Exhibit 1(a)(2)
JPMORGAN CHASE & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES E
GLOBAL WARRANTS, SERIES E
GLOBAL UNITS, SERIES E
MASTER AGENCY AGREEMENT
As of December 1, 2005
To the Agent listed on
Exhibit A hereto
and
each person that
shall
have become an
Agent as
provided in
Section 3(c)
hereof:
Dear Ladies and Gentlemen:
1.
Introduction. JPMorgan Chase & Co., a Delaware corporation
(the
"Company"), confirms its agreement with
each of you (individually an "Agent" and
collectively the "Agents") with respect to
the issue and sale from time to time
by the Company of up to $4,000,000,000,
less the initial public offering price
of any securities previously issued under
the Registration Statement referred to
below (or the equivalent thereof in one or
more currencies other than U.S.
dollars), aggregate initial public offering
price of its Global Medium-Term
Notes, Series E, due more than nine months
from the date of issue (the "Notes"),
its Global Warrants, Series E (the
"Warrants") and its Global Units, Series E
(the "Units" and, together with the Notes,
Warrants and any other securities
that may be offered by post-effective
amendment to the Registration Statement
referred to below, the "Program
Securities"), as such amount may be increased
from time to time upon due authorization by
the Company. The Notes will be
issued, either alone or as part of a Unit,
pursuant to the provisions of an
indenture dated as of May 25, 2001, between
the Company and Deutsche Bank Trust
Company Americas (formerly known as Bankers
Trust Company), as trustee (the
"Trustee") (as may be supplemented or
amended from time to time, the
"Indenture").
The
Warrants will be issued, either alone or as part of a Unit,
pursuant
to the provisions of a Warrant Agreement
between the Company and a warrant agent
to be appointed by the Company (the
"Warrant Agent"), substantially in the form
of one of the warrant agreements filed as
an exhibit to the Registration
Statement referred to below (each a
"Warrant Agreement").
The Units will be issued pursuant to the provisions of a Unit
Agreement
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between the Company and a unit agent to be
appointed by the Company (the "Unit
Agent"), substantially in the form of the
unit agreement filed as an exhibit to
the Registration Statement referred to
below (each a "Unit Agreement"). Units
may include one or more (i) Notes, (ii)
Warrants or (iii) any combination
thereof. The applicable supplement to the
Prospectus referred to below will
specify whether the Notes and/or Warrants
comprised by a Unit may or may not be
separated from the Units.
The Notes,
whether issued alone or as part of a Unit, will have the
maturities, interest rates, redemption
provisions, if any, and other terms as
set forth in supplements to the Prospectus
referred to below and Term Sheets
referred to below. The Warrants, whether
issued alone or as part of a Unit, will
have the exercise prices, exercise dates,
expiration dates and other terms as
set forth in supplements to the Prospectus
and Term Sheets. Program Securities
other than Notes, Warrants, Units or any
combination thereof, whether issued
alone or as part of a Unit, will have the
terms as set forth in supplements to
the Prospectus and Term Sheets.
2.
Representations and Warranties of the Company. The Company
represents
and warrants to, and agrees with, each
Agent as follows:
(a) A
Registration Statement on Form S-3 (File No. 333- )
relating
to the Program Securities has been filed
with the Securities and Exchange
Commission (the "Commission") under the
Securities Act of 1933, as amended (the
"Act"), and has become effective and no
order suspending the effectiveness of
the Registration Statement has been issued
by the Commission and no proceeding
for that purpose or pursuant to Section 8A
of the Act against the Company or any
offering of the Program Securities has been
initiated or threatened by the
Commission. Such registration statement, as
amended as of the Closing Date (as
defined in Section 6 below), including the
documents incorporated therein by
reference is hereinafter referred to as the
"Registration Statement" and the
prospectus included in the Registration
Statement, as supplemented by a
prospectus supplement and one or more
product supplements and/or pricing
supplements setting forth the terms of the
Program Securities, including all
material incorporated by reference therein,
in the form in which such
prospectus, prospectus supplement and
product supplement(s) and/or final pricing
supplement have most recently been filed,
or transmitted for filing, with the
Commission pursuant to paragraph (b) of
Rule 424 of the rules and regulations
adopted by the Commission thereunder, is
hereinafter referred to as the
"Prospectus".
(b) On the
date it most recently became effective under the Act, the
Registration Statement conformed in all
respects to the requirements of the Act,
the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the
rules and regulations adopted by the
Commission under the Act and the Trust
Indenture Act (the "Rules and Regulations")
and did not include any untrue
statement of a material fact or omit to
state any material fact required to be
stated
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therein or necessary to make the statements
therein not misleading, and on the
Closing Date, the Registration Statement
and the Prospectus will conform in all
respects to the requirements of the Act,
the Trust Indenture Act and the Rules
and Regulations and will not include any
untrue statement of a material fact or
omit to state any material fact required to
be stated therein or necessary to
make the statements therein not misleading,
and at each of the times of amending
or supplementing referred to in Section
7(b) hereof, the Registration Statement
and the Prospectus as then amended or
supplemented will conform in all respects
to the requirements of the Act, the Trust
Indenture Act and the Rules and
Regulations, and will not include any
untrue statement of a material fact or
omit to state any material fact required to
be stated therein or necessary to
make the statements therein not misleading,
except that no representation is
made with respect to statements in or
omissions from the Registration Statement
or the Prospectus based upon written
information furnished to the Company by any
Agent specifically for use therein.
(c) The
Time of Sale Information at each Time of Sale and at the
Closing
Date will not contain any untrue statement
of a material fact or omit to state a
material fact necessary in order to make
the statements therein, in the light of
the circumstances under which they were
made, not misleading; provided that the
Company makes no representation and
warranty with respect to any statements or
omissions made in reliance upon and in
conformity with information relating to
any Agent furnished to the Company in
writing by such Agent expressly for use in
such Time of Sale Information.
"Time of
Sale" shall mean any time at or prior to the confirmation of
any
sales of any Program Securities.
