SUBORDINATED NEW GUARANTEE
SUBORDINATED NEW GUARANTEE (the "Subordinated Guarantee"), dated as of
[_______________], 2008, by AXA FINANCIAL, INC., a corporation organized under
the laws of the State of Delaware (the "Guarantor"), in connection with certain
variable annuity contracts (together with any riders, endorsements,
modifications or supplements thereto, the "Contracts") issued by MONY LIFE
INSURANCE COMPANY OF AMERICA, a life insurance company organized under the laws
of the State of Arizona ("MLOA").
W I T N E S S E T H:
WHEREAS, MLOA will be the issuer of Contracts which offer holders
thereof the option to earn a guaranteed fixed return for specified periods,
which would result in such holders receiving certain guarantee period interests;
WHEREAS, the offer and sale of certain of such guarantee period
interests has been or will be registered under the Securities Act of 1933, as
amended (the "Securities Act") by MLOA and the issuance of this Subordinated
Guarantee is expected to be registered under the Securities Act by the
Guarantor, which guarantee period interests may be referred to in any applicable
Securities Act registration statement as "guaranteed interest account with
market value adjustment" or similar terms;
WHEREAS, this Subordinated Guarantee uses the term "Accumulation
Period" to refer to any of the aforementioned specified periods that (a) are
applicable to guarantee period interests with market value adjustments that are
sold pursuant to such a registered offering; and (b) are under Contracts sold on
or after [_______________], 2008 [the effective date of the registration
statement];
WHEREAS, this Subordinated Guarantee, which applies only to the
guarantee period interests with market value adjustments of the affected
Contracts and to no other obligations of MLOA thereunder, is intended to enable
MLOA to be exempt from filing certain periodic reports under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), which will relieve MLOA of
certain costs and inconvenience;
WHEREAS, as the indirect owner of all of MLOA's issued and outstanding
shares of stock, the Guarantor also will indirectly benefit from the benefits to
MLOA referred to above; and
NOW, THEREFORE, in consideration of the premises set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree as follows:
SECTION 1. Guarantee. The Guarantor hereby unconditionally and
irrevocably guarantees, as a principal and not merely as a surety, the full and
punctual payment when due of all amounts payable by MLOA from an Accumulation
Period to any holder, owner, participant, annuitant or beneficiary under any
Contract creating such interest, to any successor, legatee, heir, or assignee of
any such person, to any other account or option under the Contract, or to any
other account of any such person (all of the foregoing persons, accounts and
options being referred to herein as "Payees"). For this purpose, the amounts
payable by MLOA to a Payee from an Accumulation Period shall be deemed to be:
(a) upon a full or partial transfer, withdrawal, surrender, maturity,
annuitization, loan or other similar removal from the Accumulation
Period, the net amount so removed from such Accumulation Period,
after (i) increase for any interest or positive market value
adjustment that would be credited to a Payee under the terms of
the Contract with respect to the transaction in question; and (ii)
reduction for any interest, fees, charges, outstanding loans, and
negative market value adjustments that would be charged against a
Payee under the terms of the Contract with respect to the
transaction in question; or
(b) upon payment of any amount under a Contract as a consequence of
the death of any person,, an amount equal to the Contract's
account value then allocated to the Accumulation Period, increased
by any accrued but uncredited interest attributable thereto;
provided, however, that the Guarantor shall in no case be required
to pay a greater amount upon the death of any person under a
Contract than the terms of the Contract obligate MLOA to pay upon
such death.
This Subordinated Guarantee guarantees the payment of the foregoing amounts
payable by MLOA from an Accumulation Period but does not guarantee any other
obligations of MLOA under a Contract.
