Exhibit 4-W
(FORM OF FACE OF SECURITY)
JUNIOR SUBORDINATED DEBENTURE
REGISTERED REGISTERED
NO. (PRINCIPAL AMOUNT)
CUSIP:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE REGISTERED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANY OTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
JUNIOR SUBORDINATED DEBENTURE
Morgan Stanley, Dean Witter, Discover & Co., a Delaware corporation
(together with its successors and assigns, the "ISSUER"), for value received,
hereby promises to pay to The Bank of New York, as Property Trustee (the
"PROPERTY TRUSTEE," which term includes any successor Property Trustee for
MSDW Capital Trust ( )) for MSDW Capital Trust ( ), a statutory business
trust formed under the laws of the State of Delaware (the "Issuer Trust"), or
registered assignees, the principal sum of
on such date, as it may be advanced as set forth below, the
"STATED MATURITY," and to pay interest thereon at the annual rate of %
from and including , until the principal hereof is paid or duly
made available for payment (except as provided below) payable quarterly in
arrears on the day of , , and of each year
(each an "INTEREST PAYMENT DATE") commencing , 1998.
Interest on this Debenture will accrue from and including the most
recent Interest Payment Date to which interest has been paid or duly provided
for, or, if no interest has been paid or duly provided for, from and
including , 1998, until, but excluding the date the principal
hereof has been paid or duly made available for payment. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment
Date will, subject to certain exceptions described herein, be paid to the
person in whose name this Debenture (or one or more predecessor Debentures)
is registered at the close of business on the day of , ,
or (whether or not a Business Day) next preceding such Interest
Payment Date (each such date a "RECORD DATE"). As used herein, "BUSINESS
DAY" means any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions are authorized or required by
law or regulation to close in The City of New York . A Holder of U.S.
$1,000,000 or more in aggregate principal amount of Debentures having the
same Interest Payment Date, the interest on which is payable in U.S. dollars,
shall be entitled to receive payments of interest, other than interest due at
maturity or on any date of redemption or repayment, by wire transfer of
immediately available funds if appropriate wire transfer instructions have
been received by the Paying Agent in writing not less than 15 calendar days
prior to the applicable Interest Payment Date.
Reference is hereby made to the further provisions of this Debenture set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place, including, without
limitation, the provisions relating to the subordination of this Debenture to
the Issuer's Senior Indebtedness, as defined on the reverse hereof.
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Debenture shall not be entitled to any
benefit under the Junior Subordinated Indenture, as defined on the reverse
hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Debenture to be duly
executed.
DATED: MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:
-----------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Debentures referred
to in the within-mentioned
Junior Subordinated Indenture.
DATED:
THE BANK OF NEW YORK,
as Trustee
By:
--------------------------------
Authorized Signatory
(REVERSE OF SECURITY)
This debenture is one of a duly authorized issue of % Junior
Subordinated Debentures due (the "DEBENTURES") of the Issuer.
The Debentures are issuable under a Junior Subordinated Indenture, dated as
of ( ), 1998, between Morgan Stanley, Dean Witter, Discover & Co. (the
"ISSUER") and The Bank of New York, as Trustee (the "TRUSTEE," which term
includes any successor trustee under the Junior Subordinated Indenture) (the
"JUNIOR SUBORDINATED INDENTURE"), to which Junior Subordinated Indenture
reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Debentures and the terms upon which the Debentures are, and
are to be, authenticated and delivered. The Issuer has appointed The Bank of
New York at its corporate trust office in The City of New York as the paying
agent (the "PAYING AGENT," which term includes any additional or successor
Paying Agent appointed by the Issuer) with respect to the Debentures. To the
extent not inconsistent herewith, the terms of the Junior Subordinated
Indenture are hereby incorporated by reference herein. Capitalized terms not
otherwise defined herein have the meaning given to such terms in the Junior
Subordinated Indenture.
This Debenture will not be subject to any sinking fund and, except as
provided below, will not be redeemable or subject to repayment at the option
of the holder prior to its Stated Maturity.
