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
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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 bill
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
