EXHIBIT 1-e
MORGAN STANLEY DEAN WITTER & CO.
Global Medium-Term Notes, Series D and Series E
Global Units, Series D and Series E
EURO DISTRIBUTION AGREEMENT
o, 2002
Morgan Stanley & Co. International Limited
Bank Morgan Stanley AG
c/o Morgan Stanley & Co. International
Limited
25 Cabot Square
Canary Wharf London E14 4QA
England
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 primarily outside the United States 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 D and Series E, each due more than 9 months from the date of
issue (the "Notes") and its Global Units, Series D and Series E (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 C, to be sold primarily inside the United States, (ii) Global
Units, Series C, to be sold primarily inside 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 Series D Notes are intended to be admitted to the
Official List of the Financial Services Authority (the "UK Listing Authority")
in its capacity as competent authority for the purposes of Part VI of the
Financial Services and Markets Act 2000 (the "FSMA"), and to trading on the
London Stock Exchange plc (the "London Stock Exchange") or admitted to listing,
trading and/or quotation by any other listing authority, stock exchange and/or
quotation system, if so required by Section 3(j) hereof. Application may, in
certain circumstances described in the Prospectus Supplement (as defined
below), be made to admit the Series D Units to the
Official List of the UK Listing Authority and to trading on the London Stock
Exchange. The Series E Notes and the Series E Units will not be listed on any
stock exchange.
The Notes may be issued as senior indebtedness (the "Senior Notes") or
as subordinated indebtedness (the "Subordinated Notes") of the Company. 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,
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 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) 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
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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 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
has initially appointed JPMorgan Chase Bank, London Branch, at its principal
office in London, as principal paying agent (the "Principal Paying Agent") for
the Notes.
The Notes will be issued in bearer form or in definitive registered
form without coupons (the "Registered Notes"), the Units will be issued in
bearer form or in definitive registered form (the "Registered Units") and the
securities included in a Unit will be in the form of such Unit. The Program
Securities issued in bearer form will be represented initially by, in the case
of the Notes, a temporary global Note and, in the case of the Units, a
temporary global Unit, each of which will be delivered to a common depositary
located outside the United States for Euroclear Bank S.A./N.V., as operator of
the Euroclear System (the "Euroclear Operator"), Clearstream Banking, societe
anonyme ("Clearstream"), or any other relevant clearing system. Beneficial
interests in a temporary global Note or a temporary global Unit will be
exchangeable for beneficial interests in, in the case of a temporary global
Note, a permanent global Note and, in the case of a temporary global Unit, a
permanent global Unit. Beneficial interests in a permanent global Note will be
exchangeable in whole, but not in part, for definitive Notes in bearer form,
with interest coupons attached, upon receipt of the Principal Paying Agent of
an initial request to so exchange by any holder of a beneficial interest in
such permanent global Note (such temporary global Note, permanent global Note
and definitive Notes in bearer form are collectively referred to as the "Bearer
Notes"), and Bearer Notes, if the applicable Pricing Supplement so specifies,
will be exchangeable in whole or in part for Registered Notes. Beneficial
interests in a permanent global Unit (including an interest in the securities
included in such Unit) will be exchangeable in whole, but
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not in part, for definitive Units in bearer form upon receipt of the Unit Agent
of an initial request to so exchange by any holder of a beneficial interest in
such permanent global Unit (such temporary global Unit, permanent global Unit
and definitive Units in bearer form are collectively referred to as the "Bearer
Units") and Bearer Units, if the applicable Pricing Supplement so specifies,
will be exchangeable in whole or in part for Registered Units. As used in this
Agreement, the term "Note" includes any temporary global Note or permanent
global Note issued pursuant to the Indentures and the term "Unit" includes any
temporary global Unit or permanent global Unit issued pursuant to the Unit
Agreement.
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. Program Securities denominated,
payable in or indexed to Swiss Francs may only be offered and sold by the
Company through Bank Morgan Stanley AG on an agency or principal basis, and
Bank Morgan Stanley AG agrees to notify the Swiss National Bank prior to the
issuance of any such Program Securities.
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
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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, 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 (a "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
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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, 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
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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.
(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
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and countersigned by the Warrant Agent, such Units (including any such
Universal Warrants contained therein) will be entitled to the benefits of the
Unit 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 of its consolidated subsidiaries, 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.
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(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 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
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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 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.
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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
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.
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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 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 D and Series E and Global Units, Series D
and Series E, 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
12
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
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,
(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 and (vi) of the issuance by any non-United States regulatory authority
of any request for information relating to the Program Securities or suspension
of the listing, trading and/or quotation of any Program Securities then
admitted to listing, trading and/or quotation by any listing authority, stock
exchange and/or quotation system. The Company will use its best efforts to
prevent the issuance of any such stop order or notice of suspension of
qualification or listing 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 or made
available to purchasers of the Program Securities, 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
13
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 (e) 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 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 (e) 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
14
purchased pursuant to such Notes Terms Agreement or Units Terms Agreement or
accepted offer), as such Agent may reasonably request.
(e) 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 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.
(f) 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.
(g) 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, of the Warrant Agent and its
counsel and of the Principal Paying Agent and its counsel and any paying agents
for the Program Securities appointed by the Company, (iv) the fees and expenses
incurred with respect to the admission of the Series D Notes (and the Series D
Units, if application for such admission is made) to the Official List of the
UK Listing Authority and to trading on the London Stock Exchange or to listing,
trading and/or quotation by any other listing authority, stock exchange and/or
quotation system if so required by Section 3(j), (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
and the Universal Warrant Agreement, (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
15
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.
(h) 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.
(i) The Company will indemnify and hold you harmless against any
documentary, stamp or similar transfer or issue tax, including any interest and
penalties, on the issue of the Program Securities in accordance with the terms
of this Agreement, on the execution and delivery of this Agreement, any Written
Notes Terms Agreement or Written Units Terms Agreement and on the exchange of
any temporary global Notes for definitive Notes or permanent global Notes, of
any temporary global Units for definitive Units or permanent global Units, of
any permanent global bearer Notes for definitive bearer Notes or of any
permanent global bearer Units for definitive bearer Units, that are or may be
required to be paid under the laws of the United Kingdom, the United States or
any political subdivision or taxing authority thereof or therein.
(j) In connection with any application to admit the Series D Notes or
Series D Units to the Official List of the UK Listing Authority and to trading
on the London Stock Exchange, the Company will furnish from time to time any
and all documents, instruments, information and undertakings and publish all
advertisements or other material that may be necessary in order to effect such
listing and trading and will maintain such listing and trading until, (i) in
the case of the Notes, none of the Series D Notes is outstanding, either as
part of a Unit or otherwise, or until such time as payment of principal,
premium, if any, and interest in respect of all the Series D Notes, whether
issued alone or as part of a Unit, has been duly provided for, whichever is
earlier and (ii) in the case of the Units, none of the Series D Units is
outstanding; provided, however, that if the Company can no longer reasonably
maintain such listing and trading, it will use its best efforts to obtain and
maintain the quotation for, or listing and trading of,
16
the Series D Notes and Series D Units by such other listing authority, stock
exchange and/or quotation system as you shall reasonably request. In addition,
for so long as the Series D Notes and Series D Units are admitted to listing,
trading and/or quotation by a listing authority, stock exchange and/or
quotation system, and such listing authority, stock exchange and/or quotation
system so requires, the Company will maintain in London, or in such other place
as the Series D Notes and Series D Units are listed (if the Series D Notes and
Series D Units are no longer listed on the London Stock Exchange), a paying
agent in respect of the Series D Notes or Series D Units, as required.
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 such a change in national
or international financial, political or economic conditions or
currency exchange rates or exchange controls as would in your view
be likely to prejudice materially the success of the offering and
distribution of the Program Securities or dealings in the Program
Securities in the secondary market; and
17
(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 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
18
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, 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,
19
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 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
20
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 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
21
Agreement; 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
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
22
(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) 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.
23
(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 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
24
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
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.
25
(f) On the Commencement Date, application to admit the Series D Notes
to the Official List of the UK Listing Authority and to trading on the London
Stock Exchange shall have been made and, prior to the issuance of the first
Series D Note offered pursuant to this Agreement, such admission to listing and
to trading shall have been granted, subject to official notice of issuance.
