EXHIBIT 4-y
[FORM OF FACE OF SECURITY]
PERMANENT GLOBAL FIXED RATE SENIOR BEARER NOTE
BEARER BEARER
No. PGFXR
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR DEFINITIVE BEARER NOTES OR
IN WHOLE OR IN PART FOR REGISTERED NOTES, THIS GLOBAL NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES
AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD, DIRECTLY OR
INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF JAPAN (WHICH
TERM 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.(1)
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(1) If this Note is offered in Japan or denominated in Japanese Yen,
appropriate legends need to be added.
MORGAN STANLEY
GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
Permanent Global Fixed Rate Senior Bearer Note
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ORIGINAL ISSUE DATE: INITIAL INTEREST RATE: MATURITY DATE:
REDEMPTION DATE:
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INTEREST ACCRUAL INITIAL INTEREST PAYMENT OPTIONAL REPAYMENT
DATE: REDEMPTION DATE(S): DATE(S):
PERCENTAGE:
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SPECIFIED CURRENCY: ANNUAL REDEMPTION EUROCLEAR NO.: MINIMUM
PERCENTAGE DENOMINATIONS:
REDUCTION:
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EXCHANGE RATE AGENT: REDEMPTION NOTICE CLEARSTREAM NO.: APPLICABILITY OF
PERIOD:(2) MODIFIED PAYMENT
UPON ACCELERATION
OR REDEMPTION:
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INITIAL OFFERING EXCHANGE FOR COMMON CODE: If yes, state Issue
DATE: REGISTERED Price:
NOTES: [NO](3)
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OTHER PROVISIONS: PRICE APPLICABLE ISIN: ORIGINAL YIELD TO
UPON OPTIONAL MATURITY:
REPAYMENT:(4)
- -------------------------------------------------------------------------------------
Morgan Stanley (formerly known as Morgan Stanley Dean Witter & Co.), a
Delaware corporation (together with its successors and assigns, the "Issuer"),
for value received, hereby promises to pay to bearer, upon surrender hereof,
the principal amount specified in [Schedule A hereto](5) [Schedule A-1
hereto](6), on the Maturity Date specified above (except to the extent
previously redeemed or repaid) and to pay interest thereon at the Interest Rate
per annum specified above from and including the Interest Accrual Date
specified above until but excluding
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(2) Applicable if other than 30-60 calendar days. Consult with Euroclear or
Clearstream if a shorter redemption is requested. A minimum of 10 calendar
days may be possible.
(3) Unless explicitly stated otherwise in term sheet, MS practice has been to
exclude this option.
(4) Applies if this Note has optional repayment and is issued with original
issue discount.
(5) Applies if this Note is not issued as part of, or in relation to, a Unit.
(6) Applies if this Note is issued as part of, or in relation to, a Unit.
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the date the principal amount is paid or duly made available for payment
(except as provided below) weekly, monthly, quarterly, semi-annually or
annually in arrears on the Interest Payment Dates specified above in each year
commencing on the Interest Payment Date next succeeding the Interest Accrual
Date specified above, and at maturity (or on any redemption or repayment date);
provided, however, that if the Interest Accrual Date occurs fifteen calendar
days or less prior to the first Interest Payment Date occurring after the
Interest Accrual Date, interest payments will commence on the second Interest
Payment Date succeeding the Interest Accrual Date.
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until but excluding the date the principal hereof has
been paid or duly made available for payment (except as provided below). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the holder of this Note at the office or agency of the Principal Paying Agent
(this and certain other capitalized terms used herein are defined on the
reverse of this Note) or at the office or agency of such other paying agents
outside the United States as the Issuer may determine for that purpose (each, a
"Paying Agent," which term shall include the Principal Paying Agent).
Payment of the principal of this Note, any premium and the interest due
at maturity (or on any redemption or repayment date) will be made upon
presentation and surrender of this Note at the office or agency of the
Principal Paying Agent or at the office of any Paying Agent.
Payment of the principal of, premium, if any, and interest on this Note
will be made in the Specified Currency indicated above, except as provided on
the reverse hereof. If this Note is denominated in U.S. dollars, any payment of
the principal of, premium, if any, and interest on this Note will be made in
such coin or currency of the United States as at the time of payment is legal
tender for payment of public and private debts. Such payments on this Note will
be made either by a check mailed to an address outside the United States
furnished by the payee or, at the option of the payee and subject to applicable
laws and regulations and the procedures of the Paying Agent, by wire transfer
of immediately available funds to an account maintained by the payee with a
bank located outside the United States if appropriate wire transfer
instructions have been received by the Paying Agent not less than 15 calendar
days prior to the applicable payment date. Notwithstanding the foregoing, in
the event that payment in U.S. dollars of the full amount payable on this Note
at the offices of all Paying Agents would be illegal or effectively precluded
as a result of exchange controls or similar restrictions, payment on this Note
will be made by a paying agency in the United States, if such paying agency,
under applicable law and regulations, would be able to make such payment. If
this Note is denominated in a Specified Currency other than U.S. dollars, then,
except as provided on the reverse hereof, payment of the principal of, premium,
if any, and interest on this Note will be made in such Specified Currency
either by a check drawn on a bank outside the United States or, at the option
of the payee and subject to applicable laws and regulations and the procedures
of the Paying Agent, by wire transfer of immediately available funds to an
account maintained by the payee with a bank located outside the United States.
