Exhibit 1.1
JPMORGAN CHASE &
CO.
Medium-Term Notes
MASTER AGENCY AGREEMENT
October 21, 2010
To the Agents listed on
Exhibit A hereto and
each person that shall
have become an Agent as
provided in Section 14
hereof:
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 its medium-term notes registered under
the registration statement referred to in Section 2(a)
(collectively, the “Securities”). The Securities will
be issued (a) in the case of the Senior Medium-Term Notes,
Series H, under an Indenture dated as of October 21,
2010, as amended from time to time (as so amended the “Senior
Indenture”), between the Company and Deutsche Bank Trust
Company Americas (the “Senior Trustee”), and
(b) in the case of the Subordinated Medium-Term Notes, Series
C, under the Indenture dated as of October 21, 2010, as
amended from time to time (as so amended, the “Subordinated
Indenture” and, together with the Senior Indenture, the
“Indentures”), between the Company and U.S. Bank Trust
National Association, as trustee (the “Subordinated
Trustee” and, together with the Senior Trustee, the
“Trustees”).
The Securities shall have the
maturities, interest rates, redemption provisions and other terms
set forth in the Prospectus referred to in Section 2(a) as
such Prospectus may be supplemented from time to time. The
Securities will be issued and the terms thereof established from
time to time by the Company in accordance with the Indentures and
the applicable Procedures (as defined in
Section 3(g)).
The Prospectus and each
“free-writing prospectus” (as defined pursuant to Rule
405 under the Securities Act of 1933, as amended (the
“Act”)) relating to the Securities being sold that is
prepared by the Company at or prior to the time when sales of such
Securities are first made (each a “Time of Sale”) are
referred to as the “Time of Sale
Information”.
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. 333-169900) relating to senior and
subordinated debt securities and other securities of the Company is
an “automatic shelf registration statement” as defined
under Rule 405 of the Act that has been filed with the
Securities and Exchange Commission (the “Commission”)
under the Act not earlier than three years prior to the date
hereof. Such registration statement, as amended as of the Closing
Date (as defined in Section 5 below), including the documents
incorporated therein by reference, is hereinafter referred to
(until updated pursuant to the provisions of Section 5 of this
Agreement) as the “Registration Statement” and the
prospectus relating to the Registration Statement, as supplemented
by a prospectus supplement setting forth the terms of the
Securities, including all material incorporated by reference
therein, in the form in which such prospectus and prospectus
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 (as defined below), is
hereinafter referred to as the “Prospectus”.
(b) No order suspending the
effectiveness of the Registration Statement has been issued by the
Commission and no proceeding for that purpose, pursuant to
Rule 401(g)(2) under the Act or pursuant to Section 8A of
the Act against the Company or related to the offering of the
Securities has been initiated or threatened by the Commission; 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 of 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 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 (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading, and at
each of the times of amending or supplementing referred to in
Section 6(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 (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading, except
that no representation is made with respect to (i) that part
of the Registration Statement that constitutes the Statements of
Eligibility and Qualifications (Form T-1) of the Trustees under the
Trust Indenture Act or (ii) 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) As of the time any Securities
are issued and sold hereunder, the applicable Indenture will
constitute a legal, valid and binding instrument enforceable
against the Company in accordance with its terms and such
Securities will have been duly authorized and executed, and when
authenticated as provided in the applicable Indenture or the
Procedures (as defined herein) and paid for by the purchasers
thereof, will constitute legal, valid and binding obligations of
the Company entitled to the benefits of the applicable Indenture,
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors’
rights generally, by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity
or at law).
(d) The Time of Sale Information, at
each Time of Sale, and at the time of delivery of the Securities
sold at such Time of Sale 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. No statement of material fact included in the
Prospectus and Pricing Supplement related to the Securities being
sold has been omitted from the Time of Sale Information and no
statement of material fact included in the Time of Sale Information
that is required to be included in the Prospectus and Pricing
Supplement related to the Securities being sold has been omitted
therefrom.