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 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
26
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 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
27
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 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
28
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 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. Offering Restrictions. You hereby represent to the Company and
agree with respect to the Program Securities that:
29
(a) (i) you have not (A) offered or sold and will not offer or
sell during the Restricted Period (as defined below) Bearer Notes
(whether offered alone or as part of a Unit) (including any Note that
is exchangeable for Bearer Notes) directly or indirectly in the United
States (as defined below) or to or for the account of any United
States person (as defined below), other than to a Qualifying Foreign
Branch (as defined below) or to certain other persons as provided
under United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(1)(iii)(B) and (C); and (B) delivered and will not
deliver within the United States definitive Bearer Notes that are sold
during the Restricted Period;
(ii) you have, and throughout the Restricted Period will have, in
effect procedures reasonably designed to ensure that your employees or
agents who are directly engaged in selling Bearer Notes (whether
offered alone or as part of a Unit) are aware that such Bearer Notes
may not be offered or sold during the Restricted Period to a person
who is within the United States or to a United States person, except
as permitted by Section 7(a)(i)(A) above;
(iii) if you are a United States person, you are acquiring the
Bearer Notes (whether offered alone or as part of a Unit) for purposes
of resale in connection with their original issuance and if you retain
Bearer Notes for your own account, you will only do so in accordance
with the requirements of United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(6);
(iv) if you transfer to any affiliate Bearer Notes (whether
offered alone or as part of a Unit) for the purpose of offering or
selling such Bearer Notes during the Restricted Period, you will
either (A) obtain from such affiliate for the benefit of the Company
the representations and agreements contained in clauses (i), (ii) and
(iii) above or (B) repeat and confirm the representations and
agreements contained in clauses (i), (ii) and (iii) above on such
affiliate's behalf and obtain from such affiliate the authority to so
obligate it; and
(v) you will obtain for the benefit of the Company the
representations and agreements contained in clauses (i), (ii), (iii)
and (iv) above from any person other than your affiliate with whom you
enter into a written contract, within the meaning of United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(4), for the offer or
sale during the Restricted Period of Bearer Notes (whether offered
alone or as part of a Unit).
For purposes of this Section 7(a), an offer or sale will be considered to be
made in the United States if the offeror or seller of such Notes (whether
offered alone or as
30
part of a Unit) has an address within the United States for the offeree or
purchaser of such Notes with respect to the offer or sale. As used in this
Section 7(a), "United States person" means a citizen or resident of the United
States, a corporation or partnership (including an entity treated as a
corporation or partnership for United States federal income tax purposes)
created or organized in or under the laws of the United States, any State
thereof or the District of Columbia, or an estate the income of which is
subject to United States federal income taxation regardless of its source or a
trust if both (x) a court within the United States is able to exercise primary
supervision over the administration of the trust and (y) one or more United
States persons have the authority to control all substantial decisions of the
trust, "United States" means the United States (including the States and the
District of Columbia), its territories, its possessions and any other areas
subject to its jurisdiction; "Qualifying Foreign Branch" means a branch of a
United States financial institution, as defined in the applicable United States
Treasury Regulations, located outside the United States that is purchasing for
its own account or for resale and that has agreed, as a condition to purchase,
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder; and "Restricted Period" with respect to each issuance
means the period which begins on the earlier of the date on which the Company
receives the proceeds of the sale of Notes with respect to such issuance or the
first date on which the Notes are offered to persons other than you, and which
ends 40 days after the date on which the Company receives the proceeds of the
sale of such Notes; provided that with respect to a Note held as part of an
unsold allotment or subscription, any offer or sale of such Note by the Company
or you shall be deemed to be during the Restricted Period.
(b) (i) In relation to Program Securities which have a maturity of
one year or more and which are to be admitted to the Official List of the UK
Listing Authority, you have not offered or sold and will not offer or sell any
Program Securities to persons in the United Kingdom prior to admission of such
Program Securities to listing in accordance with Part VI of the FSMA, except to
persons whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995 or the FSMA;
(ii) in relation to Program Securities which have a maturity of
one year or more and which are not to be admitted to the Official List
of the UK Listing Authority, you have not offered or sold and, prior
to the expiry of the period of six months from the date of issue of
such Program Securities, will not offer or sell any such Program
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as
31
principal or agent) for the purposes of their businesses or otherwise
in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995;
(iii) you have complied with and will comply with all applicable
provisions of the FSMA with respect to anything done by you in
relation to the Program Securities in, from or otherwise involving the
United Kingdom;
(iv) you have only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the FSMA) received by you in connection with the issue
or sale of Program Securities in circumstances in which Section 21(1)
of the FSMA does not apply to the Company; and
(v) with respect to any Program Securities which must be redeemed
before the first anniversary of the date of their issue, (A) you are a
person whose ordinary activities involve you in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purposes of your business, and (B) you have not offered or sold and
will not offer or sell any such Program Securities other than to
persons (1) whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or (2) who it is reasonable to
expect will acquire, hold, manage or dispose of investments (as
principal or agent) for the purposes of their businesses, where the
issue of the Program Securities would otherwise constitute a
contravention of Section 19 of the FSMA by the Company.
(c) You will not offer or sell any 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. Without
prejudice to the provisions of this Section 7 above and 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.
(d) You will not offer or sell any Program Securities, directly or
indirectly, in Japan or to, or for the benefit of, any resident of Japan (which
term
32
as used herein means any person resident in Japan including any corporation or
other entity organized under the laws of Japan) or to others for the
re-offering or re-sale, directly or indirectly, in Japan or to a resident of
Japan except pursuant to an exemption from the registration requirements of,
and otherwise in compliance with, the Securities and Exchange Law of Japan and
other relevant laws and regulations of Japan.
(e) You will not offer and sell any Program Securities denominated or
payable in or indexed to Swiss Francs with a maturity of more than 1 year other
than in compliance with Swiss law and the regulations of the Swiss National
Bank in effect from time to time.
(f) Each of the Agents and the Company represents and agrees that
Program Securities will be issued outside the Republic of France, that it will
not offer or sell any Program Securities in the Republic of France and will not
distribute or cause to be distributed in the Republic of France the Prospectus
or any other offering material relating to Program Securities, except to (i)
qualified investors (investisseurs qualifies) and/or (ii) within a restricted
circle of investors (cercle restreint d'investisseurs), all as defined in and
in accordance with Article L.411-2 of the Code Monetaire et Financier and
Decree no 98-880 dated 1st October, 1998.
8. 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.
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 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
33
paragraph of Section 2(a), the last sentence of Section 3(b) and Sections 3(c),
3(g), 3(i), 3(j), 6, 7, 8, 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(h), 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 (a) if sent to Morgan Stanley & Co. International
Limited, will be mailed, delivered or telefaxed and confirmed to Morgan Stanley
& Co. International Limited, 25 Cabot Square, Canary Wharf, London E14 4QA,
England, to the attention of Capital Markets - Debt Syndicate (Telephone No.:
011-44-207-425-7750; Telecopy No.: 011-44-207-425-7999), (b) if sent to Bank
Morgan Stanley AG, will be mailed, delivered or telefaxed and confirmed to Bank
Morgan Stanley AG, Bahnhofstrasse 92-3rd Floor, Ch-8023, Zurich, Switzerland,
to the attention of Hermann Schwalm (Telephone No.: 011-41-1-220-9111;
Telecopy No.: 011-41-1-220-9800), with a copy to John Webley (Telephone No.:
011-44-207-677-4131; Telecopy No.: 011-44-207-677-4241), and (c) if sent to the
Company, will be mailed, delivered or telefaxed and confirmed to Morgan Stanley
Dean Witter & Co., 1221 Avenue of the Americas, New York, New York 10020,
Attention: Treasurer (Telecopy No.: 212-762-7337) (or to such other address as
the Company may designate).
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.
34
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.
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 & CO.
