------------------
------------------------------------------- ------------------------------------
Renewals(6) 3.0%
------------------------------------------- ------------------------------------
Renewals(7) 0.0%
------------------------------------------- ------------------------------------
----------
(4) Policy Year 2 and later.
(5) Based on unloaned policy account value
(6) Applies to policies issued prior to 7/29/02.
(7) Applies to policies issued on or after 7/29/02.
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EXHIBIT A
SCHEDULE 2
EFFECTIVE AS OF June 6, 2005
General Agent Compensation for Annuity Sales and Servicing
Compensation to the General Agent in connection with the sale and servicing of
annuity contracts will be calculated on a contract by contract and certificate
by certificate basis. Total compensation to the General Agent in respect of the
sale and servicing of each health insurance contract or policy will be a
percentage of the consideration received by MONY America and, where applicable,
fund-based basis points as more particularly set forth in the following table:
Commissions on New Sales of Non-Variable Annuities:
------------------------------------------- ------------------------------------
Type of Consideration Percentage
--------------------- ----------
------------------------------------------- ------------------------------------
First Contract Year 8.5%
------------------------------------------- ------------------------------------
Renewals(8) 8.5%
------------------------------------------- ------------------------------------
Commissions on New Sales of Variable Annuities:
------------------------------------------- ------------------------------------
Type of Consideration Percentage
--------------------- ----------
------------------------------------------- ------------------------------------
First Contract Year 6.5%
------------------------------------------- ------------------------------------
Renewals(9) 6.5%
------------------------------------------- ------------------------------------
Asset Based Trailer(9) 0.25%(9)
------------------------------------------- ------------------------------------
Commissions on In-Force Non-Variable Annuities:
------------------------------------------- ------------------------------------
Type of Consideration Percentage
--------------------- ----------
------------------------------------------- ------------------------------------
------------------------------------------- ------------------------------------
Renewals(9) 8.5%
------------------------------------------- ------------------------------------
Commissions on In-Force Variable Annuities:
------------------------------------------- ------------------------------------
Type of Consideration Percentage
--------------------- ----------
------------------------------------------- ------------------------------------
------------------------------------------- ------------------------------------
Renewals(9) 6.5%
------------------------------------------- ------------------------------------
Asset Based Trailer(9) 0.25%(10)
------------------------------------------- ------------------------------------
----------
(8) Contract Year 2 and later.
(9) Based on unloaned policy account value
17