(e) Other than the Prospectus and
Pricing Supplement related to the Securities being sold, the
Company (including its agents and representatives, other than the
Agents in their capacity as such) 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
Securities being sold other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Act or Rule 134 under the Act or (ii) any Issuer Free
Writing Prospectus (as defined below) approved in writing in
advance by J.P. Morgan Securities LLC. As used herein,
“Issuer Free Writing Prospectus” means a “written
communication” (as defined in Rule 405 under the Act), other
than a communication referred to in clause (i) above, that
constitutes an offer to sell or solicitation of an offer to buy the
Securities and that has been prepared by the Company or prepared by
the Company’s agents and representatives and approved in
writing by the Company. Each such Issuer Free Writing Prospectus
will comply in all material respects with the Act, will be filed in
accordance with the Act (to the extent required thereby) and, when
taken together with the Prospectus filed prior to the first use of
such Issuer Free Writing Prospectus, will
not, at the time it is used or at
the time of delivery of the Securities to which it relates, 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 Issuer 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 Issuer Free Writing Prospectus.
(f) The Company acknowledges and
agrees that each Agent is acting solely in the capacity of an
arm’s length contractual counterparty to the Company with
respect to the offerings of Securities contemplated hereby
(including in connection with determining the terms of each
offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. Additionally, no Agent
is advising the Company or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction.
The Company shall consult with its own advisors concerning such
maters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated
hereby, and the Agents shall have no responsibility or liability to
the Company with respect thereto. Any review by the Agents of the
Company, the transactions contemplated hereby or other matters
relating to such transactions will be performed solely for the
benefit of the Agents and shall not be on behalf of the
Company.
(g) The Company is not an ineligible
issuer and is a well-known seasoned issuer, in each case as defined
under the Act, in each case at the times specified in the Act in
connection with each offering of the Securities.
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 Securities directly on its own behalf
at any time and to any person, (ii) cause additional Agents to
become parties to this Agreement or enter into similar agreements
or arrangements from time to time pursuant to Section 14,
(iii) sell Securities 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 purposes of resale
and (iv) accept (but not solicit) offers to purchase
Securities through additional agents on substantially the same
terms 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 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 Securities upon the terms and conditions set forth in the
Prospectus as then amended or supplemented, including by any
applicable Issuer Free Writing Prospectus and/or final term sheet,
and in the applicable Procedures.
(c) Upon receipt of any notice
delivered by the Company pursuant to Section 4(b), each Agent
shall suspend its solicitation of offers to purchase Securities
until the Company shall have amended or supplemented the
Registration Statement or the Prospectus as contemplated by
Section 4(b) and shall have advised such Agent that such
solicitation may be resumed.
(d) The Company reserves the right,
in its sole discretion, to suspend, at any time and for any period,
the solicitation of offers to purchase 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 Securities until the Company shall have advised such Agent
that such solicitation may be resumed.
(e) Each Agent shall promptly
communicate to the Company, orally or in writing, each offer to
purchase 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 Securities received by it and no
such rejection shall be deemed a breach of its obligations
hereunder. The Company shall have the sole right to accept offers
to purchase Securities and may, in its sole discretion, reject any
offer in whole or in part.
(f) At the time of the settlement of
any sale of Securities pursuant to an offer presented by an Agent,
the Company shall pay such Agent a commission in accordance with
the schedule set forth in Exhibit B hereto; provided ,
however , that if the Company and the Agents agree that
based on market conditions and other factors in existence at the
time of any sale of Securities, such commissions shall be subject
to negotiation between the Company and the Agents and shall be
disclosed in the Pricing Supplement relating to such
Securities.
(g) Administrative procedures
respecting the sale of Securities shall be agreed upon from time to
time by the Agents and the Company. 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. Certain Agreements of the
Company. The Company agrees with the Agents that:
(a) The Company will advise each
Agent promptly of any proposal to amend or supplement any Time of
Sale Information, the Prospectus or the Registration Statement or
to register the 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 Securities or the offering
and sale of Securities other than through such
Agent). The Company will also advise
each Agent promptly of the filing with the Commission of each
amendment or supplement to the Prospectus, any Issuer Free Writing
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 Securities or the offering
and sale of Securities other than through such Agent) and of the
institution by the Commission of any stop order proceedings,
proceedings pursuant to Rule 401(g)(2) under the Act or
proceedings pursuant to Section 8A of the Act 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.