This Debenture may be redeemed at the option of the Issuer (i) on or
after in whole at any time or in part from time to time and (ii)
prior to ( ), in whole (but not in part) at any time within 90 days
following the occurrence and continuation of a Tax Event or an Investment
Company Event (the "90-DAY PERIOD"), in each case at a redemption price equal
to the accrued and unpaid interest on the Debentures, plus 100% of the
principal amount thereof (the "REDEMPTION PRICE"). Notice of redemption shall
be mailed to the registered holders of the Debentures designated for
redemption at their addresses as the same shall appear on the Debenture
register not less than 30 nor more than 60 days prior to the date fixed for
redemption, subject to all the conditions and provisions of the Junior
Subordinated Indenture. In the event of redemption of this Debenture in part
only, a new Debenture or Debentures for the amount of the unredeemed portion
hereof shall be issued in the name of the holder hereof upon the cancellation
hereof.
The Issuer's right to redeem the Debentures under clause (ii) of the
preceding paragraph shall be subject to the condition that if at the time
there is available to the Issuer or the MSDW Capital Trust ( ) (the "ISSUER
TRUST," created pursuant to the Amended and Restated Trust Agreement dated as
of ( ), 1998, among the Issuer, as depositor, The Bank of New
York, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee and the Administrators, the "TRUST AGREEMENT") the opportunity to
eliminate, within the 90-Day Period, the Tax Event or Investment Company
Event by taking some ministerial action ("MINISTERIAL ACTION"), such as
filing a form or making an election, or pursuing some other similar
reasonable measure that will have no adverse effect on the Issuer, the Issuer
Trust or the holders of the securities issued by the Issuer Trust and will
involve no material cost, the Issuer shall pursue such measures in lieu of
redemption; provided further, that the Issuer shall have no right to redeem
the Debentures while the Issuer Trust is pursuing any Ministerial Action
pursuant to the Trust Agreement. The Redemption Price shall be paid prior to
12:00 noon, New York time, on the date of such redemption or such earlier
time as the Issuer determines; provided, that the Issuer shall deposit with
the Trustee an amount sufficient to pay the Redemption Price prior to the
redemption date.
In addition, if a Tax Event occurs, then the Issuer will have the right
prior to the termination of the Issuer Trust, to advance the Stated Maturity
of this Debenture to the minimum extent required in order to allow for the
payments of interest in respect this Debenture to continue to be tax
deductible, but in no event shall the resulting maturity of this Debenture be
less than 15 years from the date of original issuance thereof. The Stated
Maturity shall be advanced only if, in the opinion of counsel to the Issuer,
experienced in such matters, (a) after advancing the Stated Maturity,
interest paid on this Debenture will be deductible for United States federal
income tax purposes and (b) advancing the Stated Maturity will not result in
a taxable event to the holders of the Capital Securities.
The term "TAX EVENT" means the receipt by the Issuer Trust of an opinion
of counsel to the Issuer experienced in such matters, who shall not be an
officer or employee of the Issuer or any of its affiliates, to the effect
that, as a result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the
United States or any political subdivision or taxing authority thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement,
action or decision is announced on or after the date of issuance of Capital
Securities of the Issuer Trust, there is more than an insubstantial risk that
(i) the Issuer Trust is, or will be within 90 days of the delivery of such
opinion, subject to United States federal income tax with respect to income
received or accrued on the Debentures, (ii) interest payable by the Issuer on
the Debentures is not, or within 90 days of the delivery of such opinion will
not be, deductible by the Issuer, in whole or in part, for United States
federal income tax purposes or (iii) the Issuer Trust is, or will be within
90 days of the delivery of the opinion, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
"INVESTMENT COMPANY EVENT" means the receipt by the Issuer Trust of an
opinion of counsel to the Issuer experienced in such matters, who shall not
be an officer or employee of the Issuer or any of its affiliates, to the
effect that, as a result of the occurrence of a change in law or regulation
or a written change (including any announced prospective change) in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the Issuer Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act of 1940, as amended (the "Investment Company Act"), which change
or prospective change becomes effective or would become effective, as the
case may be, on or after the date of the issuance of the Capital Securities
of the Issuer Trust.