INTERNATIONAL LIMITED
By:________________________________
Name:
Title:
BANK MORGAN STANLEY AG
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
35
EXHIBIT A
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES D AND SERIES E
NOTES TERMS AGREEMENT
_______________, 200_
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated o, 2002 (the
"Euro Distribution Agreement")
----------------------------------------------
The undersigned agrees to purchase your Global Medium-Term Notes,
Series D/E, 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: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event Spread:
Interest Payments:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset Date:
Currencies (if any):
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
A-1
All Notes Fixed Rate Notes Floating Rate Notes
- ------------------------------- ------------------------------- ---------------------------------
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Interest Payment Period: Reference Dealers: Maximum Interest Rate:
Maturity Date: Face Amount (if any): Minimum Interest Rate:
Optional Repayment Fixed Amount of each Calculation Agent:
Date(s): Indexed Currency (if any):
Optional Redemption Aggregate Fixed Amount of Reporting Service:
Date(s): each Indexed Currency (if
any):
Initial Redemption Date: Index Currency:
Initial Redemption Designated CMT Telerate
Percentage: Page:
Annual Redemption Designated CMT Maturity
Percentage Reduction: Index:
Ranking:
Series:
Minimum Denominations:
Other Terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and 10
through 14 of the Euro 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 so terminated, the
provisions of Sections 3(g), 6, 10, 11 and 13 of the Euro 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 Euro Distribution Agreement will be
required: ______________________________.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:________________________________
Name:
Title:
BANK MORGAN STANLEY AG
By:________________________________
Name:
Title:
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 D AND SERIES E
UNITS TERMS AGREEMENT
_______________, 200_
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated o, 2002 (the "Euro
Distribution Agreement")
----------------------------------------------------
The undersigned agrees to purchase your Global Units, Series D/E,
[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: Price: Price:
Number (Face Amount): Designation of the Series of Designation of the Series of
Warrants: [Call] [Put] Purchase Contracts:
Warrants [Purchase][Sale] Purchase
Contracts
Purchase Price: Warrant Property: Aggregate Number of
Purchase Contracts:
Specified Currency: Aggregate Number of Purchase Contract Property:
Warrants:
Severability: Date(s) upon which Quantity per Purchase
Warrants may be exercised: Contract:
Other Terms: Currency in which exercise [Purchase] [Sale] Price:
payments shall be made:
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 Notes Issued as Part of Fixed Rate Noets 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: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event Spread:
Interest Payments:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
- -------------
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 Notes Issued as Part of Fixed Rate Noets Issued as Floating Rate Notes Issued
a Unit: Part of a Unit: as Part of a Unit:
- ------------------------------- ------------------------------- ---------------------------------
Original Issue Date: Indexed Currency or Initial Interest Reset Date:
Currencies (if any):
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Interest Payment Period: Reference Dealers: Maximum Interest Rate:
Maturity Date: Face Amount (if any): Minimum Interest Rate:
Optional Repayment Fixed Amount of each Calculation Agent:
Date(s): Indexed Currency (if any):
Optional Redemption Aggregate Fixed Amount of Reporting Service:
Date(s): each Indexed Currency (if
any):
Initial Redemption Date: Index Currency:
Initial Redemption Designated CMT Telerate
Percentage: Page:
Annual Redemption Designated CMT Maturity
Percentage Reduction: Index:
Ranking:
Series:
Minimum Denominations:
Other Terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and 10
through 14 of the Euro 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(g), 6, 10, 11 and 13 of the Euro 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 Euro Distribution Agreement will be
required: _______________.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:______________________________
Name:
Title:
A-1-3
BANK MORGAN STANLEY AG
By:______________________________
Name:
Title:
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 D AND SERIES E
GLOBAL UNITS, SERIES D AND SERIES E
ADMINISTRATIVE PROCEDURES
---------------------------------
Explained below are the administrative procedures and specific terms
of the offering of (i) Global Medium-Term Notes, Series D (the "Series D
Notes"), (ii) Global Medium-Term Notes, Series E (the "Series E Notes" and
together with the Series D Notes, the "Notes"), (iii) Global Units, Series D
(the "Series D Units") and (iv) Global Units, Series E (the "Series E Units"
and together with the Series D Units, the "Units", and the Units together with
the Notes, the "Program Securities"), on a continuous basis by Morgan Stanley
Dean Witter & Co. (the "Company") pursuant to the Euro Distribution Agreement
dated o, 2002 (as may be amended from time to time, the "Distribution
Agreement") among the Company, Morgan Stanley & Co. International Limited and
Bank Morgan Stanley AG (collectively or individually the "Agent" as the context
requires). The Notes may be issued, either alone or as part of a Unit, in
registered form without coupons ("Registered Notes"), in bearer form with or
without coupons ("Bearer Notes") or in any combination of Registered Notes and
Bearer Notes. The Units may be issued in registered form ("Registered Units"),
in bearer form ("Bearer Units") or in any combination of Registered Units and
Bearer Units. The securities comprised by a Unit will be issued in the same
form as such Unit. Bearer Notes and Bearer Units initially will be represented
by, in the case of Bearer Notes, a Temporary Global Note and, in the case of
Bearer Units, a Temporary Global Unit. Such Temporary Global Note and Temporary
Global Unit will subsequently be represented by, in the case of the Temporary
Global Note, a Permanent Global Note and, in the case of the Temporary Global
Unit, a Permanent Global Unit. Interests in a Permanent Global Note may be
exchanged, in whole, for individual definitive Bearer Notes with or without
coupons attached. Definitive Bearer Notes may be exchanged, if the applicable
Pricing Supplement so specifies, in whole or in part, for Registered Notes.
Interests in a Permanent Global Unit may be exchanged, in whole, for individual
definitive Bearer Units. Definitive Bearer Units may be exchanged, if the
applicable Pricing Supplement so specifies, in whole or in part, for Registered
Units.
The Notes may be issued as senior indebtedness (the "Senior Notes") or
subordinated indebtedness (the "Subordinated Notes") of the Company, and as
B-1
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
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), as trustee (the "Senior Debt 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 (1) 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 (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 D & E 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 Bank
B-2
(formerly known as The Chase Manhattan Bank), 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 or 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 Bank ("JPMorgan Chase") has initially been appointed
the (i) Calculation Agent, Authenticating Agent and Principal Paying Agent for
the Notes (and any Pre-Paid Purchase Contracts), (ii) the Unit Agent for the
Units and Purchase Contracts (other than Pre-Paid Purchase Contracts), (iii)
the Warrant Agent for the Universal Warrants and (iv) the Registrar for the
Registered Notes, and will perform the duties specified herein. As used herein,
the term "Principal Paying Agent" shall mean JPMorgan Chase acting through its
London office in connection with the authentication and delivery of the Notes,
whether issued alone or as part of a Unit, (and any Pre-Paid Purchase
Contracts) pursuant to the terms of the Indentures, and the term "Unit Agent"
shall mean JPMorgan Chase acting through its London office in connection with
the completion and delivery of the Units (including, as applicable,
countersigning and delivering any Universal Warrants, as Warrant Agent, and
countersigning, executing and delivering any Purchase Contracts (other than
Pre-Paid Purchase Contracts), as Unit Agent, includable in such Unit), pursuant
to the terms of the Unit Agreements. "Warrant Agent" shall mean JPMorgan Chase
acting through its London office. The Series D Notes are intended to be, and
the Series D Units, in certain circumstances described in the Prospectus
Supplement (as such term is defined in the Distribution Agreement), may be,
admitted to the Official List of the Financial Services Authority (the "UK
Listing Authority") in its capacity as competent authority for the purposes of
Part VI of the Financial Services and Markets Act 2000 (the "FSMA"), and to
trading on The London Stock Exchange plc (the "London Stock Exchange"). Series
E Notes and the Series E Units will not be listed on any stock exchange. The
Company has appointed Morgan Stanley & Co. International Limited as the listing
agent for purposes of admitting the Series D Notes and the Series D Units, if
it is determined that Series D Units are to be so admitted, to the Official
List of the UK Listing Authority and to trading on the London Stock Exchange.