3
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note shall
not be entitled to any benefit under the Senior Indenture, as defined on the
reverse hereof, or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
DATED:
MORGAN STANLEY
By:
----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:
-------------------------------
Authorized Officer
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[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Global Medium-Term Notes,
Series [D/E], having maturities more than nine months from the date of issue
(the "Notes"), of the Issuer. The Notes are issuable under an Amended and
Restated Senior Indenture, dated as of May 1, 1999, between the Issuer and
JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee
(the "Trustee," which term includes any successor trustee under the Senior
Indenture) (as may be amended or supplemented from time to time, the "Senior
Indenture"), to which Senior Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities of the Issuer, the Trustee and holders of the
Notes and the terms upon which the Notes are, and are to be, authenticated and
delivered. The Issuer has appointed JPMorgan Chase Bank, London Branch, as its
principal paying agent for the Notes (the "Principal Paying Agent," which term
includes any additional or successor Principal Paying Agent appointed by the
Issuer). The terms of individual Notes may vary with respect to interest rates,
interest rate formulas, issue dates, maturity dates, or otherwise, all as
provided in the Senior Indenture. To the extent not inconsistent herewith, the
terms of the Senior Indenture are hereby incorporated by reference herein.
Unless otherwise indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise indicated on the face hereof
in accordance with the provisions of the following two paragraphs and except as
set forth below, will not be redeemable or subject to repayment at the option
of the holder prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in whole or
in part at the option of the Issuer on or after the Initial Redemption Date
specified on the face hereof on the terms set forth on the face hereof,
together with interest accrued and unpaid hereon to the date of redemption
(except as indicated below). If this Note is subject to "Annual Redemption
Percentage Reduction," the Initial Redemption Percentage indicated on the face
hereof will be reduced on each anniversary of the Initial Redemption Date by
the Annual Redemption Percentage Reduction specified on the face hereof until
the redemption price of this Note is 100% of the principal amount hereof,
together with interest accrued and unpaid hereon to the date of redemption
(except as provided below). Notice of redemption shall be mailed to the holders
of the Notes designated for redemption who have filed their names and addresses
with the Principal Paying Agent, not less than 30 nor more than 60 days prior
to the date fixed for redemption or within the Redemption Notice Period
specified on the face hereof, subject to all the conditions and provisions of
the Senior Indenture. Notice of redemption to all other holders of Notes shall
be given in the manner set forth in "Notices" as defined below and, if by
publication, shall be given once in each of three successive calendar weeks,
the first publication to be not less than 30 nor more than 60 calendar days
prior to the date set for redemption or within the Redemption Notice Period
specified on the face hereof. In the event of redemption of this Note in part
only, the Principal Paying Agent shall cause Schedule [A] [A-1] of this Note to
be endorsed to reflect the reduction of its principal amount by an amount equal
to the aggregate principal amount of this Note so redeemed, whereupon the
principal amount hereof shall be reduced for all purposes by the amount so
redeemed and noted.
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If so indicated on the face of this Note, this Note will be subject to
repayment at the option of the holder on the Optional Repayment Date or Dates
specified on the face hereof on the terms set forth herein. On any Optional
Repayment Date, this Note will be repayable in whole or in part in increments
of $1,000 or, if this Note is denominated in a Specified Currency other than
U.S. dollars, in increments of 1,000 units of such Specified Currency (provided
that any remaining principal amount hereof shall not be less than the minimum
authorized denomination hereof) at the option of the holder hereof at a price
equal to 100% of the principal amount to be repaid, together with interest
accrued and unpaid hereon to the date of repayment (except as provided below),
provided that if this Note is issued with original issue discount, this Note
will be repayable on the applicable Optional Repayment Date or Dates at the
price(s) specified on the face hereof. For this Note to be repaid at the option
of the holder hereof, the Principal Paying Agent must receive at its office in
London, at least 15 but not more than 30 calendar days prior to the date of
repayment, this Note with the form entitled "Option to Elect Repayment" below
duly completed, or a telegram, telex, facsimile transmission or a letter from a
member of a national securities exchange, or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States, Western Europe or Japan setting forth the principal amount of the Note,
the principal amount of the Note to be repaid, the certificate number or a
description of the tenor and terms of this Note, a statement that the Option to
Elect Repayment is being exercised and a guarantee that this Note to be repaid,
together with the duly completed form entitled Option to Elect Repayment, will
be received by the Principal Paying Agent not later than the fifth Business Day
(as defined below) after the date of that telegram, telex, facsimile
transmission or letter. However, the telegram, telex, facsimile transmission or
letter shall only be effective if this Note and an Option to Elect Repayment
form duly completed are received by the Principal Paying Agent by the fifth
Business Day after the date of such telegram, telex, facsimile transmission or
letter. Exercise of such repayment option by the holder hereof shall be
irrevocable. In the event of repayment of this Note in part only, the Principal
Paying Agent shall cause Schedule [A] [A-1] of this Note to be endorsed to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of this Note so repaid, whereupon the principal
amount hereof shall be reduced for all purposes by the amount so repaid and
noted.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Unless otherwise specified
on the face hereof, interest payments for this Note will be computed and paid
on the basis of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity Date (or any
redemption or repayment date) does not fall on a Business Day, payment of
interest, premium, if any, or principal otherwise payable on such date need not
be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the Interest Payment Date or on the
Maturity Date (or any redemption or repayment date), and no interest on such
payment shall accrue for the period from and after the Interest Payment Date or
the Maturity Date (or any redemption or repayment date) to such next succeeding
Business Day.
