EXECUTION COPY
ISSUING AND PAYING AGENCY AGREEMENT
This Agreement, dated as of June 3, 2009 is by and among AXA Financial,
Inc. ("AXA FINANCIAL"), as Issuer, AXA SA ("AXA"), as Issuer and, with respect
to the Notes issued by AXA Financial, as Guarantor, and JPMorgan Chase Bank,
National Association ("JPMORGAN").
1. APPOINTMENT AND ACCEPTANCE
Each of the Issuers hereby appoints JPMorgan as its issuing and paying
agent in connection with the issuance and payment of certain short-term
promissory notes of such Issuer (the "NOTES"), as further described herein, and
JPMorgan agrees to act as such agent upon the terms and conditions contained in
this Agreement.
2. COMMERCIAL PAPER PROGRAMS
Each of the Issuers may establish one or more commercial paper programs
under this Agreement (provided, however, that AXA Financial may only establish
such programs with the prior approval of AXA) by delivering to JPMorgan a
completed program schedule (the "PROGRAM SCHEDULE"), with respect to each such
program. JPMorgan has given the Issuers a copy of the current form of Program
Schedule and each of the Issuers shall complete and return its first Program
Schedule to JPMorgan prior to or simultaneously with the execution of this
Agreement. In the event that any of the information provided in, or attached to,
a Program Schedule shall change, the relevant Issuer shall promptly inform
JPMorgan of such change in writing.
3. NOTES
All Notes issued by an Issuer under this Agreement shall be short-term
promissory notes, exempt from the registration requirements of the Securities
Act of 1933, as amended, as indicated on the Program Schedules, and from
applicable state securities laws. The Notes may be placed by dealers (the
"DEALERS") pursuant to Section 4 hereof. Notes shall be issued in either
certificated or book-entry form. AXA, in its capacity as Guarantor, has agreed
unconditionally and irrevocably to guarantee payment in full of the principal of
and interest (if any) on all Notes issued by AXA Financial (the "GUARANTEED
NOTES"), pursuant to a guarantee in the form of Exhibit B hereto (the
"GUARANTEE"). AXA Financial may only issue Notes with the prior approval of AXA.
4. AUTHORIZED REPRESENTATIVES
Each of the Issuers, and, in the case of Guaranteed Notes, the
Guarantor, shall deliver to JPMorgan a duly adopted corporate resolution from
its Board of Directors (or other governing body) authorizing the issuance of
Notes by such Issuer and, in the case of Guaranteed Notes, the Guarantee by the
Guarantor, under each program established pursuant to this Agreement and a
certificate of incumbency, with specimen signatures attached, of those of its
officers, employees and agents authorized to take certain actions with respect
to the Notes and, in the case of Guaranteed Notes, the Guarantee, as provided in
this Agreement (each such person is hereinafter referred to as an "AUTHORIZED
REPRESENTATIVE"), provided, however, that any certificate of incumbency
delivered by AXA Financial shall be countersigned by AXA. Until JPMorgan
receives any subsequent incumbency certificates of the relevant Issuer or, in
the case of
Guaranteed Notes, the Guarantor, JPMorgan shall be entitled to rely on the last
incumbency certificate delivered to it for the purpose of determining the
Authorized Representatives. Each of the Issuers, and, in the case of Guaranteed
Notes, the Guarantor, represents and warrants that each respective Authorized
Representative may appoint other officers, employees and agents (the
"DELEGATES"), including without limitation any Dealers, to issue instructions to
JPMorgan under this Agreement, and take other actions on its behalf hereunder,
provided that notice of the appointment of each Delegate is delivered to
JPMorgan in writing. Each such appointment shall remain in effect unless and
until revoked by the Issuer or the Guarantor in a written notice to JPMorgan.
5. CERTIFICATED NOTES
If and when an Issuer intends to issue certificated notes
("CERTIFICATED NOTES"), such Issuer and JPMorgan shall agree upon the form of
such Notes. Thereafter, each Issuer shall from time to time deliver to JPMorgan
adequate supplies of Certificated Notes which will be in bearer form, serially
numbered, and shall be executed by the manual or facsimile signature of an
Authorized Representative of such Issuer and, in the case of Guaranteed Notes,
the Guarantor. JPMorgan will acknowledge receipt of any supply of Certificated
Notes received from an Issuer, noting any exceptions to the shipping manifest or
transmittal letter (if any), and will hold the Certificated Notes in safekeeping
for such Issuer in accordance with JPMorgan's customary practices. JPMorgan
shall not have any liability to an Issuer, or in the case of Guaranteed Notes,
the Guarantor, to determine by whom or by what means a facsimile signature may
have been affixed on Certificated Notes, or to determine whether any facsimile
or manual signature is genuine, if such facsimile or manual signature resembles
the specimen signature attached to the certificate of incumbency with respect to
such Authorized Representative. Any Certificated Note bearing the manual or
facsimile signature of a person who is an Authorized Representative of an Issuer
or, in the case of Guaranteed Notes, the Guarantor, on the date such signature
was affixed shall bind such Issuer and, as the case may be, the Guarantor, after
completion thereof by JPMorgan, notwithstanding that such person shall have
ceased to hold his or her office on the date such Note is countersigned or
delivered by JPMorgan.
