EXHIBIT 1-d
MORGAN STANLEY DEAN WITTER & CO.
Global Medium-Term Notes, Series C
Global Units, Series C
U.S. DISTRIBUTION AGREEMENT
o, 2002
Morgan Stanley DW Inc.
1585 Broadway
New York, New York 10036
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
Morgan Stanley Dean Witter & Co., a Delaware corporation (the
"Company"), confirms its agreement with you with respect to the issue and sale
from time to time by the Company of up to $o (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 C, due more than nine months from
the date of issue (the "Notes"), and its Global Units, Series C (the "Units"
and, together with the Notes, the "Program Securities"), in each case subject
to reduction as a result of the sale of the Company's (i) Global Medium-Term
Notes, Series D and Series E, to be sold primarily outside of the United
States, (ii) Global Units, Series D and Series E, to be sold primarily outside
of the United States, and (iii) the sale of certain of the Company's other debt
securities, warrants, preferred stock, purchase contracts and units and of
capital securities of certain Morgan Stanley Capital Trusts.
The Notes may be issued as senior indebtedness (the "Series C Senior
Notes") or as subordinated indebtedness (the "Series C Subordinated Notes") of
the Company. The Series C Senior Notes will be issued, either alone or as part
of a Unit, pursuant to the provisions of an amended and restated senior
indenture dated as of May 1, 1999, between the Company and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), as trustee (the "Senior Debt
Trustee") (as may be supplemented or amended from time to time, the "Senior
Debt Indenture"). The Series C Subordinated Notes will be issued pursuant to
the provisions of an amended and restated subordinated indenture dated as of
May 1, 1999, between the Company and Bank One Trust Company, N.A. (as successor
to The First National Bank of Chicago), as trustee (the "Subordinated Debt
Trustee") (as may be supplemented or amended from time to time, the
"Subordinated Debt Indenture"). The Senior Debt Indenture and the Subordinated
Debt Indenture are sometimes hereinafter referred to individually as an
"Indenture" and collectively as the "Indentures," and the Senior Debt Trustee
and the Subordinated Debt Trustee are sometimes hereinafter referred to
individually as a "Trustee" and collectively as the "Trustees." Purchase
contracts ("Purchase Contracts") that require holders to satisfy their
obligations thereunder when such Purchase Contracts are issued ("Pre-paid
Purchase Contracts") will be issued under the Indentures.
The Units will be issued either pursuant to the Unit Agreement dated
as of May 6, 1999, among the Company, JPMorgan Chase Bank (formerly known as
The Chase Manhattan Bank), as Unit Agent, as Collateral Agent, as Trustee and
Paying Agent under the Indenture referred to therein, and as Warrant Agent
under the Warrant Agreement referred to therein, and the holders from time to
time of the Units described therein (as may be amended from time to time, the
"Unit Agreement") or, if the Units do not include Purchase Contracts (other
than Pre- paid Purchase Contracts), pursuant to a Unit Agreement among the
Company and JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank),
as Unit Agent, as Trustee and Paying Agent under the Indenture referred to
therein, and as Warrant Agent under the Warrant Agreement referred to therein,
in the form of such agreement filed as an exhibit to the Registration Statement
referred to below (each such agreement, a "Unit Agreement Without Holders'
Obligations"). Units may include one or more (i) Series C Senior Notes, (ii)
warrants ("Universal Warrants") entitling the holders thereof to purchase or
sell (a) securities of an entity unaffiliated with the Company, a basket of
such securities, an index or indices of such securities or any combination of
the above, (b) currencies or (c) commodities, (iii) Purchase Contracts,
including Pre-paid Purchase Contracts, requiring the holders thereof to
purchase or sell (a) securities of an entity unaffiliated with the Company, a
basket of such securities, an index or indices of such securities or any
combination of the above, (b) currencies or (c) commodities or (iv) any
combination thereof. The applicable prospectus supplement will specify whether
Notes, Universal Warrants and Purchase Contracts comprised by a Unit may or may
not be separated from any series of Units. Universal Warrants issued as part of
a Unit will be issued pursuant to the Universal Warrant Agreement dated as of
May 6, 1999 (as may be amended from time to time, the "Universal Warrant
Agreement") between the Company and JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank), as
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Warrant Agent. Purchase Contracts, other than Pre-paid Purchase Contracts
("Non-pre-paid Purchase Contracts"), entered into by the Company and the
holders thereof will be governed by the Unit Agreement.
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 Basic Prospectus referred to below. The
Universal Warrants will have the exercise prices, exercise dates, expiration
dates and other terms as set forth in supplements to the Basic Prospectus. The
Purchase Contracts will have the closing dates, purchase or sale prices and
other terms as set forth in supplements to the Basic Prospectus.
The Company hereby appoints you as its exclusive agents for the
purpose of soliciting and receiving offers to purchase Program Securities from
the Company by others and, on the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth, you
agree to use reasonable efforts to solicit and receive offers to purchase
Program Securities upon terms acceptable to the Company at such times and in
such amounts as the Company shall from time to time specify. In addition, you
may also purchase Program Securities as principal pursuant to the terms of a
terms agreement relating to such sale (in the case of Notes, a "Notes Terms
Agreement" and, in the case of Units, a "Units Terms Agreement") in accordance
with the provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Program Securities. Such registration statement, including the exhibits
thereto, as amended at the Commencement Date (as hereinafter defined), is
hereinafter referred to as the "Registration Statement." The Company proposes
to file with the Commission from time to time, pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"), supplements to the
prospectus relating to the Program Securities included in the Registration
Statement that will describe certain terms of the Program Securities. The
prospectus relating to the Program Securities in the form in which it appears
in the Registration Statement is hereinafter referred to as the "Basic
Prospectus." The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement or supplements (each, a "Prospectus Supplement")
specifically relating to the Program Securities, as filed with, or transmitted
for filing to, the Commission pursuant to Rule 424 under the Securities Act. As
used herein, the terms "Basic Prospectus" and "Prospectus" shall include in
each case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934,
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as amended (the "Exchange Act"). If the Company has filed an abbreviated
registration statement to register additional Program Securities pursuant to
Rule 462(b) under the Securities Act (the "Rule 462 Registration Statement"),
then any reference herein to the term "Registration Statement" shall be deemed
to include such Rule 462 Registration Statement.
1. Representations and Warranties. The Company represents and
warrants to and agrees with you as of the Commencement Date, as of each date on
which you solicit offers to purchase Program Securities, as of each date on
which the Company accepts an offer to purchase Program Securities (including
any purchase by you as principal pursuant to a Notes Terms Agreement or a Units
Terms Agreement), as of each date the Company issues and delivers Program
Securities and as of each date the Registration Statement or the Basic
Prospectus is amended or supplemented, as follows (it being understood that
such representations, warranties and agreements shall be deemed to relate to
the Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) The Registration Statement has become effective, no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not contain
and each such part, as amended or supplemented, if applicable, will not 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, (iii) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that (1) the representations and warranties set forth in
this Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to you
furnished to the Company in writing by you expressly for use therein or (B) to
those parts of the Registration Statement that constitute the Statements of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of the Trustees and (2) the representations and
warranties set forth in clauses (iii) and (iv) above,
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when made as of the Commencement Date or as of any date on which you solicit
offers to purchase Program Securities or on which the Company accepts an offer
to purchase Program Securities, shall be deemed not to cover information
concerning an offering of particular Program Securities to the extent such
information will be set forth in a supplement to the Basic Prospectus.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business
as described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a whole.
(e) Each of this Agreement and any applicable Written Notes Terms
Agreement or Written Units Terms Agreement (each as hereinafter defined) has
been duly authorized, executed and delivered by the Company.
(f) Each Indenture has been duly qualified under the Trust Indenture
Act and each of the Senior Indenture, the Subordinated Indenture, the Unit
Agreement and the Universal Warrant Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company, enforceable in accordance with its terms except as the
enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered at a proceeding
in equity or at law.
(g) The form of Unit Agreement Without Holders' Obligations has been
duly authorized by the Company and, when a Unit Agreement Without Holders'
Obligations has been duly executed and delivered by the Company, the Unit
Agreement Without Holders' Obligations will be a valid and binding agreement of
the Company, enforceable in accordance with its terms except as the
enforceability thereof (i) may be limited by bankruptcy, insolvency,
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reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered at a proceeding
in equity or at law.
(h) The forms of Notes (including the form of Pre-paid Purchase
Contract), whether issued alone or as part of a Unit, have been duly authorized
and established in conformity with the provisions of the relevant Indenture
and, when the Notes (and the Pre-paid Purchase Contracts) have been executed
and authenticated in accordance with the provisions of the relevant Indenture
and delivered to and duly paid for by the purchasers thereof, the Notes (and
the Pre- paid Purchase Contracts) will be entitled to the benefits of such
Indenture and will be valid and binding obligations of the Company, enforceable
in accordance with their respective terms except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law.
(i) The forms of Units under the Unit Agreement, including the forms
of Universal Warrants and Non-pre-paid Purchase Contracts, have been duly
authorized and established in conformity with the provisions of (i) in the case
of such Units and Non-pre-paid Purchase Contracts, the Unit Agreement and (ii)
in the case of Universal Warrants, the Universal Warrant Agreement. When such
Units have been delivered to and duly paid for by the purchasers thereof and
(A) any Non-pre-paid Purchase Contracts included in such Units have been
executed by the Company and countersigned by the Unit Agent and (B) any
Universal Warrants included in such Units have been executed by the Company and
countersigned by the Warrant Agent, such Units (including any such Non-pre-paid
Purchase Contracts or Universal Warrants contained therein) will be entitled to
the benefits of the Unit Agreement and, in the case of the Universal Warrants,
the Universal Warrant Agreement and will be valid and binding obligations of
the Company, enforceable in accordance with their respective terms except as
the enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered at a proceeding
in equity or at law.
(j) When a Unit Agreement Without Holders' Obligations has been
executed and delivered by the Company, the Units to be issued thereunder will
have been duly authorized and when such Units have been established in
conformity with the provisions of the Unit Agreement Without Holders'
Obligations and delivered to and duly paid for by the purchasers thereof, and
any Universal Warrants included in such Units have been executed by the Company
and countersigned by the Warrant Agent, such Units (including any such
Universal Warrants contained therein) will be entitled to the benefits of the
Unit
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Agreement Without Holders' Obligations and will be valid and binding
obligations of the Company, enforceable in accordance with their respective
terms except as the enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting creditors' rights generally and (ii) is subject to general principles
of equity, regardless of whether such enforceability is considered at a
proceeding in equity or at law.