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and pari passu with all
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other existing and future unsecured and unsubordinated indebtedness of the
Issuer, subject to certain statutory exceptions in the event of liquidation
upon insolvency.
This Note is issued in permanent global bearer form without interest
coupons attached (a "Global Bearer Note"). The beneficial owner of all or a
portion of this Note may exchange its interest in this Note upon not less than
30 calendar days' written notice to the Principal Paying Agent through the
relevant clearing system, in whole, for Notes in bearer form with interest
coupons, if any, attached (the "Definitive Bearer Notes," and, together with
the Global Bearer Notes, the "Bearer Notes") or, if so indicated on the face of
this Note, at the beneficial owner's option, in whole or from time to time in
part, for Notes in fully registered form without coupons (the "Registered
Notes"), in each case, in the minimum denominations set forth on the face
hereof or any amount in excess thereof which is an integral multiple of 1,000
units of the Specified Currency set forth on the face hereof. Interests in this
Note shall also be exchanged by the Issuer in whole, but not in part, for
Definitive Bearer Notes, which shall be serially numbered, with coupons, if
any, attached (or, if indicated on the face of this Note, at the beneficial
owner's option, for Registered Notes), of any authorized denominations if (i)
this Note is accelerated following an Event of Default or (ii) either Euroclear
Bank S.A./N.V., as operator of the Euroclear System ("Euroclear"), or
Clearstream Banking, societe anonyme ("Clearstream, Luxembourg"), or any other
relevant clearing system (including Euroclear France) is closed for business
for a continuous period of fourteen calendar days (other than by reason of
public holidays) or announces an intention to cease business permanently or in
fact does so. The Issuer shall give notice to the Principal Paying Agent
promptly following any such acceleration or upon learning of any such closure.
Any exchanges referred to above shall be made at the office of the Principal
Paying Agent, or, in the case of Registered Notes, at the office of the
transfer agent for the Registered Notes in London, which transfer agent will
initially be JPMorgan Chase Bank, London Branch, upon compliance with any
procedures set forth in, or established pursuant to, the Senior Indenture;
provided, however, that the Issuer shall not be required (i) to register the
transfer of or exchange this Note for a period of fifteen calendar days
preceding the first publication or other transmission, if applicable, of a
Notice of redemption of all or any portion hereof or (ii) to register the
transfer of or exchange any portion of this Note selected for redemption or
surrendered for optional repayment, except that such portion of this Note may
be exchanged for a Registered Note of like tenor; provided that such Registered
Note shall be simultaneously surrendered for redemption or repayment, as the
case may be; and provided, further, that if a Registered Note is issued in
exchange for any portion of this Note after the close of business at the office
of the Principal Paying Agent on any record date (whether or not a Business
Day) for the payment of interest on such Registered Note and before the opening
of business at such office on the relevant Interest Payment Date, any interest
will not be payable on such Interest Payment Date in respect of such Registered
Note, but will be payable on such Interest Payment Date only to the holder of
this Note. Upon exchange of this Note in whole for a Definitive Bearer Note or
Definitive Bearer Notes, or in whole or in part for a Registered Note or
Registered Notes, the Principal Paying Agent shall cause Schedule [A] [A-1] of
this Note to be endorsed to reflect the reduction of the principal amount
hereof by an amount equal to the aggregate principal amount of such Definitive
Bearer Note or Definitive Bearer Notes, or such Registered Note or Registered
Notes, whereupon the principal amount hereof shall be reduced for all purposes
by the amount so exchanged and noted. All such exchanges of Notes will be free
of service charge, but the Issuer may require payment of a sum sufficient to
8
cover any tax or other governmental charge payable in connection therewith. The
date of any Note delivered upon any exchange of this Note shall be such that no
gain or loss of interest results from such exchange.