SECTION 2. Guarantee Absolute. The Guarantor agrees that this
Subordinated Guarantee is a guarantee of payment and not of collection or
collectibility, and that the obligations of the Guarantor hereunder shall be
primary, absolute and unconditional and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
i. any extension, renewal, settlement, compromise, waiver or release in
respect of any obligation of MLOA under the Contracts, or by operation
of law or otherwise;
ii. any modification, amendment, supplement, endorsement or rider to the
Contracts;
iii. any change in the corporate existence, structure or ownership of MLOA,
or any insolvency, rehabilitation, reorganization or other similar
proceeding affecting MLOA or its assets or any resulting release or
discharge of any obligation of MLOA contained in the Contracts;
iv. the existence of any defense, claim, set-off or other rights which the
Guarantor may have at any time against MLOA, or any other person,
whether in connection herewith or any unrelated transactions, provided
that nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim or with respect to obligations
of the Guarantor other than obligations hereunder;
v. any invalidity or unenforceability relating to or against MLOA for any
reason under the Contracts, or any provision of applicable law or
regulation purporting to prohibit the payment by MLOA of any amount
payable by MLOA under the Contracts; or
vi. any other act or omission to act or delay of any kind by MLOA or any
other person or any other circumstance whatsoever which might, but for
the provisions of this paragraph, constitute a legal or equitable
discharge of the Guarantor's obligations hereunder.
SECTION 3. Representations and Warranties. The Guarantor hereby
represents and warrants that:
(a) Authorization; No Contravention. The execution, delivery and
performance by the Guarantor of this Subordinated Guarantee is within the
Guarantor's powers, has been duly authorized by all necessary action, requires
no action by or in respect of, or filing with, any governmental body, agency or
official (except any such authorization that has been duly given, action that
has been duly taken or filing that has been duly made) and does not contravene,
or constitute a default under any known provision of applicable law or
regulation, as amended from time to time, or the Certificate of Incorporation or
by-laws of the Guarantor or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Guarantor or result in or require
the creation or imposition of any lien on any asset of the Guarantor.
(b) Binding Effect. This Subordinated Guarantee constitutes a valid and
binding agreement of the Guarantor, enforceable against the Guarantor in
accordance with its terms.
SECTION 4. Enforcement of Guarantee. Without limiting any other
provision of this Subordinated Guarantee, in no event shall any Payee have any
obligation to proceed against MLOA or any other person or property before
seeking satisfaction from the Guarantor. Any Payee may enforce the Subordinated
Guarantee directly against the Guarantor, subject to no preconditions other than
failure by MLOA to pay when due any guaranteed amount. To the extent a Payee
receives payment of any guaranteed amount from the Guarantor pursuant to this
agreement, the Guarantor shall be subrogated to any right of action which a
Payee may have against MLOA or any other person with respect to any matter
giving rise to a payment hereunder.
SECTION 5. Waiver. Without limiting any other provision of this
Subordinated Guarantee, the Guarantor hereby irrevocably waives promptness,
diligence, or notice of acceptance hereof, presentment, demand, protest and any
and all other notice not provided for herein and any requirement that at any
time a Payee or any other person exhaust any right or take any action against
MLOA and any other circumstances whatsoever that might otherwise constitute a
legal or equitable discharge, release or defense of the Guarantor or that might
otherwise limit recourse against the Guarantor.
SECTION 6. Compliance with Regulation S-X. This Subordinated Guarantee
shall be interpreted in such a manner that the Subordinated Guarantee will be
"full and unconditional" as those words are used in Rule 3-10 of Regulation S-X
of the United States Securities and Exchange Commission, as currently in effect,
and as they may be amended from time to time. Payees shall automatically have
any additional rights and remedies against the Guarantor that may be necessary
to yield that result.
SECTION 7. No Waiver; Remedies. No failure on the part of a Payee to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 8. Continuing Guarantee; Reinstatement in Certain
Circumstances. This Subordinated Guarantee is a continuing guarantee and the
Guarantor's obligations hereunder shall (i) remain in full force and effect
until the indefeasible payment in full of all amounts payable by MLOA from all
Accumulation Periods and (ii) be binding upon the Guarantor and its successors
and assigns. If at any time payment by MLOA of any amounts payable by MLOA from
any Accumulation Period is rescinded or must otherwise be restored or returned
upon the insolvency, rehabilitation or reorganization of MLOA or otherwise, the
Guarantor's obligations hereunder with respect to such payment shall be
reinstated as though such payment had been due but not made at such time.