Interest payments on this Debenture will include interest accrued to but
excluding the Interest Payment Dates or the Stated Maturity (or any earlier
redemption or repayment date), as the case may be. Interest payments for
this Debenture will be computed and paid on the basis of a 360-day year of
twelve 30-day months and the actual days elapsed in a partial month in such
period. The amount of interest payable for any full interest period will be
computed by dividing the rate per annum by four. Accrued interest that is
not paid on the applicable Interest Payment Date will bear additional
interest on the amount thereof at the rate per annum of % (the "COUPON
RATE"), compounded quarterly and computed on the basis of a 360-day year of
twelve 30-day months and the actual days elapsed in a partial month in such
period. The amount of additional interest payable for any full interest
period will be computed by dividing the rate per annum by four. The term
"interest' as used herein includes quarterly interest payments, interest on
quarterly interest payments not paid on the applicable Interest Payment Date
and Additional Sums (as defined below), as applicable.
If any Interest Payment Date or the Stated Maturity (or any redemption
or repayment date) does not fall on a Business Day, payment of interest,
premium, if any, or principal otherwise payable on such date need not be made
on such date, but may be made on the next succeeding Business Day, except
that, if such Business Day falls in the next calendar year, such payment will
be made on the immediately preceding Business Day, in each case, with the
same force and effect as if made on the Interest Payment Date or at the
Stated Maturity (or any redemption or repayment date), and no interest on
such payment shall accrue for the period from and after the Interest Payment
Date or the Stated Maturity (or any redemption or repayment date) to such
next succeeding Business Day.
The Junior Subordinated Indenture provides that, (a) if an Event of
Default (as defined in the Junior Subordinated Indenture) due to the default
in payment of principal of, premium, if any, or interest on, any series of
debt securities issued under the Junior Subordinated Indenture, including the
series of Debentures of which this Debenture forms a part, or due to the
default in the performance or breach of any other covenant or warranty of the
Issuer applicable to the debt securities of such series but not applicable to
all outstanding debt securities issued under the Junior Subordinated
Indenture shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of the debt securities of
each affected series (voting as a single class) may then declare the
principal of all debt securities of all such series and interest accrued
thereon to be due and payable immediately and (b) if an Event of Default due
to a default in the performance of any other of the covenants or agreements
in the Junior Subordinated Indenture applicable to all outstanding debt
securities issued thereunder, including this Debenture, or due to certain
events of bankruptcy, insolvency and reorganization of the Issuer, shall have
occurred and be continuing, either the Trustee or the holders of not less
than 25% in principal amount of all debt securities issued under the Junior
Subordinated Indenture then outstanding (treated as one class) may declare
the principal of all such debt securities and interest accrued thereon to be
due and payable immediately, but upon certain conditions such declarations
may be annulled and past defaults may be waived (except a continuing default
in payment of principal (or premium, if any) or interest on such debt
securities) by the holders of a majority in principal amount of the debt
securities of all affected series then outstanding. Deferral of any due date
for the payment of interest in connection with an Extension Period (as
defined herein) doesan Event of Default.