6. BOOK-ENTRY NOTES
An Issuer's book-entry notes ("BOOK-ENTRY NOTES") shall not be issued
in physical form, but their aggregate face amount shall be represented by a
master note (a "MASTER NOTE") substantially in the form of Exhibit A executed by
such Issuer and, in the case of Guaranteed Notes, the Guarantor pursuant to the
book-entry commercial paper program of The Depository Trust Company ("DTC").
JPMorgan shall maintain the Master Note of each of the Issuers in safekeeping,
in accordance with its customary practices, on behalf of Cede & Co., the
registered owner thereof and nominee of DTC. As long as Cede & Co. is the
registered owner of a Master Note, the beneficial ownership interest therein
shall be shown on, and the transfer of ownership thereof shall be effected
through, entries on the books maintained by DTC and the books of its direct and
indirect participants. The Master Notes and the Book-Entry Notes shall be
subject to DTC's rules and procedures, as amended from time to time. JPMorgan
shall not be liable or responsible for sending transaction statements of any
kind to DTC's participants or the beneficial owners of the Book-Entry Notes, or
for maintaining, supervising or reviewing the records of DTC or its participants
with respect to such Notes. In connection with DTC's program, each of the
Issuers and, in the case of Guaranteed Notes, the Guarantor, understands that as
one of the conditions of its participation therein, it shall be necessary for
each of the Issuer and, in the case of Guaranteed Notes, the Guarantor, and
JPMorgan to enter into a Letter of Representations, in the form of Exhibit C
hereto, and for DTC to receive and accept such Letter of Representations. In
accordance with DTC's program, JPMorgan shall obtain from the CUSIP Service
Bureau a written list of CUSIP numbers for each of the Issuers' Book-Entry
Notes,
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and JPMorgan shall deliver such list to DTC. The CUSIP Service Bureau shall xxxx
each of the Issuers directly for the fee or fees payable for the list of CUSIP
numbers for such Issuer's Book-Entry Notes.
7. ISSUANCE INSTRUCTIONS TO JPMORGAN; PURCHASE PAYMENTS
Each of the Issuers and the Guarantor understands that all instructions
under this Agreement are to be directed to JPMorgan's Commercial Paper
Operations Department. JPMorgan shall provide each of the Issuers and the
Guarantor, or, if applicable, the relevant Issuer's Dealers, with access to
JPMorgan's Money Market Issuance System or other electronic means (collectively,
the "SYSTEM") in order that JPMorgan may receive electronic instructions for the
issuance of Notes, provided that an issuance of Guaranteed Notes shall require
instructions from the the Guarantor. Electronic instructions must be transmitted
in accordance with the procedures furnished by JPMorgan to the Issuers and the
Guarantor or the Dealers in connection with the System. These transmissions
shall be the equivalent to the giving of a duly authorized written and signed
instruction which JPMorgan may act upon without liability. In the event that the
System is inoperable at any time, an Authorized Representative or a Delegate of
the Issuer may deliver written, telephone or facsimile instructions to JPMorgan
(provided that an issuance of Guaranteed Notes shall require instructions from
the the Guarantor), which instructions shall be verified in accordance with any
security procedures agreed upon by the parties. JPMorgan shall incur no
liability to an Issuer or, in the case of Guaranteed Notes, the Guarantor, in
acting upon instructions believed by JPMorgan in good faith to have been given
by an Authorized Representative or a Delegate of such Issuer or, in the case of
Guaranteed Notes, the Guarantor. In the event that a discrepancy exists between
a telephonic instruction and a written confirmation, the telephonic instruction
will be deemed the controlling and proper instruction. JPMorgan may
electronically record any conversations made pursuant to this Agreement, and
each of the Issuers and, in the case of Guaranteed Notes, the Guarantor, hereby
consents to such recordings. All issuance instructions regarding the Notes must
be received by 1:00 P.M. New York time in order for the Notes to be issued or
delivered on the same day.
