EXHIBIT 1-d
MORGAN STANLEY
Global Medium-Term Notes, Series C
Global Units, Series C
U.S. DISTRIBUTION AGREEMENT
[ ], 2003
Morgan Stanley DW Inc.
1585 Broadway
New York, New York 10036
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
Morgan Stanley, a Delaware corporation (the "Company"), confirms its
agreement with you with respect to the issue and sale from time to time by the
Company of up to $[ ] (or the equivalent thereof in one or more currencies
other than U.S. dollars) aggregate initial public offering price of its Global
Medium-Term Notes, Series C, due more than nine months from the date of issue
(the "Notes"), and its Global Units, Series C (the "Units" and, together with
the Notes, the "Program Securities"), in each case subject to reduction as a
result of the sale of the Company's (i) Global Medium-Term Notes, Series D and
Series E, to be sold primarily outside of the United States, (ii) Global Units,
Series D and Series E, to be sold primarily outside of the United States, and
(iii) the sale of certain of the Company's other debt securities, warrants,
common stock, preferred stock, purchase contracts and units and of capital
securities of certain Morgan Stanley Capital Trusts.
The Notes may be issued as senior indebtedness (the "Series C Senior
Notes") or as subordinated indebtedness (the "Series C Subordinated Notes") of
the Company. The Series C Senior Notes will be issued, either alone or as part
of a Unit, pursuant to the provisions of an amended and restated senior
indenture dated as of May 1, 1999, between the Company and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), as trustee (the "Senior Debt
Trustee") (as may be supplemented or amended from time to time, the "Senior
Debt Indenture"). The Series C Subordinated Notes will be issued pursuant to
the provisions of an amended and restated subordinated indenture dated as of
May
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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 are referred to as "Pre-paid Purchase
Contracts." Pre-paid Purchase Contracts that settle in cash ("Cash-settled
Pre-paid Purchase Contracts") generally will be issued under an Indenture.
Pre-paid Purchase Contracts that do not settle in cash ("Physically-settled
Pre-paid Purchase Contracts") generally will be issued under the Unit Agreement
or the Unit Agreement Without Holders' Obligations (each as defined below).
The Units will be issued either pursuant to the Unit Agreement dated as
of [ ], 2003, among the Company, JPMorgan Chase 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 (or include only Pre-paid Purchase Contracts),
pursuant to a Unit Agreement among the Company and JPMorgan Chase 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's
Obligations").(1) Units may include one or more (i) Series C Senior Notes, (ii)
warrants ("Warrants") entitling the holders thereof to purchase or sell (a)
securities issued by the Company or by an entity affiliated or not affiliated
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 issued by the Company or by
an entity affiliated or not affiliated 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, Warrants and
Purchase Contracts comprised by a Unit may or may not be separated from any
series of Units. Warrants issued as part of a Unit will be issued pursuant to
the Warrant Agreement dated as of [ ], 2003
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(1) The Unit Agreement Without Holders' Obligations shall include
additional provisions to allow for the issuance of Pre-Paid Purchase Contracts
that are not issued under the Indentures.
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(as may be amended from time to time, the "Warrant Agreement") between the
Company and JPMorgan Chase 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
Warrants will have the exercise prices, exercise dates, expiration dates and
other terms as set forth in supplements to the Basic Prospectus. The Purchase
Contracts will have the closing dates, purchase or sale prices and other terms
as set forth in supplements to the Basic Prospectus.
The Company hereby appoints you as its exclusive agents for the purpose
of soliciting and receiving offers to purchase Program Securities from the
Company by others and, on the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth, you
agree to use reasonable efforts to solicit and receive offers to purchase
Program Securities upon terms acceptable to the Company at such times and in
such amounts as the Company shall from time to time specify. In addition, you
may also purchase Program Securities as principal pursuant to the terms of a
terms agreement relating to such sale (in the case of Notes, a "Notes Terms
Agreement" and, in the case of Units, a "Units Terms Agreement") in accordance
with the provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Program Securities. Such registration statement, including the exhibits
thereto, as amended at the Commencement Date (as hereinafter defined), is
hereinafter referred to as the "Registration Statement." The Company proposes
to file with the Commission from time to time, pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"), supplements to the
prospectus relating to the Program Securities included in the Registration
Statement that will describe certain terms of the Program Securities. The
prospectus relating to the Program Securities in the form in which it appears
in the Registration Statement is hereinafter referred to as the "Basic
Prospectus." The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement or supplements (each, a "Prospectus Supplement")
specifically relating to the Program Securities, as filed with, or transmitted
for filing to, the Commission pursuant to Rule 424 under the Securities Act. As
used herein, the terms "Basic Prospectus" and "Prospectus" shall include in
each case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). If the Company has filed an abbreviated
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registration statement to register additional Program Securities pursuant to
Rule 462(b) under the Securities Act (the "Rule 462 Registration Statement"),
then any reference herein to the term "Registration Statement" shall be deemed
to include such Rule 462 Registration Statement.