B-3
Each Bearer Note and each Bearer Unit (including each security
comprised by such Bearer Unit) initially will be represented by, in the case of
a Bearer Note, a Temporary Global Note and, in the case of a Bearer Unit, a
Temporary Global Unit, each of which will be delivered to a common depositary
located outside the United States (the "Depositary") for Euroclear Bank
S.A./N.V., as operator of the Euroclear System (the "Euroclear Operator"),
Clearstream Banking, societe anonyme ("Clearstream"), and/or any other relevant
clearing system (including Euroclear France). Such Temporary Global Note and
Temporary Global Unit will subsequently be represented by, in the case of the
Temporary Global Note, a Permanent Global Note and, in the case of the
Temporary Global Unit, a Permanent Global Unit. Upon the first request by any
beneficial owner to exchange any interest in a Permanent Global Note to a
definitive Bearer Note, or if any Note represented by such Permanent Global
Note is accelerated following an event of default with respect to such Note or
if either the Euroclear Operator, Clearstream or any other relevant clearing
system is closed for business for a continuous period of fourteen days (other
than by reason of public holidays) or announces an intention to cease business
permanently or in fact does so, then all (and not less than all) interests in
such Permanent Global Note shall be exchanged for definitive Bearer Notes;
provided that, if the applicable Pricing Supplement so specifies, nothing
herein shall prevent the further exchange of definitive Bearer Notes for
Registered Notes. Upon the first request by any beneficial owner to exchange
any interest in a Permanent Global Unit to a definitive Bearer Unit, or if any
Note comprised by such Permanent Global Note is accelerated following an event
of default with respect to such Note or if either the Euroclear Operator,
Clearstream or any other relevant clearing system is closed for business for a
continuous period of fourteen days (other than by reason of public holidays) or
announces an intention to cease business permanently or in fact does so, then
all (and not less than all) interests in such Permanent Global Unit shall be
exchanged for definitive Bearer Units; provided that, if the applicable Pricing
Supplement so specifies, nothing herein shall prevent the further exchange of
definitive Bearer Units for Registered Units.
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-4
ADMINISTRATIVE PROCEDURES FOR
BEARER NOTES, REGISTERED NOTES,
BEARER UNITS AND REGISTERED UNITS
Issuance: Bearer Notes. Each Bearer Note, whether
issued alone or as part of a Unit, will be
dated as of its Original Issue Date. Each
Bearer Note will bear an Original Issue
Date, which will be (i) with respect to a
Temporary Global Note (or any portion
thereof), the date of its original issue as
specified in such Temporary Global Note or
(ii) with respect to any Permanent Global
Note or any definitive Bearer Note (or any
portion thereof) issued subsequently upon
transfer or exchange of a Bearer Note or in
lieu of a destroyed, lost or stolen Bearer
Note (a "Replacement Bearer Note"), the
Original Issue Date of the predecessor
Bearer Note, regardless of the date of
authentication of such subsequently issued
Bearer Note.
Registered Notes. Each Registered Note,
whether issued alone or as part of a Unit,
will be dated as of the date of its
authentication by JPMorgan Chase. Each
Registered Note will also bear an Original
Issue Date, which will be (i) with respect
to an original Registered Note (an
"Original Registered Note") (or any portion
thereof), its original issuance date (which
will be the settlement date) and (ii) with
respect to any Registered Note (or portion
thereof) issued subsequently upon transfer
or exchange of a Registered Note or in lieu
of a destroyed, lost or stolen Registered
Note or upon exchange of a Bearer Note (a
"Replacement Registered Note"), the
original issuance date of the predecessor
Registered Note or Bearer Note, as the case
may be, regardless of the date of
authentication of such subsequently issued
Registered Note.
B-5
Bearer Units. Each Bearer Unit (whether in
temporary, permanent or definitive form)
will be deemed to be dated as of the
Original Issue Date of the Bearer Note
comprised by such Unit or, if there is no
such underlying Bearer Note, the date of
the other securities comprised thereby in
accordance with the procedures described
above.
Registered Units. Each Registered Unit will
be deemed to be dated as of the Original
Issue Date of the Registered Note comprised
by such Unit or, if there is no such
underlying Registered Note, as of the date
of the other securities comprised thereby
in accordance with the procedures described
above.
Denominations: Bearer Notes. Unless otherwise specified
in the applicable Pricing Supplement,
Bearer Notes, whether issued alone or as
part of a Unit, will be issued only in
denominations of $1,000 (or, in the case of
Bearer Notes not denominated in U.S.
dollars, the equivalent thereof in the
Specified Currency, rounded to the nearest
1,000 units of the Specified Currency) or
any amount in excess thereof which is an
integral multiple of $1,000 (or, in the
case of Bearer Notes not denominated in
U.S. dollars, 1,000 units of the Specified
Currency).
Registered Notes. Unless otherwise
specified in the applicable Pricing
Supplement, Registered Notes will be
issued, either alone or as part of a Unit,
only in denominations of $1,000 (or, in the
case of Registered Notes not denominated in
U.S. dollars, the equivalent thereof in the
Specified Currency, rounded to the nearest
1,000 units of the Specified Currency) or
any amount in excess thereof which is an
integral multiple of $1,000 (or, in the
case of Registered Notes not denominated in
U.S.
B-6
dollars, 1,000 units of the Specified
Currency).
Bearer Units. Unless otherwise specified in
the applicable Pricing Supplement, Bearer
Units will be issued only in denominations
of a single Unit and any integral multiple
thereof, with face amounts in denominations
as indicated in the applicable Pricing
Supplement, generally corresponding to the
denominations of any Notes or other
securities comprised by such Units.
Registered Units. Unless otherwise
specified in the applicable Pricing
Supplement, Registered Units will be issued
only in denominations of a single Unit and
any integral multiple thereof, with face
amounts in denominations as indicated in
the applicable Pricing Supplement,
generally corresponding to the
denominations of any Notes or other
securities comprised by such Units.
Global Notes and
Definitive Bearer
and Registered Notes: Until Final Certification (as defined below)
with respect to an issuance of Bearer Notes
has occurred, such Notes, together with all
other Bearer Notes that have the same terms
(other than their respective principal
amounts) (all such Notes herein referred to
collectively as a "Note Tranche"), will be
represented by a single Temporary Global
Note in bearer form without interest
coupons. The Company shall execute, and
upon Company instructions the Principal
Paying Agent shall complete and
authenticate, such Temporary Global Note
upon the same conditions and in
substantially the same manner, and with the
same effect, as an individual definitive
Bearer Note. On or prior to the settlement
date (which will normally be the Original
Issue Date) with respect to such Notes, the
B-7
Principal Paying Agent shall deposit the
Temporary Global Note with the Depositary
in the manner specified below under
"Settlement Procedures; Bearer Notes and
Bearer Units". The interest of each
beneficial owner of Notes represented by
such Temporary Global Note will be credited
to the appropriate account with the
Euroclear Operator, Clearstream or any
other relevant clearing system.
On or after the date (the "Exchange Date")
that is the 40th day following the date on
which the Company receives the proceeds of
the sale of a Temporary Global Note (the
"Closing Date"), or if such Note is held by
the Agent as part of an unsold allotment or
subscription more than 40 days after the
Closing Date for such Note, on or after the
day after the date such Note is sold by the
Agent, all as notified by the Agent in
writing to JPMorgan Chase, the interest of
the beneficial owners of the Notes
represented by the Temporary Global Note
shall be canceled and such interests shall
thereafter be represented by a Permanent
Global Note in bearer form without interest
coupons held in London by the Depositary;
provided that Final Certification (as
described below) has occurred. The interest
of each beneficial owner of Notes
represented by such Permanent Global Note
will be credited to the appropriate account
with the Euroclear Operator, Clearstream or
any other relevant clearing system.
If the beneficial owner of an interest in a
Permanent Global Note requests, at any
time, upon 30 days' written notice to the
Principal Paying Agent given by such
beneficial owner through either the
Euroclear Operator, Clearstream or any
other relevant clearing system, as the case
may be, or if any Note represented by such
Permanent Global Note is accelerated
B-8
following an event of default with respect
to such Note or if either the Euroclear
Operator, Clearstream or any other relevant
clearing system is closed for business for
a continuous period of fourteen days (other
than by reason of public holidays) or
announces an intention to cease business
permanently or in fact does so, such
Permanent Global Note shall be exchanged
for one or more definitive Bearer Notes
with coupons attached, if appropriate, or,
if the applicable Pricing Supplement so
specifies, one or more Registered Notes in
authorized denominations equal in aggregate
principal amount to such beneficial
interest; provided that any such exchange
of an interest in a Permanent Global Note
for a definitive Bearer Note shall result
in the exchange of all (and not less than
all) interests in such Permanent Global
Note for definitive Bearer Notes; provided
further, that, if the applicable Pricing
Supplement so specifies, nothing herein
shall prevent the further exchange of
definitive Bearer Notes for Registered
Notes. To effect such exchange, the
interest of such beneficial owner in such
Permanent Global Note shall be canceled and
one or more definitive Bearer Notes or
Registered Notes, as the case may be, shall
be issued to such beneficial owner, through
the Euroclear Operator, Clearstream or any
other relevant clearing system, as the case
may be.