"Time of
Sale Information" shall mean the Prospectus most recently filed
or transmitted for filing as of such Time
of Sale, each product supplement or
pricing supplement to such Prospectus that
relates to the sale of Program
Securities confirmed at such Time of Sale
that has been filed or transmitted for
filing as of such Time of Sale, each
preliminary prospectus or Term Sheet, if
any, that relates to the sale of Program
Securities confirmed at such Time of
Sale that has been filed or transmitted for
filing as of such Time of Sale and
each "Free Writing Prospectus" (as defined
pursuant to Rule 405 under the Act)
that has been prepared by or on behalf of
the Company relating to such Program
Securities.
(d) Other
than a Free Writing Prospectus approved in advance by J.P.
Morgan Securities Inc. ("JPMSI") in its
capacity as agent, the Company
(including its agents and representatives,
other than the Agents in their
capacity as such and selected dealers
purchasing Program Securities as principal
from the Agents) has not made, used,
prepared, authorized, approved or referred
to and will not prepare, make, use,
authorize, approve or refer to any written
communication (as defined in Rule 405 under
the Act) that constitutes an offer
to sell or solicitation of an offer to buy
the Program Securities. At each Time
of Sale, each
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such Free Writing Prospectus included in
the applicable Time of Sale Information
complied in all material respects with the
Act, has been filed in accordance
with the Act (to the extent required
thereby) and, when taken together with the
product supplement(s) and Prospectus filed
prior to such Free Writing
Prospectus, did not, and will not, contain
any untrue statement of a material
fact or omit to state a material fact
necessary in order to make the statements
therein, in the light of the circumstances
under which they were made, not
misleading; provided that the Company makes
no representation and warranty with
respect to any statements or omissions made
in each such Free Writing Prospectus
in reliance upon and in conformity with
information relating to any Agent
furnished to the Company in writing by such
Agent expressly for use in any Free
Writing Prospectus.
(e) The
Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and
delivered by the Company and is a
valid and legally binding agreement of the
Company, enforceable against the
Company in accordance with its terms except
as the enforceability thereof (i)
may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization,
moratorium and other similar laws affecting
creditors' rights generally, (ii) is
subject to general principles of equity,
regardless of whether such
enforceability is considered at a
proceeding in equity or at law and (iii) is
subject to an implied covenant of good
faith and fair dealing.
(f) The
forms of Unit Agreement and Warrant Agreements have been duly
authorized by the Company and, when a Unit
Agreement or a Warrant Agreement, as
the case may be, has been duly executed and
delivered by the Company, will be a
valid and legally binding agreement of the
Company, enforceable against the
Company in accordance with its terms except
as the enforceability thereof (i)
may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization,
moratorium and other similar laws affecting
creditors' rights generally, (ii) is
subject to general principles of equity,
regardless of whether such
enforceability is considered at a
proceeding in equity or at law and (iii) is
subject to an implied covenant of good
faith and fair dealing.
(g) The
forms of Notes, whether issued alone or as part of a Unit, have
been duly authorized by the Company and
when the terms of the Notes have been
duly established in conformity with the
provisions of the Indenture and, when
the Notes have been executed and
authenticated in accordance with the Indenture
and delivered to and duly paid for by the
purchasers thereof, the Notes will be
entitled to the benefits of the Indenture
and will be valid and legally binding
obligations of the Company, enforceable
against the Company in accordance with
their respective terms except as the
enforceability thereof (i) may be limited
by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and
other similar laws affecting creditors'
rights generally, (ii) is subject to
general principles of equity, regardless of
whether such enforceability is
considered at a proceeding in equity or at
law and (iii) is subject to an
implied covenant of good faith and fair
dealing.
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(h) The
forms of Units under the Unit Agreement and the forms of
Warrants
under the Warrant Agreements, whether
issued alone or as part of a Unit, have
been duly authorized by the Company and
when the applicable Unit Agreement or
Warrant Agreement, as the case may be, has
been duly executed and delivered and
the terms of the Units and Warrants have
been duly established in conformity
with the applicable agreement and, when the
Units or Warrants have been executed
by the Company and countersigned by the
Unit Agent or Warrant Agent, as the case
may be, in accordance with the provisions
of the Unit Agreement or a Warrant
Agreement, as the case may be, and
delivered to and duly paid for by the
purchasers thereof, the Units or Warrants
will be entitled to the benefits of
the Unit Agreement or Warrant Agreement, as
the case may be, and will be valid
and legally binding obligations of the
Company, enforceable against the Company
in accordance with their respective terms
except as the enforceability thereof
(i) may be limited by bankruptcy,
insolvency, fraudulent conveyance,
reorganization, moratorium and other
similar laws affecting creditors' rights
generally, (ii) is subject to general
principles of equity, regardless of
whether such enforceability is considered
at a proceeding in equity or at law
and (iii) is subject to an implied covenant
of good faith and fair dealing.
(i) The
Company is not an ineligible issuer and is a well-known
seasoned
issuer, in each case as defined under the
Act, in connection with the offering
of the Program Securities.
Notwithstanding the foregoing, it is understood and agreed that
the
representations and warranties set forth in
Section 1(g) (except as to due
authorization of the Notes) and 1(h)
(except as to due authorization of the
Warrants and Units), when made as of the
Closing Date, or as of any date on
which you solicit offers to purchase
Program Securities, with respect to any
Program Securities the payments of
principal or interest on which, or any other
payments with respect to which, will be
determined by reference to one or more
currency exchange rates, commodity prices,
securities of entities affiliated or
unaffiliated with the Company, baskets of
such securities, equity indices or
other factors, shall be deemed not to
address the application of the Commodity
Exchange Act, as amended, or the rules,
regulations or interpretations of the
Commodity Futures Trading Commission.
3.
Establishment of Agency; Solicitations by Agents.
(a)
Subject to the terms and conditions set forth herein and to the
reservation by the Company of the right to
(i) sell Program Securities directly
on its own behalf at any time and to any
person, (ii) cause Additional Agents
(as defined below) to become parties to
this Agreement or enter into similar
agreements from time to time pursuant to
Section 3(c), (iii) sell Program
Securities pursuant to Section 4 hereof to
any Agent, acting as principal, for
its own account or for resale to one or
more investors or to another
broker-dealer, acting as principal, for
purpose of resale and (iv) accept (but
not solicit) offers to purchase Program
Securities through other agents on
substantially the same terms
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and conditions as would apply to the
Agents, the Company hereby appoints each
Agent an agent of the Company for the
purpose of soliciting and receiving offers
to purchase Program Securities from the
Company.