(k) The execution and delivery by the Company of this Agreement, the
Notes and Pre-paid Purchase Contracts (whether issued alone or as part of a
Unit), the Units (including any Purchase Contracts and Universal Warrants
included therein), the Indentures, the Unit Agreement, any Unit Agreement
Without Holders' Obligations, the Universal Warrant Agreement and any
applicable Written Notes Terms Agreement or Written Units Terms Agreement and
the performance by the Company of its obligations under this Agreement, the
Notes, the Pre-paid Purchase Contracts, the Units (including any Purchase
Contracts or Universal Warrants included therein), the Indentures, the Unit
Agreement, any Unit Agreement Without Holders' Obligations, the Universal
Warrant Agreement and any applicable Notes Terms Agreement or Units Terms
Agreement will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any agreement or
other instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its consolidated subsidiaries, taken as a whole, or
any judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any consolidated subsidiary, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its
obligations under this Agreement, the Notes, the Pre-paid Purchase Contracts,
the Units (including any Purchase Contracts or Universal Warrants included
therein), the Indentures, the Unit Agreement, any Unit Agreement Without
Holders' Obligations, the Universal Warrant Agreement and any applicable Notes
Terms Agreement or Units Terms Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Program Securities; provided, however, that no representation
is made or warranty given as to whether the purchase of the Program Securities
constitutes a "prohibited transaction" under Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended.
(l) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(m) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its consolidated subsidiaries is a
party or to which any of the properties of the Company or any of its
consolidated
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subsidiaries is subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement that are not described,
filed or incorporated as required.
(n) Each of the Company and its consolidated subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and permits
of and from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license and
use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to obtain or
file would not have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole.
(o) Morgan Stanley DW Inc. is registered as a broker-dealer and
investment adviser with the Commission, is registered with the Commodity
Futures Trading Commission as a futures commission merchant and is a member
of the New York Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc.
(p) Morgan Stanley & Co. Incorporated is registered as a
broker-dealer and investment adviser with the Commission, is registered with
the Commodity Futures Trading Commission as a futures commission merchant and
is a member of the New York Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc.
(q) The Company is not, and after giving effect to the offering and
sale of the Program Securities and the application of the proceeds thereof as
described in the Prospectus, will not be required to register as, an
"investment company" as such term is defined in the Investment Company Act of
1940, as amended.
Notwithstanding the foregoing, it is understood and agreed that the
representations and warranties set forth in Section 1(b)(iii) and 1(b)(iv),
1(h) (except as to due authorization of the Notes and Pre-paid Purchase
Contracts), 1(i) (except as to due authorization of the Units, Universal
Warrants and Non-pre-paid Purchase Contracts), 1(j) (except as to due
authorization of the Units and Universal Warrants) and 1(k), when made as of
the Commencement 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 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
8
amended, or the rules, regulations or interpretations of the Commodity Futures
Trading Commission.
2. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. In connection with your actions as
agents hereunder, you agree to use reasonable efforts to solicit offers to
purchase Program Securities upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct
you to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Program Securities. Upon receipt of at least
one business day's prior notice from the Company, you will forthwith suspend
solicitations of offers to purchase Program Securities from the Company until
such time as the Company has advised you that such solicitation may be resumed.
While such solicitation is suspended, the Company shall not be required to
deliver any certificates, opinions or letters in accordance with Sections 5(a),
5(b) and 5(c); provided, however, that if the Registration Statement or
Prospectus is amended or supplemented during the period of suspension (other
than by an amendment or supplement providing solely for (i) in the case of
Notes issued alone or as part of a Unit, a change in the interest rates,
redemption provisions, amortization schedules or maturities offered on the
Notes, (ii) in the case of Units, a change in the exercise price, exercise date
or period or expiration of an underlying Universal Warrant or a change in the
settlement date or purchase or sale price of an underlying Purchase Contract or
(iii) for a change you deem to be immaterial), you shall not be required to
resume soliciting offers to purchase Program Securities until the Company has
delivered such certificates, opinions and letters as you may request.
The Company agrees to pay to you, as consideration for the sale of
each Program Security resulting from a solicitation made or an offer to
purchase received by you, a commission in the form of a discount from the
purchase price of such Program Security equal to between .125% and .750%
(depending upon such Note's maturity or, in the case of Units, any underlying
Note's maturity or the terms of the Units and of the securities comprised by
such Units) of the principal amount of such Note or, in the case of Units, the
face amount of such Unit (provided that the commission for Notes having, or
Units including Notes or other securities having, a maturity of 30 years or
greater will be negotiated) or such other discount as may be specified in the
Prospectus Supplement relating to such Note or Unit.
You shall communicate to the Company, orally or in writing, each offer
to purchase Program Securities received by you as agent that in your judgment
should be considered by the Company. The Company shall have the sole right to
9
accept offers to purchase Program Securities and may reject any offer in whole
or in part. You shall have the right to reject any offer to purchase Program
Securities that you consider to be unacceptable, and any such rejection shall
not be deemed a breach of your agreements contained herein. The procedural
details relating to the issue and delivery of Program Securities sold by you as
agent and the payment therefor shall be as set forth in the Administrative
Procedures (as hereinafter defined).
(b) Purchases as Principals. 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 Notes Terms
Agreement or Units Terms Agreement that will provide for the sale of such
Program Securities to and the purchase thereof by you. Each Notes Terms
Agreement or Units Terms Agreement will take the form of either (i) a written
agreement between you and the Company, which may be substantially in the form
of Exhibit A or Exhibit A-1 (as applicable) hereto (in the case of Notes, a
"Written Notes Terms Agreement," and in the case of Units, a "Written Units
Terms Agreement"), or (ii) an oral agreement between you and the Company
confirmed in writing by you to the Company.
Your commitment to purchase Program Securities as principal pursuant
to a Notes Terms Agreement or Units 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) Notes Terms Agreement shall specify the principal amount of
Notes to be purchased by you pursuant thereto, the maturity date of such Notes,
the price to be paid to the Company for such Notes, the interest rate and
interest rate formula, if any, applicable to such Notes and any other terms of
such Notes and (ii) Units Terms Agreement shall specify (a) the information set
forth in (i) above with respect to any Notes issued as part of a Unit, (b) with
respect to any Universal Warrants issued as part of a Unit, the exercise price,
the exercise date or period, the expiration date and any other terms of such
Universal Warrants and (c) with respect to any Purchase Contracts issued as
part of a Unit, the settlement date, the purchase or sale price or any other
terms of such Purchase Contracts. Each such Notes Terms Agreement or Units
Terms Agreement may also specify any requirements for officers' certificates,
opinions of counsel and letters from the independent auditors of the Company
pursuant to Section 4 hereof. A Notes Terms Agreement and a Unit Terms
Agreement may also specify certain provisions relating to the reoffering of
such Notes or Units, as the case may be, by you.
Each Notes Terms Agreement and each Units Terms Agreement shall
specify the time and place of delivery of and payment for such Notes or Units,
as the case may be. Unless otherwise specified in a Notes Terms Agreement or a
Units Terms Agreement, the procedural details relating to the issue and
delivery
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of Notes or Units, as the case may be, purchased by you as principal and the
payment therefor shall be as set forth in the Administrative Procedures. Each
date of delivery of and payment for Program Securities to be purchased by you
as principal pursuant to a Notes Terms Agreement or a Units Terms Agreement, as
the case may be, is referred to herein as a "Settlement Date."
Unless otherwise specified in a Notes Terms Agreement or a Units 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 Prospectus Supplement
relating to such Notes or Units.
(c) Administrative Procedures. You and the Company agree to perform
the respective duties and obligations specifically provided to be performed in
the Global Medium-Term Notes, Series C, and Global Units, Series C,
Administrative Procedures (attached hereto as Exhibit B) (the "Administrative
Procedures"), as amended from time to time. The Administrative Procedures may
be amended only by written agreement of the Company and you.
(d) Delivery. The documents required to be delivered by Section 4 of
this Agreement as a condition precedent to your obligation to begin soliciting
offers to purchase Program Securities as agents of the Company shall be
delivered at the office of Davis Polk & Wardwell, your counsel, not later than
4:00 p.m., New York City time, on the date hereof, or at such other time and/or
place as you and the Company may agree upon in writing, but in no event later
than the day prior to the earlier of (i) the date on which you begin soliciting
offers to purchase Program Securities and (ii) the first date on which the
Company accepts any offer by you to purchase Program Securities as principal.
The date of delivery of such documents is referred to herein as the
"Commencement Date."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Program
Securities pursuant to this Agreement or pursuant to any Notes Terms Agreement
or Units Terms Agreement, the Company will not file any Prospectus Supplement
relating to the Program Securities or any amendment to the Registration
Statement relating to the Program Securities unless the Company has previously
furnished to you a copy thereof for your review and will not file any such
proposed supplement or amendment to which you reasonably object; provided,
however, that the foregoing requirement shall not apply to any of the Company's
periodic filings with the Commission required to be filed pursuant to Section
13(a), 13(c), 13(f), 14 or 15(d) of the Exchange Act, copies of which filings
the Company will cause to be delivered to you promptly after being transmitted
for filing with the Commission. Subject to the foregoing sentence, the Company
will promptly cause each Prospectus Supplement to be filed with or transmitted
for filing to the
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Commission in accordance with Rule 424(b) under the Securities Act. The Company
will promptly advise you (i) of the filing of any amendment or supplement to
the Basic Prospectus, (ii) of the filing and effectiveness of any amendment to
the Registration Statement, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Basic Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
and (v) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Program Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order or notice of suspension of qualification and, if issued, to
obtain as soon as possible the withdrawal thereof. If the Basic Prospectus is
amended or supplemented as a result of the filing under the Exchange Act of any
document incorporated by reference in the Prospectus, you shall not be
obligated to solicit offers to purchase Program Securities so long as you are
not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Program
Securities is required to be delivered under the Securities Act, any event
occurs or condition exists as a result of which the Prospectus, as then amended
or supplemented, would 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 when the Prospectus, as then amended or
supplemented, is delivered to a purchaser, not misleading, or if, in your
opinion or in the opinion of the Company, it is necessary at any time to amend
or supplement the Prospectus, as then amended or supplemented, to comply with
applicable law, the Company will immediately notify you by telephone (with
confirmation in writing) to suspend solicitation of offers to purchase Program
Securities and, if so notified by the Company, you shall forthwith suspend such
solicitation and cease using the Prospectus, as then amended or supplemented.
