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
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 X.X.
Xxxxxx 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 Xxxxx'x Investors Services, Inc. or
Standard & Poor's, a division of The XxXxxx-Xxxx 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 Xxxxx Xxxx & Xxxxxxxx, 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
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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 Xxxxxxx Xxxxxxx &
Xxxxxxxx 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
(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
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 Xxxxx,"
00
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 Xxxxxxx Xxxxxxx & Xxxxxxxx
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
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
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
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 Xxxxx Xxxx & Xxxxxxxx, 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 Xxxxx Xxxx & Xxxxxxxx, 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 Xxxxx Xxxx &
Xxxxxxxx at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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
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
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 Xxxxxxx Xxxxxxx &
Xxxxxxxx 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 forth in Section
6(d) hereof, but modified as necessary to relate to the Registration Statement
and the Prospectus as amended or supplemented at such date; provided, however,
that in lieu of such opinion, such counsel may furnish each Agent with a letter
to the effect that such Agent may rely on a prior opinion delivered under
Section 6(d) or this Section 7(c) to the same extent as if it were dated the
date of such letter and the statements therein related to the Registration
Statement and the Prospectus as amended or supplemented at such date; provided
further, 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 opinion or letter,
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 opinion
or letter dated not earlier than the date of the most recent fiscal quarter end
if such delivery is so requested by the Agent.
(d) Within a reasonable time after each date on which the Registration
Statement or the Prospectus shall be amended or supplemented to include
additional financial information or any document that contains additional
financial information, such as a Quarterly Report on Form 10-Q, shall be
incorporated by reference into the Prospectus, the Company shall cause
PricewaterhouseCoopers LLP or KPMG LLP, as the case may be, to furnish each
Agent with a letter, addressed jointly to the Board of Directors of the Company
20
and the Agents and dated such date, substantially in the form attached hereto as
Exhibit E; provided, however, that within a reasonable time after the filing
with the Commission of each Annual Report of the Company on Form 10-K, the
Company shall instead furnish each Agent with a letter addressed jointly to the
Board of Directors of the Company and the Agents and dated such date, to the
effect set forth in Section 6(f) or 6(g), as the case may be, insofar as Section
6(f) or 6(g), as the case may be, relates to such additional financial
information; provided further, 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
either letter referred to above in this paragraph, provided that the obligation
of each Agent to begin thereafter to solicit offers to purchase Program
Securities shall be subject to the delivery of (i) such letter substantially in
the form of Exhibit E with respect to the period commencing with the beginning
of the first fiscal quarter following the date of the most recent Annual Report
of the Company on Form 10-K and ending with the end of the most recent fiscal
quarter or, if later, the period as to which the Company would, but for this
proviso, be required to furnish such a letter and (ii) such letter to the effect
set forth in Section 6(f) or 6(g), as the case may be, with respect to the most
recent Annual Report of the Company on Form 10-K.
(e) In the event that the Company appoints an Additional Agent pursuant to
Section 3(c) of this Agreement, the Company shall cause PricewaterhouseCoopers
LLP or KPMG LLP, as the case may be, to deliver a letter addressed to the
Company and such Additional Agent (a "Reliance Letter") entitling such
Additional Agent to the benefits of any letter delivered by
PricewaterhouseCoopers LLP or KPMG LLP, as the case may be, pursuant to
paragraph (d) of this Section 7.
(f) In the event that the Company appoints an Additional Agent pursuant to
Section 3(c) of this Agreement, the Company shall furnish such Additional
Agent(s) requesting it with a written opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP,
counsel for the Company, or such other counsel as is acceptable to such
Additional Agent, to the effect set forth in Section 6(d) or Section 7(c)
hereof, but modified as necessary to relate to the Registration Statement and
the Prospectus as amended or supplemented at the date of the latest filing by
the Company of a Quarterly Report on Form 10-Q or Annual Report on Form 10-K;
provided, however, that in lieu of such opinion, such counsel may furnish each
Additional Agent with a letter to the effect that such Additional Agent may rely
on a prior opinion delivered under Section 6(d) or Section 7(c) to the same
extent as if it were dated the date of such Form 10-Q or Form 10-K filing and
the statements therein related to the Registration Statement and the Prospectus
as amended or supplemented at such date; provided further, 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 opinion or letter, provided that the obligation
of each Agent to begin thereafter to solicit offers to purchase Program
Securities
21
shall be subject to the delivery of such opinion or letter dated not earlier
than the date of the most recent fiscal quarter end if such delivery is so
requested by the Agent.
(g) The Company agrees to offer to any person who shall have agreed to
purchase Program Securities (including any Agent that has agreed to purchase
Program Securities pursuant to Section 4 hereof) the right not to purchase such
Program Securities if, on the Settlement Date for such purchase, the conditions
set forth in Sections 6(a) and (b), or either of them, shall not be satisfied.
(h) The Company will, pursuant to reasonable procedures developed in good
faith, retain for a period of not less than three years copies of each Free
Writing Prospectus and other Time of Sale Information that is not filed with the
Commission in accordance with Rule 433 under the Act and maintain records
regarding the timing of the delivery of all applicable Time of Sale Information.
(i) The Company will at all times use its best efforts to comply with the
disclosure requirements under the Act and Exchange Act relating to its status as
a "well-known seasoned issuer", as defined in Rule 405 of the Act, which efforts
will include the filing of all reports and materials set forth in section 1(i)
of the definition of Ineligible Issuer as defined in Rule 405 of the Act. The
Company will notify the Agents in writing promptly after learning of any event
or circumstance that may affect its status as a "well-known seasoned issuer."
(j) The Company will pay any filing fees required by Rule 457 of the Act
in connection with filing Time of Sale Information and each Free Writing
Prospectus, by the times required under the Act.
(k) The Company agrees that any other security that is added to the
Program Securities by post-effective amendment to the Registration Statement
shall be duly authorized by the Company. The Company shall provide to Agents
officers' certificates or opinions of counsel or comfort letters relating to
such security as the Agents may reasonably request.
8. Certain Agreements of the Agents. Each Agent hereby represents and
agrees that:
(a) it has not and will not use, authorize use of, refer to, or
participate in the planning for the use of, any Free Writing Prospectus, as
defined in Rule 405 under the Act (which term includes use of any written
information furnished to the Commission by the Company and not incorporated by
reference into the Registration Statement and any press release issued by the
Company) other than (i) a Free Writing Prospectus that contains no "issuer
information" (as defined in Rule 433(h)(2) under the Act) that was not included
in a previously filed Free Writing Prospectus or in the Prospectus, (ii) any
Free Writing Prospectus prepared pursuant to Section 5(a) above, or (iii) any
issuer or underwriter Free Writing Prospectus approved by the Company in advance
in writing;
22
(b) it will, pursuant to reasonable procedures developed in good faith,
take steps to ensure that any Free Writing Prospectus referred to in clause
(a)(i) above will not be subject to broad unrestricted dissemination;
(c) it will not, without the prior written consent of the Company, use any
Free Writing Prospectus that contains the final terms of the Program Securities
unless such terms have previously been included in a Free Writing Prospectus
filed with the Commission or otherwise made reasonably available to the
purchasers of Program Securities;
(d) it will retain copies of each Free Writing Prospectus used or referred
to by it and all other Time of Sale Information, in accordance with Rule 433
under the Act;
(e) it is not subject to any pending proceeding under Section 8A of the
Act with respect to any offering of Program Securities (and will promptly notify
the Company if any such proceeding against it is initiated during such period of
time after the first date of the public offering of the Program Securities as in
the opinion of counsel for the Agents a prospectus relating to the Program
Securities is required by law to be delivered (or required to be delivered but
for Rule 172 under the Act) in connection with sales of the Program Securities
by any Agent or dealer); and
(f) it shall, pursuant to Rule 173 of the Act, provide, or cause its
selected dealers to provide, purchasers of Program Securities a notice required
thereby two business days following the completion of the sale.
9. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Agent and each
person, if any, who controls any Agent within the meaning of the Act against any
losses, claims, damages or liabilities, joint or several, to which such Agent or
such controlling person may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement or the Prospectus
(or in any amendment or supplement thereto), any applicable Free Writing
Prospectus or any applicable Time of Sale Information relating to the Program
Securities, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; and will, as such expenses are
incurred, reimburse each Agent and each such controlling person for any legal or
other expenses reasonably incurred by such Agent or such controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable to
an Agent or person controlling such Agent in any such case to the extent that
any such loss, claim,
23
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any such
documents in reliance upon and in conformity with written information furnished
to the Company by such Agent specifically for use therein; and provided further,
that with respect to any untrue statement or omission or alleged untrue
statement or omission made in any Time of Sale Information relating to the
Program Securities, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Agent (or to the benefit of any person
controlling such Agent) from whom the person asserting any such losses, claims,
damages or liabilities purchased the applicable Program Securities, to the
extent that any such loss, claim, damage or liability of such Agent or such
controlling person results from the fact that a copy of any subsequent Time of
Sale Information (which did not contain any such untrue statement or omission or
alleged untrue statement or omission) was delivered to such Agent by the Company
on a timely basis enabling such Agent so to send, give or make available a copy
of such subsequent Time of Sale Information in accordance with such Agent's
customary procedures. This indemnity agreement will be in addition to any
liability that the Company may otherwise have.