(b) On the
basis of the representations and warranties and subject to the
terms and conditions set forth herein, each
Agent severally and not jointly
hereby agrees, as agent of the Company, to
use reasonable efforts when requested
by the Company to solicit and receive
offers to purchase Program Securities upon
the terms and conditions set forth in the
Prospectus as then amended or
supplemented, including by the applicable
product supplement and/or the
applicable Free Writing Prospectus and/or
final term sheet or pricing supplement
and in the applicable Procedures (as
defined below).
(c) The
Company may from time to time appoint one or more additional
financial institutions experienced in the
distribution of securities similar to
the Program Securities (each such
additional institution herein referred to as
an "Additional Agent") as agent(s)
hereunder pursuant to a letter (an "Agent
Accession Letter") substantially in the
form attached hereto as Exhibit B to
this Agreement, whereupon each such
Additional Agent shall, subject to the terms
and conditions of this Agreement and the
Agent Accession Letter, become a party
to this Agreement as an agent, vested with
all the authority, rights and powers
and subject to all the duties and
obligations of an Agent as if originally named
as an Agent hereunder. If the Company shall
appoint any Additional Agent(s)
pursuant to an Agent Accession Letter in
accordance with this subsection (c),
the Company shall provide each Agent with a
copy of such executed Agent
Accession Letter.
(d) Upon
receipt of any notice delivered by the Company pursuant to
Section 5(c), each Agent shall suspend its
solicitation of offers to purchase
Program Securities until the Company shall
have amended or supplemented the
Registration Statement or the Prospectus as
contemplated by Section 5(c) and
shall have advised such Agent that such
solicitation may be resumed.
(e) The
Company reserves the right, in its sole discretion, to suspend,
at
any time and for any period, the
solicitation of offers to purchase Program
Securities. Upon receipt of any notice of
such suspension from the Company, each
Agent shall as soon as possible, but in no
event later than one Business Day (as
defined in the applicable Procedures) in
New York City after receipt of such
notice, suspend its solicitation of offers
to purchase Program Securities until
the Company shall have advised such Agent
that such solicitation may be resumed.
(f) Each
Agent shall promptly communicate to the Company, orally or in
writing, each offer to purchase Program
Securities received by it as Agent,
other than offers rejected by it pursuant
to the next sentence. Each Agent shall
have the right, in its discretion
reasonably exercised, to reject as
unreasonable any offer to purchase Program
Securities received by it and no such
rejection shall be deemed a breach of its
obligations hereunder. The Company
shall have the sole
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right to accept offers to purchase Program
Securities and may, in its sole
discretion, reject any offer in whole or in
part.
(g) At the
time of the settlement of any sale of Program Securities
pursuant to an offer presented by an Agent,
the Company shall pay such Agent a
commission based on market conditions and
other factors in existence at the time
of such sale, which commissions shall be
subject to negotiation between the
Company and the Agent and shall be
disclosed in a Free Writing Prospectus or
Pricing Supplement (as defined herein), as
applicable, relating to such Program
Securities.
(h)
Administrative procedures relating to the respective duties and
obligations specifically provided to be
performed in the Global Medium-Term
Notes, Series E, Global Warrants, Series E
and Global Units, Series E,
Administrative Procedures (the
"Procedures") shall be agreed upon from time to
time by the Agents and the Company. The
initial Procedures, which are set forth
in Exhibit C hereto, shall remain in effect
until changed by agreement between
the Company and the Agents. The Agents and
the Company agree to perform the
respective duties and obligations, and to
observe the restrictions, specifically
provided to be performed and observed by
them in the applicable Procedures.
4.
Purchases as Principals. (a) Each sale of Program Securities to you
as
principals shall be made in accordance with
the terms of this Agreement. In
connection with each such sale, the Company
will enter into a Terms Agreement
that will provide for the sale of such
Program Securities to, and the purchase
thereof by, you. Each Terms Agreement will
take the form of either (i) a written
agreement between you and the Company,
which will be substantially in the form
of Exhibit D, Exhibit D-1 or Exhibit D-2
(as applicable) hereto (each a "Terms
Agreement"), or (ii) an oral agreement
between you and the Company confirmed in
writing by you to the Company.
(b) Your
commitment to purchase Program Securities as principal pursuant
to a Terms Agreement shall be deemed to
have been made on the basis of the
representations and warranties of the
Company herein contained and shall be
subject to the terms and conditions herein
set forth. Each (i) Terms Agreement
relating to the Notes shall specify the
principal amount of Notes to be
purchased by you pursuant thereto, the
maturity date of such Notes, the interest
rate and interest rate formula, if any,
applicable to such Notes and any other
terms of such Notes, (ii) Terms Agreement
relating to the Warrants shall specify
the exercise price, the exercise date or
period, the expiration date and any
other terms of such Warrants and (iii)
Terms Agreement relating to the Units
shall specify (a) the information set forth
in (i) above with respect to any
Notes issued as part of a Unit and (b) the
information set forth in (ii) above
with respect to any Warrants issued as part
of a Unit and any other terms of
such Unit. Each such Terms Agreement may
also specify any requirements for
officers' certificates, opinions of counsel
and letters from the independent
auditors of the Company. A Terms Agreement
may also specify certain provisions
relating to the reoffering of such
Notes,
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Warrants or Units, as the case may be, by
you.
(c) Each
Terms Agreement shall specify the time and place of delivery of
and payment for the Program Securities and
shall set out the offering price, the
Agents' commission, and any selling
concession or reallowance and the net
proceeds to the Company. Unless otherwise
specified in a Terms Agreement, the
procedural details relating to the issue
and delivery of Notes, Warrants or
Units, as the case may be, purchased by you
as principal and the payment
therefor shall be as set forth in the
Procedures. Each date of delivery of and
payment for Program Securities to be
purchased by you as principal pursuant to a
Terms Agreement is referred to herein as a
"Settlement Date."
(d) Unless
otherwise specified in a Terms Agreement, if you are purchasing
Program Securities as principal you may
resell such Program Securities to other
dealers. Any such sales may be at a
discount, which shall not exceed the amount
set forth in the Free Writing Prospectus
(available prior to the Time of Sale)
or Pricing Supplement, as applicable,
relating to such Program Securities.