If the Company shall decide to amend or supplement the Registration Statement
or Prospectus, as then amended or supplemented, it shall so advise you promptly
by telephone (with confirmation in writing) and, at its expense, shall prepare
and cause to be filed promptly with the Commission an amendment or supplement
to the Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to you, that will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus to you in such quantities as you may reasonably request. If any
documents, certificates, opinions and letters furnished to you pursuant to
paragraph (f) below and Sections 5(a), 5(b) and 5(c) in connection with the
preparation and filing of such amendment or supplement are satisfactory in all
respects to you, upon the filing with the Commission of such amendment or
supplement to the Prospectus or upon the effectiveness of an amendment to the
Registration Statement, you will resume the solicitation of
12
offers to purchase Program Securities hereunder. Notwithstanding any other
provision of this Section 3(b), until the distribution of any Program
Securities you may own as principal has been completed, if any event described
above in this paragraph (b) occurs, the Company will, at its own expense,
forthwith prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus, as then
amended or supplemented, satisfactory in all respects to you, will supply such
amended or supplemented Prospectus to you in such quantities as you may
reasonably request and shall furnish to you pursuant to paragraph (f) below and
Sections 5(a), 5(b) and 5(c) such documents, certificates, opinions and letters
as you may request in connection with the preparation and filing of such
amendment or supplement.
(c) The Company will make generally available to its security holders
and to you as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder covering twelve month periods beginning, in each
case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158 under the Securities
Act) of the Registration Statement with respect to each sale of Program
Securities. If such fiscal quarter is the first fiscal quarter of the Company's
fiscal year, such earning statement shall be made available not later than 90
days after the close of the period covered thereby and in all other cases shall
be made available not later than 45 days after the close of the period covered
thereby.
(d) The Company will furnish in New York City, without charge, (i) to
each Agent, a signed copy of the Registration Statement, including exhibits and
all amendments thereto, and as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto as
you may reasonably request and (ii) to each Agent that purchases Program
Securities pursuant to a Notes Terms Agreement or Units Terms Agreement or
solicits an offer to purchase Program Securities that is accepted by the
Company, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of such Notes Terms Agreement or Units Terms Agreement or
the acceptance of such offer, as many copies of the Prospectus, as then amended
or supplemented (including the Prospectus Supplement relating to the Program
Securities to be purchased pursuant to such Notes Terms Agreement or Units
Terms Agreement or accepted offer), as such Agent may reasonably request.
(e) The Company will endeavor to qualify the Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and to maintain such qualifications for as long as you shall
reasonably request.
(f) During the term of this Agreement, the Company shall furnish to
you such relevant documents and certificates of officers of the Company
relating to the
13
business, operations and affairs of the Company, the Registration Statement,
the Basic Prospectus, any amendments or supplements thereto, the Indentures,
the Unit Agreement, any Unit Agreement Without Holders' Obligations, the
Universal Warrant Agreement, the Notes, the Units, the Universal Warrants, the
Purchase Contracts, this Agreement, the Administrative Procedures, any Notes
Terms Agreement or Units Terms Agreement and the performance by the Company of
its obligations hereunder or thereunder as you may from time to time reasonably
request.
(g) The Company shall notify you promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate the
direction of the possible change, in the rating accorded the Company or any of
the Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(h) 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 Notes Terms Agreement or Units Terms Agreement,
including: (i) the preparation and filing of the Registration Statement and the
Prospectus and all amendments and supplements thereto, (ii) the preparation,
issuance and delivery of the Program Securities, (iii) the fees and
disbursements of the Company's counsel and accountants, of the Trustees and
their counsel, of the Unit Agent and its counsel, and of the Warrant Agent and
its counsel, (iv) the qualification of the Notes and Units (and of any
securities comprised thereby) under securities or Blue Sky laws in accordance
with the provisions of Section 3(e), including filing fees and the fees and
disbursements of your counsel in connection therewith and in connection with
the preparation of any Blue Sky or Legal Investment Memoranda, (v) the printing
and delivery to you in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto and of the Prospectus and any
amendments or supplements thereto, (vi) the printing and delivery to you of
copies of the Indentures, the Unit Agreement, any Unit Agreement Without
Holders' Obligations, the Universal Warrant Agreement and any Blue Sky or Legal
Investment Memoranda, (vii) any fees charged by rating agencies for the rating
of the Program Securities, (viii) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers,
Inc., (ix) the fees and disbursements of your counsel incurred in connection
with the offering and sale of the Program Securities, including any opinions to
be rendered by such counsel hereunder, and (x) any out-of-pocket expenses
incurred by you; provided that any advertising expenses incurred by you shall
have been approved by the Company.
14
(i) During the period beginning on the date of any Notes Terms
Agreement or Units Terms Agreement relating to either Notes or Units, as the
case may be, and continuing to and including the Settlement Date with respect
to such Notes Terms Agreement or Units Terms Agreement, the Company will not,
without your prior consent, offer, sell, contract to sell or otherwise dispose
of (i) in the case of Notes, any debt securities of the Company substantially
similar to the Notes set forth in such Notes Terms Agreement (other than (A)
the Notes that are to be sold pursuant to such Notes Terms Agreement, (B) Notes
previously agreed to be sold by the Company and (C) commercial paper issued in
the ordinary course of business) or (ii) in the case of Units, any securities
substantially similar to such Units (other than (A) the Units that are sold
pursuant to such Units Terms Agreement or (B) Units previously agreed to be
sold by the Company), in each case, except as may otherwise be provided in the
applicable Notes Terms Agreement or Units Terms Agreement.
4. Conditions of the Obligations of the Agents. Your obligation to
solicit offers to purchase Program Securities as agents of the Company, your
obligation to purchase Program Securities as principals pursuant to any Notes
Terms Agreement or Units Terms Agreement and the obligation of any other
purchaser to purchase Program Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of your obligation to
solicit offers to purchase Program Securities, at the time of such
solicitation, and, in the case of your or any other purchaser's obligation to
purchase Program Securities, at the time the Company accepts the offer to
purchase such Program Securities and at the time of issuance and delivery) and
(in each case) to the following additional conditions precedent when and as
specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus, as amended or supplemented at the time of
such solicitation or at the time such offer to purchase was made,
that, in your judgment, is material and adverse and that makes it, in
your judgment, impracticable to market the Program Securities on the
terms and in the manner contemplated by the Prospectus, as so amended
or supplemented;
(ii) there shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may be,
any of the New
15
York Stock Exchange, the American Stock Exchange, the Nasdaq National
Market, the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (B) suspension of trading of
any securities of the Company on any exchange or in any
over-the-counter market, (C) material disruption in securities
settlement, payment or clearance services in the United States or, in
the event of a global offering, in any relevant foreign jurisdiction,
(D) declaration of any moratorium on commercial banking activities by
Federal or New York State authorities or (E) any outbreak or
escalation of hostilities or any change in financial markets (or, if
the relevant Program Securities are denominated in a currency other
than U.S. dollars, any change in currency exchange rates or controls)
or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified
in this clause (E), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Program
Securities on the terms and in the manner contemplated by the
Prospectus, as amended or supplemented, at the time of such
solicitation or at the time such offer to purchase was made; and
(iii) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded
the Company or any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed to you in writing by the Company prior to such solicitation or, in
the case of a purchase of Program Securities, before the offer to purchase such
Program Securities was made or (B) unless in each case described in (ii) above,
the relevant event shall have occurred and been known to you prior to such
solicitation or, in the case of a purchase of Program Securities, before the
offer to purchase such Program Securities was made.
(b) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, you
shall have received:
(i) The opinion, dated as of such date, of Sidley Austin
Brown & Wood LLP, counsel to the Company, or of other counsel
satisfactory to you and who may be an officer of the Company, to the
following effect that:
(A) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the
16
State of Delaware, has the corporate power and authority to
own its property and to conduct its business as described in
the Prospectus, as amended or supplemented, and is duly
qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect
on the Company and its consolidated subsidiaries, taken as a
whole;
(B) each of Morgan Stanley DW Inc., Discover Bank,
Morgan Stanley & Co. Incorporated and Morgan Stanley
International Incorporated (each a "Material Subsidiary") has
been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus, as amended or supplemented, and is duly qualified
to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect
on the Company and its consolidated subsidiaries, taken as a
whole;
(C) each of the Company and its Material Subsidiaries
has all necessary consents, authorizations, approvals,
orders, certificates and permits of and from, and has made
all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to
conduct its business in the manner described in the
Prospectus, as amended or supplemented, except to the extent
that the failure to obtain or file would not have a material
adverse effect on the Company and its consolidated
subsidiaries, taken as a whole;
(D) each of this Agreement and any applicable Written
Notes Terms Agreement or Written Units Terms Agreement has
been duly authorized, executed and delivered by the Company;
(E) each Indenture has been duly qualified under the
Trust Indenture Act and each of the Senior Indenture, the
Subordinated Indenture, the Unit Agreement and the Universal
Warrant Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement
of the Company,
17
enforceable in accordance with its terms except as the
enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii)
is subject to general principles of equity, regardless of
whether such enforceability is considered at a proceeding in
equity or at law;
(F) the Unit Agreement Without Holders' Obligations, if
any, has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the
enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii)
is subject to general principles of equity, regardless of
whether such enforceability is considered at a proceeding in
equity or at law;
(G) the forms of Notes (including the form of Pre-paid
Purchase Contracts), whether issued alone or as part of a
Unit, have been duly authorized and established in conformity
with the provisions of the relevant Indenture and, if the
Notes and the Pre- paid Purchase Contracts had been executed
by the Company and authenticated by the relevant Trustee or
its duly appointed agent in accordance with the provisions of
the relevant Indenture and delivered to and duly paid for by
the purchasers thereof on the date of such opinion, such
Notes and the Pre-paid Purchase Contracts would be entitled
to the benefits of such Indenture and would be valid and
binding obligations of the Company, enforceable in accordance
with their respective terms except as the enforceability
thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar
laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of
whether such enforceability is considered at a proceeding in
equity or at law;
(H) the forms of Units under the Unit Agreement,
including the forms of Universal Warrants and Non-pre-paid
Purchase Contracts, have been duly authorized and established
in conformity with the provisions of (i) in the case of Units
under the Unit Agreement and Non-pre-paid Purchase Contracts,
the Unit Agreement and (ii) in the case of the Universal
Warrants, the Universal Warrant Agreement. If such Units
(including the Universal Warrants and the Non-pre-paid
Purchase Contracts) had been delivered to and duly paid for
by the purchasers thereof (and any Purchase Contracts
included therein had been executed by the
18
Company and countersigned by the Unit Agent and any Universal
Warrants included therein had been executed by the Company
and countersigned by the Warrant Agent) on the date of such
opinion, such Units (including the Non-pre-paid Purchase
Contracts and the Universal Warrants contained therein) would
be entitled to the benefits of the Unit Agreement and, in the
case of the Universal Warrants, the Universal Warrant
Agreement, and would be valid and binding obligations of the
Company, enforceable in accordance with their respective
terms except as the enforceability thereof (i) may be limited
by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is
considered at a proceeding in equity or at law;
(I) the Units under the Unit Agreement Without Holders'
Obligations have been duly authorized (and the forms of any
Universal Warrants included therein have been duly authorized
and established in conformity with the provisions of the
Universal Warrant Agreement), and if such Units (including
any such Universal Warrants included therein) had been
delivered to and duly paid for by the purchasers thereof (and
any Universal Warrants included therein had been executed by
the Company and countersigned by the Warrant Agent) on the
date of such opinion, such Units (including the Universal
Warrants contained therein) would be entitled to the benefits
of the Unit Agreement Without Holders' Obligations and in the
case of the Universal Warrants, the Universal Warrant
Agreement, and would be valid and binding obligations of the
Company, enforceable in accordance with their respective
terms except as the enforceability thereof (i) may be limited
by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is
considered at a proceeding in equity or at law;
(J) the execution and delivery by the Company of the
Notes and Pre-paid Purchase Contracts (whether issued alone
or as part of a Unit), the Units (including any Purchase
Contract or Universal Warrant included therein), the
Indentures, the Unit Agreement, any Unit Agreement Without
Holders' Obligations, the Universal Warrant Agreement and any
applicable Written Notes Terms Agreement or Written Units
Terms Agreement and the performance by the Company of its
obligations under this Agreement, the Notes, the Units, the
Indentures, the Unit
19
Agreement, any Unit Agreement Without Holders' Obligations,
the Universal Warrant Agreement and any applicable Notes
Terms Agreement or Units Terms Agreement will not contravene
any provision of applicable law or the certificate of
incorporation or by-laws of the Company or, to the best of
such counsel's knowledge, any agreement or other instrument
binding upon the Company or any of its subsidiaries that is
material to the Company and its consolidated subsidiaries,
taken as a whole, or, to the best of such counsel's
knowledge, any judgment, order or decree of any U.S.