(a) ISSUANCE AND PURCHASE OF BOOK-ENTRY NOTES. Upon receipt of
issuance instructions with respect to Book-Entry Notes, JPMorgan shall
transmit such instructions to DTC and direct DTC to cause appropriate
entries of the Book-Entry Notes to be made in accordance with DTC's
applicable rules, regulations and procedures for book-entry commercial
paper programs. JPMorgan shall assign CUSIP numbers to such Issuer's
Book-Entry Notes to identify such Issuer's aggregate principal amount
of outstanding Book-Entry Notes in DTC's system, together with the
aggregate unpaid interest (if any) on such Notes. Promptly following
DTC's established settlement time on each issuance date, JPMorgan shall
access DTC's system to verify whether settlement has occurred with
respect to such Issuer's Book-Entry Notes. Prior to the close of
business on such business day, JPMorgan shall deposit immediately
available funds in the amount of the proceeds due such Issuer (if any)
to such Issuer's account at JPMorgan and designated in the applicable
Program Schedule (the "ACCOUNT"), provided, that JPMorgan has received
DTC's confirmation that the Book-Entry Notes have settled in accordance
with DTC's applicable rules, regulations and procedures. JPMorgan shall
have no liability to an Issuer or, in the case of Guaranteed Notes, the
Guarantor, whatsoever if any DTC participant purchasing a Book-Entry
Note fails to settle or delays in settling its balance with DTC or if
DTC fails to perform in any respect.
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(b) ISSUANCE AND PURCHASE OF CERTIFICATED NOTES. Upon receipt of
issuance instructions with respect to Certificated Notes, JPMorgan
shall: (a) complete each Certificated Note as to principal amount, date
of issue, maturity date, place of payment, and rate or amount of
interest (if such Note is interest bearing) in accordance with such
instructions; (b) countersign each Certificated Note; and (c) deliver
each Certificated Note in accordance with the relevant Issuer's
instructions, except as otherwise set forth below. Whenever JPMorgan is
instructed to deliver any Certificated Note by mail, JPMorgan shall
strike from the Certificated Note the word "Bearer," insert as payee
the name of the person so designated by the relevant Issuer and effect
delivery by mail to such payee or to such other person as is specified
in such instructions to receive the Certificated Note. Each of the
Issuers and, in the case of Guaranteed Notes, the Guarantor,
understands that, in accordance with the custom prevailing in the
commercial paper market, delivery of Certificated Notes shall be made
before the actual receipt of payment for such Notes in immediately
available funds, even if the relevant Issuer instructs JPMorgan to
deliver a Certificated Note against payment. Therefore, once JPMorgan
has delivered a Certificated Note to the designated recipient, the
relevant Issuer and, in the case of Guaranteed Notes, the Guarantor,
shall bear the risk that such recipient may fail to remit payment of
such Note or return such Note to JPMorgan. Delivery of Certificated
Notes shall be subject to the rules of the New York Clearing House in
effect at the time of such delivery. Funds received in payment of
Certificated Notes shall be credited to the Account.
8. USE OF SALES PROCEEDS IN ADVANCE OF PAYMENT
JPMorgan shall not be obligated to credit the relevant Issuer's Account
in respect of a Note issued by such Issuer unless and until payment of the
purchase price of such Note is received by JPMorgan. From time to time,
JPMorgan, in its sole discretion, may permit an Issuer to have use of funds
payable with respect to a Note prior to JPMorgan's receipt of the sales proceeds
of such Note. If JPMorgan makes a deposit, payment or transfer of funds on
behalf of such Issuer before JPMorgan receives payment for any Note issued by
such Issuer, such deposit, payment or transfer of funds shall represent an
advance by JPMorgan to such Issuer to be repaid promptly, and in any event on
the same day as it is made, from the proceeds of the sale of such Note, or by
such Issuer or, in the case of Guaranteed Notes, the Guarantor, if such proceeds
are not received by JPMorgan.
9. PAYMENT OF MATURED NOTES
Notice that an Issuer will not redeem any Note on the relative Initial
Redemption Date (as defined in the applicable Extendible Commercial Note
Announcement) must be received in writing by JPMorgan by 11:00 A.M. on such
Initial Redemption Date. On any other day when a Note matures or is prepaid, the
relevant Issuer shall transmit, or cause to be transmitted, to the Account,
prior to 1:00 P.M. New York time on the same day, an amount of immediately
available funds sufficient to pay the aggregate principal amount of such Note
and any applicable interest due. JPMorgan shall pay the interest (if any) and
principal on a Book-Entry Note to DTC in immediately available funds, which
payment shall be by net settlement of JPMorgan's account at DTC. JPMorgan shall
pay Certificated Notes upon presentment. JPMorgan shall have no obligation under
the Agreement to make any payment for which there is not sufficient, available
and collected funds in the Account, and JPMorgan may, without liability to the
relevant Issuer or, in the case of Guaranteed Notes, the Guarantor, refuse to
pay any Note that would result in an overdraft to the Account.
