Exhibit 4(p)
JPMORGAN CHASE & CO.
CALCULATION AGENT AGREEMENT
CALCULATION AGENT AGREEMENT dated as of December 1, 2005 between JPMorgan
Chase & Co., a Delaware corporation (hereinafter called the "Issuer"), having
its principal office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, and X.X.
Xxxxxx Securities Inc. (hereinafter sometimes called the "Calculation Agent,"
which term shall, unless the context shall otherwise require, include its
successors and assigns), having its principal office at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000.
WHEREAS, the Issuer proposes to issue and sell from time to time up to
$4,000,000,000 less the initial public offering price of any securities
previously issued under the Registration Statement on Form S-3 file No. 333-[ ]
(the "Registration Statement"), as filed with the Securities and Exchange
Commission under the Securities Act of 1933 (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
Warrants and any other securities that may be offered by post-effective
amendment to the Registration Statement, the "Program Securities"), as such
amount may be increased from time to time upon due authorization by the Issuer.
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").
NOW IT IS HEREBY AGREED THAT:
1. The Issuer hereby appoints X.X. Xxxxxx Securities Inc., as Calculation
Agent for the Notes, upon the terms and subject to the conditions herein set
forth, and X.X. Xxxxxx Securities Inc. hereby accepts such appointment. The
Calculation Agent shall act as an agent of the Issuer for the purpose of
determining any payments to be made on the Notes.
2. Attached as Exhibits X-0, X-0, X-0, X-0, X-0 and A-6 are the forms of
Notes and the Calculation Agent hereby acknowledges its acceptance of the forms
of the Notes.
3. The Issuer shall notify the Calculation Agent of the issuance of the
Notes and, at the time of such issuance, shall deliver to the Calculation Agent
all information in the possession of the Issuer for the calculation of any
payments
thereunder. The Calculation Agent shall calculate any payments due on the Notes
in accordance with the terms of such Notes, the Indenture and the provisions of
this Agreement. In addition, the Calculation Agent shall maintain, or cause to
be maintained, records permitting it to calculate any amounts due (as set forth
in the Notes).
4. Promptly following the determination of any amount due, the Calculation
Agent will cause to be forwarded to the Issuer, the Trustee and any paying agent
for the Notes information regarding the amount due.
5. The Issuer will pay such compensation as shall be agreed upon and the
expenses, including reasonable counsel fees, incurred by the Calculation Agent
in connection with its duties hereunder to the Calculation Agent upon receipt of
such invoices as the Issuer shall reasonably require.
6. Notwithstanding any satisfaction or discharge of the Notes or the
Indenture, the Issuer will indemnify the Calculation Agent against any losses,
liabilities, costs, claims, actions or demands which it may incur or sustain or
which may be made against it in connection with its appointment or the exercise
of its powers and duties hereunder as well as the reasonable costs, including
reasonable fees and expenses of counsel in defending any claim, action or
demand, except such as may result from the negligence or willful misconduct of
the Calculation Agent or any of its employees. The Calculation Agent shall incur
no liability and shall be indemnified and held harmless by the Issuer for, or in
respect of, any actions taken or suffered to be taken in good faith by the
Calculation Agent in reliance upon (i) the written opinion or advice of counsel
or (ii) written instructions from the Issuer.
7. The Calculation Agent accepts its obligations herein set forth upon the
terms and conditions hereof, including the following, to all of which the Issuer
agrees:
(i) in acting under this Agreement and in connection with the
Notes, the Calculation Agent, acting as agent for the Issuer, does
not assume any obligation towards, or any relationship of agency or
trust for or with, any of the holders of the Notes;
(ii) unless herein otherwise specifically provided, any order,
certificate, notice, request or communication from the Issuer made
or given under any provision of this Agreement shall be sufficient
if signed or given by any person whom the Calculation Agent
reasonably believes to be a duly authorized officer or
attorney-in-fact of the Issuer;
(iii) the Calculation Agent shall be obligated to perform only
such duties as are expressly set forth herein and any duties
necessarily incidental thereto;
(iv) the Calculation Agent shall be protected and shall incur
no liability for or in respect of any action taken or omitted to be
taken or anything suffered in good faith by it in reliance upon
anything contained in the Notes, the Indenture or any information
supplied to it by the Issuer pursuant to this Agreement, including
the information to be supplied pursuant to paragraph 3 above.
(v) the Calculation Agent, whether acting for itself or in any
other capacity, may become the owner or pledgee of Notes with the
same rights as it would have had if it were not acting hereunder as
Calculation Agent; and
(vi) the Calculation Agent shall incur no liability hereunder
except for loss sustained by reason of its own negligence or willful
misconduct.
8. (a) The Calculation Agent may, in its sole discretion, designate one or
more reference treasury dealers (each a "Reference Treasury Dealer") for
purposes of quoting rates or yields in accordance with the terms of the Notes.