In all events, Bearer Notes and coupons
will be delivered by the Principal Paying
Agent only outside the United States.
Global Units and
Definitive Bearer
and Registered Units: Until Final Certification (as defined
below) has occurred with respect to an
issuance of Bearer Notes included in an
issuance of Bearer Units, such Units,
together with all other Bearer Units that
include securities
B-9
that have the same terms (other than their
respective number and face amounts) (all
such Units herein referred to collectively
as a "Unit Tranche"), will be represented
by a single Temporary Global Unit in bearer
form (which form shall include the
corresponding temporary global forms of
each security comprised by such Unit). The
Company shall execute, and upon Company
instructions, JPMorgan Chase, as Unit
Agent, shall complete, such Temporary
Global Unit (including, as applicable,
authenticating any Temporary Global Note or
Pre-paid Purchase Contracts, as Principal
Paying Agent, countersigning and delivering
any Universal Warrants, as Warrant Agent,
and countersigning, executing and
delivering any Purchase Contracts (other
than Pre-paid Purchase Contracts), as Unit
Agent, includable in such Unit) upon the
same conditions and in substantially the
same manner, and with the same effect, as
an individual definitive Bearer Unit. On or
prior to the settlement date (which will
normally be the Original Issue Date of the
Note comprised by a Unit or, if there is no
such underlying Note, the date of the other
securities comprised thereby) with respect
to such Units, the Unit Agent shall deposit
the Temporary Global Unit (with the
corresponding temporary global forms of
each security comprised by such Unit) with
the Depositary in the manner specified
below under "Settlement Procedures; Bearer
Notes and Bearer Units." The interest of
each beneficial owner of Units represented
by such Temporary Global Unit will be
credited to the appropriate account with
the Euroclear Operator, Clearstream or any
other relevant clearing system.
On or after the Exchange Date of any
Temporary Global Note comprised by a
Temporary Global Unit, the interest of the
beneficial owners of the Units represented
B-10
by the Temporary Global Unit shall be
canceled and such interests shall
thereafter be represented by a Permanent
Global Unit in bearer form (with the
corresponding permanent global forms of
each security comprised by such Unit) held
in London by the Depositary; provided that
Final Certification (as described below) of
any Notes comprised by such Unit has
occurred. The interest of each beneficial
owner of Units represented by such
Permanent Global Unit will be credited to
the appropriate account with the Euroclear
Operator, Clearstream or any other relevant
clearing system.
If the beneficial owner of an interest in a
Permanent Global Unit requests, at any
time, upon 30 days' written notice to the
Unit Agent given by such beneficial owner
through either the Euroclear Operator,
Clearstream or any other relevant clearing
system, as the case may be, or if any Note
comprised by such Permanent Global Note is
accelerated following an event of default
with respect to such Note or if either the
Euroclear Operator, Clearstream or any
other relevant clearing system is closed
for business for a continuous period of
fourteen days (other than by reason of
public holidays) or announces an intention
to cease business permanently or in fact
does so, such Permanent Global Unit shall
be exchanged for one or more definitive
Bearer Units or, if the applicable Pricing
Supplement so specifies, one or more
Registered Units in authorized
denominations equal in aggregate number and
aggregate face amount to such beneficial
interest; provided that any such exchange
in any interest in a Permanent Global Unit
for a definitive Bearer Unit shall result
in the exchange of all (and not less than
all) interests in such Permanent Global
Unit for definitive Bearer Units; provided
further, that, if the applicable Pricing
B-11
Supplement so specifies, nothing herein
shall prevent the further exchange of
definitive Bearer Units for Registered
Units. To effect such exchange, the
interest of such beneficial owner in such
Permanent Global Unit shall be canceled and
one or more definitive Bearer Units or
Registered Units, as the case may be, shall
be issued to such beneficial owner, through
the Euroclear Operator, Clearstream or any
other relevant clearing system, as the case
may be.
In all events, Bearer Units will be
delivered by the Unit Agent only outside
the United States.
Notes or Units Purchased
by U.S. Persons: All Notes (whether issued alone or as part
of a Unit) purchased in connection with
their original issuance by or on behalf of
a United States person (as defined in the
Distribution Agreement) (other than a
branch of a United States financial
institution (as defined in the applicable
United States Treasury Regulation) located
outside the United States purchasing for
its own account or for resale (a
"Qualifying Foreign Branch") or other
permitted U.S. purchasers as provided in
the Prospectus Supplement that satisfies
the conditions for receiving Bearer Notes
as described under "Final Certification"
below) will be issued only as Registered
Notes and any Units comprising such Notes
will be issued only as Registered Units.
Final Certification: Final Certification with respect to a
Temporary Global Note (whether issued alone
or as part of a Unit) shall mean the
delivery by the Euroclear Operator,
Clearstream or any other relevant clearing
system, as the case may be, to the
Principal Paying Agent of a signed
certificate (each a "Clearance System
Certificate") in the form set forth in
Appendix 1 hereto with respect to the Notes
being exchanged, dated
B-12
no earlier than the Exchange Date for such
Notes, to the effect that the Euroclear
Operator, Clearstream or any other relevant
clearing system, as the case may be, has
received certificates in writing, by tested
telex or by electronic transmission from
the account holders appearing on its
records as entitled to such Notes
("Ownership Certificates") in the form set
forth in Appendix 2 hereto with respect to
each of such Notes, which Ownership
Certificates shall be dated no earlier than
ten days before the Exchange Date.
Preparation of
Pricing Supplement: If any offer to purchase a Program Security
is accepted by or on behalf of the Company,
the Company will prepare a pricing
supplement (a "Pricing Supplement")
reflecting the terms of such Program
Security, 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 and
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. The Agent will cause
such Pricing Supplement to be delivered to
the purchaser of the Program Security.
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 (i) the
B-13
delivery of an authenticated Temporary
Global Note or a Temporary Global Unit
(including each security comprised by such
Unit) to the Depositary in the manner
described in "Settlement Procedures; Bearer
Notes and Bearer Units" below or (ii) the
delivery of an authenticated Registered
Note or a Registered Unit (including each
security comprised by such Unit) to the
Agent shall constitute "settlement" with
respect to such Note or Unit. All offers
accepted by the Company will be settled on
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 day, which shall
be no earlier than the next Business Day.
Settlement Procedures;
Bearer Notes and Bearer Units: Procedures with regard to each Bearer Note
or Bearer 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 Bearer
Note (whether issued alone or as
part of a Unit), the Agent will
advise the Company by telephone
that such Note is initially a
Bearer Note and of the following
settlement information:
1. Principal amount.
2. Maturity Date.
3. Interest Payment Date(s).
4. In the case of a Fixed
Rate Bearer Note, the
Interest Rate and whether
such Note is an
B-14
Amortizing Note, and, if
so, the amortization
schedule, or, in the case
of a Floating Rate Bearer
Note, the Initial
Interest Rate (if known
at such time), 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).
5. Redemption or repayment
provisions, if any.
6. Ranking.
7. Settlement date and time
(Original Issue Date).
8. Interest Accrual Date.
9. Price.
10. Agent's commission, if
any, determined as
provided in the
Distribution Agreement.
11. Specified Currency.
12. 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).
B-15
13. Agent's account number at
the Euroclear Operator,
Clearstream or any other
relevant clearing system.
14. Whether such Note is a
Series D Note or a Series
E Note.
15. Any other applicable
provisions.
B. In the case of a Bearer Unit, the
Agent will advise the Company by
telephone that such Unit is
initially a Bearer Unit, of the
information set forth in
Settlement Procedures; Bearer
Notes and Bearer Units "A" above
with respect to Bearer Notes that
constitute a part of such Bearer
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; Bearer
Notes and Bearer
Units" "A");
b. Universal Warrants,
if any; and
c. Purchase Contracts,
if any.