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10. OVERDRAFTS
(a) Intraday overdrafts with respect to each Account shall be subject
to JPMorgan's policies as in effect from time to time.
(b) An overdraft will exist in an Account if JPMorgan, in its sole
discretion, (i) permits an advance to be made pursuant to Section 8
and, notwithstanding the provisions of Section 8, such advance is not
repaid in full on the same day as it is made, or (ii) pays a Note
pursuant to Section 9 in excess of the available collected balance in
such Account. Overdrafts shall be subject to JPMorgan's established
banking practices, including, without limitation, the imposition of
interest, funds usage charges and administrative fees. The relevant
Issuer shall repay any such overdraft, fees and charges no later than
the next business day, together with interest on the overdraft at the
rate established by JPMorgan for the Account, computed from and
including the date of the overdraft to the date of repayment.
11. NO PRIOR COURSE OF DEALING
No prior action or course of dealing on the part of JPMorgan with
respect to advances of the purchase price or payments of matured Notes shall
give rise to any claim or cause of action by an Issuer or, in the case of
Guaranteed Notes, the Guarantor, against JPMorgan in the event that JPMorgan
refuses to pay or settle any Notes for which such Issuer or, in the case of
Guaranteed Notes, the Guarantor, has not timely provided funds as required by
this Agreement.
12. RETURN OF CERTIFICATED NOTES
JPMorgan will in due course cancel any Certificated Note presented for
payment and return such Note to the relevant Issuer. JPMorgan shall also cancel
and return to the relevant Issuer any spoiled or voided Certificated Notes.
Promptly upon written request of an Issuer or at the termination of this
Agreement, JPMorgan shall destroy all blank, unissued Certificated Notes of such
Issuer in its possession and furnish a certificate to such Issuer certifying
such actions.
13. INFORMATION FURNISHED BY JPMORGAN
Upon the reasonable request of an Issuer or, in the case of Guaranteed
Notes, the Guarantor, JPMorgan shall promptly provide such Issuer or, in the
case of Guaranteed Notes, the Guarantor with information with respect to any
Note issued and paid hereunder, provided, that the Issuer or, in the case of
Guaranteed Notes, the Guarantor delivers such request in writing and, to the
extent applicable, includes the serial number or note number, principal amount,
payee, date of issue, maturity date, amount of interest (if any) and place of
payment of such Note.
14. REPRESENTATIONS AND WARRANTIES
(a) Each of the Issuers represents and warrants that: (i) it has the
right, capacity and authority to enter into this Agreement; and (ii) it
will comply with all of its obligations and duties under this
Agreement. Each of the Issuers further represents and agrees that each
Note issued and distributed upon its instruction pursuant to this
Agreement shall constitute the Issuer's representation and warranty to
JPMorgan
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that such Note is a legal, valid and binding obligation of the Issuer,
and that such Note is being issued in a transaction which is exempt
from registration under the Securities Act of 1933, as amended, and any
applicable state securities law.
(b) The Guarantor represents and warrants that: (i) it has the right,
capacity and authority to enter into this Agreement and to execute and
deliver its guarantee of the Guaranteed Notes and (ii) it will comply
with all of its obligations and duties under this Agreement. The
Guarantor further represents and agrees that its guarantee of each
Guaranteed Note issued and distributed pursuant to this Agreement shall
constitute the legal, valid and binding obligation of the Guarantor,
and that such guarantee is being issued in a transaction which is
exempt from registration under the Securities Act of 1933, as amended,
and any applicable state securities law.
15. DISCLAIMERS
Neither JPMorgan nor its directors, officers, employees or agents shall
be liable for any act or omission under this Agreement except in the case of
default, negligence, willful misconduct or bad faith. IN NO EVENT SHALL JPMORGAN
BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND
WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF JPMORGAN HAS
BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM
OF ACTION. In no event shall JPMorgan be considered negligent in consequence of
complying with DTC's rules, regulations and procedures. The duties and
obligations of JPMorgan, its directors, officers, employees or agents shall be
determined by the express provisions of this Agreement and they shall not be
liable except for the performance of such duties and obligations as are
specifically set forth herein and no implied covenants shall be read into this
Agreement against them. Neither JPMorgan nor its directors, officers, employees
or agents shall be required to ascertain whether any issuance or sale of any
Notes (or any amendment or termination of this Agreement) has been duly
authorized or is in compliance with any other agreement to which the relevant
Issuer, or in the case of Guaranteed Notes, the Guarantor, is a party (whether
or not JPMorgan is also a party to such agreement).