All (and not less than all) interests in this Note will be exchanged for
Definitive Bearer Notes in accordance with the procedures set forth in the
following two sentences as soon as practicable after (i) the first beneficial
owner of an interest in this Note exchanges its interest for a Definitive
Bearer Note, (ii) the Issuer gives notice to the Principal Paying Agent of an
acceleration of the Note or (iii) either Euroclear or Clearstream, Luxembourg
or any other relevant clearing system is closed for business for a continuous
period of fourteen calendar days (other than by reason of public holidays) or
announces an intention to cease business permanently or in fact does so. In the
event of any exchange of interests in this Note for a Definitive Bearer Note, a
common depositary located outside the United States (the "common depositary")
holding this Note for Euroclear, Clearstream, Luxembourg and/or any other
relevant clearing system shall instruct the Principal Paying Agent regarding
the aggregate principal amount of Definitive Bearer Notes and the denominations
of such Definitive Bearer Notes that must be authenticated and delivered to
each relevant clearing system in exchange for this Note. Thereafter, the
Principal Paying Agent, acting solely in reliance on such instructions, shall,
upon surrender to it of this Note and subject to the conditions in the
preceding paragraph, authenticate and deliver Definitive Bearer Notes in
exchange for this Note in accordance with such instructions and shall cause
Schedule [A] [A-1]of this Note to be endorsed to reflect the reduction of its
principal amount by an amount equal to the aggregate principal amount of this
Note. Nothing in this paragraph shall prevent the further exchange of
Definitive Bearer Notes into Registered Notes.
This Note may be transferred by delivery; provided, however, that this
Note may be transferred only to a common depositary outside the United States
for Euroclear, Clearstream, Luxembourg and/or any other relevant clearing
system or to a nominee of such a depositary.
In case this Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and this Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, the Issuer in its discretion may execute a new Note
of like tenor in exchange for this Note, but, in the case of any destroyed or
lost or stolen Note, only upon receipt of evidence satisfactory to the Trustee
and the Issuer that this Note was destroyed or lost or stolen and, if required,
upon receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
This Note may be redeemed, as a whole, at the option of the Issuer at any
time prior to maturity, upon the giving of a Notice of redemption as described
below, at a redemption price equal to 100% of the principal amount hereof,
together with accrued interest to the date fixed for redemption (except that if
this Note is subject to "Modified Payment upon Acceleration or Redemption,"
such redemption price would be limited to the aggregate principal amount hereof
multiplied by the sum of the Issue Price specified on the face hereof
(expressed as a percentage of the aggregate principal amount) plus the original
issue discount amortized from the Interest
9
Accrual Date to the date of redemption, which amortization shall be calculated
using the "interest method" (computed in accordance with generally accepted
accounting principles in effect on the date of redemption) (the "Amortized
Amount")), if the Issuer determines that, as a result of any change in or
amendment to the laws, or any regulations or rulings promulgated thereunder, of
the United States or of any political subdivision or taxing authority thereof
or therein affecting taxation, or any change in official position regarding the
application or interpretation of such laws, regulations or rulings, which
change or amendment becomes effective on or after the Initial Offering Date
hereof, the Issuer has or will become obligated to pay Additional Amounts, as
defined below, with respect to this Note as described below. Prior to the
giving of any Notice of redemption pursuant to this paragraph, the Issuer shall
deliver to the Trustee (i) a certificate stating that the Issuer is entitled to
effect such redemption and setting forth a statement of facts showing that the
conditions precedent to the right of the Issuer to so redeem have occurred, and
(ii) an opinion of independent legal counsel satisfactory to the Trustee to
such effect based on such statement of facts; provided that no such Notice of
redemption shall be given earlier than 60 calendar days prior to the earliest
date on which the Issuer would be obligated to pay such Additional Amounts if a
payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more than 60
calendar days prior to the date fixed for redemption or within the Redemption
Notice Period specified on the face hereof, which date and the applicable
redemption price will be specified in the Notice.