(b) Each Agent will indemnify and hold harmless the Company, each of its
directors, each of its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of the Act, against
any losses, claims, damages or liabilities to which the Company or any such
director, officer or controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement or
the Prospectus (or in any amendment or supplement thereto), any Free Writing
Prospectus or any Time of Sale Information relating to the Program Securities,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Agent specifically for use therein;
and will, as such expenses are incurred, reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action. This indemnity agreement will be in addition to any
liability that such Agent may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof, but the omission so to notify the indemnifying party will not relieve
it
24
from any liability that it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by such indemnifying party in connection with the defense
thereof other than reasonable costs of investigation.
(d) If recovery is not available under the foregoing indemnification
provisions of this Section, for any reason other than as specified therein, the
parties entitled to indemnification by the terms thereof shall be entitled to
contribution for liabilities and expenses, except to the extent that
contribution is not permitted under Section 11(f) of the Act. In determining the
amount of contribution to which the respective parties are entitled, there shall
be considered the relative benefits received by the Company on the one hand and
any Agent on the other from the offering by it pursuant to this Agreement of the
Program Securities that are the subject of the action (taking into account the
portion of the proceeds of the offering realized by each), the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission, as well as any other relevant equitable considerations. The Company
and the Agents agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation.
Notwithstanding the provisions of this subsection (d), no Agent shall be
required to contribute any amount in excess of the amount by which the
commissions or underwriting discounts received by such Agent relating to the
Program Securities that are the subject of the action and which were distributed
to the public through it pursuant to this Agreement or upon resale of Program
Securities purchased by it from the Company exceed the amount of any damages
that such Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. The Agents'
obligations to contribute are several in proportion to their respective
obligations hereunder and are not joint.
10. Status of Each Agent. In soliciting offers to purchase Program
Securities pursuant to this Agreement and in performing its other obligations
hereunder, each Agent is acting individually and not jointly with the other
Agents and, except as contemplated by Section 4, is acting solely as agent for
the Company and not as principal. Each Agent will make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Program Securities from the Company has been solicited by such
25
Agent and accepted by the Company, but shall have no liability to the Company in
the event any such purchase is not consummated. If the Company shall default in
the performance of its obligation to deliver Program Securities to a purchaser
whose offer it has accepted, the Company shall (i) hold each Agent harmless
against any loss, claim or damage arising from or as a result of such default
and (ii) pay to each Agent any commission to which it would have been entitled
had such Program Securities been delivered.
11. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and the Agents set forth in or made pursuant to this
Agreement or any Terms Agreement, as the case may be, will remain in full force
and effect, regardless of any investigation or statement as to the results
thereof made by or on behalf of any Agent, the Company or any of their
respective representatives, officers or directors or any controlling person and
will survive delivery of and payment for the Program Securities. If this
Agreement or any Terms Agreement is terminated pursuant to Section 12 or for any
other reason, the Company shall remain responsible for the expenses to be paid
or reimbursed by it pursuant to Section 5(i) to the extent actually incurred by
or committed to by an Agent to the date of such termination, the obligations of
the Company pursuant to Section 5(c) shall remain in effect until the settlement
of all pending deliveries of and payment for securities and the respective
obligations of the Company and the Agents pursuant to Section 9 and the
obligations of the Company pursuant to Section 5(e) shall remain in effect.
12. Termination. (a) The Company may elect to suspend or terminate the
offering of Program Securities under this Agreement at any time. The Company
also (as to any one or more of the Agents) or any Agent (as to itself) may
terminate the appointment and arrangements described in this Agreement. Such
actions may be taken, in the case of the Company, by giving prompt written
notice of suspension to all of the Agents and by giving not less than one day's
written notice of termination to all of the Agents, or, in the case of an Agent,
by giving not less than one day's written notice of termination to the Company.
The provisions of Sections 5(c), 5(e), 5(i), 9, and 11 hereof shall survive any
termination of this Agreement.
(b) Any Terms Agreement executed pursuant to Section 4(a) of this
Agreement shall be subject to termination, by notice given to the Company prior
to delivery of and payment for all the Program Securities, if (a) prior to such
time (i) trading in securities generally on the New York Stock Exchange shall
have been suspended or materially limited, (ii) trading in the common stock of
the Company on the New York Stock Exchange shall have been suspended, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by Federal or New York authorities or (iv) there shall have occurred
any outbreak of hostilities or escalation thereof or other calamity or crisis
having an adverse effect on the financial markets of the United States and (b)
the occurrence or consequences of any one or more of such events shall have,
26
in the judgment of JPMSI, made it impracticable to market the Program Securities
on the terms and in the manner contemplated by this Agreement, the Time of Sale
Information, any Free Writing Prospectus and the Prospectus. The provisions of
Sections 5(c), 5(e), 5(i), 9 and 11 hereof shall survive any termination of the
Terms Agreement.
(c) For the avoidance of doubt, in the event of termination of this
Agreement or any Terms Agreement with respect to any Agent, such Agent shall not
receive any compensation except in connection with a purchase by it of Program
Securities actually consummated, provided that the foregoing shall in no way
limit the provisions of Section 9, and that reimbursement by the Company to an
Agent of out-of-pocket accountable expenses actually incurred by such Agent and
to which such Agent is otherwise entitled as provided herein shall not be
prohibited.
13. Offering Restrictions. If any Program Securities are to be offered
outside the United States, you will not offer or sell any such Program
Securities in any jurisdiction if such offer or sale would not be in compliance
with any applicable law or regulation or if any consent, approval or permission
is needed for such offer or sale by you or for or on behalf of the Company
unless such consent, approval or permission has been previously obtained.
Subject to the obligations of the Company set forth in Section 5 of this
Agreement, the Company shall have no responsibility for, and you will obtain,
any consent, approval or permission required by you for the subscription, offer,
sale or delivery by you of Program Securities, or the distribution of any
offering materials, under the laws and regulations in force in any jurisdiction
to which you are subject or in or from which you make any subscription, offer,
sale or delivery.
14. Notices. Except as otherwise provided herein, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Company shall be directed to it at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Office of the Secretary (facsimile No. (000) 000-0000)
and notices to any Agent shall be directed to it at the address set forth in
Exhibit A hereto.
15. Governing Law; Counterparts. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York. This Agreement
may be executed in counterparts and the executed counterparts shall together
constitute a single instrument.
16. Modification. No amendment, modification, supplement or waiver in
respect of this Agreement will be effective unless pursuant to an instrument in
writing and signed by each of the parties to be bound hereby.
27
17. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement.
[Signatures Follow]
28
JPMORGAN CHASE & CO.
By: /s/ Xxxxx X. Xxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxxx Xxxxxxx
----------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
29
EXHIBIT A
Agent
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Transaction Execution Group, 7th Floor (facsimile No. (000) 000-0000)
A-1
EXHIBIT B
JPMORGAN CHASE & CO.
Global Medium-Term Notes, Series E
Global Warrants, Series E
Global Units, Series E
FORM OF AGENT ACCESSION LETTER
[date]
[Name of Agent]
[Address of Agent]
Ladies and Gentlemen:
JPMorgan Chase & Co., a Delaware corporation (the "Company"), has
previously entered into a Master Agency Agreement dated December 1, 2005 (the
"Master Agency Agreement"), among the Company and the other agents signatory
thereto (the "Existing 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 (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 and the Warrants, and any other securities that may
be offered by post-effective amendment to the Registration Statement, the
"Program Securities"). The Notes will be issued either alone or as part of a
Unit under the 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 Master Agency Agreement permits the Company to appoint one
or more additional persons to act as agent with respect to the Program
Securities, on terms substantially the same as those contained in the Master
Agency Agreement. A copy of the Master Agency Agreement, including the
Procedures with respect to the issuance of the Program Securities attached
thereto as Exhibit C, is attached hereto.
In accordance with Section 3(c) of the Master Agency Agreement we hereby
confirm that, with effect from the date hereof, you shall become a party to, and
an Agent under, the Master Agency Agreement, vested with all the authority,
rights and powers, and subject to all duties and obligations of an Agent as if
originally named as such under the Master Agency Agreement.
You represent and warrant that you are actually engaged in the investment
banking or securities business and that you are a member in good standing of the
B-1
National Association of Securities Dealers, Inc. ("NASD"). You agree that in
making sales of Program Securities, you will comply with all applicable rules of
the NASD, including without limitation, Rules 2720(l) and 2740 of the Conduct
Rules of the NASD (the "Rules"). You represent and warrant that you are fully
familiar with the above provisions of the Rules. You further represent, by your
participation in an offering of the Program Securities, that you have provided
to us all documents and other information required to be filed with respect to
you, any related person or any person associated with you or any such related
person pursuant to Section (b)(6) of NASD Rule 2710 (the "Financing Rule") as
such requirements relate to such offering, including, but not limited to
information with respect to (x) any arrangement during the period beginning 180
days immediately preceding the required filing date of an offering and through
the pricing date (the "Survey Period"), which arrangement provides for the
receipt of any item of value or the transfer of any warrants, options, or other
securities from the Company to you or your related person(s), (y) any
acquisitions of unregistered equity securities of the Company by you or your
related person(s) during the Survey Period, or (z) any new arrangement that
provides for the receipt of any additional item of value by you or your related
person(s) between the pricing date of an offering and the date ending 90 days
immediately thereafter. Terms used in clauses (x), (y) and (z) of the previous
sentence and not otherwise defined shall have the respective meanings given to
them in the Financing Rule.