governmental body, agency or court having jurisdiction over
the Company or any of its consolidated subsidiaries, and no
consent, approval, authorization or order of or qualification
with any U.S. governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Notes, the Pre-paid Purchase Contracts, the
Units (including any Purchase Contracts or Universal Warrants
included therein), the Indentures, the Unit Agreement, any
Unit Agreement Without Holders' Obligations, the Universal
Warrant Agreement and any applicable Notes Terms Agreement or
Units Terms Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in
connection with the offer and sale of the Program Securities;
provided, however, that no opinion is expressed on whether
the purchase of the Program Securities constitutes a
"prohibited transaction" under Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, or
Section 4975 of the Internal Revenue Code of 1986, as
amended;
(K) the statements (1) in the Prospectus, as then
amended or supplemented, under the captions "Description of
Notes" (in the Prospectus Supplement), "Description of Debt
Securities" (in the Basic Prospectus), "Description of Units"
(in the Prospectus Supplement and in the Basic Prospectus),
"Plan of Distribution" (in the Prospectus Supplement and in
the Basic Prospectus), "Description of Purchase Contracts"
(in the Basic Prospectus) and "Description of Warrants" (in
the Basic Prospectus), (2) in the Registration Statement, as
then amended or supplemented, under Item 15, (3) in "Item 3.
Legal Proceedings" of the most recent annual report on Form
10-K incorporated by reference in the Prospectus and (4) in
"Item 1. Legal Proceedings" of Part II of the quarterly
reports on Form 10-Q, if any, filed since such annual report
and incorporated by reference in the Prospectus, in each case
insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
20
matters, documents and proceedings and fairly summarize the
matters referred to therein;
(L) after due inquiry, such counsel does not know of
any legal or governmental proceedings pending or threatened
to which the Company or any of its consolidated subsidiaries
is a party or to which any of the properties of the Company
or any of its consolidated subsidiaries is subject that are
required to be described in the Registration Statement or the
Prospectus, as then amended or supplemented, and are not so
described or of any U.S. federal or state statutes,
regulations, contracts or other documents governed by U.S.
federal or state law that are required to be described in the
Registration Statement or the Prospectus, as then amended or
supplemented, or to be filed or incorporated by reference as
exhibits to such Registration Statement that are not
described, filed or incorporated by reference as required;
(M) the Company is not, and after giving effect to the
offering and sale of the Program Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be required to register as, an
"investment company" as such term is defined in the
Investment Company Act of 1940, as amended; and
(N) such counsel (1) believes that each document, if
any, filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus as then amended or supplemented
(except as to financial statements and schedules and other
financial and statistical data included therein, as to which
such counsel need not express any belief) complied when so
filed as to form in all material respects with the Exchange
Act and the applicable rules and regulations of the
Commission thereunder, (2) has no reason to believe that any
part of the Registration Statement (except as to financial
statements and schedules and other financial and statistical
data included therein, as to which such counsel need not
express any belief, and except for that part of the
Registration Statement that constitutes the Forms T-1
heretofore referred to), as then amended, if applicable, when
such part became effective contained, and the Registration
Statement (except as to financial statements and schedules
and other financial and statistical data included therein, as
to which such counsel need not express any belief, and except
for the part of the Registration Statement that constitutes
the Forms T-1) as of the date such opinion is delivered
contains, any untrue statement of a material fact or omitted
or omits to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, (3)
21
believes that the Registration Statement and Prospectus, as
then amended or supplemented, if applicable (except as to
financial statements and schedules and other financial and
statistical data included therein, as to which such counsel
need not express any belief), complied as to form in all
material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (4)
has no reason to believe that the Prospectus, as then amended
or supplemented, if applicable (except as to financial
statements and schedules and other financial and statistical
data included therein, as to which such counsel need not
express any belief), as of the date such opinion is delivered
contains any untrue statement of a material fact or omits 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 in the
case of an opinion delivered on the Commencement Date or
pursuant to Section 5(b), the opinion and belief set forth in
clauses (3) and (4) above shall be deemed not to cover
information concerning an offering of particular Notes or
Units to the extent such information will be set forth in a
supplement to the Basic Prospectus.
(ii) The opinion, dated as of such date, of Davis Polk &
Wardwell, your special counsel, covering the matters in subparagraphs
(D), (E), (F), (G), (H), (I) and (K) (with respect to statements in
the Prospectus, as then amended or supplemented, under the captions
"Description of Notes" (in the Prospectus Supplement), "Description of
Debt Securities" (in the Basic Prospectus), "Description of Units" (in
the Prospectus Supplement and the Basic Prospectus), "Plan of
Distribution" (in the Prospectus Supplement and in the Basic
Prospectus), "Description of Purchase Contracts" (in the Basic
Prospectus) and "Description of Warrants" (in the Basic Prospectus))
and clauses (2), (3) and (4) of subparagraph (N) in paragraph (b)(i)
above.
The opinions described in subparagraphs (F) and (I) need only
be contained in an opinion delivered on a Settlement Date related to
an offering of Units under a Unit Agreement Without Holders'
Obligations to be executed on or prior to such Settlement Date.
Notwithstanding the foregoing, the opinions described in
subparagraphs (G) (except as to due authorization of the Notes and
Pre- paid Purchase Contracts), (H) (except as to due authorization of
the Units, Universal Warrants and Non-pre-paid Purchase Contracts),
(I) (except as to due authorization of the Units and Universal
Warrants), (J), (K)(1) and (N)(3) and (4) of paragraph (b)(i) above,
when contained in an opinion delivered on the Commencement Date or
pursuant to Section 5(b), shall be
22
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 to 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
unaffiliated with the Company, baskets of such securities, equity
indices or other factors.
With respect to subparagraph (N) of paragraph (b)(i) above,
if such opinion is given by counsel who is also an officer of the
Company, such counsel may state that his or her opinion and belief are
based upon his or her participation, or the participation of someone
under his or her supervision, in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and
documents incorporated therein by reference and review and discussion
of the contents thereof, but are without independent check or
verification, except as specified. With respect to subparagraph (N) of
paragraph (b)(i) above, Davis Polk & Wardwell and, if Sidley Austin
Brown & Wood LLP is giving such opinion, Sidley Austin Brown & Wood
LLP may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto (but not
including documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents incorporated
therein by reference), but are without independent check or
verification, except as specified.
(iii) The opinion, dated as of such date, of Sidley Austin
Brown & Wood LLP, special counsel to the Company, to the effect 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 Basic 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 opinion of Sidley Austin Brown & Wood LLP described in paragraph
(b)(iii) above and in paragraph (b)(i) above, if such opinion is given by
Sidley Austin Brown & Wood LLP, shall be rendered to you at the request of the
Company and shall so state therein.
(c) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, you
shall have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, and signed by an executive officer of the
23
Company to the effect set forth in subparagraph (a)(iii) above and to the
effect that the representations and warranties of the Company contained in this
Agreement are true and correct as of such date and that the Company has
complied with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, the
Company's independent auditors shall have furnished to you a letter or letters,
dated as of the Commencement Date or such Settlement Date, as the case may be,
in form and substance satisfactory to you containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus, as
then amended or supplemented; provided that each letter so furnished shall use
a "cut-off date" no more than three business days prior to the date of such
letter.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to you such appropriate further information,
certificates and documents as you may reasonably request.