SECTION 9. Termination. Notwithstanding anything in this agreement to
the contrary, the Guarantor may terminate this Subordinated Guarantee as it
would apply to any Accumulation Period commencing after the effective date of
any such termination (the "Termination Date") by giving written notice to MLOA
and the holders of outstanding Contracts at least fourteen (14) calendar days
prior to the Termination Date specified in such notice. The termination of this
Subordinated Guarantee with respect to Accumulation Periods commencing after the
Termination Date shall not in any way affect, modify, alter or amend the
Guarantor's continuing obligations with respect to Accumulation Periods
commencing prior to the Termination Date.
SECTION 10. Successor Guarantor. In the event of any amalgamation or
consolidation by the Guarantor with or merger by the Guarantor into any other
corporation or any transaction involving the transfer of all or substantially
all of the Guarantor's assets to any corporation or other entity and which as a
matter of law or contract results in the successor corporation or entity
becoming bound by or assuming the Guarantor's obligations under this
Subordinated Guarantee, such successor corporation or other entity formed by
such amalgamation or consolidation or into which the Guarantor is merged or to
which such transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Guarantor under this Subordinated
Guarantee, with the same effect as if it had been named herein as the Guarantor,
and thereafter, the predecessor corporation or entity shall be relieved of all
obligations and covenants under this Subordinated Guarantee.
SECTION 11. Stay of Time of Payment. Without limiting any other
provision of this Subordinated Guarantee, if the time for payment of any amount
payable by MLOA from an Accumulation Period under a Contract is stayed upon the
insolvency, rehabilitation or reorganization of MLOA, all such amounts otherwise
subject to payment under the terms of this Subordinated Guarantee shall
nonetheless be payable by the Guarantor hereunder forthwith on demand by the
Payee.
SECTION 12. Subordination. The obligations under this Subordinated
Guarantee shall be unsecured obligations of the Guarantor, and shall be
subordinated in right of payment in the event of bankruptcy, liquidation,
dissolution, winding up or reorganization, or upon the acceleration of any
senior indebtedness of the Guarantor and shall be subordinate in right of
payment to the prior payment in full of all other obligations of the Guarantor
except for other guarantees or obligations of the Guarantor which by their terms
are designated as ranking equally in right of payment with or subordinate to
this Subordinated Guarantee.
SECTION 13. Governing Law. This Subordinated Guarantee shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 14. Submission to Jurisdiction; Waiver of Immunities. The
Guarantor irrevocably (i) agrees that any legal action or proceeding against it
arising out of or in connection with this Subordinated Guarantee or for
recognition or enforcement of any judgment rendered against it in connection
with this Subordinated Guarantee may be brought in any court in New York City,
New York (a "New York Court"); (ii) agrees that by execution and delivery of
this Subordinated Guarantee, the Guarantor hereby irrevocably accepts and
submits to the non-exclusive jurisdiction of any New York Court in personam,
generally and unconditionally with respect to any such action or proceeding for
itself and in respect of its property, assets and revenues; and (iii) waives, to
the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue of any such action or proceeding brought in any New
York Court and any claim that any such action or proceeding has been brought in
an inconvenient forum.
SECTION 15. Severability. Any provision of this Subordinated Guarantee
which is illegal, invalid, prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such illegality,
invalidity, prohibition or unenforceability without invalidating the remaining
provisions hereof and any such illegality, invalidity, prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 16. Entire Agreement. This Subordinated Guarantee embodies the
entire undertaking of the Guarantor with respect to the subject matter hereof
and supersedes any prior written or oral agreements and understandings relating
to the subject matter hereof.
IN WITNESS WHEREOF, the Guarantor has caused this Subordinated
Guarantee to be duly executed and delivered by its officers, thereunto duly
authorized as an instrument under seal, effective as of the date first above
written.
AXA FINANCIAL, INC.
By:_______________________________
Name:_____________________________
Title:______________________________
Acknowledged and Agreed:
MONY LIFE INSURANCE COMPANY OF
AMERICA
By:_______________________________
Name:_____________________________
Title:______________________________