You represent that you understand the requirements of NASD
Notice-to-Members 88-101 relating to participation by NASD members in shelf
offerings. You agree that, in connection with any purchase of securities from us
that is not otherwise covered by the terms of this letter, if a selling
concession, discount or other allowance is granted to you, you will comply with
Rule 2740 of the NASD Conduct Rules.
You agree that in selling Program Securities pursuant to any offering
(which agreement shall also be for the benefit of the Company or other seller of
such Program Securities) you will comply with all applicable rules and
regulations, including the applicable provisions of the Act and the Exchange
Act, the applicable rules and regulations of the Commission thereunder, the
applicable rules and regulations of the NASD, the applicable rules and
regulations of any securities exchange having jurisdiction over the offering,
including Rule 15c2-8 of the Exchange Act, NASD Rule 2310, NYSE Rule 405 and any
other laws, rules or regulations regarding distribution of Prospectuses,
suitability or diligence to accounts.
Except as otherwise expressly provided herein, all terms used herein which
are defined in the Master Agency Agreement shall have the same meanings as in
the Master Agency Agreement. Your obligation to act as Agent hereunder shall be
subject to you having received copies of the most recent documents (including
any prior documents referred to therein) previously delivered to the Existing
Agents pursuant to Sections 6 and 7 of the Master Agency Agreement. By your
signature below, you confirm that such documents are to your satisfaction. For
purposes of Section 14 of the Master Agency Agreement, you confirm that your
notice details are as set forth immediately beneath your signature.
B-2
Each of the parties to this letter agrees to perform its respective duties
and obligations specifically provided to be performed by each of the parties in
accordance with the terms and provisions of the Master Agency Agreement and the
Procedures, as amended or supplemented hereby.
Notwithstanding anything in the Master Agency Agreement to the contrary,
the obligations of each of the Existing Agents and the Additional Agent(s) under
Section 9 of the Master Agency Agreement are several and not joint, and in no
case shall any Existing Agent or Additional Agent (except as may be provided in
any agreement among them) be responsible under Section 9(d) to contribute any
amount in excess of the commissions received by such Existing Agent or
Additional Agent from the offering of the Program Securities.
This Agreement shall be governed by the laws of the State of New York.
This Agreement may be executed in one or more counterparts and the executed
counterparts taken together shall constitute one and the same agreement.
If the foregoing correctly sets forth the agreement among the parties
hereto, please indicate your acceptance hereof in the space provided for that
purpose below.
B-3
Very truly yours,
JPMORGAN CHASE & CO.
By
-------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of the
date first above written
[Insert name of Additional Agent and information pursuant
to Section 14 of the Master Agency Agreement]
X-0
XXXXXXX X
XXXXXXXX XXXXX & XX.
XXXXXX MEDIUM-TERM NOTES, SERIES E
GLOBAL WARRANTS, SERIES E
GLOBAL UNITS, SERIES E
ADMINISTRATIVE PROCEDURES
December 1, 2005
The offering of Global Medium-Term Notes, Series E, due more than nine
months from the date of issue (the "Notes"), Global Warrants, Series E (the
"Warrants") and Global Units, Series E (the "Units" and, together with the Notes
and the Warrants and any other securities that may be offered by post-effective
amendment to the Registration Statement referred to below, the "Program
Securities") are to be offered on a continuing basis by JPMorgan Chase & Co.
(the "Company"). Pursuant to the Company's Master Agency Agreement dated
December 1, 2005 (the "Master Agency Agreement") between the Company and the
Agents to which these administrative procedures are attached as an exhibit,
certain firms and corporations (each an "Agent" and collectively the "Agents")
have agreed, as agents of the Company, to solicit purchases of the Program
Securities issued in fully registered form. The Program Securities are being
sold by the Company to the Agents pursuant to the Master Agency Agreement and,
if applicable, one or more terms agreements substantially in the form attached
to the Master Agency Agreement as Exhibit D, D-1, and D-2 (each a "Terms
Agreement"). The Program Securities have been registered with the Securities and
Exchange Commission (the "Commission"). The Notes will be issued, either alone
or as part of a Unit, under the Indenture dated as of May 25, 2001, as amended
from time to time, (as may be supplemented or amended from time to time, the
"Indenture"), between the Company and Deutsche Bank Trust Company Americas
(formerly known as Bankers Trust Company) ("Deutsche Bank"), as trustee (the
"Trustee"). Capitalized terms not otherwise defined in these Procedures shall
have the meanings ascribed to them in the Master Agency Agreement.
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, substantially in the form of one of the
agreements filed as an exhibit to the Registration Statement referred to below
(each a "Warrant Agreement").
The Units will be issued pursuant to a Unit Agreement among the Company
and a unit agent to be appointed by the Company substantially in the form of the
agreement filed as an exhibit to the Registration Statement (each a "Unit
Agreement"). Units may include one or more (i) Notes, (ii) Warrants or (iii) any
combination thereof. The applicable Term Sheet will specify whether the Notes
and/or Warrants comprised by a Unit may or may not be separated from the Unit.
C-1
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.
JPMorgan Chase Bank, National Association ("JPMorgan Chase Bank") will be
the Registrar, Transfer Agent, Authenticating Agent and Paying Agent for the
Notes, and will perform the duties specified herein. For the purposes of these
Administrative Procedures, JPMorgan Chase Bank shall also refer to any designee
of JPMorgan Chase Bank under the Paying Agent, Registrar, Transfer Agent and
Authenticating Agreement. Each Note, each Warrant and each Unit will be
represented by, in the case of the Notes, a Global Note, in the case of the
Warrants, a Global Warrant, and in the case of the Units, a Global Unit (each as
defined below) delivered to JPMorgan Chase Bank, as agent for The Depository
Trust Company ("DTC"), and recorded in the book-entry system maintained by DTC
(in the case of a Note, a "Book-Entry Note," in the case of a Warrant, a
"Book-Entry Warrant," and, in the case of a Unit, a "Book-Entry Unit"). Each
Note or Warrant or other Program Security which may be included in any Unit will
be issued in the corresponding global form. Except as set forth in the
Indenture, in the case of Notes, any Warrant Agreement, in the case of Warrants
or any Unit Agreement, in the case of Units, an owner of a Book-Entry Note,
Book-Entry Warrant or Book-Entry Unit (or of any Note or Warrant included in
such Book-Entry Unit), as the case may be, will not be entitled to receive a
Certificated Note (including with respect to a Book-Entry Note included in a
Book-Entry Unit), a Certificated Warrant (including with respect to a Book-Entry
Warrant included in a Book-Entry Unit) or a Certificated Unit.
The procedures to be followed during, and the specific terms of, the
solicitation of orders by the Agents and the sale as a result thereof by the
Company are explained below. The Company will advise the Agents and JPMorgan
Chase Bank in writing of those persons handling administrative responsibilities
with whom the Agents and JPMorgan Chase Bank are to communicate regarding orders
to purchase the Program Securities and the details of their delivery.
Administrative procedures and specific terms of the offering are explained
below. Book-Entry Notes, Book-Entry Warrants and Book-Entry Units, which may be
payable in either U.S. dollars or other specified currencies, will be issued in
accordance with the administrative procedures set forth herein as they may
subsequently be amended as the result of changes in DTC's operating procedures.
Unless otherwise defined herein, terms defined in the Indenture, any Warrant
Agreement, the Unit Agreement, the Notes, the Warrants and the Units shall be
used herein as therein defined. The Company will advise the Agent in writing of
the employees of the Company with whom the Agent is to communicate regarding
offers to purchase Program Securities and the related settlement details. To the
extent the procedures set forth below conflict with the provisions of the
Program Securities, the Indenture, any Warrant Agreement, the Unit Agreement,
DTC's operating requirements or the Master Agency Agreement, the relevant
provisions of the Program Securities, the Indenture, any Warrant Agreement, the
Unit Agreement, DTC's operating requirements and the Master Agency Agreement
shall control.
C-2
ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES, BOOK-ENTRY
WARRANTS AND BOOK-ENTRY UNITS
In connection with the qualification of the Book-Entry Notes, Book-Entry
Warrants or Book-Entry Units for eligibility in the book-entry system maintained
by DTC, JPMorgan Chase Bank will perform the custodial, document control and
administrative functions described below. JPMorgan Chase Bank will perform such
functions in accordance with (i) its obligations under a Letter of
Representations from the Company to DTC dated as of May 23, 2002, and (ii) its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS").