5. Additional Agreements of the Company. (a) Each time the
Registration Statement or Prospectus is amended or supplemented (other than by
an amendment or supplement providing solely for (i) in the case of Notes, a
change in the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes issued alone or as part of a Unit, (ii) in the
case of Units, (x) a change in the exercise price, exercise date or period or
expiration of an underlying Universal Warrant or (y) a change in the settlement
date or purchase or sale price of an underlying Purchase Contract or (iii) a
change you deem to be immaterial), the Company will deliver or cause to be
delivered forthwith to you a certificate signed by an executive officer of the
Company, dated the date of such amendment or supplement, as the case may be, in
form reasonably satisfactory to you, of the same tenor as the certificate
referred to in Section 4(c) relating to the Registration Statement or the
Prospectus as amended or supplemented to the time of delivery of such
certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a) (other than any amendment or supplement to the Registration
Statement or Prospectus caused by the filing of a Current Report on Form 8-K
unless you shall reasonably request based on disclosure included or omitted
from such Report), the Company will furnish or cause to be furnished forthwith
to you a written opinion of counsel for the Company. Any such opinion shall be
dated the date of such
24
amendment or supplement, as the case may be, shall be in a form satisfactory to
you and shall be of the same tenor as the opinions referred to in Section 4(b),
but modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such opinion. In lieu of
such opinion, counsel last furnishing such an opinion to you may furnish to you
a letter to the effect that you may rely on such last opinion to the same
extent as though it were dated the date of such letter (except that statements
in such last opinion will be deemed to relate to the Registration Statement and
the Prospectus as amended or supplemented to the time of delivery of such
letter.)
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Prospectus, the Company shall cause its independent auditors
forthwith to furnish you with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to you, of the same tenor
as the letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or incorporated by reference in the
Registration Statement or the Prospectus as amended or supplemented to the date
of such letter; provided that each letter so furnished shall use a "cut-off
date" no more than three business days prior to the date of such letter.
6. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless you and each person, if any, who controls you within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any amendment
thereof or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to you furnished to the Company in writing by you
expressly for use therein.
(b) You agree to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to you, but only with reference to
information relating to you furnished to the Company in writing by you
expressly
25
for use in the Registration Statement or the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by you, in the case
of parties indemnified pursuant to paragraph (a) above, and by the Company, in
the case of parties indemnified pursuant to paragraph (b) above. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there were to be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of
26
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a)
or (b) of this Section 6 is unavailable to an indemnified party or insufficient
in respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Program Securities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and you on the other hand from the offering of such
Program Securities or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and you on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and you on the other hand in connection with the offering of such Program
Securities shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of such Program Securities (before
deducting expenses) received by the Company bear to the total discounts and
commissions received by you in respect thereof. The relative fault of the
Company on the one hand and of you on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by you and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company and you agree that it would not be just or equitable
if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, you shall not be required to contribute any
amount in excess of the amount by which the total price at which the Program
Securities referred to in paragraph (d) above that were offered and sold to the
public through you exceeds the amount of any damages that you have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
27
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6 and the representations, warranties and other statements of the
Company, its officers and you set forth in or made pursuant to this Agreement
or any Notes Terms Agreement or Units Terms Agreement will remain operative and
in full force and effect regardless of (i) any termination of this Agreement or
any such Notes Terms Agreement or Units Terms Agreement, (ii) any investigation
made by or on behalf of you or any person controlling you or by or on behalf of
the Company, its officers or directors or any person controlling the Company
and (iii) acceptance of and payment for any of the Program Securities.
7. Position of the Agent. In acting under this Agreement and in
connection with the sale of any Program Securities by the Company (other than
Program Securities sold to you pursuant to a Notes Terms Agreement or Units
Terms Agreement, as the case may be), you are acting solely as agent of the
Company and do not assume any obligation towards or relationship of agency or
trust with any purchaser of Program Securities. You shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Program Securities has been solicited by you and accepted by
the Company, but you shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default in its obligations to deliver Program Securities to a purchaser whose
offer it has accepted, the Company shall hold you harmless against any loss,
claim, damage or liability arising from or as a result of such default and
shall, in particular, pay to you the commission you would have received had
such sale been consummated.
8. 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 3 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.
9. Termination. This Agreement may be terminated at any time either
by the Company or by you upon the giving of written notice of such termination
to
28
the other parties hereto, but without prejudice to any rights, obligations or
liabilities of the other parties hereto accrued or incurred prior to such
termination. The termination of this Agreement shall not require termination of
any Notes Terms Agreement or Units Terms Agreement, and the termination of any
such Notes Terms Agreement or Units Terms Agreement shall not require
termination of this Agreement. If this Agreement is terminated, the provisions
of the third paragraph of Section 2(a), the last sentence of Section 3(b) and
Sections 3(c), 3(h), 6, 7, 10, 11 and 13 shall survive; provided that if at the
time of termination an offer to purchase Program Securities has been accepted
by the Company but the time of delivery to the purchaser or its agent of such
Program Securities has not occurred, the provisions of Sections 1, 2(b), 2(c),
3(a), 3(d), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall also survive until such
delivery has been made.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to you, will be mailed, delivered or
telefaxed and confirmed to you at 1585 Broadway, New York, New York 10036,
Attention: Manager, Continuously Offered Products (telefax number:
212-761-0781), with a copy to 1585 Broadway, 34th Floor, New York, New York
10036, Attention: Peter Cooper, Investment Banking Information Center (telefax
number: 212-761-0260) or, if sent to the Company, will be mailed, delivered or
telefaxed and confirmed to the Company at 1221 Avenue of the Americas, New
York, New York 10020, Attention: Treasurer; Facsimile No.: 212-762-7337.
11. Successors. This Agreement and any Notes Terms Agreement or Units
Terms Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers, directors and
controlling persons referred to in Section 6 and the purchasers of Notes and
Units (to the extent expressly provided in Section 4), and no other person will
have any right or obligation hereunder.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and you.
29
Very truly yours,
MORGAN STANLEY DEAN WITTER & CO.
By:_____________________________________
Name: Alexander C. Frank
Title: Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
MORGAN STANLEY DW INC.
By:___________________________
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
By:___________________________
Name:
Title:
30
EXHIBIT A
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES C
NOTES TERMS AGREEMENT
_______________, 200_
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement dated o, 2002 (the
"U.S. Distribution Agreement")
----------------------------------------------
The undersigned agrees to purchase your Global Medium-Term Notes,
Series C, having the following terms:
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 and Time: Amortization Schedule: Spread (Plus or Minus):
Place of Delivery: Applicability of Annual Spread Multiplier:
Interest Payments:
Specified Currency: Denominated Currency (if Alternate Rate Event Spread:
any):
Original Issue Date: Indexed Currency or Initial Interest Rate:
Currencies (if any):
Interest Accrual Date: Payment Currency (if any): Initial Interest Reset Date:
A-1
All Notes Fixed Rate Notes Floating Rate Notes
- ------------------------------- ------------------------------- ---------------------------------
Interest Payment Dates: Exchange Rate Agent (if Interest Reset Dates:
any):
Interest Payment Period: Reference Dealers: Interest Reset Period:
Maturity Date: Face Amount (if any): Maximum Interest Rate:
Optional Repayment Date(s): Fixed Amount of each Minimum Interest Rate:
Indexed 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 Maturity Variable Rate Renewable
Percentage: Date: Notes:
Annual Redemption Redemption Dates:
Percentage Reduction:
Ranking: Redemption Percentage:
Minimum Denominations: Initial Maturity Date:
Other Provisions: Final Maturity Date:
Applicability of Issuer's
Option to Reset Spread or
Spread Multiplier:
The provisions of Sections 1, 2(b) and 2(c), 3 through 6, 8 and 10
through 14 of the U.S. Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is also subject to termination on the terms
incorporated by reference herein. If this Agreement is terminated, the
provisions of Sections 3(h), 6, 10, 11, and 13 of the U.S. Distribution
Agreement shall survive for the purposes of this Agreement.
A-2
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the U.S. Distribution Agreement will be
required: _____________________.
MORGAN STANLEY DW INC.
By:_______________________________
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
By:_______________________________
Name:
Title:
Accepted:
MORGAN STANLEY DEAN
WITTER & CO.
By:_______________________________
Name:
Title:
A-3
EXHIBIT A-1
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL UNITS, SERIES C
UNITS TERMS AGREEMENT
_______________, 200_
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement dated o, 2002 (the "U.S.
Distribution Agreement")
----------------------------------------------------
The undersigned agrees to purchase your Global Units, Series C,
[specified designation] having the following terms:
Universal Warrants Issued Purchase Contracts Issued
All Units: as Part of a Unit: as Part of a Unit
- ---------------------------------- ---------------------------------- ------------------------------------
Settlement Date and Time: Designation of the Series of Designation of the Series of
Warrants: [Call] [Put] Purchase Contracts:
Warrants [Purchase][Sale] Purchase
Contracts
Number (Face Amount): Warrant Property: Aggregate Number of
Purchase Contracts:
Purchase Price: Aggregate Number of Purchase Contract Property:
Warrants:
Specified Currency: Date(s) upon which Quantity per Purchase
Warrants may be exercised: Contract:
Severability: Currency in which exercise [Purchase] [Sale] Price:
payments shall be made:
Other Terms: Exchange Rate (or method Settlement Date:
of calculation):
A-1-1
Universal Warrants Issued Purchase Contracts Issued
All Units: as Part of a Unit: as Part of a Unit
- ---------------------------------- ---------------------------------- ------------------------------------
Expiration Date: Payment Location:
Form of Settlement: Method of Settlement:
[Call Price:]1
[Formula for determining Currency of Settlement
Cash Settlement Value:]2 Payment:
[Amount of Warrant Contract Fees, if any:
Property Salable per
Warrant:]3
[Put Price for such specified Corporation Acceleration:
amount of Warrant Property
per Warrant:]2
[Method of delivery of any Holders' Acceleration:
Warrant Property to be
delivered for sale upon
exercise of Warrants:]3
Other Terms: Redemption Provisions:
Other Terms:
All Units Issued as Part of Fixed Rate Notes Issued as Floating Rate Notes Issued
a Unit: Part of a Unit: as Part of a Unit:
- ---------------------------------- ---------------------------------- ------------------------------------
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:
- -----------
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
A-1-2
All Units Issued as Part of Fixed Rate Notes Issued as Floating Rate Notes Issued
a Unit: Part of a Unit: as Part of a Unit:
- ---------------------------------- ---------------------------------- ------------------------------------
Specified Currency: Denominated Currency (if Alternate Rate Event Spread:
any):
Original Issue Date: Indexed Currency or Initial Interest Rate:
Currencies (if any):
Interest Accrual Date: Payment Currency (if any): Initial Interest Reset Date:
Maturity Date: Exchange Rate Agent (if Interest Reset Dates:
any):
Interest Payment Date(s): Reference Dealers: Interest Reset Period:
Interest Payment Period: Face Amount (if any): Maximum Interest Rate:
Optional Repayment Date(s): Fixed Amount of each Minimum Interest Rate:
Indexed 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 Maturity Variable Rate Renewable
Percentage: Date: Notes:
Annual Redemption Redemption Dates:
Percentage Reduction:
Ranking: Redemption Percentage:
Series: Initial Maturity Date:
Minimum Denominations: Final Maturity Date:
Other Terms: Applicability of Issuer's
Option to Reset Spread or
Spread Multiplier:
The provisions of Sections 1, 2(b) and 2(c), 3 through 6, 8 and 10
through 14 of the U.S. Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is also subject to termination on the terms
incorporated by reference herein. If this Agreement is terminated, the
provisions of Sections 3(h),
A-1-3
6, 10, 11 and 13 of the U.S. Distribution Agreement shall survive for the
purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the U.S. Distribution Agreement will be
required: _____________.