If the Issuer shall determine that any payment made outside the United
States by the Issuer or any Paying Agent of principal, premium or interest due
in respect of this Note would, under any present or future laws or regulations
of the United States, be subject to any certification, identification or other
information reporting requirement of any kind, the effect of which is the
disclosure to the Issuer, any Paying Agent or any governmental authority of the
nationality, residence or identity of a beneficial owner of this Note who is a
United States Alien (as defined below) (other than such a requirement (a) that
would not be applicable to a payment made by the Issuer or any Paying Agent (i)
directly to the beneficial owner or (ii) to a custodian, nominee or other agent
of the beneficial owner, or (b) that can be satisfied by such custodian,
nominee or other agent certifying to the effect that such beneficial owner is a
United States Alien; provided that in each case referred to in clauses (a)(ii)
and (b) payment by such custodian, nominee or agent to such beneficial owner is
not otherwise subject to any such requirement), the Issuer shall redeem this
Note, as a whole, at a redemption price equal to 100% of the principal amount
thereof (except that if this Note is subject to "Modified Payment upon
Acceleration or Redemption," such redemption price would be limited to the
aggregate principal amount hereof multiplied by the sum of the Issue Price
specified on the face hereof (expressed as a percentage of the aggregate
principal amount) plus the Amortized Amount), together with accrued interest to
the date fixed for redemption, or, at the election of the Issuer if the
conditions of the next succeeding paragraph are satisfied, pay the additional
amounts specified in such paragraph. The Issuer shall make such determination
and election as soon as practicable, shall promptly notify the Trustee thereof
and shall publish (or transmit, as applicable) prompt notice thereof (the
"Determination Notice") stating the effective date of such certification,
identification or other information reporting requirements, whether the Issuer
will redeem this Note or has elected to pay the additional amounts specified in
the next succeeding paragraph, and (if applicable) the
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last date by which the redemption of this Note must take place, as provided in
the next succeeding sentence. If the Issuer redeems this Note, such redemption
shall take place on such date, not later than one year after the publication of
the Determination Notice, as the Issuer shall elect by notice to the Trustee at
least 60 calendar days prior to the date fixed for redemption or at least 30
calendar days prior to the last day of the Redemption Notice Period specified
on the face hereof. Notice of such redemption of this Note will be given to the
holder of this Note not more than 60 nor less than 30 calendar days prior to
the date fixed for redemption or within the Redemption Notice Period specified
on the face hereof. Such redemption notice shall include a statement as to the
last date by which this Note to be redeemed may be exchanged for Registered
Notes. Notwithstanding the foregoing, the Issuer shall not so redeem this Note
if the Issuer shall subsequently determine, not less than 30 calendar days
prior to the date fixed for redemption or prior to the last day of the
Redemption Notice Period specified on the face hereof, that subsequent payments
would not be subject to any such certification, identification or other
information reporting requirement, in which case the Issuer shall publish (or
transmit, as applicable) prompt notice of such determination and any earlier
redemption notice shall be revoked and of no further effect. The right of the
holder of this Note to exchange this Note for Registered Notes pursuant to the
provisions of this paragraph will terminate at the close of business of the
Principal Paying Agent on the fifteenth day prior to the date fixed for
redemption, and no further exchanges of this Note for Registered Notes shall be
permitted.
If and so long as the certification, identification or other information
reporting requirements referred to in the preceding paragraph would be fully
satisfied by payment of a backup withholding tax or similar charge, the Issuer
may elect by notice to the Trustee to pay as additional amounts such amounts as
may be necessary so that every net payment made outside the United States
following the effective date of such requirements by the Issuer or any Paying
Agent of principal, premium or interest due in respect of this Note of which
the beneficial owner is a United States Alien (but without any requirement that
the nationality, residence or identity of such beneficial owner be disclosed to
the Issuer, any Paying Agent or any governmental authority, with respect to the
payment of such additional amounts), after deduction or withholding for or on
account of such backup withholding tax or similar charge (other than a backup
withholding tax or similar charge that (i) would not be applicable in the
circumstances referred to in the second parenthetical clause of the first
sentence of the preceding paragraph, or (ii) is imposed as a result of
presentation of this Note for payment more than 15 calendar days after the date
on which such payment becomes due and payable or on which payment thereof is
duly provided for, whichever occurs later), will not be less than the amount
provided for in this Note to be then due and payable. In the event the Issuer
elects to pay any additional amounts pursuant to this paragraph, the Issuer
shall have the right to redeem this Note as a whole at any time pursuant to the
applicable provisions of the immediately preceding paragraph and the redemption
price of this Note will not be reduced for applicable withholding taxes. If the
Issuer elects to pay additional amounts pursuant to this paragraph and the
condition specified in the first sentence of this paragraph should no longer be
satisfied, then the Issuer will redeem this Note as a whole, pursuant to the
applicable provisions of the immediately preceding paragraph.
The Issuer will, subject to certain exceptions and limitations set forth
below, pay such additional amounts (the "Additional Amounts") to the holder of
this Note who is a United States Alien as may be necessary in order that every
net payment of the principal of and interest
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on this Note and any other amounts payable on this Note, after withholding or
deduction for or on account of any present or future tax, assessment or
governmental charge imposed upon or as a result of such payment by the United
States, or any political subdivision or taxing authority thereof or therein,
will not be less than the amount provided for in this Note to be then due and
payable. The Issuer will not, however, make any payment of Additional Amounts
to any such holder who is a United States Alien for or on account of:
(a) any present or future tax, assessment or other governmental
charge that would not have been so imposed but for (i) the existence of
any present or former connection between such holder, or between a
fiduciary, settlor, beneficiary, member or shareholder of such holder, if
such holder is an estate, a trust, a partnership or a corporation for
United States federal income tax purposes, and the United States,
including, without limitation, such holder, or such fiduciary, settlor,
beneficiary, member or shareholder, being or having been a citizen or
resident thereof or being or having been engaged in a trade or business
or present therein or having, or having had, a permanent establishment
therein or (ii) the presentation by or on behalf of the holder of this
Note for payment on a date more than 15 calendar days after the date on
which such payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer, excise or
personal property tax or any similar tax, assessment or governmental
charge;
(c) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as a personal holding
company or foreign personal holding company or controlled foreign
corporation or passive foreign investment company with respect to the
United States or as a corporation which accumulates earnings to avoid
United States federal income tax or as a private foundation or other
tax-exempt organization or a bank receiving interest under Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding or deduction from payments on or in
respect of this Note;
(e) any tax, assessment or other governmental charge required to be
withheld by any Paying Agent from any payment of principal of, or
interest on, this Note, if such payment can be made without such
withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that would not
have been imposed but for the failure to comply with certification,
information or other reporting requirements concerning the nationality,
residence or identity of the holder or beneficial owner of this Note, if
such compliance is required by statute or by regulation of the United
States or of any political subdivision or taxing authority thereof or
therein as a precondition to relief or exemption from such tax,
assessment or other governmental charge;
12
(g) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power of
all classes of stock entitled to vote of the Issuer or as a direct or
indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g).