Issuance: Unless otherwise specified in any Prospectus, Time
of Sale Information or Free Writing Prospectus on
any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry
Notes, one or more Book-Entry Warrants or one or
more Book-Entry Units, the Company will issue, in
the case of the Notes, a single global Note in
fully registered form without coupons (a "Global
Note") representing up to U.S. $500,000,000
principal amount of all such Notes that have the
same Original Issue Date, Maturity Date and other
terms, and, in the case of the Warrants, a single
global Warrant in fully registered form (a "Global
Warrant"), with a notional amount of up to U.S.
$500,000,000 that have the same Exercise Price,
Exercise Date, Exercise Period, Expiration Date
and other terms, and in the case of Units, a
single global unit in fully registered form (a
"Global Unit"), representing up to U.S.
$500,000,000 face amount that have the same
Original Issue Date and that otherwise comprise
the same securities and have the same terms. Each
Global Note and each Global Warrant, whether
issued alone or as part of a Unit, will be dated
and issued as of the date of its authentication,
or countersignature as the case may be, by
JPMorgan Chase Bank and each Global Unit will be
dated and issued as of the date of the issuances
of the other securities comprised by such Unit.
Each Global Note, whether issued alone or as part
of a Unit, will bear an "Interest Accrual Date,"
which will be (i) with respect to an original
Global Note (or any portion thereof), its original
issuance date and (ii) with respect to any Global
Note (or any portion thereof) issued subsequently
upon exchange of a Global Note, or in lieu of a
destroyed, lost or
C-3
stolen Global Note, the most recent Interest
Payment Date to which interest has been paid or
duly provided for on the predecessor Global Note
or Notes (or if no such payment or provision has
been made, the original issuance date of the
predecessor Global Note), regardless of the date
of authentication of such subsequently issued
Global Note. Book-Entry Notes, Book-Entry Warrants
and Book-Entry Units may be payable in either U.S.
dollars or other specified currencies. No Global
Note, Global Warrant or Global Unit will
represent, any Certificated Note, Certificated
Warrant or Certificated Unit, as the case may be.
Preparation of Term Sheet: If any order to purchase a Book-Entry Note,
Book-Entry Warrant or Book-Entry Unit is accepted
by or on behalf of the Company, the Company will
prepare a preliminary or final term sheet (a "Term
Sheet") reflecting the terms of such Note, Warrant
or Unit. The Company (i) will arrange to file an
electronic format document, in the manner
prescribed by the XXXXX Xxxxx Manual, of such Term
Sheet with the Commission as required by Rule 433
under the Securities Act, and with respect to the
Term Sheet setting forth the final terms of the
Book-Entry Note, Book-Entry Warrant or Book-Entry
Unit, as applicable, in accordance with the
applicable paragraph of Rule 424(b) under the
Securities Act and (ii) will, as soon as possible
and in any event not later than the date on which
such Term Sheet is filed with the Commission,
deliver the number of copies of such Term Sheet to
the Agent as the Agent shall request. The Agent
will cause such Term Sheet to be delivered, or
otherwise made available, to the purchaser of the
Note, Warrant or Unit.
In each instance that a Term Sheet is prepared,
the Agent will affix the Term Sheet to
Prospectuses, product supplements and any other
Time of Sale Information prior to their use.
Outdated Term Sheets, and the Prospectuses and
product supplements and any other Time of Sale
Information to which they are attached (other than
those retained for files), will be destroyed.
Note Maturities: Each Book-Entry Note will mature on a date not
less than nine months or more than thirty years
after
C-4
the Original Issue Date for such Note.
Denominations: Unless otherwise specified in the applicable Term
Sheet, Book-Entry Notes will be issued in
principal amounts of U.S. $1,000 or any amount in
excess thereof that is an integral multiple of
U.S. $1,000 or, if such Book-Entry Notes are
issued in a currency other than U.S. dollars,
principal amounts of such currency in
denominations of the equivalent of U.S. $1,000
(rounded to an integral multiple of 1,000 units of
such currency), unless otherwise indicated in the
applicable Term Sheet. Global Notes, Global
Warrants and Global Units will be denominated in,
in the case of Global Notes, principal amounts not
in excess of U.S. $500,000,000, in the case of
Global Warrants, in aggregate notional amounts not
to exceed U.S. $500,000,000, and, in the case of
Global Units, in aggregate face amounts not to
exceed U.S. $500,000,000. If one or more
Book-Entry Notes having an aggregate principal
amount in excess of U.S. $500,000,000, or one or
more Book-Entry Warrants having an aggregate
notional amount in excess of U.S. $500,000,000, or
one or more Book-Entry Units having an aggregate
face amount in excess of U.S. $500,000,000 would,
but for the preceding sentence, be represented by
a single Global Note, Global Warrant or Global
Unit, as the case may be, then one Global Note
will be issued to represent each U.S. $500,000,000
principal amount of such Book-Entry Note or Notes,
one Global Warrant will be issued to represent
each aggregate notional amount of U.S.
$500,000,000 of such Book-Entry Warrant or
Warrants, and one Global Unit will be issued to
represent each aggregate face amount of U.S.
$500,000,000 of such Book-Entry Unit or Units and
an additional Global Note, Global Warrant or
Global Unit, will be issued to represent any
remaining principal amount of such Book-Entry Note
or Notes, aggregate notional amount of such
Book-Entry Warrant or Warrants or aggregate face
amount of such Book-Entry Unit or Units. In such a
case, each of the Global Notes, Global Warrants or
Global Units representing such Book-Entry Note or
Notes, such Book-Entry Warrant or Warrants, or
such Book-Entry Unit or Units, as the case may be,
C-5
shall be assigned the same CUSIP number.
Delivery of Subject to "Suspension of Solicitation; Amendment
Confirmation and or Supplement" below, each Agent and participating
Prospectus, Product dealer, pursuant to the terms of the Master Agency
Supplement and Term Agreement and as herein described, will cause to
Sheet to Purchaser be delivered, or otherwise made available, a copy
by each Agent: of the Prospectus, including the applicable
product supplement and Term Sheet, to each
purchaser of Program Securities from such Agent or
Dealer.
For each offer to purchase a Program Security
solicited by any Agent and accepted by or on
behalf of the Company, such Agent or a
broker-dealer that has executed a selected dealer
agreement with such Agent will provide a
confirmation to the purchaser, setting forth the
details described above and delivery and payment
instructions, as well as the notice of allocation
information required by Rule 173 under the
Securities Act within 2 days after the terms of
the Program Securities become final.
In addition, such Agent will deliver to purchasers
of the Program Securities the Prospectus, product
supplement, Term Sheet and any other Time of Sale
Information, in relation to such Program Security
to any purchaser of the Program Securities who so
requests.
Suspension of Subject to the Company's representations,
Solicitation; warranties and covenants contained in the Master
Amendment or Agency Agreement, the Company may instruct the
Supplement: Agents to suspend at any time, for any period of
time or permanently, the solicitation of orders to
purchase Book-Entry Notes, Book-Entry Warrants or
Book-Entry Units. Upon receipt of such
instructions, the Agents will forthwith suspend
solicitation until such time as the Company has
advised them that such solicitation may be
resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any
orders outstanding for settlement, the Company
will promptly advise the Agents and JPMorgan Chase
Bank whether such orders may be settled and
whether copies of the Prospectus as in effect at
the
C-6
time of the suspension, together with the
appropriate product supplement, Term Sheet or any
other Time of Sale Information, may be delivered
in connection with the settlement of such orders.
The Company will have the sole responsibility for
such decision and for any arrangement that may be
made in the event that the Company determines that
such orders may not be settled or that copies of
such Prospectus, product supplement, Term Sheet or
any other Time of Sale Information, may not be so
delivered.
If the Company decides to amend or supplement the
Registration Statement (as defined in the Master
Agency Agreement) or the Prospectus or any product
supplement, Term Sheet or any other Time of Sale
Information, it will promptly advise the Agents
and furnish the Agents with the proposed amendment
or supplement and with such certificates and
opinions as are required, all to the extent
required by and in accordance with the terms of
the Master Agency Agreement. Subject to the
provisions of the Master Agency Agreement, the
Company may file with the Commission any such
supplement or any product supplement to the
Prospectus relating to the Program Securities. The
Company will provide the Agents and JPMorgan Chase
Bank with copies of any such supplement, and
confirm to the Agents that such supplement has
been filed with the Commission pursuant to the
applicable paragraph of Rule 424(b).
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry Note,
a Book-Entry Warrant or a Book-Entry Unit and, in
the case of the Note, the authentication and
issuance of the Global Note representing such
Note, in the case of the Warrant, the
countersigning and issuance of the Global Warrant
representing such Warrant or, in the case of the
Unit, the completion and issuance of the Global
Unit representing such Unit (and of each security
comprised by such Unit) shall constitute
"settlement" with respect to such Note, Warrant or
Unit, as the case may be. All orders accepted by
the Company will be settled on the third Business
Day pursuant to the timetable for settlement set
forth below unless the Company and
C-7
the purchaser agree to settlement on another day
as set out in the applicable Prospectus, Time of
Sale Information or Free Writing Prospectus, which
shall be no earlier than the next Business Day.