So long as no Event of Default has occurred and is continuing, the
Issuer shall have the right at any time, and from time to time, during the
term of the Debentures to defer payments of interest by extending the
interest payment period of this Debenture for a period not exceeding 20
consecutive quarters (the "EXTENSION PERIOD"), during which Extension Period
no interest shall be due and payable; provided, that no Extension Period may
extend beyond the Stated Maturity. In the event that the Stated Maturity is
advanced to a date prior to the end of an Extension Period, such Extension
Period shall be deemed to end on such date or such earlier date as may be
determined by the Company. In the event that any Junior Subordinated
Debentures are called for redemption on a date prior to the end of an
Extension Period, with respect to such Junior Subordinated Debentures, such
Extension Period shall be deemed to end on such date or such earlier date as
may be determined by the Company. Interest, the payment of which has been
deferred because of the extension of the interest payment period pursuant to
this paragraph, will bear interest thereon at the Coupon Rate compounded
quarterly for each quarter of the Extension Period and computed on the basis
of a 360-day year of twelve 30-day months and the actual days elapsed in a
partial month in such period ("ADDITIONAL INTEREST"). The Coupon Rate
payable for any full interest period will be computed by dividing the rate
per annum by four. At the end of the Extension Period, the Issuer shall pay
all interest accrued and unpaid on this Debenture, including any Additional
Sums and Additional Interest (together, "DEFERRED INTEREST") that shall be
payable to the Holders of this Debenture in whose names this Debenture is
registered in the Securities Register on the first Record Date after the end
of the Extension Period. Before the termination of any Extension Period, the
Issuer may further extend such period; provided, that such period together
with all such further extensions thereof shall not exceed 20 consecutive
quarters, or extend beyond the Stated Maturity or any earlier redemption
date. Upon the termination of any Extension Period and upon the payment of
all Deferred Interest then due, the Issuer may commence a new Extension
Period, subject to the foregoing requirements. No interest shall be due and
payable during an Extension Period, except at the end thereof, (but the
Issuer may prepay at any time all or any portion of the interest accrued
during an Extension Period).
If the Property Trustee (as defined in the Trust Agreement) is the only
Holder of the Debentures at the time the Issuer selects an Extension Period,
the Issuer shall give written notice to the Administrators (as defined in the
Trust Agreement) and the Property Trustee of its selection of such Extension
Period at least 30 calendar days prior to the date the Distributions (as
defined in the Trust Agreement) on the Trust Securities (as defined in the
Trust Agreement) would have been payable but for the election to begin such
Extension Period.
If the Property Trustee is not the only Holder of the Debentures at the
time the Issuer selects an Extension Period, the Issuer shall give the
Holders of the Debentures and the Trustee written notice of its selection of
such Extension Period at least 10 Business Days before the earlier of the
next succeeding Interest Payment Date or the date the Issuer is required to
give notice of the record or payment date of such interest payment to Holders
of the Debentures.
The Issuer covenants that it will not (i) declare or pay any dividends
or distributions on, or redeem, purchase, acquire, or make a liquidation
payment with respect to, any of the Issuer's capital stock or (ii) make any
payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Issuer that rank pari passu
in all respects with or junior in interest to the Debentures (other than (a)
repurchases, redemptions or other acquisitions of shares of capital stock of
the Issuer (1) in connection with any employment contract, benefit plan or
other similar arrangement with or for the benefit of any one or more
employees, officers, directors or consultants, (2) in connection with a
dividend reinvestment or stockholder stock purchase plan or (3) in connection
with the issuance of capital stock of the Issuer (or securities convertible
into or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the applicable Extension Period
or other event referred to below, (b) as a result of an exchange, redemption
or conversion of any class or series of the Issuer's capital stock (or any
capital stock of a subsidiary of the Issuer) for any class or series of the
Issuer's capital stock or of any class or series of the Issuer's indebtedness
for any class or series of the Issuer's capital stock, (c) the purchase of
fractional interests in shares of the Issuer's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (d) any declaration of a dividend in connection with
any stockholder's rights plan, or the issuance of rights, stock or other
property under any stockholder's rights plan, or the redemption or repurchase
of rights pursuant thereto, (e) payments under the Guarantee executed and
delivered by the Issuer and The Bank of New York, as trustee, for the benefit
of the holders of any Capital Securities, as amended) any dividend in the
form of stock, warrants, options or other rights where the dividend stock or
the stock issuable upon exercise of such warrants, options or other rights is
the same stock as that on which the dividend is being paid or ranks pari
passu with or junior to such stock), if at such time (i) there has occurred
any event (a) of which the Issuer has actual knowledge that with the giving
of notice or the lapse of time, or both, would constitute a Debenture Event
of Default and (b) that the Issuer has not taken reasonable steps to cure,
(ii) if the Debentures are held by the Issuer Trust, the Issuer is in default
with respect to its payment of any obligations under the Guarantee or (iii)
the Issuer has given notice of its election of an Extension Period as
provided in the Junior Subordinated Indenture and has not rescinded such
notice, or such Extension Period, or any extension thereof, is continuing.