Forthwith upon such initial designation or any change in the identity of any
Reference Treasury Dealer, the Calculation Agent shall notify the Issuer and the
Trustee of such designation or change. The Calculation Agent shall not be
responsible to the Issuer or any third party for any failure of any Reference
Treasury Dealer to fulfill its duties or meet its obligations as a Reference
Treasury Dealer or as a result of the Calculation Agent's having acted (except
in the event of negligence or willful misconduct) on any quotation or other
information given by any Reference Treasury Dealer that subsequently may be
found to be incorrect.
(b) Except as provided below, the Calculation Agent may at any time
resign as Calculation Agent by giving written notice to the Issuer and the
Trustee of such intention on its part, specifying the date on which its
desired resignation shall become effective, provided that such notice
shall be given not less than 60 days prior to the said effective date
unless the Issuer and the Trustee otherwise agree in writing; provided,
however, if the Calculation Agent has given not less than 60 days' prior
notice of its desired resignation, and during such 60 days a successor
Calculation Agent has not accepted its appointment as successor
Calculation Agent, the Calculation Agent so resigning may petition any
court of competent jurisdiction for the appointment of a successor
Calculation Agent. The Issuer covenants that it shall appoint a successor
Calculation Agent as soon as practicable after receipt of any notice of
resignation hereunder.
Except as provided below, the Calculation Agent may be removed by the
filing with it and the Trustee of an instrument in writing signed by the Issuer
specifying such removal and the date it shall become effective (such effective
date being at least 20 days after said filing). Any such resignation or removal
shall take effect upon:
(i) the appointment by the Issuer as provided herein of a
successor Calculation Agent; and
(ii) the acceptance of such appointment by such successor
Calculation Agent.
Upon its resignation or removal becoming effective, the retiring
Calculation Agent shall be entitled to the payment of its compensation and the
reimbursement of all expenses (including reasonable counsel fees) incurred by
such retiring Calculation Agent pursuant to paragraph 5 hereof.
(c) If at any time the Calculation Agent shall resign or be removed,
or shall become incapable of acting or shall be adjudged bankrupt or
insolvent, or liquidated or dissolved, or an order is made or an effective
resolution is passed to wind up the Calculation Agent, or if the
Calculation Agent shall file a voluntary petition in bankruptcy or make an
assignment for the benefit of its creditors, or shall consent to the
appointment of a receiver, administrator or other similar official of all
or any substantial part of its property, or shall admit in writing its
inability to pay or meet its debts as they mature, or if a receiver,
administrator or other similar official of the Calculation Agent or of all
or any substantial part of its property shall be appointed, or if any
order of any court shall be entered approving any petition filed by or
against the Calculation Agent under the provisions of any applicable
bankruptcy or insolvency law, or if any public officer shall take charge
or control of the Calculation Agent or its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then a successor
Calculation Agent shall be appointed by the Issuer by an instrument in
writing filed with the successor Calculation Agent and the Trustee. Upon
the appointment as aforesaid of a successor Calculation Agent and
acceptance by the latter of such appointment, the former Calculation Agent
shall cease to be Calculation Agent hereunder.
(d) Any successor Calculation Agent appointed hereunder shall
execute and deliver to its predecessor, the Issuer and the Trustee an
instrument accepting such appointment hereunder, and thereupon such
successor Calculation Agent, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, immunities,
duties and obligations of such predecessor with like effect as if
originally named as the Calculation Agent hereunder, and such predecessor,
upon
payment of its compensation, charges and disbursements then unpaid, shall
thereupon become obliged to transfer and deliver, and such successor
Calculation Agent shall be entitled to receive, copies of any relevant
records maintained by such predecessor Calculation Agent.
(e) Any corporation or other entity into which the Calculation Agent
may be merged or converted or any corporation or other entity with which
the Calculation Agent may be consolidated or any corporation resulting
from any merger, conversion or consolidation to which the Calculation
Agent shall be a party shall, to the extent permitted by applicable law,
be the successor Calculation Agent under this Agreement without the
execution or filing or any paper or any further act on the part of any of
the parties hereto. Notice of any such merger, conversation or
consolidation shall forthwith be given to the Issuer and the Trustee.
(f) The provision of paragraph 6 hereof shall survive any
resignation or removal of the Calculation Agent hereunder.
9. Any notice required to be given hereunder shall be delivered in person,
sent by letter or telex or telecopy or communicated by telephone (subject, in
the case of communication by telephone, to confirmation dispatched within two
business days by letter, telex or telecopy), in the case of the Issuer, to it at
the address set forth in the heading of this Agreement, Attention: Corporate
Treasury; in the case of the Calculation Agent, to it at the address set forth
in the heading of this Agreement, Attention: Structured Investments, Private
Banking Marketing Desk; and in the case of the Trustee, to it at 00 Xxxx Xxxxxx,
XX XXX00-0000, Xxx Xxxx, XX 00000, Attention: Trust and Securities Services; or,
in any case, to any other address of which the party receiving notice shall have
notified the party giving such notice in writing.
10. This Agreement may be amended only by a writing duly executed and
delivered by each of the parties signing below.
11. The provisions of this Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of New York.
This Agreement may be executed in counterparts and the executed
counterparts shall together constitute a single instrument.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the date and year first above written.
JPMORGAN CHASE & CO.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Managing Director
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Managing Director