Settlement Procedures: Unless otherwise specified in any Prospectus, Time
of Sale Information or Free Writing Prospectus,
settlement procedures with regard to each
Book-Entry Note, each Book-Entry Warrant and each
Book-Entry Unit sold by the Company to or through
the Agent (unless otherwise specified pursuant to
a Terms Agreement), shall be as follows:
A. In the case of a Book-Entry Note (whether
issued alone or as part of a Unit), the
Agent will advise the Company by telephone
that such Note is a Book-Entry Note and of
the following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry
Note, the Interest Rate, whether such
Note will pay interest annually or
semiannually and whether such Note is
an Amortizing Note, and, if so, the
amortization schedule, or, in the case
of a Floating Rate Book-Entry Note,
the Initial Interest Rate (if known at
such time), Interest Payment Date(s),
Interest Payment Period, Calculation
Agent, Base Rate, Index Maturity,
Index Currency, Interest Reset Period,
Initial Interest Reset Date, Interest
Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest
Rate (if any), Maximum Interest Rate
(if any) and the Alternate Rate Event
Spread (if any).
4. Redemption or repayment provisions, if
any.
5. Ranking.
6. Settlement date and time (Original
Issue Date).
C-8
7. Interest Accrual D ate.
8. Price.
9. Agent's commission, if any.
10. Specified Currency.
11. Whether the Note is an Original Issue
Discount Note (an "OID Note"), and if
it is an OID Note, the applicability
of Modified Payment upon Acceleration
(and, if so, the Issue Price).
12. Whether the Note is a Renewable Note,
and if it is a Renewable Note, the
Initial Maturity Date, the Final
Maturity Date, the Election Dates and
the Maturity Extension Dates.
13. Whether the Company has the option to
reset the Spread or Spread Multiplier
of the Note.
14. Whether the Note is an Optionally
Exchangeable Note, a Mandatorily
Exchangeable Note, or any form of
exchangeable Note.
15. Any other applicable provisions.
B. In the case of a Book-Entry Warrant (whether
issued alone or as part of a Unit), the
Agent will advise the Company by telephone
that such Warrant is a Book-Entry Warrant
and of the following settlement information:
1. Designation of the Series of Warrants:
[Call][Put] Warrants.
2. Warrant Property.
3. Aggregate Number of Warrants.
4. Price to Public.
5. Warrant Exercise Price.
6. Agent's commission, if any.
7. Dates upon which Warrants may be
exercised.
8. Expiration Date.
C-9
9. Form.
10. Currency in which exercise payments
shall be made.
11. Minimum number of Warrants exercisable
by any holder on any day.
12. Maximum number of Warrants exercisable
on any day: [In the aggregate] [By any
beneficial owner].
13. Formula for determining Cash
Settlement Value.
14. Exchange Rate (or method of
calculation).
15. Whether the Company or the holder is
the writer of the Warrant.
16. Any other applicable provisions.
C. In the case of a Book-Entry Unit, the Agent
will advise the Company by telephone that
such Unit is a Book-Entry Unit, of the
information set forth in Settlement
Procedures "A" above with respect to any
Book-Entry Notes that constitute a part of
such Book-Entry Unit, of the information set
forth in Settlement Procedures "B" above
with respect to any Book-Entry Warrants that
constitute a part of such Book-Entry Unit
and of the following information:
1. Face Amount.
2. Agent's commission, if any
3. Designation of the Securities
comprised by such Units:
a. Notes (See Settlement Procedures
"A" ) and
b. Warrants (See Settlement
Procedures "B").
4. Whether, and the terms under which,
the Securities comprised by such Unit
will be separately tradeable.
C-10
5. Any other provisions applicable to the
Unit (other than those provisions
applicable to the securities comprised
by such Unit).
D. The Company will advise JPMorgan Chase Bank
by telephone or electronic transmission
(confirmed in writing at any time on the
same date) of the information set forth in
"Settlement Procedures" "X," "X" and "C"
above, as applicable, such advice to contain
a representation as to the aggregate
offering price of Program Securities
permitted to be issued hereunder after such
issuance. JPMorgan Chase Bank will then
assign a CUSIP number to the Global Note
representing a Note, whether issued alone or
as part of a Unit, and will notify the
Company and the Agent of such CUSIP
number(s) by telephone as soon as
practicable, except that for Optionally
Exchangeable and Mandatorily Exchangeable
Notes the Agent will obtain a CUSIP number
for the Global Note representing such Note
and will notify the Company and JPMorgan
Chase Bank of such CUSIP number(s) by
telephone as soon as practicable. The Agent
will obtain a CUSIP number for (i) the
Global Warrant representing a Warrant,
whether issued alone or as part of a Unit,
and (ii) the Global Unit representing a
Unit, and, in each case will notify the
Company and JPMorgan Chase Bank of such
CUSIP number(s) by telephone as soon as
practicable.
E. JPMorgan Chase Bank will enter a pending
deposit message through DTC's Participant
Terminal System, providing the following
settlement information to DTC, the Agent and
Standard & Poor's Corporation:
1. The information set forth in
"Settlement Procedure" "X," "X"
and "C" above, as applicable.
2. The Initial Interest Payment
Date for the Notes, whether
issued alone or as part of a
Unit, the number of days by
C-11
which such date succeeds the
related DTC Record Date and, if
known, the amount of interest
payable on such Initial Interest
Payment Date.
3. The CUSIP number of the Global
Note (whether issued alone or as
part of a Unit), Global Warrant
(whether issued alone or as part
of a Unit) and Global Unit, as
applicable.
4. Whether the Global Note, Global
Warrant or Global Unit will
represent any other Book-Entry
Note, Book-Entry Warrant or
Book-Entry Unit, as the case may
be (to the extent known at such
time).
5. The number of Participant
accounts to be maintained by DTC
on behalf of the Agent and
JPMorgan Chase Bank.
F. JPMorgan Chase Bank will, as applicable,
authenticate, complete and deliver the
Global Note representing the Note,
countersign and deliver the Global Warrant
representing the Warrant, and complete the
Global Unit representing the Unit
(including, as applicable, by
authenticating, completing and delivering
any Global Note or by countersigning and
delivering any Global Warrant included in
such Unit).
G. DTC will credit such Note, Warrant or Unit
to JPMorgan Chase Bank's participant account
at DTC.
H. JPMorgan Chase Bank will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC to (i) debit
the Note, Warrant or Unit, as the case may
be, to JPMorgan Chase Bank's participant
account and credit such Note, Warrant or
Unit to the Agent's participant account and
(ii) debit the Agent's settlement account
and credit JPMorgan Chase Bank's settlement
account for an amount equal to the price of
such Note, Warrant or Unit, as the case may
be, less the Agent's
C-12
commission, if any. The entry of such a
deliver order shall constitute a
representation and warranty by JPMorgan
Chase Bank to DTC that the Global Note
representing a Book-Entry Note has been
issued and authenticated, the Global Warrant
representing a Book-Entry Warrant has been
countersigned and delivered, or a Global
Unit representing a Book-Entry Unit has been
completed.
I. Unless the Agent is the end purchaser of a
Note, Warrant or Unit, the Agent will enter
an SDFS deliver order through DTC's
Participant Terminal System instructing DTC
(i) to debit such Note, Warrant or Unit to
the Agent's participant account and credit
such Note, Warrant or Unit to the
participant accounts of the Participants
with respect to such Note, Warrant or Unit
and (ii) to debit the settlement accounts of
such Participants and credit the settlement
account of the Agent for an amount equal to
the price of such Note, Warrant or Unit.
J. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "H" and "I" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
K. JPMorgan Chase Bank will credit to the
account of the Company maintained at
JPMorgan Chase Bank, New York, New York, in
funds available for immediate use in the
amount transferred to JPMorgan Chase Bank in
accordance with "Settlement Procedure" "H".
L. Unless the Agent is the end purchaser of the
Note, Warrant or Unit, the Agent will
confirm the purchase of such Note, Warrant
or Unit to the purchaser either by
transmitting to the Participants with
respect to such Note, Warrant or Unit a
confirmation order or orders through DTC's
institutional delivery system or by mailing
a written confirmation to such purchaser.
C-13
M. Monthly, JPMorgan Chase Bank will send to
the Company a statement setting forth the
principal amount of Notes outstanding as of
that date under the Indenture, in the case
of Warrants, the aggregate notional amount
of Warrants outstanding as of that date
under any Warrant Agreement, or, in the case
of Units, the aggregate face amount of Units
outstanding as of that date, under the Unit
Agreement, and setting forth a brief
description of any sales of which the
Company has advised JPMorgan Chase Bank that
have not yet been settled.