MORGAN STANLEY DW INC.
By:_______________________________
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
By:_______________________________
Name:
Title:
Accepted:
MORGAN STANLEY DEAN
WITTER & CO.
By:_______________________________
Name:
Title:
A-1-4
EXHIBIT B
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES C
GLOBAL UNITS, SERIES C
ADMINISTRATIVE PROCEDURES
---------------------------
Explained below are the administrative procedures and specific terms
of the offering of Global Medium-Term Notes, Series C (the "Notes") and Global
Units, Series C (the "Units"), on a continuous basis by Morgan Stanley Dean
Witter & Co. (the "Company") pursuant to the U.S. Distribution Agreement dated
o, 2002 (as may be amended from time to time, the "Distribution Agreement")
among the Company, Morgan Stanley DW Inc. and Morgan Stanley & Co. Incorporated
(collectively or individually the "Agent" as the context requires). The Notes
may be issued as senior indebtedness (the "Senior Notes") or subordinated
indebtedness (the "Subordinated Notes") of the Company, and as used herein the
term "Notes" includes the Senior Notes and the Subordinated Notes. The Senior
Notes will be issued, either alone or as part of a Unit, pursuant to the
provisions of an amended and restated senior indenture dated as of May 1, 1999
(as may be supplemented or amended from time to time, the "Senior Debt
Indenture"), between the Company and JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank) ("JPMorgan Chase"), as trustee. The Subordinated Notes
will be issued pursuant to the provisions of an amended and restated
subordinated indenture, dated as of May 1, 1999 (as may be supplemented or
amended from time to time, the "Subordinated Debt Indenture"), between the
Company and Bank One Trust Company, N.A. (as successor to The First National
Bank of Chicago), as trustee. The Senior Debt Indenture and the Subordinated
Debt Indenture are sometimes hereinafter referred to individually as an
"Indenture" and collectively as the "Indentures." Purchase Contracts that
require holders to satisfy their obligations thereunder when such Purchase
Contracts are issued ("Pre-paid Purchase Contracts") will be issued under an
Indenture.
Unless otherwise specified in the applicable Pricing Supplement, the
Units will be issued (i) pursuant to the Unit Agreement dated as of May 6,
1999, among the Company, JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as Unit Agent, as Collateral Agent, as Trustee and Paying
Agent under the
B-1
Indenture referred to therein, and as Warrant Agent under the Warrant Agreement
referred to therein, and the holders from time to time of the Units described
therein (as may be amended from time to time, the "Unit Agreement"), or (ii) if
Units do not include Purchase Contracts (other than Pre-paid Purchase
Contracts), pursuant to a unit agreement among the Company and JPMorgan Chase
Bank (formerly known as The Chase Manhattan Bank), as Unit Agent, as Trustee
and Paying Agent under the Indenture referred to therein, and as Warrant Agent
under the Warrant Agreement referred to therein, in the form of such agreement
filed as an exhibit to the Registration Statement (each such agreement, a "Unit
Agreement Without Holders' Obligations"). Units may include one or more (i)
Series C Senior Notes, (ii) warrants ("Universal Warrants") entitling the
holders thereof to purchase or sell (a) securities of an entity unaffiliated
with the Company, a basket of such securities, an index or indices of such
securities or any combination of the above, (b) currencies or (c) commodities,
(iii) purchase contracts ("Purchase Contracts"), including Pre-paid Purchase
Contracts, requiring the holders thereof to purchase or sell (a) securities of
an entity unaffiliated with the Company, a basket of such securities, an index
or indices of such securities or any combination of the above, (b) currencies
or (c) commodities or (iv) any combination thereof. The applicable Pricing
Supplement will specify whether or not any Notes, Universal Warrants and
Purchase Contracts comprised by a Unit may or may not be separated from the
Unit. Universal Warrants issued as part of a Unit will be issued pursuant to
the Universal Warrant Agreement dated as of May 6, 1999, between the Company
and JPMorgan Chase, as Warrant Agent (as may be amended from time to time, the
"Universal Warrant Agreement"). Purchase Contracts, other than Pre-paid
Purchase Contracts, entered into by the Company and the holders thereof will be
governed by the Unit Agreement.
In the Distribution Agreement, the Agent has agreed to use reasonable
efforts to solicit purchases of the Notes and the Units, and the administrative
procedures explained below will govern the issuance and settlement of any Notes
or Units sold through the Agent, as agent of the Company. The Agent, as
principal, may also purchase Notes and Units for its own account, and the
Company and the Agent will enter into a terms agreement (in the case of Notes,
a "Notes Terms Agreement," and in the case of Units, a "Units Terms
Agreement"), as contemplated by the Distribution Agreement. The administrative
procedures explained below will govern the issuance and settlement of any Notes
or Units purchased by the Agent, as principal, unless otherwise specified in
the applicable Notes Terms Agreement or Units Terms Agreement.
JPMorgan Chase will be the Registrar, Calculation Agent,
Authenticating Agent and Paying Agent for both the Senior Notes and the
Subordinated Notes (and any Pre-paid Purchase Contracts), the Unit Agent for
the Units and Purchase Contracts (other than Pre-paid Purchase Contracts) and
Warrant Agent for the
B-2
Universal Warrants, and in each case, will perform the duties specified herein.
Each Note and each Unit will be represented by either (i) in the case of the
Notes, a Global Note and, in the case of the Units, a Global Unit (each as
defined below) delivered to JPMorgan Chase, 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" and, in the case of a Unit, a
"Book-Entry Unit") or (ii) a certificate delivered to the holder thereof or a
person designated by such holder (in the case of a Note, a "Certificated Note"
and, in the case of a Unit, a "Certificated Unit"). Each Note, Universal
Warrant or Purchase Contract which may be included in any Unit will be issued
in the corresponding global or certificated form. Except as set forth in the
Indentures, in the case of Notes (or Pre-paid Purchase Contracts), the Unit
Agreement or a Unit Agreement Without Holders' Obligations, as applicable, in
the case of Units and all other Purchase Contracts, or the Universal Warrant
Agreement, in the case of the Universal Warrants, an owner of a Book-Entry Note
or Book-Entry Unit (or of any Note, Universal Warrant or Purchase Contract
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) or a Certificated Unit (or certificated
Universal Warrants or Purchase Contracts, as applicable).
Book-Entry Notes 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 in Part I hereof as they may
subsequently be amended as the result of changes in DTC's operating procedures.
Certificated Notes and Certificated Units will be issued in accordance with the
administrative procedures set forth in Part II hereof.
Unless otherwise defined herein, terms defined in the Indentures, the
Unit Agreement, the Unit Agreement Without Holders' Obligations, the Universal
Warrant Agreement, the Notes, the Units, the Universal Warrants, the Purchase
Contracts or any Prospectus Supplement relating to the Notes and 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
Notes and Units and the related settlement details.
B-3
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
AND BOOK-ENTRY UNITS
In connection with the qualification of the Book-Entry Notes and Book-
Entry Units for eligibility in the book-entry system maintained by DTC,
JPMorgan Chase will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations under
(i) a Letter of Representations from the Company and JPMorgan Chase to DTC,
dated as of o, 2002, for medium-term notes (the "MTN Letter of
Representations"), (ii) a letter of representations from the Company and
JPMorgan Chase to DTC, dated as of o, 2002, for optionally exchangeable
medium-term notes (the "Optionally Exchangeable MTN Letter of
Representations"), (iii) a Letter of Representations from the Company and
JPMorgan Chase to DTC, dated as of o, 2002, for mandatorily exchangeable
medium-term notes (the "Mandatorily Exchangeable MTN Letter of
Representation"), (iv) a Letter of Representations from the Company and
JPMorgan Chase to DTC, dated as of o, 2002, for global units consisting of
medium-term notes and universal warrants (the "Optionally Exchangeable Unit
Letter of Representation") and (v) a Letter of Representations from the Company
and JPMorgan Chase to DTC, dated as of o, 2002, for global units consisting of
medium-term notes and purchase contracts (the "Mandatorily Exchangeable Unit
Letter of Representation" and, collectively, the "Letters of Representations"),
its obligations under a Medium-Term Note Certificate Agreement between JPMorgan
Chase and DTC dated as of December 2, 1988, and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry
Notes, 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 a Unit, a
single global unit in fully registered form (a
"Global Unit"), representing up to U.S.
$500,000,000 face amount of all such Units that
have the same Original Issue Date and that
otherwise comprise the same securities and have the
same terms. Each Global Note, whether issued
alone or as part of a Unit, will be dated and issued
as of the date of its authentication by JPMorgan
Chase and each Global Unit will be dated and
issued as of the date of the issuances of the other
B-4
securities comprised by such Unit. Each
Global Note, whether 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 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 and
Book-Entry Units may be payable in either
U.S. dollars or other specified currencies.
No Global Note or Global Unit will
represent, any Certificated Note or
Certificated Unit, as the case may be.
Denominations: Book-Entry Notes and Book-Entry Units will be
issued in (i) in the case of Book-Entry Notes,
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 Pricing Supplement and
(ii) in the case of Book-Entry Units, denominations
of a single unit and any integral multiple thereof
with face 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 Units are issued in a
currency other than U.S. dollars, face 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 Pricing Supplement.
Global Notes and Global Units will be denominated
in, in the case of Global Notes, principal amounts
not in excess of U.S.$500,000,000 and, in the case
of Global Units, face amounts not in excess of U.S.