16. INDEMNIFICATION
Each of the Issuers agrees and, in the case of Guaranteed Notes, the
Issuer and the Guarantor jointly and severally agree, to indemnify, defend and
hold harmless JPMorgan, its directors, officers, employees and agents
(collectively, "JPMorgan indemnitees") from and against any and all liabilities,
claims, losses, damages, penalties, costs and expenses (including reasonable
attorneys' fees and disbursements) suffered or incurred by or asserted or
assessed against any JPMorgan indemnitee arising in respect of this Agreement,
except in respect of any JPMorgan indemnitee for any such liability, claim,
loss, damage, penalty, cost or expense resulting from the negligence, willful
misconduct or bad faith of such JPMorgan indemnitee. This indemnity will survive
the termination of this Agreement.
17. OPINION OF COUNSEL
Each of the Issuers and, the Guarantor, shall deliver to JPMorgan all
documents it may reasonably request relating to their respective existence and
authority for this Agreement, including, without limitation, an opinion of
counsel, substantially in the form of Exhibit D hereto.
18. NOTICES
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All notices, confirmations and other communications hereunder shall
(except to the extent otherwise expressly provided) be in writing and shall be
sent by first-class mail, postage prepaid, by telecopier or by hand, addressed
as follows, or to such other address as the party receiving such notice shall
have previously specified to the party sending such notice:
If to AXA: AXA
00 xxxxxx Xxxxxxxx
00000 Xxxxx, Xxxxxx
Attention: DCFG/Capital Market Solutions
Telephone: x00 (0) 0 00 00 00 97
Facsimile: x00 (0) 0 00 00 00 28
If to AXA Financial: AXA Financial, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Treasury Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to JPMorgan concerning the daily issuance and redemption of Notes:
Attention: Money Market Operations
000 Xxxx Xxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000/ (000) 000-0000
Facsimile: (000) 000-0000
All other: Attention: Xxxxxx Xxxxxxx, Commercial Paper Client
Service
000 Xxxx Xxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
19. COMPENSATION
Each of the Issuers shall pay compensation for services pursuant to
this Agreement in accordance with the pricing schedules furnished by JPMorgan to
such Issuer from time to time and upon such payment terms as the parties shall
determine. Each of the Issuers shall also reimburse JPMorgan for any fees and
charges imposed by DTC with respect to services provided to such Issuer in
connection with the Book-Entry Notes.
20. BENEFIT OF AGREEMENT
This Agreement is solely for the benefit of the parties hereto and no
other person shall acquire or have any right under or by virtue hereof.
21. TERMINATION
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This Agreement may be terminated at any time by any party by not less
than (30) day's written notice to the other parties, but such termination shall
not affect the respective liabilities of the parties hereunder arising prior to
such termination.
22. FORCE MAJEURE
In no event shall JPMorgan be liable for any failure or delay in the
performance of its obligations hereunder because of circumstances beyond
JPMorgan's control, including, but not limited to, acts of God, flood, war
(whether declared or undeclared), terrorism, fire, riot, strikes or work
stoppages for any reason, embargo, government action, including any laws,
ordinances, regulations or the like which restrict or prohibit the providing of
the services contemplated by this Agreement, inability to obtain material,
equipment, or communications or computer facilities, or the failure of equipment
or interruption of communications or computer facilities, and other causes
beyond JPMorgan's control whether or not of the same class or kind as
specifically named above.
23. ENTIRE AGREEMENT
This Agreement, together with the exhibits attached hereto, constitutes
the entire agreement among JPMorgan, AXA and AXA Financial with respect to the
subject matter hereof and supersedes in all respects all prior proposals,
negotiations, communications, discussions and agreements between the parties
concerning the subject matter of this Agreement.
24. WAIVERS AND AMENDMENTS
No failure or delay on the part of any party in exercising any power or
right under this Agreement shall operate as a waiver, nor does any single or
partial exercise of any power or right preclude any other or further exercise,
or the exercise of any other power or right. Any such waiver shall be effective
only in the specific instance and for the purpose for which it is given. No
amendment, modification or waiver of any provision of this Agreement shall be
effective unless the same shall be in writing and signed by each of the Issuers
and, the Guarantor, and JPMorgan.
25. BUSINESS DAY
Whenever any payment to be made hereunder shall be due on a day which
is not a business day for JPMorgan, then such payment shall be made on
JPMorgan's next succeeding business day.
26. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original and such counterparts together shall constitute but one
instrument.
27. HEADINGS
The headings in this Agreement are for purposes of reference only and
shall not in any way limit or otherwise affect the meaning or interpretation of
any of the terms of this Agreement.
28. GOVERNING LAW
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This Agreement and the Notes shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard to
the conflict of laws provisions thereof.