Settlement Procedures Unless otherwise specified in any Prospectus, Time
Timetable: of Sale Information or Free Writing Prospectus,
for sales by the Company of Book-Entry Notes,
Book-Entry Warrants or Book-Entry Units to or
through the Agent (unless otherwise specified
pursuant to a Terms Agreement) for settlement on
the first Business Day after the sale date,
Settlement Procedures "A" through "L" set forth
above shall be completed as soon as possible but
not later than the respective times in New York
City set forth below:
Settlement
Procedure Time
---------- ----
A 11:00 A.M. on the sale date
B 11:00 A.M. on the sale date
C 11:00 A.M. on the sale date
D 12:00 Noon on the sale date
E 2:00 P.M. on the sale date
F 9:00 A.M. on the settlement date
G 10:00 A.M. on the settlement date
H-I 2:00 P.M. on the settlement date
J 4:45 P.M. on the settlement date
K-L 5:00 P.M. on the settlement date
If a sale is to be settled more than one Business
Day after the sale date, Settlement Procedures
"A", "B", "C", "D" and "E" shall be completed as
soon as practicable but no later than
C-14
11:00 A.M., 11:00 A.M., 11:00 A.M., 12 Noon and
2:00 P.M., respectively, on the first Business Day
after the sale date. If the Initial Interest Rate
for a Floating Rate Book-Entry Note, whether
issued alone or as part of a Unit, has not been
determined at the time that "Settlement Procedure"
"A" is completed, "Settlement Procedure" "D" and
"E" shall be completed as soon as such rate has
been determined but no later than 12 Noon and 2:00
P.M., respectively, on the Business Day before the
settlement date. "Settlement Procedure" "J" is
subject to extension in accordance with any
extension of Fedwire closing deadlines and in the
other events specified in the SDFS operating
procedures in effect on the settlement date.
If settlement of a Book-Entry Note, Book-Entry
Warrant or a Book-Entry Unit is rescheduled or
canceled, JPMorgan Chase Bank, after receiving
notice from the Company or the Agent, will deliver
to DTC, through DTC's Participant Terminal System,
a cancellation message to such effect by no later
than 2:00 P.M. on the Business Day immediately
preceding the scheduled settlement date.
Failure to Settle: If JPMorgan Chase Bank fails to enter an SDFS
deliver order with respect to a Book-Entry Note,
Book-Entry Warrant or a Book-Entry Unit pursuant
to Settlement Procedure "H", JPMorgan Chase Bank
may upon the written request of the Company
deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal
message instructing DTC to debit such Note,
Warrant or Unit to JPMorgan Chase Bank's
participant account, provided that JPMorgan Chase
Bank's participant account contains a principal
amount of the Global Note representing such Note,
an aggregate notional amount of the Global Warrant
representing such Warrant, or an aggregate face
amount of the Global Unit representing such Unit
that is at least equal to the principal amount,
notional amount or face amount to be debited. If a
withdrawal message is processed with respect to
all the Book-Entry Notes represented by a Global
Note, all the Book-Entry Warrants represented by a
Global Warrant or all the Book-Entry Units
represented by a Global Unit, JPMorgan Chase Bank
will xxxx such Global Note, Global Warrant or
Global Unit "canceled," make appropriate entries
in JPMorgan Chase Bank's records and send such
canceled Global Note, Global Warrant or Global
Unit to the Company. The CUSIP number assigned to
such Global Note, Global Warrant or Global Unit
shall, in accordance with the procedures of the
CUSIP Service
C-15
Bureau of Standard & Poor's Corporation, be
canceled and not immediately reassigned. If a
withdrawal message is processed with respect to
one or more, but not all, of the Book-Entry Notes
represented by a Global Note, with respect to one
or more, but not all, of the Book-Entry Warrants
represented by a Global Warrant, or with respect
to one or more, but not all, of the Book-Entry
Units represented by a Global Unit, JPMorgan Chase
Bank will exchange such Global Note, Global
Warrant or Global Unit, as the case may be, for
two Global Notes, for two Global Warrants or for
two Global Units, as the case may be, one of which
shall represent such Book-Entry Note or Notes,
such Book-Entry Warrant or Warrants or such
Book-Entry Unit or Units and shall be canceled
immediately after issuance and the other of which
shall represent the remaining Book-Entry Notes,
Book-Entry Warrants or Book-Entry Units previously
represented by the surrendered Global Note, Global
Warrant or Global Unit and shall bear the CUSIP
number of the surrendered Global Note, Global
Warrant or Global Unit.
If the purchase price for any Book-Entry Note,
Book-Entry Warrant or Book-Entry Unit is not
timely paid to the Participants with respect to
such Note, Warrant or Unit by the beneficial
purchaser thereof (or any person, including an
indirect participant in DTC, acting on behalf of
such purchaser), such Participants and, in turn,
the Agent may enter SDFS deliver orders through
DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures
"H" and "I", respectively. Thereafter, JPMorgan
Chase Bank will deliver the withdrawal message and
take the related actions described in the
preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note,
Book-Entry Warrant or Book-Entry Unit, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect.
In the event of a failure to settle with respect
to one or more, but not all, of the Book-Entry
Notes, Book-Entry Warrants or Book-Entry Units to
have been represented by a Global Note, a Global
Warrant or a Global Unit, as the case may be,
JPMorgan Chase Bank will provide, in accordance
with Settlement Procedures "F" and "H", for the
authentication and issuance of a Global Note
representing the Book-Entry Notes to be
represented by such Global Note, for the issuance
of a Global
C-16
Warrant representing the Book-Entry Warrants to be
represented by such Global Warrant and for the
issuance of a Global Unit representing the
Book-Entry Units to be represented by such Global
Unit and, in each case, will make appropriate
entries in its records.
X-00
XXXXXXX X
XXXXXXXX XXXXX & XX.
XXXXXX MEDIUM-TERM NOTES, SERIES E
NOTES TERMS AGREEMENT
__________________, 200_
JPMorgan Chase & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention:
Re: Master Agency Agreement dated December 1, 2005 (the "Master Agency
Agreement")
------------------------------------------------------------------
The undersigned agrees to purchase your Global Medium-Term Notes, Series
E, [specified designation] having the terms set forth below:
Notwithstanding item 1 below, the Offering will be made pursuant to a
prospectus dated December 1, 2005, as amended by a prospectus supplement dated
December 1, 2005, a product supplement no. [ ] dated [ ] and a final term sheet
or pricing supplement which we expect to be dated on or about [ ]. The Notes are
expected to have the terms described below, but the final terms of the Notes
will be those set forth in the applicable final term sheet or pricing
supplement.
All Notes Fixed Rate Notes Floating Rate Notes
-------------------------------------------------------------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Price to Public: If yes, state issue price: Index Currency:
Settlement Date Amortization Schedule: Spread (Plus or
and Time: Minus):
Place of Delivery: Applicability of Annual Spread Multiplier:
Interest Payments:
Specified Currency: Denominated Currency (if any): Alternate Rate
Event Spread:
Original Issue Date: Indexed Currency or Initial Interest
D-1
All Notes Fixed Rate Notes Floating Rate Notes
-------------------------------------------------------------------------------
Currencies (if any): Rate:
Interest Accrual Date: Payment Currency (if any): Initial Interest
Reset Date:
Interest Payment Dates: Exchange Rate Agent (if any): Interest Reset Dates:
Interest Payment Period: Reference Dealers: Interest Reset Period:
Maturity Date: Face Amount (if any): Maximum Interest Rate:
Optional Repayment Fixed Amount of each Indexed Minimum Interest Rate:
Date(s): Currency (if any):
Optional Redemption Aggregate Fixed Amount of Calculation Agent:
Date(s): each Indexed Currency
(if any):
Initial Redemption Date: Applicability of Issuer's Reporting Service:
Option to Extend Original
Maturity Date:
Initial Redemption If yes, state Final
Percentage: Maturity Date:
Annual Redemption
Percentage Reduction:
Ranking:
Minimum Denominations:
Other Provisions:
1. The aggregate principal amount of the notes offered that the Agent is
hereby committed to place on the Settlement Date is _______________.
By completing Item 1 above, the Agent agrees to place the entire Aggregate
Principal Amount of the Notes as set forth in Item 1 within the Offering Period
specified above and in accordance with the Selected Dealer Agreement. If Item 1
is not completed, the Agent is not obligated to place any amount of Notes.
The Agents' obligation to purchase any Program Securities hereunder is
subject to the accuracy of, at the time of such purchase, the Company's
representations and warranties contained in the Master Agency Agreement and to
the Company's performance and observance of all applicable covenants and
agreements contained therein, and the satisfaction of all conditions precedent
contained therein, including, without limitation, those pursuant to Sections 6
and 7 thereof. The delivery of the following additional documents will also be
D-2
required by the Agents: [insert additional documents to be delivered pursuant to
Section 4].
Except as otherwise expressly provided herein, all terms used herein which
are defined in the Master Agency Agreement shall have the same meanings as in
the Master Agency Agreement.
The undersigned agrees to perform its duties and obligations specifically
provided to be performed by the Agents in accordance with the terms and
provisions of the Master Agency Agreement and the Procedures, as amended or
supplemented hereby.
This Agreement shall be subject to the termination provisions of Section
12 of the Master Agency Agreement.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. This Agreement may be executed in one or more
counterparts and the executed counterparts taken together shall constitute one
and the same agreement.
D-3
X.X. XXXXXX SECURITIES INC.,
By:
-------------------------------
Name:
Title:
Accepted:
JPMORGAN CHASE & CO.