In addition, the Issuer shall not be required to make any payment of Additional
Amounts (i) to any such holder where such withholding or deduction is imposed
on a payment to an individual and is required to be made pursuant to any law
implementing or complying with, or introduced in order to conform to, any
European Union Directive on the taxation of savings; or (ii) by or on behalf of
a holder who would have been able to avoid such withholding or deduction by
presenting this Note or the relevant coupon to another Paying Agent in a member
state of the European Union. Nor shall the Issuer pay Additional Amounts with
respect to any payment on this Note to a United States Alien who is a fiduciary
or partnership or other than the sole beneficial owner of such payment to the
extent such payment would be required by the laws of the United States (or any
political subdivision thereof) to be included in the income, for tax purposes,
of a beneficiary or settlor with respect to such fiduciary or a member of such
partnership or a beneficial owner who would not have been entitled to the
Additional Amounts had such beneficiary, settlor, member or beneficial owner
been the holder of this Note.
The Senior Indenture provides that (a) if an Event of Default (as defined
in the Senior Indenture) due to the default in payment of principal of or
premium, if any, or interest on any series of debt securities issued under the
Senior Indenture, including the series of Global Medium-Term Notes of which
this Note forms a part, or due to the default in the performance or breach of
any other covenant or warranty of the Issuer applicable to the debt securities
of such series but not applicable to all outstanding debt securities issued
under the Senior Indenture, shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in aggregate principal amount of
the outstanding debt securities of each affected series, voting as one class,
by notice in writing to the Issuer and to the Trustee, if given by the
securityholders, may then declare the principal of all debt securities of all
such series and interest accrued thereon to be due and payable immediately and
(b) if an Event of Default due to a default in the performance of any other of
the covenants or agreements in the Senior Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due to
certain events of bankruptcy, insolvency or reorganization of the Issuer, shall
have occurred and be continuing, either the Trustee or the holders of not less
than 25% in aggregate principal amount of all outstanding debt securities
issued under the Senior Indenture, voting as one class, by notice in writing to
the Issuer and to the Trustee, if given by the securityholders, may declare the
principal of all such debt securities and interest accrued thereon to be due
and payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal of or premium, if any, or interest on such debt
securities) by the holders of a majority in aggregate principal amount of the
debt securities of all affected series then outstanding.
If the face hereof indicates that this Note is subject to "Modified
Payment upon Acceleration or Redemption," then (i) if the principal hereof is
declared to be due and payable as described in the preceding paragraph, the
amount of principal due and payable with respect to
13
this Note shall be limited to the aggregate principal amount hereof multiplied
by the sum of the Issue Price specified on the face hereof (expressed as a
percentage of the aggregate principal amount) plus the original issue discount
amortized from the Interest Accrual Date to the date of declaration, which
amortization shall be calculated using the "interest method" (computed in
accordance with generally accepted accounting principles in effect on the date
of declaration), (ii) for the purpose of any vote of securityholders taken
pursuant to the Senior Indenture prior to the acceleration of payment of this
Note, the principal amount hereof shall equal the amount that would be due and
payable hereon, calculated as set forth in clause (i) above, if this Note were
declared to be due and payable on the date of any such vote and (iii) for the
purpose of any vote of securityholders taken pursuant to the Senior Indenture
following the acceleration of payment of this Note, the principal amount hereof
shall equal the amount of principal due and payable with respect to this Note,
calculated as set forth in clause (i) above.
The Senior Indenture permits the Issuer and the Trustee, with the consent
of the holders of not less than a majority in aggregate principal amount of the
debt securities of all series issued under the Senior Indenture then
outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of the
holders of each series so affected; provided that the Issuer and the Trustee
may not, without the consent of the holder of each outstanding debt security
affected thereby, (a) extend the final maturity of any such debt security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption
thereof, or change the currency of payment thereof, or modify or amend the
provisions for conversion of any currency into any other currency, or modify or
amend the provisions for conversion or exchange of the debt security for
securities of the Issuer or other entities or for other property (other than as
provided in the antidilution provisions or other similar adjustment provisions
of the debt securities or otherwise in accordance with the terms thereof), or
impair or affect the rights of any holder to institute suit for the payment
thereof or (b) reduce the aforesaid percentage in principal amount of debt
securities the consent of the holders of which is required for any such
supplemental indenture.