5. Certain
Agreements of the Company. The Company agrees with the Agents
that:
(a) Before
using, authorizing, approving, referring to or filing any Free
Writing Prospectus, the Company will
furnish to JPMSI, in its capacity as agent,
and counsel for JPMSI, a copy of the
proposed Free Writing Prospectus for review
and will not use, authorize, approve, refer
to or file any such Free Writing
Prospectus to which JPMSI objects in its
reasonable judgment.
(b) The
Company will advise each Agent promptly of any proposal to
amend
or supplement the Time of Sale Information,
the Prospectus or the Registration
Statement or to register the Program
Securities under any registration
statements other than the Registration
Statement referred to in Section 2(a)
above (other than any proposal for an
amendment or supplement or additional
registration statement that relates only to
the offering and sale of securities
other than the Program Securities or the
offering and sale of Program Securities
other than through such Agent). The Company
will also advise each Agent promptly
of (i) the filing with the Commission of
each amendment or supplement to the
Prospectus or the Registration Statement
and each such additional registration
statement (other than any amendment,
supplement or additional registration
statement that relates only to the offering
and sale of securities other than
the Program Securities or the offering and
sale of Program Securities other than
through such Agent), (ii) the institution
by the Commission of any stop order
proceedings in respect of the Registration
Statement or any such additional
registration statement, and will use its
best efforts to prevent the issuance of
any such stop order and, if such a stop
order is issued, to obtain its lifting
as soon as possible and (iii) receipt by
the Company of any notification with
respect to the
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suspension of the qualification of the
Program Securities for sale in any
jurisdiction or the initiation or threat of
any proceeding for that purpose.
(c) If, at
any time when a Prospectus or Time of Sale Information relating
to the Program Securities is required to be
delivered under the Act, any event
shall occur as a result of which the
Prospectus or Time of Sale Information as
then amended or supplemented shall include
an untrue statement of a material
fact or omit to state any material fact
necessary to make the statements
therein, in the light of the circumstances
under which they were made, not
misleading, or if it shall be necessary at
any time to amend or supplement the
Registration Statement, Time of Sale
Information or the Prospectus to comply
with the Act, the Company shall promptly
(i) notify each Agent to suspend the
solicitation of offers to purchase the
Program Securities and (ii) prepare and
file with the Commission an amendment or
supplement that will correct such
untrue statement or omission or effect such
compliance.
(d) The
Company agrees that it will not solicit or accept offers to
purchase Program Securities from any Agent
during any period when (i) the
Company shall have been advised by either
Moody's Investors Services, Inc. or
Standard & Poor's, a division of The
McGraw-Hill Companies, Inc., that such
organization has determined to downgrade
the rating of the Program Securities or
any other debt obligations or any preferred
stock of the Company and such
downgrade shall not yet have been publicly
announced, or (ii) there shall have
occurred a material change in the financial
condition or business of the Company
and its subsidiaries, taken as a whole, and
such event shall not have been
disclosed in the Time of Sale Information
or the Prospectus (directly or by
incorporation by reference); provided,
however, that the Company shall not be
obligated to inform any Agent of the reason
for, or describe the occurrence of
any event that may have occasioned the need
for, the suspension of its
solicitation or acceptance of offers.
(e) Not
later than 16 months after the date of each acceptance by the
Company of an offer to purchase Program
Securities hereunder, the Company will
make generally available to its security
holders an earnings statement that will
satisfy the provisions of Section 11(a) of
the Act and Rule 158 thereunder
covering a period of at least 12 months
beginning after the last to occur of (i)
the effective date of the Registration
Statement, (ii) the effective date of the
most recent post-effective amendment to the
Registration Statement to become
effective prior to the date of such
acceptance, (iii) the date of the Annual
Report of the Company on Form 10-K most
recently filed with the Commission prior
to the date of such acceptance and (iv) the
date a prospectus supplement filed
in connection with an offer to purchase
Program Securities is deemed a part of
the Registration Statement pursuant to Rule
430B.
(f) The
Company will furnish to each Agent copies of the Prospectus and
of
the Registration Statement (including the
exhibits thereto relating to the
offering by the Company thereunder of the
Program Securities, but excluding the
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documents incorporated by reference), and
all amendments and supplements to the
Prospectus and the Registration Statement
and all additional registration
statements pursuant to which any of the
Program Securities may be registered
(other than any amendment, supplement or
additional registration statement that
relates only to the offering and sale of
securities other than Program
Securities or any pricing supplement
relating to the offering and sale of
Program Securities other than through such
Agent), and each Free Writing
Prospectus relating to the Program
Securities to be offered and sold, in each
case as soon as available and in such
quantities as shall be reasonably
requested. The Company will prepare, prior
to the applicable Time of Sale, with
respect to any Program Securities to be
sold through or to the Agents, a Free
Writing Prospectus in accordance with
Section 5(a) hereof in the form of a term
sheet or preliminary pricing supplement
with respect to such Program Securities
(a "Term Sheet") and will file such Term
Sheet with the Commission pursuant to
Rule 433 under the Act not later than the
time specified by such rule. The
Company will file the final version of the
Term Sheet, containing the final
terms of the relevant Program Securities,
as a pricing supplement pursuant to
the requirements of Rule 424(b) of the Act,
two days after the earlier of the
date such terms became final or the date of
first use (each a "Pricing
Supplement").
(g) The
Company will arrange for the qualification of the Program
Securities for sale, if any, and the
determination of their eligibility for
investment under the laws of such
jurisdictions as the Agents designate and will
continue such qualifications in effect so
long as required for the distribution
of the Program Securities; provided,
however, that in connection therewith the
Company shall not be required to qualify as
a foreign corporation or to file a
general consent to service of process in
any such jurisdiction.
(h) At any
time when a Prospectus is required to be delivered under the
Act, and if not publicly available through
the Commission's website, the Company
will furnish to each Agent, (i) as soon as
practicable after the end of each
fiscal year, the number of copies
reasonably requested by such Agent of its
annual report to stockholders for such
year, (ii) as soon as available, the
number of copies reasonably requested by
such Agent of each report (including
without limitation reports on Forms 10-K,
10-Q and 8-K) or definitive proxy
statement of the Company filed with the
Commission under the Securities Exchange
Act of 1934, as amended (the "Exchange
Act"), or mailed to stockholders and
(iii) from time to time, such other
information concerning the Company as such
Agent may reasonably request. The Company
also will furnish each Agent with
copies of any press release or general
announcement to the general public, in
each case upon request by the Agent.