By:
-------------------------------
Name:
Title:
X-0
XXXXXXX X-0
XXXXXXXX XXXXX & XX.
XXXXXX XXXXXXXX, SERIES E
WARRANTS TERMS AGREEMENT
___________________, 200_
JPMorgan Chase & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention:
Re: Master Agency Agreement dated December 1, 2005 (the "Master Agency
Agreement")
------------------------------------------------------------------
The undersigned agrees to purchase your Global Warrants, Series E,
[specified designation] having the terms set forth below:
Notwithstanding item 1 below, the Offering will be made pursuant to a
prospectus dated December 1, 2005, as amended by a prospectus supplement dated
December 1, 2005, a product supplement no. [ ] dated [ ] and a final term sheet
or pricing supplement which we expect to be dated on or about [ ]. The Warrants
are expected to have the terms described below, but the final terms of the
Warrants will be those set forth in the applicable final term sheet or pricing
supplement.
Warrants:
--------------------------------------------------------------------------------
Designation of the Series of Warrants: [Call] [Put] Warrants
Warrant Property:
Aggregate Number of Warrants:
Date(s) upon which Warrants may be exercised:
Currency in which exercise payments shall be made:
Exchange Rate (or method of calculation:
Expiration Date:
Form of Settlement:
D-1-1
Warrants:
--------------------------------------------------------------------------------
[Call Price:](1)
[Formula for determining Cash Settlement Value:](2)
[Amount of Warrant Property Salable per Warrant:](3)
[Put Price for such specified amount of Warrant Property per Warrant:](2)
[Method of delivery of any Warrant Property to be delivered for sale upon
exercise of Warrants:](3)
Other Terms:
1. The aggregate principal amount of the notes offered that the Agent is
hereby committed to place on the Settlement Date is _______________.
By completing Item 1 above, the Agent agrees to place the entire Aggregate
Principal Amount of the Warrants as set forth in Item 1 within the Offering
Period specified above and in accordance with the Selected Dealer Agreement. If
Item 1 is not completed, the Agent is not obligated to place any amount of
Warrants.
The Agents' obligation to purchase any Program Securities hereunder is
subject to the accuracy of, at the time of such purchase, the Company's
representations and warranties contained in the Master Agency Agreement and to
the Company's performance and observance of all applicable covenants and
agreements contained therein, and the satisfaction of all conditions precedent
contained therein, including, without limitation, those pursuant to Sections 6
and 7 thereof. The delivery of the following additional documents will also be
required by the Agents: [insert additional documents to be delivered pursuant to
Section 4].
Except as otherwise expressly provided herein, all terms used herein which
are defined in the Master Agency Agreement shall have the same meanings as in
the Master Agency Agreement.
The undersigned agrees to perform its duties and obligations specifically
provided to be performed by the Agents in accordance with the terms and
----------
(1) Applicable to Call Warrants
(2) Applicable to Put Warrants
(3) Applicable to Put Warrants only if such Put Warrants contemplate that the
holder deliver Warrant Property to settle Put Warrants
D-1-2
provisions of the Master Agency Agreement and the Procedures, as amended or
supplemented hereby.
This Agreement shall be subject to the termination provisions of Section
12 of the Master Agency Agreement.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. This Agreement may be executed in one or more
counterparts and the executed counterparts taken together shall constitute one
and the same agreement.
D-1-3
X.X. XXXXXX SECURITIES INC.,
By:
-------------------------------
Name:
Title:
Accepted:
JPMORGAN CHASE & CO.
By:
-------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
XXXXXXXX XXXXX & XX.
XXXXXX XXXXX, SERIES E
UNITS TERMS AGREEMENT
___________________, 200_
JPMorgan Chase & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention:
Re: Master Agency Agreement dated December 1, 2005 (the "Master Agency
Agreement")
-------------------------------------------------------------------
The undersigned agrees to purchase your Global Units, Series E, [specified
designation] having the terms set forth below:
Notwithstanding item 1 below, the Offering will be made pursuant to a
prospectus dated December 1, 2005, as amended by a prospectus supplement dated
December 1, 2005, a product supplement no. [ ] dated [ ] and a final term sheet
or pricing supplement which we expect to be dated on or about [ ]. The Units are
expected to have the terms described below, but the final terms of the Units
will be those set forth in the applicable final term sheet or pricing
supplement.
All Units: Warrants Issued as Part of a Unit:
--------------------------------------------------------------------------------
Settlement Date and Time: Designation of the Series of Warrants: [Call]
[Put] Warrants
Number (Face Amount): Warrant Property:
Purchase Price: Aggregate Number of Warrants:
Specified Currency: Date(s) upon which Warrants may be exercised:
Severability: Currency in which exercise payments
shall be made:
Other Terms: Exchange Rate (or method of calculation:
Expiration Date:
Form of Settlement:
D-2-1
All Units: Warrants Issued as Part of a Unit:
--------------------------------------------------------------------------------
[Call Price:](1)
[Formula for determining Cash Settlement
Value:](2)
[Amount of Warrant Property Salable per
Warrant:](3)
[Put Price for such specified amount of
Warrant Property per Warrant:](2)
[Method of delivery of any Warrant Property
to be delivered for sale upon exercise of
Warrants:](3)
Other Terms:
Floating Rate
All Notes Issued Fixed Rate Notes Issued Notes Issued as Part
as Part of a Unit: as Part of a Unit: of a Unit:
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Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Price to Public: If yes, state issue price: Index Currency:
Settlement Date and Time: Amortization Schedule: Spread (Plus
or Minus):
Place of Delivery: Applicability of Annual Spread Multiplier:
Interest Payments:
Specified Currency: Denominated Currency Alternate Rate Event
(if any): Spread:
Original Issue Date: Indexed Currency or Initial Interest
Currencies (if any): Rate:
Interest Accrual Date: Payment Currency (if any): Initial Interest
Reset Date:
Maturity Date: Exchange Rate Agent (if any): Interest Reset Dates:
Interest Payment Date(s): Reference Dealers: Interest Reset
Period:
Interest Payment Period: Face Amount (if any): Maximum Interest
Rate:
----------
(1) Applicable to Call Warrants
(2) Applicable to Put Warrants
(3) Applicable to Put Warrants only if such Put Warrants contemplate that the
holder deliver Warrant Property to settle Put Warrants
D-2-2
Floating Rate
All Notes Issued Fixed Rate Notes Issued Notes Issued as Part
as Part of a Unit: as Part of a Unit: of a Unit:
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Optional Repayment Fixed Amount of each Indexed Minimum Interest
Date(s): Currency (if any): Rate:
Optional Redemption Aggregate Fixed Amount of each Calculation Agent:
Date(s): Indexed Currency (if any):
Initial Redemption Date: Applicability of Issuer's Reporting Service:
Optionto Extend Original
Maturity Date:
Initial Redemption If yes, state Final
Percentage: Maturity Date:
Annual Redemption
Percentage Reduction:
Ranking:
Series:
Minimum Denominations:
Other Terms:
1. The aggregate principal amount of the notes offered that the Agent is
hereby committed to place on the Settlement Date is _______________.
By completing Item 1 above, the Agent agrees to place the entire Aggregate
Principal Amount of the Units as set forth in Item 1 within the Offering Period
specified above and in accordance with the Selected Dealer Agreement. If Item 1
is not completed, the Agent is not obligated to place any amount of Units.
The Agents' obligation to purchase any Program Securities hereunder is
subject to (i) the accuracy of, at the time of such purchase, the Company's
representations and warranties contained in the Master Agency Agreement and to
the Company's performance and observance of all applicable covenants and
agreements contained therein, and the satisfaction of all conditions precedent
contained therein, including, without limitation, those pursuant to Sections 6
and 7 thereof. The delivery of the following additional documents will also be
required by the Agents: [insert additional documents to be delivered pursuant to
Section 4].
Except as otherwise expressly provided herein, all terms used herein which
are defined in the Master Agency Agreement shall have the same meanings as in
the Master Agency Agreement.
The undersigned agrees to perform its duties and obligations specifically
provided to be performed by the Agents in accordance with the terms and
provisions of the Master Agency Agreement and the Procedures, as amended or
supplemented hereby.
D-2-3
This Agreement shall be subject to the termination provisions of Section
12 of the Master Agency Agreement.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. This Agreement may be executed in one or more
counterparts and the executed counterparts taken together shall constitute one
and the same agreement.
D-2-4
X.X. XXXXXX SECURITIES INC.
By:
-------------------------------
Name:
Title:
Accepted:
JPMORGAN CHASE & CO.
By:
-------------------------------
Name:
Title:
D-2-5
EXHIBIT E
[PriceWaterhouseCoopers LLP Letterhead]
[Date]
Board of Directors
JPMorgan Chase & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
JPMorgan Chase & Co.
and
X.X. Xxxxxx Securities Inc.
(the "Agent")
Ladies and Gentlemen:
We have audited:
1. The consolidated financial statements of JPMorgan Chase & Co. and its
subsidiaries (the "Firm") as of December 31, 2004 and 2003 and for each of
the three years in the period ended December 31, 2004 included in the
Firm's Annual Report on Form 10-K for the year ended December 31, 2004
(the "Form 10-K").