29. JURISDICTION AND VENUE
Each party hereby irrevocably and unconditionally submits to the
jurisdiction of the United States District Court for the Southern District of
New York and any New York State court located in the Borough of Manhattan in New
York City and of any appellate court from any thereof for the purposes of any
legal suit, action or proceeding arising out of or relating to this Agreement (a
"PROCEEDING"). Each party hereby irrevocably agrees that all claims in respect
of any Proceeding may be heard and determined in such Federal or New York State
court and irrevocably waives, to the fullest extent it may effectively do so,
any objection it may now or hereafter have to the laying of venue of any
Proceeding in any of the aforementioned courts and the defense of an
inconvenient forum to the maintenance of any Proceeding.
30. WAIVER OF TRIAL BY JURY
EACH PARTY HEREBY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING
ARISING OUT OF OR RELATING TO ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
31. ACCOUNT CONDITIONS
Each Account shall be subject to JPMorgan's account conditions, as in
effect from time to time.
32. GUARANTY PROVISIONS
In consideration of the services provided by JPMorgan under this
Agreement, the Guarantor hereby absolutely, unconditionally and irrevocably
guarantees (as primary obligor and not merely as surety) the due and punctual
payment, when and as the same shall become due and payable, of each and every
obligation of AXA Financial hereunder (each of the foregoing being an
"OBLIGATION" and, collectively, the "OBLIGATIONS") at the time and place and
otherwise in accordance with the terms of this Agreement, irrespective of (i)
the validity, binding effect, legality, enforceability or modification to, or
amendment or waiver of, or compliance with, the Notes or this Agreement, (ii)
whether the Notes or this Agreement shall have been duly executed by the
respective parties thereto, (iii) any change in the existence or structure of,
or the bankruptcy or insolvency of, AXA Financial, (iv) the absence of any
action to enforce any Obligation or the Notes or this Agreement or any
collateral security or other guaranty thereof, (v) any extension, renewal,
settlement, compromise, waiver or release in respect of any Obligation, the
Notes or this Agreement, (vi) the existence of any claim, set-off, counterclaim
or other right that the Guarantor may have against AXA Financial, the
noteholders or JPMorgan, or (vii) any other circumstance that might otherwise
constitute a legal or equitable discharge or defense of the Guarantor. The
Guarantor hereby agrees that upon default in the payment when due of any
Obligation it will forthwith cause the payment of each and every Obligation to
be made punctually to JPMorgan, when and as the same shall become due and
payable, and as if such payment were made by AXA Financial. The Guarantor hereby
expressly waives presentment, demand, protest or notice of any kind whatsoever,
as well as any requirement that the noteholders, or JPMorgan on behalf of the
noteholders, file claims in the event of receivership or bankruptcy of AXA
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Financial, or exhaust any right to take any action against AXA Financial or with
respect to any collateral at any time securing the Obligations or any other
guaranty thereof; and the Guarantor hereby consents to any and all extensions of
time of payment of any or all of the Obligations and to the release of any such
collateral or other guaranty. This guaranty is a guaranty of payment and not of
collection merely and shall be a continuing guaranty and, as such, shall remain
operative and in full force and effect until all Obligations shall have been
paid and actually received in full by the party to whom any such Obligation is
due. If at any time any payment of any Obligation is rescinded or must otherwise
be restored or returned upon the insolvency, bankruptcy, reorganization,
dissolution or liquidation of AXA Financial (or the appointment of a trustee,
receiver, intervenor or conservator or similar official for AXA Financial or any
substantial part of its assets, the Guarantor's obligations hereunder with
respect to such payment shall be reinstated at such time as though such payment
had not been made. The Guarantor hereby irrevocably agrees that it will not be
entitled to enforce any right or remedy arising out of any right of subrogation
that it may have or be entitled to, by operation of law or otherwise, as a
result of payments by such Guarantor hereunder, until all Obligations have been
paid and actually received in full by the party to whom any such Obligation is
due.
33. AGENT FOR SERVICE OR PROCESS
AXA, for the benefit of JPMorgan and the holders from time to time of
the Notes, hereby irrevocably appoints AXA Financial Inc., with offices on the
date hereof located at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, and AXA
Financial hereby accepts such appointment, as its agent (the "AUTHORIZED AGENT")
upon which process may be served in any Proceeding and hereby agrees that
service of process upon the Authorized Agent, by mail or delivery, shall be
deemed in every respect effective service of process upon it in any such
Proceeding. AXA agrees to take any and all action, including, but not limited
to, the execution and filing of all such documents and instruments, as may be
necessary to effect and continue the appointment by it of the Authorized Agent
in full force and effect so long as any of the Notes shall be outstanding.
Nothing herein contained shall, however, in any manner limit the rights of
JPMorgan or the holders of the Notes to serve process in any other manner
permitted by applicable law.