(b) (1) If, at any time when a
prospectus relating to the Securities is required to be delivered
(or required to be delivered but for Rule 172 under the Act)
under the Act, any event shall occur as a result of which the
Prospectus 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 or the Prospectus to comply with the Act,
the Company will promptly (i) notify each Agent to suspend the
solicitation of offers to purchase 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
and (2) if at any time prior to the time of delivery of any
Securities (i) any event shall occur or condition shall exist
as a result of which the Time of Sale Information as then amended
or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances, not
misleading or (ii) it is necessary to amend or supplement the
Time of Sale Information to comply with law, the Company will
immediately notify the relevant Agents thereof and forthwith
prepare and, subject to paragraph (a) above, file with the
Commission (to the extent required) and furnish to the relevant
Agents and to such dealers as the J.P. Morgan Securities LLC
may designate, such amendments or supplements to the Time of Sale
Information as may be necessary so that the statements in the Time
of Sale Information as so amended or supplemented will not, in the
light of the circumstances, be misleading or so that the Time of
Sale Information will comply with law.
(c) The Company agrees that it will
not solicit or accept offers to purchase Securities from any Agent
during any period when (i) the Company shall have been advised
by either Moody’s Investors Services, Inc. or
Standard & Poor’s Financial Services LLC, a
subsidiary of The McGraw-Hill Companies, Inc. that such
organization has determined to downgrade the rating of the
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.
(d) Not later than 16 months after
the date of each acceptance by the Company of an offer to purchase
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” (as
defined in Rule 158 under the Act) 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 and (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.
(e) The Company will furnish to each
Agent copies of each Issuer Free Writing Prospectus, the Prospectus
and the Registration Statement (including the exhibits thereto
relating to the offering by the Company thereunder of the
Securities, but excluding the documents incorporated by reference),
and all amendments and supplements to each Issuer Free Writing
Prospectus, the Prospectus and the Registration Statement and all
additional registration statements pursuant to which any of the
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 Securities or any
pricing supplement relating to the offering and sale of Securities
other than through such Agent), in each case as soon as available
and in such quantities as shall be reasonably requested. The
Company will prepare, with respect to any Securities to be sold
through or to the Agents pursuant to this Agreement, any Issuer
Free Writing Prospectus which the Company and the relevant Agents
agree to use in connection with the sale of such Securities, and
will file such Issuer Free Writing Prospectuses to the extent
required by Rule 433 under the Act. The Company will prepare, with
respect to any Securities to be sold through or to the Agents
pursuant to this Agreement, a pricing supplement with respect to
such Securities in substantially the form attached hereto as
Exhibit F (a “Pricing Supplement”) and will file such
Pricing Supplement with the Commission pursuant to Rule 424(b)
under the Act not later than the time specified by such
rule.
(f) The Company will arrange for the
qualification of the 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 Securities.
(g) At any time when a Prospectus is
required to be delivered (or required to be delivered but for Rule
172 under the Act) under the Act, and if not publicly
available through the
Commission’s website, the Company will furnish to such 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.
(h) The Company will pay all
expenses incident to the performance of its obligations under this
Agreement and the reasonable fees and disbursements of Cravath,
Swaine & Moore LLP, counsel for the Agents, in connection
with the offering and sale of the Securities and will reimburse
each Agent for any expenses (including fees and disbursements of
counsel) incurred by it in connection with the qualification of the
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 Securities. The Company will determine with the Agents the
amount of advertising, if any, appropriate in connection with the
solicitation of offers to purchase Securities and will pay, or
reimburse the Agents for, all advertising expenses approved by
it.
(i) The Company will, pursuant to
reasonable procedures developed in good faith, retain copies of
each Issuer Free Writing Prospectus that is not filed with the
Commission in accordance with Rule 433 under the Act.
5. Conditions to Agents’
Obligations. The obligation of each Agent to solicit or receive
offers to purchase Securities 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) No stop order suspending the
effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose, pursuant to
Rule 401(g)(2) under the Act or pursuant to Section 8A of
the Act shall have been instituted or, to the knowledge of the
Company or such Agent, shall be contemplated by the Commission, the
Prospectus and each Issuer Free Writing Prospectus shall have been
timely filed with the Commission under the Act (in the case of an
Issuer Free Writing Prospectus, to the extent required by Rule 433
under the Act), 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 J.P. Morgan
Securities LLC.
(b) Neither the Registration
Statement nor the Prospectus, as amended or supplemented, shall
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading.
(c) Subsequent to the date of this
Agreement, there shall not have occurred any change, or any
development involving a prospective change, in or affecting
particularly the business or properties of the Company or its
subsidiaries that is not described in the Time of Sale Information
and, in the judgment of such Agent, is so material and adverse as
to make it impracticable or inadvisable to proceed with the
offering, sale or the delivery of the Securities on the terms and
in the manner contem