2. Management's assessment of the effectiveness of the Firm's internal
control over financial reporting as of December 31, 2004 which is included
in the Form 10-K.
3. The effectiveness of the Firm's internal control over financial reporting
as of December 31, 2004.
The consolidated financial statements and management's assessment referred to
above are all incorporated by reference in the registration statement (No.
on Form S-3 filed by the Firm under the Securities Act of 1933, as amended (the
"Act"); our report with respect thereto is also incorporated by reference in
such registration statement. Such registration statement, together with the
Prospectus dated December 1, 2005 and the Prospectus Supplement dated December
1, 2005 in connection with the offering of Global Medium-Term Notes, Series E,
Global Warrants, Series E and Global Units, Series E, are herein collectively
referred to as the Registration Statement.
In connection with the Registration Statement:
1. We are an independent registered public accounting firm with respect to
the Firm within the meaning of the Act and the applicable rules and
regulations thereunder adopted by the Securities and Exchange Commission
(the "SEC") and the Public Company Accounting Oversight Board (United
States) (the "PCAOB").
2. In our opinion, the Firm's consolidated financial statements audited by us
and incorporated by reference in the Registration Statement comply as to
form in all material respects with the applicable accounting requirements
of the Act and the Securities Exchange Act of 1934 (the "Exchange Act")
and the related rules and regulations adopted by the SEC.
3. We have not audited any financial statements of the Firm as of any date or
for any period subsequent to December 31, [ ]; although we have
conducted an audit for the year ended December 31, [ ], the purpose
(and therefore the scope) of the audit was to enable us to express our
opinion on the consolidated financial statements as of December 31, [ ]
and for the year then ended, but not on the financial statements for any
interim period within that year. Therefore, we are unable to and do not
express any opinion on the unaudited consolidated balance sheet and the
unaudited consolidated statements of income, changes in stockholders'
equity and cash flows, included in the Firm's quarterly reports on Form
10-Q for the quarter ended [ ] incorporated by reference in the
Registration Statement, or on the financial position, results of
operations or cash flows as of any date or for any period subsequent to
December 31, [ ]. Also, we have not audited the Firm's internal control
over financial reporting as of any date subsequent to December 31, [ ].
Therefore, we do not express any opinion on the Firm's internal control
over financial reporting as of any date subsequent to December 31, [ ].
4. For purposes of this letter, we have read the minutes of the [ ]
meetings of the Board of Directors and the Audit Committee of the Firm,
as set forth in the minute books at [ ], officials of the Firm having
advised us that the minutes of all such meetings through that date were
set forth therein (except for the minutes of the [ ] [Audit Committee
meeting and the] [ ] Board of Directors meeting which were not approved
in final form, but for which the meeting agendas were provided to us;
Firm officials have represented that such agendas include all substantive
actions taken at such meetings), and have carried out other procedures to
[ ] (our work did not extend to the period from [ ] to [ ],
inclusive) as follows:
a. With respect to the [ ]-month periods ended [ ] and [ ],
we have:
(i) performed procedures (completed on [ ]) specified by the
PCAOB for a review of interim financial information as
described in SAS No. 100, Interim Financial Information, on
the unaudited consolidated financial statements for the [ ]
-month period ended [ ], included in the Firm's quarterly
reports on Form 10-Q for the quarter ended [ ],
incorporated by reference in the Registration Statement; and
(ii) inquired of certain officials of the Firm who have
responsibility for financial and accounting matters whether
the unaudited
E-2
consolidated financial statements referred to in a(i) above
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to
Form 10-Q and the related rules and regulations adopted by the
SEC.
b. With respect to the period from [ ] to [ ], we have:
(i) read the unaudited consolidated financial data of the Firm for
[month] of both [ ] and [ ] furnished to us by the Firm,
officials of the Firm having advised us that no such financial
data as of any date or for any period subsequent to [ ] were
available; and
(ii) inquired of certain officials of the Firm who have
responsibility for financial and accounting matters as to
whether the unaudited consolidated financial data referred to
in b(i) above are stated on a basis substantially consistent
with that of the audited consolidated financial statements
incorporated by reference in the Registration Statement.
The foregoing procedures do not constitute an audit made in accordance
with standards of the PCAOB. Also, they would not necessarily reveal
matters of significance with respect to the comments in the following
paragraph. Accordingly, we make no representations as to the sufficiency
of the foregoing procedures for your purposes.
5. Nothing came to our attention as a result of the foregoing procedures,
however, that caused us to believe that:
a. (i) Any material modifications should be made to the unaudited
consolidated financial statements described in 3, incorporated
by reference in the Registration Statement, for them to be in
conformity with accounting principles generally accepted in
the United States.
(ii) The unaudited consolidated financial statements described in 3
do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act as it
applies to Form 10-Q and the related rules and regulations
adopted by the SEC.
b. (i) At [ ] there was any change in the common or preferred
stock, increase in long-term debt of the Firm as compared with
amounts shown in the [ ] unaudited consolidated balance
sheet incorporated by reference in the Registration Statement,
or (ii) for the period from [ ] to [ ], there was any
decrease, as compared with the corresponding period in the
preceding year, in consolidated net income, except in all
instances for changes, increases or decreases which the
Registration Statement discloses
E-3
have occurred or may occur [and except that the unaudited
consolidated financial data as of and month ended [ ],
which were furnished to us by the Firm, showed the following
changes:]
Increase
[(in millions) [Date] [Date] (Decrease)
-----------------------------------
Common Stock $[ ] $[ ] $[ ]
Long term debt $[ ] $[ ] $[ ]
[ ] to [ ] to [ ] to
[ ] [ ] [ ]
-----------------------------------
Consolidated net income $[ ] $[ ] $[ ]]
6. As mentioned in 4b, Firm officials have advised us that no consolidated
financial data as of any date or for any period subsequent to [ ] are
available; accordingly, the procedures carried out by us with respect to
changes in financial statement items after [ ] have, of necessity, been
even more limited than those with respect to the periods referred to in 4.
We have inquired of certain officials of the Firm who have responsibility
for financial and accounting matters as to whether:
a. At [ ] there was any change in the common or preferred stock,
increase in the long-term debt or decrease in total stockholders'
equity of the Firm as compared with amounts shown in the [ ]
unaudited consolidated balance sheet incorporated by reference in
the Registration Statement, except for:
[ ]
On the basis of these inquiries and our reading of the minutes as
described in 4, nothing came to our attention that caused us to believe
that there was any such change, increase or decrease, except in all
instances for changes, increases or decreases which the Registration
Statement discloses have occurred or may occur.
[Officials of the Firm informed us however, that they can make no comments
with respect to consolidated net income for the period from [ ] to
[ ], as compared with the corresponding period in the preceding year,
or to decreases in total stockholders' equity as of [ ], as compared
with the corresponding amount shown in the [ ] unaudited consolidated
balance sheet incorporated by reference in the Registration Statement.]
E-4
7. For purposes of this letter, we have also read the items identified by you
on the attached copies of (a) the Firm's annual report on Form 10-K for
the year ended December 31, [ ], (b) the Prospectus and Prospectus
Supplement dated December 1, 2005, (c) the Firm's quarterly report on Form
10-Q for the quarter ended [ ], and have performed certain procedures
with respect to such information, which were applied as indicated with
respect to the symbols explained in Attachment 1. We make no comment as to
whether the SEC would view any non-GAAP financial information included or
incorporated by reference in the Registration Statement as being compliant
with the requirements of Regulation G or Item 10 of Regulation S-K.
For purposes of this letter, when performing procedures on average
balances, we make no comment as to the appropriateness of the Firm's
method of computing average balances.
8. Our audit of the consolidated financial statements for the periods
referred to in the introductory paragraph of this letter comprised audit
tests and procedures deemed necessary for the purpose of expressing an
opinion on such financial statements taken as a whole. For none of the
periods referred to therein, or any other period, did we perform audit
tests for the purpose of expressing an opinion on individual balances of
accounts or summaries of selected transactions such as those identified by
you above, and accordingly, we express no opinion thereon.
9. It should be understood that we make no representations regarding
questions of legal interpretation or regarding the sufficiency for your
purposes of the procedures enumerated in Attachment 1; also, such
procedures would not necessarily reveal any material misstatement of the
amounts or percentages identified by you above. Further, we have addressed
ourselves solely to the foregoing data as set forth or incorporated by
reference in the Registration Statement and make no representations
regarding the adequacy of disclosure or regarding whether any material
facts have been omitted.
10. This letter is solely for the information of the addressees and to assist
the Agent in conducting and documenting its investigation of the affairs
of the Firm in connection with the offering of the securities covered by
the Registration Statement, and is not to be used, circulated, quoted, or
otherwise referred to for any other purpose, including but not limited to
the registration, purchase, or sale of securities, nor is it to be filed
with or referred to in whole or in part in the Registration Statement or
any other document, except that reference may be made to it in the Agent
agreement or in any list of closing documents pertaining to the offering
of the securities covered by the Registration Statement.
Yours very truly,
E-5