As long as any Debentures are held by the Issuer Trust, the Issuer
covenants (i) to continue to hold, directly or indirectly, 100% of the Common
Securities, provided that certain successors that are permitted pursuant to
the Junior Subordinated Indenture may succeed to the Issuer's ownership of
the Common Securities, (ii) as holder of the Common Securities, not to
voluntarily dissolve, windup or liquidate the Issuer Trust, other than (a) in
connection with a distribution of Debentures to the holders of the Capital
Securities in liquidation of the Issuer Trust or (b) in connection with
certain mergers, consolidations or amalgamations permitted by the Trust
Agreement and (iii) to use its reasonable efforts, consistent with the terms
and provisions of the Trust Agreement, to cause the Issuer Trust to continue
not to be taxable as a corporation for United States federal income tax
purposes.
If, and for so long as, (i) the Issuer Trust is the holder of all the
Debentures and (ii) the Issuer Trust is required to pay any additional taxes,
duties or other governmental charges as a result of a Tax Event, the Issuer
will pay as additional sums on the Debentures ("ADDITIONAL SUMS") such
amounts as may be required so that the Distributions (as defined in the Trust
Agreement) paid by the Issuer Trust will not be reduced as a result of any
such additional taxes, duties or other governmental charges.
The Issuer, as borrower, agrees to pay all debts and other obligations
(other than with respect to the Capital Securities issued by the Issuer
Trust) and all costs and expenses of the Issuer Trust (including costs and
expenses relating to the organization of the Issuer Trust, the fees and
expenses of the Issuer Trustees (as defined in the Trust Agreement) for the
Issuer Trust and the costs and expenses relating to the operation of the
Issuer Trust) and to pay any and all taxes and all costs and expenses with
respect thereto (other than United States withholding taxes) to which the
Issuer Trust might become subject. The foregoing obligations of the Issuer
under the Debentures owned by the Issuer Trust are for the benefit of, and
shall be enforceable by, any person to whom any such debts, obligations,
costs, expenses and taxes are owed (a "CREDITOR") whether or not such
Creditor has received notice thereof. Any such Creditor may enforce such
obligations of the Issuer directly against the Issuer, and the Issuer
irrevocably waives any right or remedy to require that any such Creditor take
any action against the Issuer Trust or any other person before proceeding
against the Issuer. The Issuer agrees to execute any additional agreements
as may be necessary or desirable to give full effect to the foregoing.
The provisions of Section 3.04 and Section 10.01 of the Junior
Subordinated Indenture relating to discharge, defeasance and covenant
defeasance are not applicable to this Debenture.
This Debenture and all other obligations of the Issuer hereunder will
constitute part of the junior subordinated debt of the Issuer, will be issued
under the Junior Subordinated Indenture and will be subordinate and junior in
right of payment, to the extent and in the manner set forth in the Junior
Subordinated Indenture, to all "Senior Indebtedness" of the Issuer. The
Junior Subordinated Indenture defines "SENIOR INDEBTEDNESS" as obligations
issued under the Senior Indenture between Morgan Stanley (as predecessor to
the Issuer) and The Chase Manhattan Bank (formerly known as Chemical Bank),
as trustee, dated April 15, 1989, as supplemented by a First Supplemental
Senior Indenture dated as of May 15, 1991 and a Second Supplemental
Indenture, dated as of April 15, 1996 and a Third Supplemental Indenture
dated as of June 1, 1997, between the Issuer and The Chase Manhattan Bank, as
trustee, or the Senior Subordinated Indenture between Morgan Stanley (as
predecessor to the Issuer) and The First National Bank of Chicago, as
trustee, dated as of April 15, 1989, as supplemented by a First Supplemental
Subordinated Indenture dated as of May 15, 1991 and a Second Supplemental
Subordinated Indenture dated as of April 15, 1996 and by a Third Supplemental
Subordinated Indenture dated as of June 1, 1997 between the Issuer and The
First National Bank of Chicago, as trustee, and any other obligations (other
than non-recourse obligations, the debt securities, including this debenture,
issued under the Junior Subordinated Indenture or any other obligations
specifically designated as being subordinate in right of payment to Senior
Indebtedness) of, or guaranteed or assumed by, the Issuer for borrowed money
or evidenced by bonds, debentures, Debentures or other similar instruments,
and amendments, renewals, extensions, modifications and refundings of any
such indebtedness or obligation.