B-16
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 Bearer Unit
comprises Bearer
Universal Warrants:
a. Designation of
the Series of
Universal Warrants:
[Call] [Put]
Universal 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;
h. Form;
i. Currency in which
exercise payments
shall be made;
j. Minimum number of
Universal Warrants
exercisable by any
holder on any day;
B-17
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 Bearer Unit
comprises Bearer Purchase
Contracts:
a. Purchase Contract
Property;
b. Price to Public;
c. Settlement Date;
d. Payment Location;
e. Method of
Settlement;
f. Method of Computing
Settlement Amount;
g. Currency of
Settlement Payment;
B-18
h. Authorized Number
of Purchase
Contracts;
i. [Purchase] [Sale]
Price of Purchase
Contract Property;
j. Contract Fees;
k. Corporation
Acceleration;
h. Holders'
Acceleration;
i. Redemption
Provisions; and
j. Any other
applicable
provisions.
C. The Company will advise JPMorgan
Chase as the Principal Paying
Agent for the Notes or as the Unit
Agent for the Units by telephone
or electronic transmission
(confirmed in writing at any time
on the same date) of the
information set forth in
"Settlement Procedures; Bearer
Notes and Bearer Units" "A" or
"B", above, as applicable, and
shall give the Principal Paying
Agent or the Unit Agent, as the
case may be, written instructions
(substantially in the form set out
in Appendix 3 and Appendix 4, as
applicable) to prepare a Temporary
Global Note for each Note Tranche
or a Temporary Global Unit (with
the corresponding temporary global
forms of each security comprised
by such Unit) for each Unit
Tranche, as the case may be, which
the Company has agreed to sell.
The Company will send a copy
B-19
of such instructions to the Agent
and the relevant Trustee.
The Principal Paying Agent or the
Unit Agent shall telephone each of
the Euroclear Operator,
Clearstream or any other relevant
clearing system with a request for
a security code for each Note
Tranche or Unit Tranche (and, if
applicable, a security code for
each security comprised by the
Units of such Unit Tranche) agreed
to be issued and shall notify the
Company and the Agent of such
security code or codes as soon as
practicable.
D. In accordance with instructions
received from the Company, (i) the
Principal Paying Agent shall
authenticate and deliver a
Temporary Global Note or Pre-paid
Purchase Contract for each Note
Tranche or Unit Tranche, as
applicable, which the Company has
agreed to sell and (ii) the Unit
Agent shall prepare a Temporary
Global Unit for each Unit Tranche
which the Company has agreed to
sell (including, as applicable, by
countersigning and delivering any
Universal Warrants includable in
such Unit, by countersigning,
executing and delivering any
Purchase Contracts (other than
Pre-Paid Purchase Contracts)
includable in such Unit and by
obtaining from the Principal
Paying Agent any Notes or Pre-paid
Purchase Contracts to be included
in such Units, authenticated in
accordance with clause (i) above).
The settlement of each of the Note
Tranche and the Unit Tranche is to
occur on the relevant settlement
date. All such Temporary Global
Notes
B-20
and all such Temporary Global
Units (including all of the
securities included in such Units)
will then be delivered to the
Depositary. The Principal Paying
Agent or the Unit Agent, as the
case may be, will also give
instructions to the Euroclear
Operator, Clearstream or any other
relevant clearing system to credit
the Notes or Units represented by
such Temporary Global Note or
Temporary Global Unit delivered to
such Depositary to, in the case of
the Notes, the Principal Paying
Agent's distribution account and,
in the case of the Units, the Unit
Agent's distribution account, at
the Euroclear Operator,
Clearstream or any other relevant
clearing system. At settlement of
any Note Tranche, the Principal
Paying Agent will instruct the
Euroclear Operator, Clearstream or
any other relevant clearing system
to debit, on the settlement date,
from the distribution account of
the Principal Paying Agent the
principal amount of Notes of each
Note Tranche, with respect to
which the Agent has solicited an
offer to purchase and to credit,
on the settlement date, such
principal amount to the account of
the Agent with the Euroclear
Operator, Clearstream or any other
relevant clearing system against
payment of the purchase payment
price of such Notes. At settlement
of any Unit Tranche, the Unit
Agent will instruct the Euroclear
Operator, Clearstream or any other
relevant clearing system to debit,
on the settlement date, from the
distribution account of the Unit
Agent the number and face amount
of Units of each Unit Tranche,
with respect to which the Agent
has
B-21
solicited an offer to purchase and
to credit, on the settlement date,
such number and face amount to the
account of the Agent with the
Euroclear Operator, Clearstream or
any other relevant clearing system
against payment of the purchase
payment price of such Units. In
the case of the Notes and the
Units, the Agent shall give
corresponding instructions to the
Euroclear Operator, Clearstream or
any other relevant clearing
system.
E. The Euroclear Operator, Clearstream
and any other relevant clearing
system shall debit and credit
accounts in accordance with
instructions received from the
Principal Paying Agent and the
Agent, in the case of Notes and the
Unit Agent and the Agent, in the
case of Units.
Each of the Principal
Paying Agent and the Unit
Agent shall pay the
Company the aggregate net
proceeds received by it in
immediately available
funds via a transfer of
funds to the U.S. dollar
account of the Company
with a bank in New York
City (or, with respect to
Notes and Units payable in
a Specified Currency other
than U.S. dollars, to an
account maintained at a
bank selected by the
Company, which bank shall
be located outside the
United Kingdom in the case
of Notes and Units payable
in a Specified Currency
other than pounds sterling
that mature not later than
five years from and
including the date of
issue thereof) designated
by the Company in writing.
Settlement Procedures
B-22
Timetable; Bearer Notes
and Bearer Units: For sales by the Company of Bearer
Notes or of Bearer Units to or through
the Agent, "Settlement Procedures;
Bearer Notes and Bearer Units" "A"
through "E" above shall be completed on
or before the respective times set
forth below:
Settlement
Procedure;
Bearer Notes
and Bearer Units Time
---------------- ----
A 12:00 P.M. (NYC time)
three days before
settlement date
B 12:00 P.M. (NYC time)
three days before
settlement date
C 9:00 A.M. (London
time) two days before
settlement date
D 3:45 P.M. (London
time) one day before
settlement date
E 5:00 P.M. (NYC time)
on settlement date
Settlement Procedures;
Registered Notes and
Registered Units: Settlement Procedures with regard to
each Registered Note and Registered
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:
AA. In the case of a Registered
Note (whether issued alone or
as part of a Unit), the Agent
will advise the Company by
telephone that such Note is a
Registered Note and of the
following settlement
information:
1. Name in which such Note is to
be registered ("Registered Note
Owner").
B-23
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. Interest Payment Date(s)
7. In the case of a Fixed Rate
Registered Note, the Interest
Rate, whether such Note is an
Amortizing Note and, if so, the
amortization schedule, or, in the
case of a Floating Rate
Registered Note, the Initial
Interest Rate (if known at such
time), Interest Payment Dates,
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).
8. Redemption or repayment
provisions (if any).
9. Ranking.
10. Settlement date and time
(Original Issue Date).
11. Interest Accrual Date.
B-24
12. Price.
13. Agent's commission (if any)
determined as provided in the
Distribution Agreement.
14. Denominations.
15. Specified Currency.
16. Whether the Note is an OID
Note, and if it is an OID Note,
and the applicability of Modified
Payment upon Acceleration (and
if so, the Issue Price).
17. Whether such Note is a Series D
Note or a Series E Note.
18. Any other applicable provisions.
BB. In the case of a Registered Unit, the
Agent will advise the Company by
telephone that such Unit is a Registered
Unit, of the information set forth in
"Settlement Procedures; Registered
Notes and Registered Units" "A" above
with respect to any Registered Notes that
constitute a part of such Registered 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.
5. Settlement date and time.
B-25
6. Number of Units (and 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;
Registered Notes and
Registered Units" "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 Registered Unit comprises
Registered 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;
B-26
e. Universal Warrant
Exercise Price;
f. Dates upon which
Universal Warrants may
be exercised;
g. Expiration Date;
h. Currency in which
exercise payments shall
be made;
i. Minimum number of
Universal Warrants
exercisable by any holder
on any day;
j. Maximum number of
Universal Warrants
exercisable on any day:
[In the aggregate] [By any
beneficial owner];
k. Formula for determining
Cash Settlement Value;
l. Exchange Rate (or
method of calculation);
m. Whether the Company or
the holder is the writer of
the warrant; and
n. Any other applicable
provisions.