Except as set forth below, if the principal of or premium, if any, or
interest on this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community,
then the Issuer will be entitled to satisfy its obligations to the holder of
this Note by making such payments in U.S. dollars on the basis of the Market
Exchange Rate (as defined below) on the date of such payment or, if the Market
Exchange Rate is not available on such date, as of the most recent practicable
date; provided, however, that if the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of or premium, if any, or interest on any Note denominated
in such Specified Currency in euro in lieu of such Specified Currency in
conformity with legally applicable measures taken pursuant to, or by virtue of,
the Treaty establishing the European Community, as amended. Any payment made
under such circumstances in U.S. dollars or euro where the required payment is
in an unavailable Specified Currency will not constitute an Event
14
of Default. If such Market Exchange Rate is not then available to the Issuer or
is not published for a particular Specified Currency, the Market Exchange Rate
will be based on the highest bid quotation in The City of New York received by
the Exchange Rate Agent (as defined below) at approximately 11:00 a.m., New
York City time, on the second Business Day preceding the date of such payment
from three recognized foreign exchange dealers (the "Exchange Dealers") for the
purchase by the quoting Exchange Dealer of the Specified Currency for U.S.
dollars for settlement on the payment date, in the aggregate amount of the
Specified Currency payable to those holders or beneficial owners of Notes and
at which the applicable Exchange Dealer commits to execute a contract. One of
the Exchange Dealers providing quotations may be the Exchange Rate Agent unless
the Exchange Rate Agent is an affiliate of the Issuer. If those bid quotations
are not available, the Exchange Rate Agent shall determine the market exchange
rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. International
Limited, unless otherwise indicated on the face hereof.
All determinations referred to above made by, or on behalf of, the Issuer
or by, or on behalf of, the Exchange Rate Agent shall be at such entity's sole
discretion and shall, in the absence of manifest error, be conclusive for all
purposes and binding on holders of Notes.
So long as this Note shall be outstanding, the Issuer will cause to be
maintained an office or agency for the payment of the principal of and premium,
if any, and interest on this Note as herein provided. If this Note is listed on
the London Stock Exchange plc and such exchange so requires, the Issuer shall
maintain a Paying Agent in London. If any European Union Directive on the
taxation of savings comes into force, the Issuer will, to the extent possible
as a matter of law, maintain a Paying Agent in a member state of the European
Union that will not be obligated to withhold or deduct tax pursuant to any such
Directive or any law implementing or complying with, or introduced in order to
conform to, such Directive. The Issuer may designate other agencies for the
payment of said principal, premium and interest at such place or places outside
the United States (subject to applicable laws and regulations) as the Issuer
may decide. So long as there shall be such an agency, the Issuer shall keep the
Trustee advised of the names and locations of such agencies, if any are so
designated.
With respect to moneys paid by the Issuer and held by the Trustee or any
Paying Agent for payment of the principal of or interest or premium, if any, on
any Notes that remain unclaimed at the end of two years after such principal,
interest or premium shall have become due and payable (whether at maturity or
upon call for redemption or otherwise), (i) the Trustee or such Paying Agent
shall notify the holders of such Notes that such moneys shall be repaid to the
Issuer and any person claiming such moneys shall thereafter look only to the
Issuer for payment thereof and (ii) such moneys shall be so repaid to the
Issuer. Upon such repayment all liability of the Trustee or such Paying Agent
with respect to such moneys shall thereupon cease, without, however, limiting
in any way any obligation that the Issuer may have to pay the principal of or
interest or premium, if any, on this Note as the same shall become due.
No provision of this Note or of the Senior Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to
pay the principal of and premium, if any, and
15
interest on this Note at the time, place and rate, and in the coin or currency,
herein prescribed unless otherwise agreed between the Issuer and the holder of
this Note.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the holder of this Note as the owner hereof for all purposes, whether or
not this Note be overdue, and none of the Issuer, the Trustee or any such agent
shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of or premium,
if any, or interest on this Note for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Senior Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day" means any day, other than a Saturday or
Sunday, (i) that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close (x)
in The City of New York or in London or (y) if this Note is denominated
in a Specified Currency other than U.S. dollars, euro or Australian
dollars, in the principal financial center of the country of the
Specified Currency, or (z) if this Note is denominated in Australian
dollars, in Sydney and (ii) if this Note is denominated in euro, that is
also a day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer System ("TARGET") is operating (a "TARGET
Settlement Day");
(b) the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for cable transfers of the Specified
Currency indicated on the face hereof published by the Federal Reserve
Bank of New York;
(c) the term "Notices" refers to notices to the holders of the
Notes to be given by publication in an authorized newspaper in the
English language and of general circulation in the Borough of Manhattan,
The City of New York, and London or, if publication in London is not
practical, in an English language newspaper with general circulation in
Western Europe; provided that notice may be made, at the option of the
Issuer, through the customary notice provisions of the clearing system or
systems through which beneficial interests in this Note are owned. Such
Notices will be deemed to have been given on the date of such publication
(or other transmission, as applicable) or, if published in such
newspapers on different dates, on the date of the first such publication;
16
(d) the term "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction; and
(e) the term "United States Alien" means any person who is, for
United States federal income tax purposes, (i) a nonresident alien
individual, (ii) a foreign corporation, (iii) a nonresident alien
fiduciary of a foreign estate or trust or (iv) a foreign partnership one
or more of the members of which is, for United States federal income tax
purposes, a nonresident alien individual, a foreign corporation or a
nonresident alien fiduciary of a foreign estate or trust.