This Debenture, and any Debenture or Debentures issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons,
and is issuable only in denominations of U.S. $25 and any integral multiple
of U.S. $25 in excess thereof, unless otherwise indicated on the face
thereof.
The Bank of New York has been appointed registrar for the Debentures
(the "REGISTRAR," which term includes any successor registrar appointed by
the Issuer), and the Registrar will maintain at its office in The City of New
York a register for the registration and transfer of Debentures. This
Debenture may be transferred at the aforesaid office of the Registrar by
surrendering this Debenture for cancellation, accompanied by a written
instrument of transfer in form satisfactory to the Registrar and duly
executed by the registered holder hereof in person or by the holder's
attorney duly authorized in writing, and thereupon the Registrar shall issue
in the name of the transferee or transferees, in exchange herefor, a new
Debenture or Debentures having identical terms and provisions and having a
like aggregate principal amount in authorized denominations, subject to the
terms and conditions set forth herein; provided, however, that the Registrar
will not be required (i) to register the transfer of or exchange any
Debenture that has been called for redemption in whole or in part, except the
unredeemed portion of Debentures being redeemed in part or (ii) to register
the transfer of or exchange Debentures to the extent and during the period so
provided in the Junior Subordinated Indenture with respect to the redemption
of Debentures. Debentures are exchangeable at said office for other
Debentures of other authorized denominations of equal aggregate principal
amount having identical terms and provisions. All such exchanges and
transfers of Debentures will be free of charge, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge in
connection therewith. All Debentures surrendered for exchange shall be
accompanied by a written instrument of transfer in form satisfactory to the
Registrar and executed by the registered holder in person or by the holder's
attorney duly authorized in writing. The date of registration of any
Debenture deliebentures shall be such that no gain or loss of interest
results from such exchange or transfer.
In case this Debenture shall at any time become mutilated, defaced or be
destroyed, lost or stolen and this Debenture or evidence of the loss, theft
or destruction thereof (together with the indemnity hereinafter referred to
and such other documents or proof as may be required in the premises) shall
be delivered to the Registrar, a new Debenture of like tenor will be issued
by the Issuer in exchange for this Debenture, but, if this Debenture has been
destroyed, lost or stolen, only upon receipt of evidence satisfactory to the
Registrar and the Issuer that such Debenture was destroyed or lost or stolen
and, if required, upon receipt also of indemnity satisfactory to each of
them. All expenses and reasonable charges associated with procuring such
indemnity and with the preparation, authentication and delivery of a new
Debenture shall be borne by the owner of the Debenture mutilated, defaced,
destroyed, lost or stolen.