12. If the Registered Unit comprises
Registered Purchase Contracts:
a. Purchase Contract
Property:
b. Price to Public:
B-27
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
f. Method of Computing
Settlement Amount;
g. Currency of Settlement
Payment;
h. Authorized Number of
Purchase Contracts;
i. [Purchase] [Sale] Price of
Purchase Contract
Property;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions;
and
j. Any other applicable
provisions.
CC. The Company will advise JPMorgan
Chase as Principal Paying Agent for the
Notes or as Unit Agent for the Units, by
telephone or electronic transmission
(confirmed in writing at any time on the
same date) of the information set forth in
"Settlement Procedures; Registered
Notes and Registered Units" "AA" and
"BB" above, as applicable.
DD. The Company will have delivered to
JPMorgan Chase as Principal Paying
Agent for the Notes, or as Unit Agent for
the Units, a pre-printed four-ply packet
B-28
for such Note or such Unit, as
the case may be, which packet
will contain the following
documents in forms that have
been approved by the Company,
the Agent and JPMorgan Chase,
as Principal Paying Agent for
the Notes, or as Unit Agent
for the Units:
1. Note or Unit, as the case may be,
with customer confirmation.
2. Stub One - For JPMorgan Chase.
3. Stub Two - For the Agent.
4. Stub Three - For the Company.
EE. JPMorgan Chase will (i) authenticate
and deliver any Note (whether issued
alone or as part of a Unit) or Pre-Paid
Purchase Contract through the Principal
Paying Agent, if necessary, with the
confirmation and Stubs One and Two to
the Agent, and (ii) complete and deliver
any Unit (including by countersigning
and delivering any Universal Warrant
includable in such Unit, by
countersigning, executing and delivering
any Purchase Contract (other than Pre-
paid Purchase Contracts) includable in
such Unit and by obtaining from the
Principal Paying Agent any Notes or
Pre-paid Purchase Contracts to be
included in such Units, authenticated in
accordance with clause (i) above) with
the confirmation and 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, through
the Principal Paying Agent, in the case
of the Notes, if necessary. Such delivery
will be made only against such
acknowledgment of receipt and evidence
B-29
that instructions have been
given by the Agent, with
respect to Program Securities
denominated in U.S. dollars,
for payment to the account of
the Company at JPMorgan Chase,
New York, New York (or, with
respect to Program Securities
payable in a Specified
Currency other than U.S.
dollars, to an account
maintained at a bank selected
by the Company, which bank
shall be located outside the
United Kingdom in the case of
Program Securities payable in
a Specified Currency other
than pounds sterling that
mature not later than five
years from and including the
date of issue thereof), in
immediately available funds,
of an amount equal to the
purchase price of such Program
Securities less the Agent's
commission (if any). In the
event that the instructions
given by the Agent for payment
to the 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.
The Principal Paying Agent and
the Unit Agent shall pay the
Company the aggregate net
proceeds received by it in
immediately available funds
via a transfer of funds to the
U.S. dollar account of the
Company with JPMorgan Chase in
New York City (or, with
respect to Program Securities
payable in a Specified
Currency other than U.S.
dollars, to an account
maintained at a bank selected
by the Company which bank
shall be located outside the
United Kingdom in the case of
Program Securities payable in
a Specified Currency other
than pounds sterling that
mature not later than five
years including
B-30
the date of issue thereof) designated by
the Company in writing.
FF. Unless the Agent purchased such
Program Securities as principal, the
Agent will deliver (with confirmation)
such Program Securities to the customer
against payment in immediately
available funds. The Agent will obtain
the acknowledgment of receipt of such
Program Securities by retaining Stub
Two.
GG. In the case of all Program Securities,
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; Registered Notes
and Registered Units: For sales by the Company of Registered Notes
or Registered Units to or through the Agent,
"Settlement Procedures; Registered Notes
and Registered Units" "AA" through "GG" set
forth above shall be completed on or before the
respective times (London time) set forth below:
B-31
Settlement Procedure;
Registered Notes
and Registered Units Time
--------------------- ----
AA 2:00 P.M. on second day
before settlement date
BB 2:00 P.M. on second day
before settlement date
CC 3:00 P.M. on second day
before settlement date
DD-EE 2:15 P.M. on settlement date
FF 3:00 P.M. on settlement date
GG 5:00 P.M. on settlement date
Failure to Settle: Bearer Notes and Bearer Units. If the Agent
shall have advanced its own funds for payment
against subsequent receipt of funds from the
purchaser and if a purchaser shall fail to make
payment for a Note or a Unit, the Agent will
promptly notify, in the case of a Note, the
Company, the Principal Paying Agent, the
Depositary and the Euroclear Operator,
Clearstream and any other relevant clearing
system, and, in the case of the Unit, the
Company, the Unit Agent, the Depositary, and
the Euroclear Operator, Clearstream and any
other relevant clearing system, in each case by
telephone, promptly confirmed in writing (but
no later than the next Business Day). In such
event, the Company shall promptly instruct the
Principal Paying Agent, in the case of the Note,
and the Unit Agent, in the case of the Unit, to
cancel the purchaser's interest in the appropriate
Temporary Global Note representing such Note
or the appropriate Temporary Global Unit
representing such Unit. Upon (i) confirmation
from the Principal Paying Agent or the Unit
Agent in writing (which may be given by telex
or telecopy) that the Principal Paying Agent or
the Unit Agent has canceled such purchaser's
interest in such Temporary Global Note or
Temporary Global Unit, as the case may be, and
(ii) confirmation from the Agent in writing
(which may be given by telex or telecopy) that
B-32
the Agent has not received payment from
the purchaser for the Note or the Unit,
the Company will promptly pay to the
Agent an amount in immediately
available funds equal to the amount
previously paid by the Agent in respect
of such Bearer Note or Bearer Unit.
Such payment will be made on the
settlement date, if possible, and in
any event not later than 12 noon (New
York City time) on the Business Day
following the settlement date. The
Principal Paying Agent or the Unit
Agent, as the case may be, and the
Depositary will make or cause to be
made such revisions to such Temporary
Global Note or Temporary Global Unit as
are necessary to reflect the
cancellation of such portion of such
Temporary Global Note or Temporary
Global Unit.
If a purchaser shall fail to make
payment for the Note or Unit 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 on an
equitable basis for the Agent's loss of
the use of funds during the period when
they were credited to the account of
the Company, the Principal Paying Agent
or the Unit Agent, as applicable.
Immediately upon such cancellation, the
Principal Paying Agent or the Unit
Agent, as the case may be, will make
appropriate entries in its records to
reflect the fact that a settlement did
not occur with respect to such Note or
Unit.
Registered Notes and Registered Units.
If a purchaser fails to accept delivery
of and make payment for any Registered
Note or Registered Unit, the Agent will
notify the Company and JPMorgan Chase,
as Registrar of the Registered Notes or
as Unit Agent, by telephone and return
such Note or Unit to JPMorgan Chase
through the Principal Paying Agent, in
the case of the Notes or the Unit
Agent, in the case of the Units, if
necessary. Upon receipt of such notice,
B-33
the Company will immediately wire
transfer to the account of the Agent an
amount equal to the amount previously
credited to the Company's account in
respect of 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 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
or JPMorgan Chase. Immediately upon
receipt of the Registered Note or
Registered 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 to the Company.
Cancellation of Issuance: If any Program Securities of a particular series
in respect of which information has been
supplied under "Settlement Procedures" above
is not to be issued on a given issue date, the
Issuer shall promptly notify the Principal Paying
Agent and the Trustee and shall promptly
confirm such notification in writing. Upon
receipt of such notice, neither the Principal
Paying Agent nor the Trustee shall thereafter
issue or release the relevant Program Securities
but shall, if applicable, cancel and, unless
otherwise instructed by the Issuer in writing,
dispose of them in accordance with their
customary procedures.
Notice of Issuance to the
UK Listing Authority and the
London Stock Exchange: The Sponsoring Member Firm will provide
information with respect to the issuance of each
Series D Note and Series D Unit to the London
Stock Exchange or other stock exchange or
quotation system, as the case may be, and will
advise the Company in writing as to the
B-34
effectiveness of the listing of such
Series D Note and Series D Unit by the
close of business on the related
settlement date.