34. WAIVER OF IMMUNITY
AXA irrevocably waives, to the fullest extent permitted by applicable
law, with respect to itself and its revenues and assets (irrespective of their
use or intended use), all immunity on the grounds of sovereign immunity or other
similar grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief by
way of injunction or order for specific performance or for recovery of property,
(iv) attachment of its assets (whether before or after judgment) and (v)
execution or enforcement of any judgment to which it or its revenues or assets
might otherwise be entitled in any Proceeding.
35. WITHHOLDING TAXES
AXA represents and warrants that there is no withholding or other
deduction for or on account of tax imposed by France or any political
subdivision thereof or taxing authority therein from any interest paid in
respect of the Notes, this Agreement, or any payments thereon, hereunder or
under the Guarantee. AXA agrees that in the event that any such tax, assessment
or charge shall hereafter become applicable, it shall promptly notify JPMorgan
in writing and further agrees that all amounts payable by it in respect of any
Note, this Agreement or the Guarantee shall be paid without set-off or
counterclaim and free and clear
10
of, and without deduction or withholding for or on account of, any present or
future tax, assessment or other governmental charge on interest (collectively,
"TAX") imposed, levied, collected, assessed or required to be deducted, withheld
or paid by or for the account of France or any taxing authority or political
subdivision thereof or therein. If any such Tax is required by law to be
withheld or deducted from any such payment, AXA shall pay the full amount of
such Tax and pay such additional amounts as may be necessary to ensure that the
net amount actually received by the person entitled to such payment is equal to
the amount such person would have received had no such Tax been withheld from
such payment, provided that AXA shall not be required to pay any such additional
amount on account of any Tax that would not have been so imposed but for the
existence of any present or former personal or business connection between the
person entitled to such payment and France other than the mere receipt of such
payment or the ownership or holding of such Note.
36. JUDGMENT CURRENCY
The obligation of AXA to make payment in lawful currency of the United
States of America ("DOLLARS") of any and all amounts due hereunder, under the
Notes or under the Guarantee shall not be discharged or satisfied by any tender
or any recovery pursuant to any judgment in any currency other than Dollars,
except to the extent that such tender or recovery shall result in the actual
receipt by JPMorgan in New York or the holders of the Notes of the full amount
of Dollars payable hereunder, under the Notes or under the Guarantee, and shall
be enforceable as an alternative or additional cause of action for the purpose
of recovering in Dollars the amount, if any, by which such actual receipt shall
fall short of the full amount of Dollars so paid.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on their behalf by duly authorized officers as of the day and year first-above
written.
11
JPMORGAN CHASE BANK, AXA
NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxx
------------------------ --------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxx Xxxxxxx
Title: Assistant Vice President Title: Chief Financial Officer and
Member of the Management Board
AXA FINANCIAL, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Investment Officer and
Treasurer
EXHIBIT A
(DTC MASTER NOTE)
EXHIBIT B
FORM OF GUARANTEE
GUARANTEE
GUARANTEE, dated as of __________, ____, of AXA SA, a societe anonyme a
directoire et conseil de surveillance organized under the laws of France (the
"Guarantor"). The Guarantor, for value received, hereby agrees as follows for
the benefit of the holders from time to time of the Notes hereinafter described:
1. The Guarantor irrevocably guarantees payment in full, as and when the same
becomes due and payable, of the principal of and interest, if any, on the
promissory notes (the "Notes") issued by AXA Financial, Inc., a Delaware
corporation and a wholly-owned subsidiary of the Guarantor (the "Issuer"), from
time to time pursuant to the Issuing and Paying Agency Agreement, dated as of
__________, ____, as the same may be amended, supplemented or modified from time
to time, between the Issuer , the Guarantor, and JPMorgan Chase Bank, National
Association (the "Agreement").
2. The Guarantor's obligations under this Guarantee shall be unconditional,
irrespective of the validity or enforceability of any provision of the Agreement
or the Notes.
3. This Guarantee is a guaranty of the due and punctual payment (and not merely
of collection) of the principal of and interest, if any, on the Notes by the
Issuer and shall remain in full force and effect until all amounts have been
validly, finally and irrevocably paid in full, and shall not be affected in any
way by any circumstance or condition whatsoever, including without limitation
(a) the absence of any action to obtain such amounts from the Issuer, (b) any
variation, extension, waiver, compromise or release of any or all of the
obligations of the Issuer under the Agreement or the Notes or of any collateral
security therefore or (c) any change in the existence or structure of, or the
bankruptcy or insolvency of, the Issuer or by any other circumstance (other than
by complete, irrevocable payment) that might otherwise constitute a legal or
equitable discharge or defense of a guarantor or surety. The Guarantor waives
all requirements as to diligence, presentment, demand for payment, protest and
notice of any kind with respect to the Agreement and the Notes.
4. In the event of a default in payment of principal of or interest on any
Notes, the holders of such Notes, may institute legal proceedings directly
against the Guarantor to enforce this Guarantee without first proceeding against
the Issuer.