B-5
$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 Units having an aggregate
face amount, in excess of $500,000,000
would, but for the preceding sentence, be
represented by a single Global Note 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 and one
Global Unit will be issued to represent
each U.S.$500,000,000 face amount of such
Book-Entry Unit or Units and an additional
Global Note or Global Unit, will be issued
to represent any remaining principal amount
of such Book-Entry Note or Notes or face
amount of such Book-Entry Unit or Units. In
such a case, each of the Global Notes or
Global Units representing such Book-Entry
Note or Notes or such Book-Entry Unit or
Units, as the case may be, shall be
assigned the same CUSIP number.
Preparation of
Pricing Supplement: If any order to purchase a Book-Entry Note or
Book-Entry Unit is accepted by or on behalf of the
Company, the Company will prepare a pricing
supplement (a "Pricing Supplement") reflecting
the terms of such Note or Unit. The Company (i)
will arrange to file an electronic format document,
in the manner prescribed by the EDGAR Filer
Manual, of such Pricing Supplement with the
Commission in accordance with the applicable
paragraph of Rule 424(b) under the Securities Act,
(ii) will, as soon as possible and in any event not
later than the date on which such Pricing
Supplement is filed with the Commission, deliver
the number of copies of such Pricing Supplement to
the Agent as the Agent shall request and (iii) will,
on the Agent's behalf, promptly file five copies of
such Pricing Supplement with the National
Association of Securities Dealers, Inc. (the
"NASD"). The Agent will cause such Pricing
Supplement to be delivered to the purchaser of the
Note or Unit.
B-6
In each instance that a Pricing Supplement
is prepared, the Agent will affix the
Pricing Supplement to Prospectuses prior to
their use. Outdated Pricing Supplements,
and the Prospectuses to which they are
attached (other than those retained for
files), will be destroyed.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry Note
or a Book-Entry Unit and, in the case of the Note,
the authentication and issuance of the Global Note
representing such Note 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 or Unit, as
the case may be. All orders accepted by the
Company will be settled on the fifth Business Day
pursuant to the timetable for settlement set forth
below unless the Company and the purchaser agree
to settlement on another day, which shall be no
earlier than the next Business Day.
Settlement Procedures: Settlement Procedures with regard to each
Book-Entry Note and each Book-Entry Unit sold by
the Company to or through the Agent (unless
otherwise specified pursuant to a Notes Terms
Agreement or a Units 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
B-7
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).
7. Interest Accrual Date.
8. Price.
9. Agent's commission, if any, determined as
provided in the Distribution Agreement.
10. 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).
11. 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.
12. Whether the Company has the option to
reset the Spread or Spread Multiplier of the
Note.
13. Whether the Note is an Optionally
Exchangeable Note, a Mandatorily Exchangeable
Note, or any form of exchangeable Note.
B-8
14. Any other applicable provisions.
B. 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 and of the following information:
1. Settlement date and time.
2. Face Amount.
3. Agent's commission, if any, determined as
provided in the Distribution Agreement.
4. Designation of the Securities comprised by
such Units:
a. Notes (See Settlement Procedures "A" );
b. Universal Warrants, if any; and
c. Purchase Contracts, if any.
5. Whether, and the terms under which, the
Securities comprised by such Unit will be
separately tradeable.
6. Any other provisions applicable to the Unit
(other than those provisions applicable to
the securities comprised by such Unit).
7. If the Book-Entry Unit comprises Book-
Entry Universal Warrants:
a. Designation of the Series of Universal
Warrants: [Call][Put] Universal
Warrants;
b. Warrant Property;
c. Aggregate Number of Universal
Warrants;
B-9
d. Price to Public;
e. Universal Warrant Exercise Price;
f. Dates upon which Universal Warrants
may be exercised;
g. Expiration Date;
h. Form;
i. Currency in which exercise payments
shall be made;
j. Minimum number of Universal Warrants
exercisable by any holder on any day;
k. Maximum number of Universal
Warrants exercisable on any day: [In the
aggregate] [By any beneficial owner];
l. Formula for determining Cash
Settlement Value;
m. Exchange Rate (or method of
calculation);
n. Whether the Company or the holder is
the writer of the Universal Warrant; and
o. Any other applicable provisions.
8. If the Book-Entry Unit comprises Book-Entry
Purchase Contracts:
a. Designation of the Series of Purchase
Contracts: [Purchase][Sale] Purchase
Contracts;
b. Purchase Contract Property;
c. Aggregate Number of Purchase
Contracts;
d. Price to Public;
B-10
e. Settlement Date;
f. [Purchase/Sale] Price of Purchase
Contract Property;
g. Form; and
h. Any other applicable provisions.
C. The Company will advise JPMorgan Chase by
telephone or electronic transmission (confirmed in
writing at any time on the same date) of the
information set forth in "Settlement Procedure" "A"
and "B" above, as applicable. JPMorgan Chase 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 of such
CUSIP number(s) by telephone as soon as practicable.
The Agent will obtain a CUSIP number for (i) the
Global Unit representing a Unit, (ii) the Universal
Warrant, if any, issued as part of a Unit and (iii)
the Purchase Contract, if any, issued as part of a
Unit and, in each case will notify the Company and
JPMorgan Chase of such CUSIP number(s) by telephone as
soon as practicable.
D. JPMorgan Chase 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" "A" and "B" 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 which such date
B-11
succeeds the related DTC Record Date and, if
known, 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
Unit, Universal Warrant issued as part of a
Unit and Purchase Contract issued as part of a
Unit, as applicable.
4. Whether the Global Note or Global Unit will
represent any other Book-Entry Note or
Book-Entry Unit, as the case may be (to the
extent known at such time).
5. Whether any Note, issued alone or as part of a
Unit, is an Amortizing Note (by an appropriate
notation in the comments field of DTC's
Participant Terminal System).
6. The number of Participant accounts to be
maintained by DTC on behalf of the Agent and
JPMorgan Chase.
E. JPMorgan Chase will, as applicable, authenticate,
complete and deliver the Global Note representing the
Note and will complete the Global Unit representing
the Unit (including, as applicable, by authenticating,
completing and delivering any Global Note or Pre-paid
Purchase Contracts, by countersigning and delivering
any Universal Warrants and by countersigning,
executing and delivering any Purchase Contracts (other
than Pre- paid Purchase Contracts) includable in such
Unit).
F. DTC will credit such Note or Unit to JPMorgan Chase's
participant account at DTC.
G. JPMorgan Chase will enter an SDFS deliver order
through DTC's Participant Terminal System instructing
DTC to (i) debit the Note or Unit, as the case may be,
to JPMorgan Chase's participant account and credit
such Note or Unit to the Agent's participant account
and (ii) debit the Agent's settlement account and
credit JPMorgan Chase's
B-12
settlement account for an amount equal to the price of
such Note or Unit, as the case may be, less the
Agent's commission, if any. The entry of such a
deliver order shall constitute a representation and
warranty by JPMorgan Chase to DTC that (a) the Global
Note representing a Book-Entry Note has been issued
and authenticated or a Global Unit representing a
Book-Entry Unit has been completed and issued and (b)
JPMorgan Chase is holding such Global Note or Global
Unit pursuant to the Medium-Term Note Certificate
Agreement between JPMorgan Chase and DTC.
H. Unless the Agent is the end purchaser of a Note or
Unit, the Agent will enter an SDFS deliver order
through DTC's Participant Terminal System instructing
DTC (i) to debit such Note or Unit to the Agent's
participant account and credit such Note or Unit to
the participant accounts of the Participants with
respect to such Note 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 or Unit.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and "H"
will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
J. JPMorgan Chase will credit to the account of the
Company maintained at JPMorgan Chase, New York, New
York, in funds available for immediate use in the
amount transferred to JPMorgan Chase in accordance
with "Settlement Procedure" "G".
K. Unless the Agent is the end purchaser of the Note or
Unit, the Agent will confirm the purchase of such Note
or Unit to the purchaser either by transmitting to the
Participants with respect to such Note or Unit a
confirmation order or orders through DTC's
institutional delivery system or by mailing a written
confirmation to such purchaser.
B-13
L. Monthly, JPMorgan Chase will send to the Company a
statement setting forth the principal amount of Notes
outstanding as of that date under the Indentures 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 that have not yet been settled.
Settlement
Procedures
Timetable: For sales by the Company of Book-Entry Notes or
Book-Entry Units to or through the Agent (unless
otherwise specified pursuant to a Notes Terms
Agreement or a Units Terms Agreement) for settlement
on the first Business Day after the sale date,
Settlement Procedures "A" through "K" 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 12:00 Noon on the sale date
D 2:00 P.M. on the sale date
E 9:00 A.M. on the settlement date
F 10:00 A.M. on the settlement
date
G-H 2:00 P.M. on the settlement date
I 4:45 P.M. on the settlement date
J-K 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" and "D" shall be completed as soon as practicable
but no later than 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
B-14
Procedure" "A" is completed, "Settlement Procedure"
"C" and "D" 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 first Business Day before
the settlement date. "Settlement Procedure" "I" 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 or a Book-Entry
Unit is rescheduled or canceled, JPMorgan Chase, 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 fails to enter an SDFS deliver order
with respect to a Book-Entry Note or a Book- Entry
Unit pursuant to "Settlement Procedure" "G", JPMorgan
Chase may deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable a withdrawal
message instructing DTC to debit such Note or Unit to
JPMorgan Chase's participant account, provided that
JPMorgan Chase's participant account contains a
principal amount of the Global Note representing such
Note or a face amount of the Global Unit representing
such Unit that is at least equal to the principal
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 or all
of the Book-Entry Units represented by a Global Unit,
JPMorgan Chase will mark such Global Note or Global
Unit "canceled," make appropriate entries in JPMorgan
Chase's records and send such canceled Global Note or
Global Unit to the Company. The CUSIP number assigned
to such Global Note, Global Unit, Universal Warrant
included in such Unit, or Purchase Contract included
in such Unit, shall, in accordance with the
B-15
procedures of the CUSIP Service 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 or with respect to
one or more, but not all, of the Book-Entry Units
represented by a Global Unit, JPMorgan Chase will
exchange such Global Note or Global Unit, as the case
may be, for two Global Notes or for two Global Units,
as the case may be, one of which shall represent such
Book-Entry Note or Notes 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 or Book-Entry Units previously
represented by the surrendered Global Note or Global
Unit and shall bear the CUSIP number of the
surrendered Global Note, Global Unit, Universal
Warrant included in such Unit, or Purchase Contract
included in such Unit.