(i) The
Company will, whether or not any sale of Program Securities is
consummated, pay all expenses incident to
the performance of its obligations
under this Agreement and any Terms
Agreement and the reasonable fees and
disbursements of Davis Polk & Wardwell,
counsel for the Agents, in connection
with the offering and sale of the Program
Securities and will reimburse each
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Agent for any expenses (including fees and
disbursements of counsel) incurred by
it in connection with the qualification of
the Program Securities for sale and
the determination of their eligibility for
investment under the laws of such
jurisdictions as such Agent may designate
and the printing of memoranda relating
thereto and for any fees charged by
investment rating agencies for the rating of
the Program Securities. The Company will
determine with the Agents the amount of
advertising, if any, appropriate in
connection with the solicitation of offers
to purchase Program Securities and will
pay, or reimburse the Agents for, all
advertising expenses approved by it.
6.
Conditions to Agents' Obligations. Your obligation to solicit
or
receive offers to purchase Program
Securities as an agent of the Company and
your obligation to purchase Program
Securities as principal pursuant to any
Terms Agreement shall be subject to the
continued accuracy in all material
respects of the representations and
warranties of the Company set forth herein,
to the performance by the Company of its
obligations hereunder and to each of
the following additional conditions
precedent:
(a) (i) No
stop order suspending the effectiveness of the Registration
Statement or suspending the qualification
of the Indenture shall have been
issued and no proceedings for that purpose
or pursuant to Section 8A under the
Act shall have been instituted or, to the
knowledge of the Company or such
Agent, shall be contemplated by the
Commission, and any requests for additional
information on the part of the Commission
(to be included in the Registration
Statement or the Prospectus or otherwise)
shall have been complied with to the
reasonable satisfaction of the such
Agents.
(ii) (A)
No downgrading shall have occurred in the rating accorded the
Program Securities or any other debt
securities of the Company by any
"nationally recognized statistical rating
organization", as such term is defined
by the Commission for purposes of Rule
436(g)(2) under the Act and (B) no such
organization shall have publicly announced
that it has been placed under
surveillance or review, or has changed its
outlook with respect to, its rating
of the Program Securities or of any other
debt securities or preferred stock of
or guaranteed by the Company (other than an
announcement with positive
implications of a possible upgrading).
(iii) The
Prospectus, each Free Writing Prospectus and all other Time of
Sale Information shall have been timely
filed with the Commission under the Act
(in the case of a Free Writing Prospectus
and all other Time of Sale
Information, to the extent required by Rule
433 under the Act).
(b)
Subsequent to the date of this Agreement and any Terms
Agreement,
there shall not have occurred any change,
or any development involving a
prospective change, in or affecting the
business or properties of the Company or
its subsidiaries that is not described in
the Time of Sale Information and that
is, in the judgment of such Agent, so
material and adverse as to make it
11
<PAGE>
impracticable or inadvisable to proceed
with the offering, sale or the delivery
of the Program Securities on the terms and
in the manner contemplated in the
Time of Sale Information and the
Prospectus.
(c) Such
Agent shall have received an opinion letter of Simpson Thacher
&
Bartlett LLP, counsel for the Company or
such other counsel as is acceptable to
such Agent, including in-house counsel,
dated the Closing Date, to the effect
that:
(i) The Company has been duly incorporated and is validly
existing
and in
good standing as a corporation under the law of the State of
Delaware,
and JPMorgan Chase Bank, National Association has been duly
organized
and is validly existing and in good standing as a national
banking
association under the laws of the United States, in each case
with
full
corporate power and authority to conduct its business as described
in
the
Registration Statement and the Prospectus.
(ii) The Indenture has been duly authorized, executed and
delivered
by the
Company and duly qualified under the Trust Indenture Act of
1939,
as amended
(the "Trust Indenture Act"), and, assuming that the Indenture
is the
valid and legally binding obligation of the Trustee, constitutes
a
valid and
legally binding obligation of the Company enforceable against
the
Company in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium
and other
similar laws relating to or affecting creditors' rights
generally;
general equitable principles (whether considered in a
proceeding
in equity or at law); and an implied covenant of good faith and
fair
dealing.
(iii) This Agreement has been duly authorized, executed and
delivered
by the Company and constitutes a valid and legally binding
obligation
of the Company, enforceable against the Company in accordance
with its
terms, subject to the effects of bankruptcy, insolvency,
fraudulent
conveyance, reorganization, moratorium and other similar laws
relating
to or affecting creditors' rights generally; general equitable
principles
(whether considered in a proceeding in equity or at law); and
an implied
covenant of good faith and fair dealing and subject to
considerations of public policy.
(iv) The Unit Agreements and Warrant Agreements have been duly
authorized
by the Company and, when duly executed and delivered by the
Company
will be valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms,
subject to
the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting
creditors'
rights generally; general equitable principles
12
<PAGE>
(whether
considered in a proceeding in equity or at law); and an implied
covenant
of good faith and fair dealing.
(v) The Notes have been duly authorized by the Company and, when
the
terms of
the Notes and their issue and sale have been duly established
in
accordance
with the Indenture and this Agreement so as not to violate any
applicable
law or agreement or instrument then binding on the Company, and
the Notes
have been duly executed by the Company and duly authenticated
by
the
Trustee in accordance with the provisions of the Indenture, and
upon
payment
and delivery in accordance with this Agreement, the Notes will
constitute
valid and legally binding obligations of the Company
enforceable against the Company in accordance with their respective
terms
and will
be entitled to the benefits of the Indenture, subject to the
effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium
and other similar laws relating to or affecting creditors'
rights
generally; general equitable principles (whether considered in
a
proceeding
in equity or at law); and an implied covenant of good faith and
fair
dealing.