Listing: The Sponsoring Member Firm will, on a
regular basis, provide the London Stock
Exchange or other stock exchange or
quotation system, as the case may be,
with such information regarding Series
D Notes and Series D Units issued and
outstanding as such exchange may
require.
B-35
APPENDIX 1
[FORM OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR, CLEARSTREAM AND/OR ANY OTHER RELEVANT
CLEARING SYSTEM]
CERTIFICATE
---------------
Morgan Stanley Dean Witter & Co.
Notes, Series D/E
Represented by Temporary Global [Fixed/Floating] Rate
Senior Bearer Note No. __
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in Appendix 2 to Exhibit B to the Euro
Distribution Agreement relating to such Notes, as of the date hereof,
__________ principal amount of the above- captioned Securities (i) is owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations, an estate the income of which is subject
to United States federal income taxation regardless of its source or a trust if
both (a) a court within the United States is able to exercise primary
supervision over the administration of the trust and (b) one or more United
States persons have the authority to control all substantial decisions of the
trust ("United States persons"), (ii) is owned by United States persons that
are (a) foreign branches of United States financial institutions (as defined in
the applicable U.S. Treasury Regulations) ("financial institutions") purchasing
for their own account or for resale, or (b) United States persons who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through its agent, that
we may advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in the applicable U.S. Treasury Regulations),
and such United States or foreign financial institutions described in clause
(iii) above (whether or not also described in clause (i) or (ii)) have
certified that they have not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person
within the United States or its possessions. Any such certification by
electronic transmission satisfies the requirements set forth in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(3)(ii). We will retain all
certifications from our Member Organizations for the period specified in United
States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(3)(i).
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, seeking to collect principal or interest with
respect to) any portion of the temporary global Security representing the
above-captioned Securities excepted in the above-referenced certificates of
Member Organizations and (ii) that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith (or, if relevant, with respect to which principal or
interest is being requested) are no longer true and cannot be relied upon as of
the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
Dated: ___________, 20__
[To be dated no earlier than
[insert date of Interest Payment
Date prior to Exchange Date]
[insert date of Redemption Date
prior to Exchange Date] [insert
Exchange Date]]
[EUROCLEAR BANK S.A./N.V., as
Operator of the Euroclear System]
2
[CLEARSTREAM BANKING, SOCIETE
ANONYME]
[OTHER]
By:_______________________________
Name:
Title:
3
APPENDIX 2
[FORM OF CERTIFICATE TO BE GIVEN BY
AN ACCOUNT HOLDER OF EUROCLEAR, CLEARSTREAM AND/OR
ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
--------------
Morgan Stanley Dean Witter & Co.
Notes, Series D/E
Represented by Temporary Global [Fixed/Floating] Rate
Senior Bearer Note No. __
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations, an estate the income of which is subject
to United States Federal income taxation regardless of its source, or a trust
if both (a) a court within the United States is able to exercise primary
supervision over the administration of the trust and (b) one or more United
States persons have the authority to control all substantial decisions of the
trust ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (as
defined in the applicable U.S. Treasury Regulations) ("financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise the Issuer or the Issuer's agent that it will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the U.S.
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in the applicable
U.S. Treasury Regulations), and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) such financial
institution has not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to [U.S.$] _________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand exchange for and delivery of
definitive Securities (or, if relevant, exercise of any rights or collection of
any principal or interest) cannot be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
2
Dated: ___________, 20__
[To be dated no earlier than the
10th day before [insert date of
Interest Payment Date prior to
Exchange Date] [insert date of
Redemption Date prior to
Exchange Date] [insert Exchange Date]]
[NAME OF ACCOUNT HOLDER]
By:_______________________________
(Authorized Signatory)
Name:
Title:
3
APPENDIX 3
FORM OF COMPANY'S NOTICE TO PRINCIPAL PAYING AGENT
To: JPMorgan Chase Bank,
London Office
Attention: ________________________________
________________________________
and with a copy to:
[JPMorgan Chase Bank, as Senior Debt Trustee]
[Bank One Trust Company, N.A.
(as successor to The First National Bank of Chicago),
as Subordinated Debt Trustee]
Re: Euro Distribution Agreement
dated o, 2002
---------------------------
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete, authenticate
and issue a Temporary Global Note in accordance with the terms of the [Notes
Terms Agreement dated _______,] Administrative Procedures and Euro Distribution
Agreement and to give instructions to the Euroclear Operator, Clearstream
and/or any other relevant clearing system in order for you to:1
Credit account of [Name of Agent] with
[Euroclear/Clearstream/Other]2 with the following Bearer
Notes:
- -------------
1 Separate instructions are to be sent in respect of each offer
accepted by the Company. Repeat this information (numbering consecutively) if
Bearer Notes of more than one Note Tranche are to be issued to an Agent.
2 Delete as appropriate.
Fixed Rate Floating Rate
All Notes: Notes: 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: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset
Currencies (if any): Date:
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Maturity Date: Reference Dealers: Maximum Interest Rate:
Optional Redemption Face Amount: Minimum Interest Rate:
Date(s):
Initial Redemption Date: Fixed Amount of each Interest Payment Period:
Indexed Currency (if any):
Initial Redemption Aggregate Fixed Amount of Calculation Agent:
Percentage: each Indexed Currency (if
any):
Annual Redemption Indexed Currency (if any): Reporting Service:
Percentage Reduction:
Ranking: Index Currency:
Series: Designated CMT
Telerate Page:
Minimum Denominations: Designated CMT
Maturity Index:
Other Provisions:
2
against payment of [______________________].
Date:
MORGAN STANLEY DEAN WITTER & CO.
By: ______________________________________
3
APPENDIX 4
FORM OF COMPANY'S NOTICE TO UNIT AGENT
--------------------------------------
To: JPMorgan Chase Bank,
Attention:___________________
___________________
Re: Euro Distribution Agreement
dated o, 2002
---------------------------
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete and issue a
Temporary Global Unit in accordance with the terms of the [Units Terms
Agreement dated _______,] Administrative Procedures and Euro Distribution
Agreement and to give instructions to the Euroclear Operator, Clearstream
and/or any other relevant clearing system in order for you to:1
Credit account of [Name of Agent] with
[Euroclear/Clearstream/Other]2 with the following Bearer
Units:
- -------------
1 Separate instructions are to be sent in respect of each offer
accepted by the Company. Repeat this information (numbering consecutively) if
Bearer Units of more than one Unit Tranche are to be issued to an Agent.
2 Delete as appropriate.
Universal Warrants Purchase Contracts
All Units: Issued as Part of a Unit: Issued as Part of a Unit:
- ------------------------------ ------------------------------- ------------------------------
Principal Amount: Price: Price:
Purchase Price: Specified Currency or Settlement Date and Time:
Composite Currency:
Price to Public: Exercise Date: Buy or Sell:
Place of Delivery: Warrant Property: Purchase Contract
Property:
Specified Currency: Permitted Payment: Purchase or Sale Price:
Original Issue Date: Exercise Price:
Expiration Date: Specified Currency or
Composite Currency:
Put or Call: Permitted Payment:
2
All Notes Issued Fixed Rate Notes Issued Floating Rate Notes
as Part of a Unit: as Part of a Unit: Issued 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: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset
Currencies (if any): Date:
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Maturity Date: Reference Dealers: Maximum Interest Rate:
Optional Repayment Face Amount: Minimum Interest Rate:
Date(s):
Optional Redemption Fixed Amount of each Interest Payment Period:
Date(s): Indexed Currency (if any):
Initial Redemption Date: Aggregate Fixed Amount Calculation Agent:
of each Indexed Currency
(if any):
Initial Redemption Indexed Currency (if any): Reporting Service:
Percentage:
Annual Redemption Index Currency:
Percentage Reduction:
Ranking: Designated CMT
Telerate Page:
Series: Designated CMT
Maturity Index:
3
All Notes Issued Fixed Rate Notes Issued Floating Rate Notes
as Part of a Unit: as Part of a Unit: Issued as Part of a Unit:
- ------------------------------ ------------------------------- ------------------------------
Minimum Denominations:
Other Provisions:
against payment of [_________________]
Date:
MORGAN STANLEY DEAN WITTER & CO.
By: __________________________________