All other terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
17
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer to
repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the Optional Repayment Date, to the undersigned at
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
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(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have
repaid:__________; and specify the denomination or denominations (which shall
not be less than the minimum authorized denomination) of the Notes to be issued
to the holder for the portion of the within Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid):__________.
Dated:________________________________ ____________________________________
18
[SCHEDULE A](1)
EXCHANGES FOR DEFINITIVE BEARER NOTES OR DEFINITIVE
REGISTERED NOTES AND FROM TEMPORARY GLOBAL BEARER NOTE,
REDEMPTIONS AND REPAYMENTS
The initial principal amount of this Note is _________________. The
following (A) exchanges of (i) portions of this Note for Definitive Bearer
Notes or Registered Notes and (ii) portions of a Temporary Global Bearer Note
for an interest in this Note or (B) (x) redemptions at the option of the Issuer
or (y) repayments at the option of the holder have been made:
Remaining
Principal Principal Principal Principal
Principal Principal Amount Amount Amount Amount
Amount Amount Exchanged Redeemed at Repaid at Outstanding Notation
Date of Exchanged Exchanged for the the Following Such Made by or
Exchange, From For Definitive Option of Option of Exchange, on Behalf
Redemption Temporary Definitive Registered the the Redemption or of Paying
or Payment Global Notes Bearer Notes Notes Issuer Holder Repayment Agent
- ------------ ------------ ------------ ----------- ----------- ---------- -------------- -----------
- ------------ ------------ ------------ ----------- ----------- ---------- -------------- -----------
- ------------ ------------ ------------ ----------- ----------- ---------- -------------- -----------
- ------------ ------------ ------------ ----------- ----------- ---------- -------------- -----------
- ------------ ------------ ------------ ----------- ----------- ---------- -------------- -----------
- ------------ ------------ ------------ ----------- ----------- ---------- -------------- -----------
- ------------ ------------ ------------ ----------- ----------- ---------- -------------- -----------
- ------------ ------------ ------------ ----------- ----------- ---------- -------------- -----------
- ------------ ------------ ------------ ----------- ----------- ---------- -------------- -----------
- ---------
(1) Applies if this Note is not issued as part of, or in relation to, a Unit.
[SCHEDULE A-1](1)
PERMANENT GLOBAL BEARER NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is __________. The following
(A) exchanges of the principal amount of Notes indicated below for the same
principal amount of Notes to be represented by (i) Definitive Bearer Notes or
(ii) Definitive Registered Notes or [(iii) a Global Bearer Note that has been
separated from a Unit (a "Separated Note")](2), (B) exchanges of the principal
amount of Notes that had been represented by (i) a Temporary Global Bearer Note
[or (ii) a Global Bearer Note that is part of a Unit (an "Attached Unit
Note")](3) for an interest in this Note and (C) reductions of the principal
amount of this Note as a result of (i) cancellation upon the application of
such amount to the settlement of Purchase Contracts or the exercise of
Warrants, (ii) redemption at the option of the Issuer or (iii) repayments at
the option of the Holder have been made:
Remaining
Principal
Principal Principal Principal Amount
Date of Amount [Principal [Principal Amount Amount Principal Principal Outstanding Notation
Exchange, Exchanged Amount Amount Exchanged Exchanged Amount Amount Following such Made by
Cancellation From Exchanged Exchanged For For Redeemed Repaid Exchange, or on
Redemption, Temporary From an For Definitive Definitive at the at the Principal Cancellation Behalf of
or Global Attached Separated Bearer Registered Option of Option of Amount Redemption or Paying
Repayment Notes Unit Note](3) Note](2) Notes Notes the Issuer the Holder Cancelled Repayment Agent
- ----------- --------- ----------- ---------- ---------- ---------- ---------- ---------- --------- ----------- ---------
- ----------- --------- ----------- ---------- ---------- ---------- ---------- ---------- --------- ----------- ---------
- ----------- --------- ----------- ---------- ---------- ---------- ---------- ---------- --------- ----------- ---------
- ----------- --------- ----------- ---------- ---------- ---------- ---------- ---------- --------- ----------- ---------
- ----------- --------- ----------- ---------- ---------- ---------- ---------- ---------- --------- ----------- ---------
- ----------- --------- ----------- ---------- ---------- ---------- ---------- ---------- --------- ----------- ---------
- ---------
(1) This Schedule A-1 needed only if this Note is issued as part of, or in
relation to, a Unit.
(2) Applies only if this Note is attached to a Unit.
(3) Applies only if this Note has been separated from a Unit.