(vi) The
Warrants have been duly authorized by the Company and, when
the
applicable Warrant Agreement has been duly executed and delivered
by
the
Company and the terms of the Warrants and their issue and sale
have
been duly
established in accordance with the applicable Warrant Agreement
and this
Agreement so as not to violate any applicable law or agreement
or
instrument
then binding on the Company, and the Warrants have been duly
executed
by the Company and duly countersigned by the Warrant Agent in
accordance
with the applicable Warrant Agreement, and upon payment and
delivery
in accordance with this Agreement, the Warrants will constitute
valid and
legally binding obligations of the Company enforceable against
the
Company in accordance with their respective terms and will be
entitled
to the
benefits of the applicable Warrant Agreement, subject to the
effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium
and other similar laws relating to or affecting creditors'
rights
generally; general equitable principles (whether considered in
a
proceeding
in equity or at law); and an implied covenant of good faith and
fair
dealing.
(vii) The
Units have been duly authorized by the Company and, when
the
applicable Unit Agreement has been duly executed and delivered by
the
Company
and the terms of the Units and their issue and sale have been
duly
established in accordance with the Unit Agreement and this
Agreement so as
not to
violate any applicable law or agreement or instrument then
binding
on the
Company, and the Units have been duly executed by the Company
and
duly
countersigned by the Unit Agent in accordance with the Unit
Agreement,
and upon payment and delivery in accordance with this
Agreement,
the Units will constitute valid and legally binding obligations
of the
Company enforceable against the Company in
13
<PAGE>
accordance
with their respective terms and entitled to the benefits of the
Unit
Agreement, subject to the effects of bankruptcy, insolvency,
fraudulent
conveyance, reorganization, moratorium and other similar laws
relating
to or affecting creditors' rights generally; general equitable
principles
(whether considered in a proceeding in equity or at law); and
an implied
covenant of good faith and fair dealing.
(viii) The issue and sale of the Program Securities and the
execution,
delivery and performance by the Company of this Agreement, the
Indenture,
the Warrant Agreements and the Unit Agreement will not breach
or result
in a default under, any indenture, mortgage, deed of trust,
loan
agreement
or other agreement or instrument filed or incorporated by
reference
as an exhibit to the Registration Statement, nor will such
actions
violate the Certificate of Incorporation or By-laws of the
Company
or any
federal or New York statute or the Delaware General Corporation
Law
or any
rule or regulation that has been issued pursuant to any federal
or
New York
statute or the Delaware General Corporation Law or any order
known to
us issued pursuant to any federal or New York statute or the
Delaware
General Corporation Law by any court or governmental agency or
body
having jurisdiction over the Company or any of its subsidiaries
or
any of
their properties, except that it is understood that no opinion
is
given in
this paragraph (viii) with respect to any federal or state
securities
law or any rule or regulation issued pursuant to any federal or
state
securities law.
(ix) No consent, approval, authorization, order, registration
or
qualification of or with any federal or New York governmental
agency or
body or
any Delaware governmental agency or body acting pursuant to the
Delaware
General Corporation Law or, to our knowledge, any federal or
New
York court
or any Delaware court acting pursuant to the Delaware General
Corporation Law is required for the issue and sale of the
Program
Securities
and the compliance by the Company with the provisions of this
Agreement and the
Indenture, except that it is understood that no opinion
is given
in this paragraph (ix) with respect to any federal or state
securities
law or any rule or regulation issued pursuant to any federal or
state
securities law.
(x) The Registration Statement has become effective under the
Act;
and the
Prospectus was filed on December 1, 2005 pursuant to Rule
424(b)
of the
rules and regulations of the Commission under the Act; and to
knowledge
of such counsel no stop order suspending the effectiveness of
the
Registration Statement has been issued or proceeding for that
purpose
or
pursuant to Section 8A under the Act has been instituted or
threatened
by the
Commission.
(xi) The
statements made in the Prospectus under the captions
"Description of Notes," "General Terms of the Notes," "Description
of Debt
Securities," "Description of Warrants" and "Description of
Units,"
14
<PAGE>
insofar as
they purport to constitute summaries of certain terms of the
documents
referred to therein, constitute accurate summaries of the terms
of such
documents in all material respects (subject to the insertion in
the Notes, the Warrants and/or the
Units of the maturity dates, interest
rates and
other similar terms thereof which are to be described in Term
Sheets and
Pricing Supplements to the Prospectus).
(xii) To such counsel's knowledge, there are no contracts or
documents
of a character required to be described in the Registration
Statement
or Prospectus or to be filed as exhibits to the Registration
Statement
or incorporated by reference therein which are not described
and
filed or
incorporated by reference as required.
(d) Such
Agent shall have received a letter of Simpson Thacher &
Bartlett
LLP, counsel for the Company or such other
counsel as is acceptable to such
Agent, including in-house counsel, dated
the Closing Date, to the effect that
such counsel:
(i) advises you that each of the Registration Statement, as of
its
effective
date, and the Prospectus, as of its date, appeared, on its
face,
to be
appropriately responsive, in all material respects, to the
requirements of the Act and the applicable rules and regulations of
the
Commission
thereunder, except that in each case such counsel expresses no
view with
respect to the financial statements or other financial or
statistical data contained in, incorporated or deemed incorporated
by
reference
in, or omitted from the Registration Statement, the Prospectus
or the
Exchange Act reports incorporated therein; and
(ii) nothing has come to such counsel's attention that causes
such
counsel to
believe that the Registration Statement (including the
documents
incorporated by reference in the Registration Statement on file
with the
Commission on the date of this Agreement), as of the date of
this
Agreement,
contained any untrue statement of a material fact or omitted to
state any
material fact required to be stated therein or necessary in
order to
make the statements therein not misleading or that the
Prospectus
(including
the documents incorporated by reference in the Prospectus), as
of its
date and as of the date hereof, contained or contains any
untrue
statement
of a material fact or omitted or omits to state any material
fact
necessary in order to make the statements therein, in the light
of
the
circumstances under which they were made, not misleading, except
that
in each
case such counsel expresses no belief with respect to the
financial
statements or other financial or statistical data contained in,
incorporated or deemed incorporated by reference in, or omitted
from the
Registration Statement, the Prospectus or the Exchange Act
reports
incorporated therein.