The Junior Subordinated Indenture permits the Issuer and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the debt securities of all series issued under the Junior
Subordinated Indenture then outstanding and affected (voting as one class),
to execute supplemental indentures adding any provisions to or changing in
any manner the rights of the holders of each series so affected; provided
that the Issuer and the Trustee may not, without the consent of the holder of
each outstanding debt security affected thereby and the prior written consent
of each Holder of Capital Securities, to the extent that the Debentures are
held by a MSDW Capital Trust, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, except as otherwise provided
herein or in the Junior Subordinated Indenture, or reduce any amount payable
on redemption or repayment thereof, or change the currency of payment
thereof, or impair or affect the rights of any holder to institute suit for
the payment thereof without the consent of the holder of each debt security
so affected or (b) reduce the aforesaid percentage in principal amount of
debt securities the consent of the holders of which is required for any such
supplemental indenture; provided, however, that neither this Debenture nor
the Junior Subordinated Indenture may be amended to alter the subordination
provisions hereof or thereof without the written consent of each holder of
Senior Indebtedness then outstanding that would be adversely affected
thereby. In addition, so long as any of the Capital Securities remain
outstanding, no such modification may be made that adversely affects the
holders of such Capital Securities in any material respect, and no
termination of the Junior Subordinated Indenture may occur, and no waiver of
any Event of Default or compliance with any covenant under the Junior
Subordctive, without the prior consent of the holders of at least a majority
of the aggregate Liquidation Amount of the outstanding Capital Securities
unless and until the principal of (and premium, if any, on) the Debentures
and all accrued and unpaid interest thereon have been paid in full and
certain other conditions are satisfied. So long as the Issuer acts in
accordance with the terms of the Debentures, the Issuer may shorten the
Stated Maturity of and defer interest payable on the Debentures, in each case
without the consent of the Issuer Trust or the holders of Capital Securities.
However, the Issuer may not amend the Junior Subordinated Indenture to remove
the rights of holders of Capital Securities to institute a Direct Action
without the prior written consent of all the holders of Capital Securities of
each trust.
So long as this Debenture shall be outstanding, the Issuer will cause to
be maintained an office or agency for the payment of the principal of and
premium, if any, and interest on this Debenture as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as aforesaid
of the Debentures. The Issuer may designate other agencies for the payment of
said principal, premium and interest at such place or places (subject to
applicable laws and regulations) as the Issuer may decide. So long as there
shall be such an agency, the Issuer shall keep the Trustee advised of the
names and locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or any
Paying Agent for payment of the principal of or interest or premium, if any,
on any Debentures that remain unclaimed at the end of two years after such
principal, interest or premium shall have become due and payable (whether at
maturity or upon call for redemption or otherwise), (i) the Trustee or such
Paying Agent shall notify the holders of such Debentures that such moneys
shall be repaid to the Issuer and any person claiming such moneys shall
thereafter look only to the Issuer for payment thereof and (ii) such moneys
shall be so repaid to the Issuer. Upon such repayment all liability of the
Trustee or such Paying Agent with respect to such moneys shall thereupon
cease, without, however, limiting in any way any obligation that the Issuer
may have to pay the principal of or interest or premium, if any, on this
Debenture as the same shall become due.
No provision of this Debenture or of the Junior Subordinated Indenture
shall alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Debenture at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the registered
holder of this Debenture.
Prior to due presentment of this Debenture for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat
the holder in whose name this Debenture is registered as the owner hereof for
all purposes, whether or not this Debenture be overdue, and none of the
Issuer, the Trustee or any such agent shall be affected by notice to the
contrary.
No recourse shall be had for the payment of the principal of, premium,
if any, or the interest on this Debenture, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Junior
Subordinated Indenture or any indenture supplemental thereto, against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Issuer or of any successor corporation, either directly or
through the Issuer or any successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance hereof
and as part of the consideration for the issue hereof, expressly waived and
released.
This Debenture shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Debenture which are defined in the Junior
Subordinated Indenture and not otherwise defined herein shall have the
meanings assigned to them in the Junior Subordinated Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - ______________ Custodian _________________
(Minor) (Cust)
Under Uniform Gifts to Minors Act _________________________
(State)
Additional abbreviations may also be used though not in the above list.
_______________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_________________________________________________
(PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
the within Debenture and all rights thereunder, hereby irrevocably
constituting and appointing such person attorney to transfer such Debenture
on the books of the Issuer, with full power of substitution in the premises.
Dated:__________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Debenture in every particular
without alteration or enlargement or any change whatsoever.
Signature Guaranty: _____________________________
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the (Registrar),
which requirements include membership or participation in
the Security Transfer Agent Medallion Program ("STAMP")
or such other "signature guarantee program" as may be
determined by the (Registrar) in addition to, or in
substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.