If the purchase price for any Book-Entry Note or
Book-Entry Unit is not timely paid to the Participants
with respect to such Note or Unit by the beneficial
purchaser thereof (or a 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 "G" and "H",
respectively. Thereafter, JPMorgan Chase 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 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 or
Book-Entry Units to have been represented by a Global
Note or a Global Unit, as the case may be,
B-16
JPMorgan Chase will provide, in accordance with
Settlement Procedures "E" and "G", for the
authentication and issuance of a Global Note
representing the Book-Entry Notes to be represented by
such Global Note 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.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES AND
CERTIFICATED UNITS
JPMorgan Chase will serve as registrar in connection
with the Certificated Notes and the Certificated
Units.
Issuance: Each Certificated Note will be dated and issued as of
the date of its authentication by JPMorgan Chase and
each Certificated Unit will be deemed to be dated as
of the date of the underlying Certificated Note or, if
there is not such underlying Certificated Note on the
date of the other securities comprised thereby. Each
Certificated Note will bear an Original Issue Date,
which will be (i) with respect to an original
Certificated Note (or any portion thereof), its
original issuance date (which will be the settlement
date) and (ii) with respect to any Certificated Note
(or portion thereof) issued subsequently upon transfer
or exchange of a Certificated Note or in lieu of a
destroyed, lost or stolen Certificated Note, the
original issuance date of the predecessor Certificated
Note, regardless of the date of authentication of such
subsequently issued Certificated Note.
Preparation of
Pricing Supplement: If any order to purchase a Certificated Note or a
Certificated Unit is accepted by or on behalf of the
Company, the Company will prepare a pricing supplement
(a "Pricing Supplement") reflecting the terms of such
Note or Unit. The Company (i) will arrange to file an
electronic format document, in the manner prescribed
by the EDGAR Filer
B-17
Manual, of such Pricing Supplement with the Commission
in accordance with the applicable paragraph of Rule
424(b) under the Securities Act, (ii) will, as soon as
possible and in any event not later than the date on
which such Pricing Supplement is filed with the
Commission, deliver the number of copies of such
Pricing Supplement to the Agent as the Agent shall
request and (iii) will, on the Agent's behalf,
promptly file five copies of such Pricing Supplement
with the NASD. The Agent will cause such Pricing
Supplement to be delivered to the purchaser of the
Note or the Unit, as the case may be.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing Supplement
to Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will
be destroyed.
Settlement: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note or a Certificated Unit delivered to the Agent and
the Agent's delivery of such Note or Unit against
receipt of immediately available funds shall
constitute "settlement" with respect to such Note or
Unit. All offers accepted by the Company will be
settled on or before the fifth Business Day next
succeeding the date of acceptance pursuant to the
timetable for settlement set forth below, unless the
Company and the purchaser agree to settlement on
another date.
Settlement Procedures: Settlement Procedures with regard to each Certificated
Note and each Certificated Unit sold by the Company to
or through the Agent (unless otherwise specified
pursuant to a Notes Terms Agreement or a Units Terms
Agreement) shall be as follows:
A. In the case of Certificated Notes (whether issued
alone or as part of a Unit), the Agent will advise the
Company by telephone that such Note is a
B-18
Certificated Note and of the following settlement
information:
1. Name in which such Note is to be registered
("Registered Note Owner").
2. Address of the Registered Note Owner and
address for payment of principal and interest.
3. Taxpayer identification number of the
Registered Note Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
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 Certificated
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).
7. Redemption or repayment provisions, if any.
8. Ranking.
9. Settlement date and time (Original Issue
Date).
10. Interest Accrual Date.
11. Price.
B-19
12. Agent's commission, if any, determined as
provided in the Distribution Agreement.
13. Denominations.
14. Specified Currency.
15. Whether the Note is an OID Note, and if it is
an OID Note, the applicability of Modified
Payment upon Acceleration (and if so, the
Issue Price).
16. 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.
17. Whether the Company has the option to
reset the Spread or Spread Multiplier of the
Note.
18. Whether the Note is an Optionally
Exchangeable Note, a Mandatorily Exchangeable
Note, or any form of exchangeable Note.
19. Any other applicable provisions.
B. In the case of a Certificated Unit, the
Agent will advise the Company by telephone
that such Unit is a Certificated Unit, of
the information set forth in Settlement
Procedure "A" above with respect to
Certificated Notes that constitute a part
of such Certificated Unit and of the
following information:
1. Name in which such Unit is to be registered
("Registered Unit Owner").
2. Address of the Registered Unit Owner.
3. Taxpayer identification number of the
Registered Unit Owner (if available).
4. Denominations.
B-20
5. Settlement date and time.
6. Face Amount.
7. Agent's commission, if any, determined as
provided in the Distribution Agreement.
8. Designation of the Securities comprised by
such Units:
a. Notes, if any (See Settlement Procedures
"A" );
b. Universal Warrants, if any; and
c. Purchase Contracts, if any.
9. Whether, and the terms under which, the
Securities comprised by such Unit will be
separately tradeable.
10. Any other provisions applicable to the Unit
(other than those provisions applicable to the
securities comprised by such Unit).
11. If the Certificated Unit comprises
Certificated Universal Warrants:
a. Designation of the Series of Universal
Warrants: [Call][Put] Warrants;
b. Warrant Property;
c. Aggregate Number of Universal
Warrants;
d. Price to Public;
e. Universal Warrant Exercise Price;
f. Dates upon which Universal Warrants
may be exercised;
g. Expiration Date;
B-21
h. Form;
i. Currency in which exercise payments
shall be made;
j. Minimum number of Universal Warrants
exercisable by any holder on any day;
k. Maximum number of Universal Warrants
exercisable on any day: [In the
aggregate] [By any beneficial owner];
l. Formula for determining Cash
Settlement Value;
m. Exchange Rate (or method of
calculation);
n. Whether the Company or the holder is
the writer of the warrant; and
o. Any other applicable provisions.
12. If the Certificated Unit comprises
Certificated Purchase Contracts:
a. Designation of the Series of Purchase
Contracts: [Purchase][Sale] Purchase
Contracts;
b. Purchase Contract Property;
c. Aggregate Number of Purchase Contracts;
d. Price to Public;
e. Settlement Date;
f. [Purchase/Sale] Price of Purchase
Contract Property;
g. Form; and
h. Any other applicable provisions.
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C. The Company will advise JPMorgan Chase by telephone or
electronic transmission (confirmed in writing at any
time on the sale date) of the information set forth in
Settlement Procedure "A" and "B" above, as applicable.
D. The Company will have delivered to JPMorgan Chase a
pre-printed four-ply packet for each Note and Unit,
which packet will contain the following documents in
forms that have been approved by the Company, the
Agent, the Trustee and the Unit Agent, as applicable:
1. Note with customer confirmation.
2. Stub One - For JPMorgan Chase.
3. Stub Two - For the Agent.
4. Stub Three - For the Company.
E. JPMorgan Chase will (i) with respect to a Note or
Pre-paid Purchase Contract, authenticate such Note or
Pre-paid Purchase Contract and deliver it (with the
confirmation) and Stubs One and Two to the Agent or
(ii) with respect to a Unit, complete and deliver the
Unit (including countersigning and delivering the
Universal Warrant, if any, and countersigning,
executing and delivering the Purchase Contract (other
than a Pre-paid Purchase Contract), if any) with the
confirmation Stubs One and Two to the Agent. The Agent
will acknowledge receipt of the Note or the Unit, as
the case may be, by stamping or otherwise marking Stub
One and returning it to JPMorgan Chase. Such delivery
will be made only against such acknowledgment of
receipt and evidence that instructions have been given
by the Agent for payment to the account of the Company
at JPMorgan Chase, New York, New York, or to such
other account as the Company shall have specified to
the Agent and JPMorgan Chase in funds available for
immediate use, of an amount equal to the price of such
Note or Unit less the Agent's commission, if any. In
the event that the instructions given by the Agent for
payment to the
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account of the Company are revoked, the Company will
as promptly as possible wire transfer to the account
of the Agent an amount of immediately available funds
equal to the amount of such payment made.
F. Unless the Agent is the end purchaser of such Note or
Unit, the Agent will deliver such Note or Unit (with
confirmation) to the customer against payment in
immediately payable funds. The Agent will obtain the
acknowledgment of receipt of such Note or Unit by
retaining Stub Two.
G. JPMorgan Chase will send Stub Three to the Company by
first-class mail. Periodically, JPMorgan Chase will
also send to the Company a statement setting forth, in
the case of the Notes, the principal amount of the
Notes outstanding as of that date under each Indenture
and, in the case of the Units, the aggregate face
amount of the Units outstanding under the Unit
Agreement and, in each case, setting forth a brief
description of any sales of which the Company has
advised JPMorgan Chase that have not yet been settled.
Settlement Procedures
Timetable: For sales by the Company of Certificated Notes or of
Certificated Units to or through the Agent (unless
otherwise specified pursuant to a Notes Terms
Agreement or a Units Terms Agreement), Settlement
Procedures "A" through "G" set forth above shall be
completed on or before the respective times in New
York City set forth below:
Settlement
Procedure Time
---------- ----
A 2:00 P.M. on day before settlement date
B 2:00 P.M. on day before settlement date
C 3:00 P.M. on day before settlement date
D-E 2:15 P.M. on settlement date
F 3:00 P.M. on settlement date
G 5:00 P.M. on settlement date
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Failure to Settle: If a purchaser fails to accept delivery of and make
payment for any Certificated Note or any Certificated
Unit, the Agent will notify the Company and JPMorgan
Chase by telephone and return such Note or Unit to
JPMorgan Chase. Upon receipt of such notice, the
Company will immediately wire transfer to the account
of the Agent an amount equal to the amount previously
credited thereto in respect to such Note or Unit. Such
wire transfer will be made on the settlement date, if
possible, and in any event not later than the Business
Day following the settlement date. If the failure
shall have occurred for any reason other than a
default by the Agent in the performance of its
obligations hereunder and under the Distribution
Agreement, then the Company will reimburse the Agent
or JPMorgan Chase, as appropriate, on an equitable
basis for its loss of the use of the funds during the
period when they were credited to the account of the
Company. Immediately upon receipt of the Certificated
Note or the Certificated Unit in respect of which such
failure occurred, JPMorgan Chase will mark such note
or Unit "canceled," make appropriate entries in
JPMorgan Chase's records and send such Note or Unit,
as the case may be, to the Company.
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