5. This Guarantee shall remain in full force and effect or shall be reinstated
(as the case may be) if at any time any payment by the Issuer of the principal
of or interest, if any, on the Notes, in whole or in part, is rescinded or must
otherwise be returned by the holder upon the insolvency, bankruptcy or
reorganization of the Issuer or otherwise, all as though such payment had not
been made.
6. This Guarantee shall be governed by and construed in accordance with the laws
of the State of New York.
7. (a) The Guarantor hereby irrevocably accepts and submits to the non-exclusive
jurisdiction of the United States federal courts located in the Borough of
Manhattan and the courts of the State of New York located in the Borough of
Manhattan.
(b) The Guarantor hereby irrevocably designates, appoints and empowers AXA
Financial, Inc, with offices at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx,
00000,
as its designee, appointee and agent to receive, accept and acknowledge for and
on its behalf, and its properties, assets and revenues, service for any and all
legal process, summons, notices and documents which may be served in any such
action, suit or proceeding brought in the courts listed in Section 7(a) which
may be made on such designee, appointee and agent in accordance with legal
procedures prescribed for such courts, with respect to any suit, action or
proceeding in connection with or arising out of this Guarantee. If for any
reason such designee, appointee and agent hereunder shall cease to be available
to act as such, the Guarantor agrees to designate a new designee, appointee and
agent in the City of New York on the terms and for the purposes of this Section
7. The Guarantor further hereby irrevocably consents and agrees to the service
of any and all legal process, summons, notices and documents out of any of the
aforesaid courts in any such action, suit or proceeding by serving a copy
thereof upon the agent for service of process referred to in this Section 7
(whether or not the appointment of such agent shall for any reason prove to be
ineffective or such agent shall accept or acknowledge such service) or by
mailing copies thereof by registered or certified airmail, postage prepaid, to
it at its address specified in or designated pursuant to this Guarantee. The
Guarantor agrees that the failure of any such designee, appointee and agent to
give any notice of such service to it shall not impair or affect in any way the
validity of such service or any judgment rendered in any action or proceeding
based thereon. Nothing herein shall in any way be deemed to limit the ability of
the holders of any Notes to serve any such legal process, summons, notices and
documents in any other manner permitted by applicable law or to obtain
jurisdiction over the undersigned or bring actions, suits or proceedings against
the undersigned in such other jurisdictions, and in such other manner, as may be
permitted by applicable law. The Guarantor hereby irrevocably and
unconditionally waives any objection which it may now or hereafter have to the
laying of venue of any of the aforesaid actions, suits or proceedings arising
out of or in connection with this Guarantee brought in the courts listed in
Section 7(a) and hereby further irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
8. Any payments under this Guarantee shall be in United States dollars and shall
be made without withholding for or deduction of any taxes or duties imposed or
levied by or on behalf of France or any political subdivision or any authority
thereof or therein having the power to tax. If French law should require that
payments under this Guarantee be subject to deduction or withholding in respect
of any taxes or duties whatsoever, the Guarantor will, to the fullest extent
then permitted by law, pay such additional amounts as shall result in receipt by
the persons entitled to such payment of such amounts as would have been received
by them had no such withholding or deduction been required, provided that the
Guarantor shall not be required to pay any such additional amount on account of
any tax that would not have been so imposed but for the existence of any present
or former personal or business connection between the person entitled to such
payment and France other than the mere receipt of such payment or the ownership
or holding of Notes.
9. The Guarantor agrees to indemnify each holder from time to time of Notes
against any loss incurred by such holder as a result of any judgment or order
being given or made for any amount due hereunder or thereunder and such judgment
or order being expressed and paid in a currency (the "Judgment Currency") other
than United States dollars and as a result of any variation as between (i) the
rate of exchange at which the United States dollar amount is converted into the
Judgment Currency for the purpose of such judgment or order, and (ii) the rate
of exchange at which such holder is able to purchase United States dollars with
the amount of Judgment Currency actually received by such holder. The foregoing
indemnity shall constitute a separate and independent obligation of the
Guarantor and shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid.
The term "rate of exchange" shall include any reasonable premiums and costs of
exchange payable in connection with the purchase of, or conversion into, the
relevant currency.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly executed
as of the day and year first above written.
AXA SA
By:
EXHIBIT C
(DTC LETTER OF REPRESENTATIONS)
EXHIBIT D-1
(FORM OF CRAVATH OPINION AS ISSUER'S COUNSEL)
[TO BE CONFORMED TO OPINION DELIVERED UNDER DMA]
EXHIBIT D-2
(FORM OF GENERAL COUNSEL OPINION)
[TO BE CONFORMED TO OPINION DELIVERED UNDER DMA]