(e) Such
Agent shall have received a certificate, dated the Closing
Date,
of the Chairman of the Board, the
President, any Vice-Chairman, the Chief
15
<PAGE>
Financial Officer, the Treasurer, any
Assistant Treasurer, or any other
Executive Officer of the Company named as
an "executive officer" in the
Company's most recent Annual Report on Form
10-K, in which such officer shall
state, to the best of his or her knowledge
after reasonable investigation, that
the representations and warranties of the
Company in this Agreement are true and
correct, that the Company has complied with
all agreements and satisfied all
conditions on its part to be performed or
satisfied hereunder at or prior to the
date of such certificate, that no stop
order suspending the effectiveness of the
Registration Statement has been issued and
no proceedings for that purpose have
been instituted or are contemplated by the
Commission and that, subsequent to
the date of the most recent financial
statements in the Prospectus, there has
been no material adverse change in the
financial position or results of
operations of the Company and its
subsidiaries, except as set forth in or
contemplated by the Prospectus or as
described in such certificate.
(f) Such
Agent shall have received a letter of PricewaterhouseCoopers
LLP,
addressed jointly to the Board of Directors
of the Company and such Agent, dated
the Closing Date and satisfactory to such
Agent, confirming that they are an
independent registered public accounting
firm with respect to the Company within
the meaning of the Act, the applicable
Rules and Regulations and the standards
of the Public Company Accounting Oversight
Board (United States) (the "PCAOB"),
and stating in effect that (i) in their
opinion, the Company's consolidated
financial statements audited by them and
included in the Prospectus comply as to
form in all material respects with the
applicable accounting requirements of the
Act, the Exchange Act and the Rules and
Regulations, (ii) on the basis of a
reading of the latest available interim
financial statements of the Company,
inquiries of certain officials of the
Company who have responsibility for
financial and accounting matters and other
specified procedures, nothing came to
their attention that caused them to believe
that (A) any material modifications
should be made to the unaudited
consolidated financial statements in the
Prospectus for them to be in conformity
with accounting principles generally
accepted in the United States, (B) the
unaudited consolidated financial
statements in the Prospectus do not comply
as to form in all material respects
with the applicable accounting requirements
of the Act, the Exchange Act and the
Rules and Regulations or are not stated on
a basis substantially consistent with
that of the audited consolidated financial
statements included in the
Prospectus, (C) at the date of the latest
available balance sheet read by such
accounting firm, or at a subsequent
specified date not more than five days prior
to the Closing Date, there was any change
in the Company's common stock,
preferred stock, or long-term debt of the
Company and its consolidated
subsidiaries or any decrease in total
stockholders' equity of the Company and
its consolidated subsidiaries as compared
with amounts shown in the latest
balance sheet included in the Prospectus;
or (D) for the period from the closing
date of the latest audited income statement
included in the Prospectus to the
closing date of the latest available income
statement read by such accounting
firm there were any decreases, as compared
with the corresponding period of the
previous year, in the
16
<PAGE>
consolidated net interest income, in net
interest income after provision for
loan losses, or in net income or net income
per common share of the Company and
its subsidiaries on a consolidated basis,
except in all instances for changes or
decreases set forth in such letter or which
the Prospectus discloses have
occurred or may occur, and (iii) they have
compared certain agreed dollar
amounts (or percentages derived from such
dollar amounts) and other financial
information (and ratios) included in the
Prospectus (to the extent that such
dollar amounts, percentages and other
financial information are derived from the
general accounting records of the Company
and its subsidiaries subject to the
internal controls of the Company's
accounting system or are derived directly
from such records by analysis or
computation) with the results obtained from
inquiries, a reading of such general
accounting records and other procedures
specified in such letter, and have found
such dollar amounts, percentages and
other financial information to be in
agreement with such results, except as
otherwise specified in such letter. For
purposes of this subsection,
"Prospectus" shall mean the Prospectus as
amended and supplemented on the date
of such letter. All financial statements
included in material incorporated by
reference into the Prospectus shall be
deemed included in the Prospectus for
purposes of this subsection.
(g) If the
Closing Date is prior to the date of the Company's filing of
its Annual Report on Form 10-K for the year
ending December 31, 2005, such Agent
shall have received a letter of KPMG LLP,
addressed jointly to the Board of
Directors of the Company and such Agent,
dated the Closing Date and satisfactory
to such Agent, confirming that they are an
independent registered public
accounting firm with respect to Bank One
Corporation and its subsidiaries ("Bank
One") within the meaning of the Act, the
applicable Rules and Regulations and
the standards of the Public Company
Accounting Oversight Board (United States),
and stating in effect that (i) in their
opinion the consolidated financial
statements audited by them and included in
the Prospectus comply as to form in
all material respects with the applicable
accounting requirements of the Act and
the Rules and Regulations, (ii) on the
basis of a reading of the latest
available interim financial statements of
Bank One, inquiries of certain
officials of the Company who have
responsibility for financial and accounting
matters and other specified procedures,
nothing came to their attention that
caused them to believe that (A) the
unaudited financial statements in the
Prospectus, if any, do not comply as to
form in all material respects with the
applicable accounting requirements of the
Act and the Rules and Regulations or
are not stated on a basis substantially
consistent with that of the audited
financial statements included in the
Prospectus; or (B) any material
modifications should be made to the first
quarter unaudited condensed
consolidated financial statements for the
three-month periods ended March 31,
2004 and 2003 incorporated by reference in
the Registration Statement, for them
to be in conformity with accounting
principles generally accepted in the United
States of America applied on a basis
substantially consistent with that of the
audited consolidated financial statements
included in Bank One's 2003 Annual
Report to Stockholders which is included in
the Company's Report on Form 8-K
filed March 1, 2004, which is
17
<PAGE>
incorporated by reference in the
Registration Statement. For purposes of this
subsection, "Prospectus" shall mean the
Prospectus as amended and supplemented
on the date of such letter. All financial
statements included in material
incorporated by reference into the
Prospectus shall be deemed included in the
Prospectus for purposes of this
subsection.
(h) Such
Agent shall have received from Davis Polk & Wardwell, counsel
for
the Agents, one or more opinions, dated the
Closing Date, with respect to the
incorporation of the Company, the validity
of the Program Securities, the
Registration Statement, the Prospectus and
other related matters as it may
reasonably require, and the Company shall
have furnished to such counsel such
documents as they may reasonably request
for the purpose of enabling them to
pass upon such matters.
Such
opinion, dated as of such date, of Davis Polk & Wardwell,
special tax
counsel to the Company, shall further state
that the statements set forth under
the caption "United States Federal
Taxation" in the Prospectus Supplement and
under the caption "Forms of Securities
Limitations on Issuance of Bearer
Securities and Bearer Debt Warrants" in the
Prospectus insofar as such
statements relate to statements of law or
legal conclusions under the laws of
the United States or matters of United
States law, fairly present the
information called for and fairly summarize
the matters referred to therein.
The
opinions, certificates, letters and other documents required to
be
delivered by this Section 6 shall be
delivered at the office of Davis Polk &
Wardwell at 450 Lexington Avenue, New York,
New York 10017, not later than 10:00
a.m., New York City time, on the date of
this Agreement or at such later time
and date as may be mutually agreed by the
Company and the Agents, which in no
event shall be later than the time at which
the Agents commence solicitation of
purchasers of Program Securities hereunder,
the time and date of such delivery
being herein called the "Closing Date". The
Company will furnish each Agent with
such conformed copies of such opinions,
certificates, letters and other
documents as it may reasonably request.
In the
event that, after the Closing Date, the Company shall determine
(x)
to increase pursuant to and in accordance
with the terms and provisions of the
Indenture, the aggregate principal amount
of the Program Securities that may be
authenticated and delivered under the
Indenture and/or (y) to register a portion
of the Program Securities under a
registration statement or registration
statements in addition to the Registration
Statement referred to in Section 2(a)
above, the Company shall (i) promptly
comply with its obligations and take any
steps as are required to be taken by it
pursuant to Sections 5(b), (f), (g), (h)
and (i) hereof, (ii) not later than 10:00
a.m., New York City time, on the date
on which any such supplements or amendments
to the Prospectus or the
Registration Statements, or any additional
registration statements, shall be
filed by the Company with the Commission
under the Act and shall have been
declared or deemed effective, or at such
later time and date as shall be
mutually agreed by the
18
<PAGE>
Company and the Agents, deliver to each
Agent and its counsel the opinions,
certificates, letters and other documents
required to be delivered pursuant to
paragraphs (c), (d), (e) and (f), and if
separate financial statements of Bank
One are included or incorporated by
reference in the Registration Statement and
Prospectus (g) and (h) of this Section 6,
and (iii) if applicable, deliver to
each Agent a certificate, dated the date
each of the other certificates
delivered pursuant to clause (ii) are being
delivered, executed by the Chairman
of the Board, the President, any Vice
President, the Chief Financial Officer,
the Treasurer, any Assistant Treasurer, any
other Executive Officer of the
Company, reaffirming each of the
representations and warranties of the Company
set forth in Section 2 with respect to any
registration statement, any Free
Writing Prospectus relating to the Program
Securities and any prospectus
included in such registration statement
filed after the date hereof relating to
the Program Securities.
For
purposes of the documents required to be delivered pursuant to
the
preceding paragraph, the term "Registration
Statement" shall be deemed to refer
to the Registration Statement referred to
in Section 2(a), together with any
such additional registration statement or
registration statements relating to
the Program Securities, in each case as
amended or supplemented; the term
"Prospectus" shall refer to the Prospectus
as so amended or supplemented; and
the term "Closing Date" shall be deemed to
refer to the date on which the
requirements under the preceding paragraph
are satisfied. As of and after the
requirements of the preceding paragraph are
satisfied, the foregoing terms shall
be deemed to be so amended for all purposes
of this Agreement.
In the
case of Additional Agents, the conditions set forth in
paragraphs
(c), (d), (e), (f) and (g) of this Section
6 shall be deemed satisfied by the
delivery to the Additional Agents of copies
of the documents delivered pursuant
to such paragraphs on the Closing Date.
7.
Additional Covenants of the Company. The Company agrees that:
(a) Each
acceptance by the Company of an offer to purchase Program
Securities shall be deemed to be an
affirmation that the representations and
warranties of the Company contained in this
Agreement are true and correct in
all material respects at the time of such
acceptance and a covenant and an
affirmation that such representations and
warranties will be true and correct at
the time of delivery to the purchaser of
the Program Securities relating to such
acceptance as though made at and as of such
time, it being understood that such
representations and warranties shall relate
to the Registration Statement, the
Time of Sale Information and the Prospectus
as amended or supplemented at such
time.
(b)
Promptly after the filing with the Commission of each amendment of
or
supplement to the Registration Statement or
the Prospectus under the Act (other
than (i) information filed or furnished to
the Commission in a Current Report on
Form 8-K (or any successor form thereto);
(ii) an exhibit to the Registration
Statement or Prospectus that does not
relate to the Program
19
<PAGE>
Securities; (iii) any amendment or
supplement which relates only to the offering
and sale of securities other than the
Program Securities or which serves only to
set forth, or reflect a change in, the
terms of any Program Securities or the
principal amount of Program Securities
remaining to be sold or any similar
information), the Company shall furnish
each Agent with a certificate of the
Chairman of the Board, the President, any
Vice-Chairman, the Chief Financial
Officer, the Treasurer, any Assistant
Treasurer, or any other Executive Officer
of the Company, dated the date of such
amendment, supplement or filing to the
same effect as the certificate referred to
in Section 6(e), modified as
necessary to relate to the Registration
Statement and the Prospectus as amended
or supplemented to the date of such
certificate; provided, however, that the
Company shall not be required during any
period in which it has instructed each
Agent to cease or each Agent has ceased
soliciting offers to purchase Program
Securities to furnish each Agent with such
certificate, provided that the
obligation of each Agent to begin
thereafter to solicit offers to purchase
Program Securities shall be subject to the
delivery of such certificate dated
the latest date on which the Company would,
but for this proviso, have been
required to furnish such certificate.
(c)
Promptly after the filing with the Commission of each Quarterly
Report
on Form 10-Q or Annual Report on Form 10-K
of the Company, the Company shall
furnish each Agent requesting it with a
written opinion of Simpson Thacher &
Bartlett LLP, counsel for the Company, or
such other counsel as is acceptable to
each Agent, including in-house counsel,
dated the date on which such Form 10-Q
or Form 10-K was filed with the Commission,
to the effect set