1. Representations and Warranties. The Company represents and warrants to
and agrees with you as of the Commencement Date, as of each date on which you
solicit offers to purchase Program Securities, as of each date on which the
Company accepts an offer to purchase Program Securities (including any purchase
by you as principal pursuant to a Notes Terms Agreement or a Units Terms
Agreement), as of each date the Company issues and delivers Program Securities
and as of each date the Registration Statement or the Basic Prospectus is
amended or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) The Registration Statement has become effective, no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder,
(ii) each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (iii)
the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that (1) the representations
and warranties set forth in this Section 1(b) do not apply (A) to
statements or omissions in the Registration Statement or the Prospectus
based upon information relating to you furnished to the Company in
writing by you expressly for use therein or (B) to those parts of the
Registration Statement that constitute the Statements of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), of the Trustees and (2) the representations and
warranties set forth in clauses (iii) and (iv) above, when made as of the
Commencement Date or as of any
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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 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
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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.
(h) The forms of Notes (including the form of Cash-settled Pre-paid
Purchase Contracts), whether issued alone or as part of a Unit, have been
duly authorized and established in conformity with the provisions of the
relevant Indenture and, when the Notes (and the Cash-settled 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 Cash-settled
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 Warrants, Physically-settled Pre-paid Purchase Contracts 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, Physically-settled Pre-paid Purchase Contracts, Non-Pre-paid
Purchase Contracts, the Unit Agreement and (ii) in the case of Warrants,
the Warrant Agreement. When such Units have been delivered to and duly
paid for by the purchasers thereof and (A) any Physically-settled
Pre-paid Purchase Contracts and Non-Pre-paid Purchase Contracts included
in such Units have been executed by the Company and countersigned by the
Unit Agent and (B) any Warrants included in such Units have been executed
by the Company and countersigned by the Warrant Agent, such Units
(including any such Physically-settled Pre-paid Purchase Contracts,
Non-Pre-paid Purchase Contracts or Warrants contained therein) will be
entitled to the benefits of the Unit Agreement and, in the case of the
Warrants, the 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
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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 Warrants included in such Units have been
executed by the Company and countersigned by the Warrant Agent, such
Units (including any such 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 Warrants
included therein), the Indentures, the Unit Agreement, any Unit Agreement
Without Holders' Obligations, the 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 Warrants included therein), the Indentures, the Unit
Agreement, any Unit Agreement Without Holders' Obligations, the Warrant
Agreement and any applicable Notes Terms Agreement or Units Terms
Agreement will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any agreement
or other instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its consolidated subsidiaries, taken
as a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any consolidated
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Notes, the Pre-paid Purchase Contracts, the Units (including any Purchase
Contracts or Warrants included therein), the Indentures, the Unit
Agreement, any Unit Agreement Without Holders' Obligations, the 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.
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(l) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(m) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its consolidated subsidiaries
is a party or to which any of the properties of the Company or any of its
consolidated 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 Cash-settled Pre-paid
Purchase
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Contracts), 1(i) (except as to due authorization of the Units, Warrants,
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase
Contracts), 1(j) (except as to due authorization of the Units and Warrants) and
1(k), when made as of the Commencement Date, or as of any date on which you
solicit offers to purchase Program Securities, with respect to any Program
Securities the payments of principal or interest on which, or any other
payments with respect to which, will be determined by reference to one or more
currency exchange rates, commodity prices, securities of entities affiliated or
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 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
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securities comprised by such Units) of the principal amount of such Note
or, in the case of Units, the face amount of such Unit (provided that the
commission for Notes having, or Units including Notes or other securities
having, a maturity of 30 years or greater will be negotiated) or such
other discount as may be specified in the Prospectus Supplement relating
to such Note or Unit.
You shall communicate to the Company, orally or in writing, each
offer to purchase Program Securities received by you as agent that in
your judgment should be considered by the Company. The Company shall have
the sole right to 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
Warrants issued as part of a Unit, the exercise price, the exercise date
or period, the expiration date and any other terms of such 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
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Purchase Contracts. Each such Notes Terms Agreement or Units Terms
Agreement may also specify any requirements for officers' certificates,
opinions of counsel and letters from the independent auditors of the
Company pursuant to Section 4 hereof. A Notes Terms Agreement and a Unit
Terms Agreement may also specify certain provisions relating to the
reoffering of such Notes or Units, as the case may be, by you.
Each Notes Terms Agreement and each Units Terms Agreement shall specify
the time and place of delivery of and payment for such Notes or Units, as the
case may be. Unless otherwise specified in a Notes Terms Agreement or a Units
Terms Agreement, the procedural details relating to the issue and delivery of
Notes or Units, as the case may be, purchased by you as principal and the
payment therefor shall be as set forth in the Administrative Procedures. Each
date of delivery of and payment for Program Securities to be purchased by you
as principal pursuant to a Notes Terms Agreement or a Units Terms Agreement, as
the case may be, is referred to herein as a "Settlement Date."
Unless otherwise specified in a Notes Terms Agreement or a Units Terms
Agreement, if you are purchasing Program Securities as principal you may resell
such Program Securities to other dealers. Any such sales may be at a discount,
which shall not exceed the amount set forth in the Prospectus Supplement
relating to such Notes or Units.
(c) Administrative Procedures. You and the Company agree to perform
the respective duties and obligations specifically provided to be
performed in the Global Medium-Term Notes, Series C, and Global Units,
Series C, Administrative Procedures (attached hereto as Exhibit B) (the
"Administrative Procedures"), as amended from time to time. The
Administrative Procedures may be amended only by written agreement of the
Company and you.
(d) Delivery. The documents required to be delivered by Section 4 of
this Agreement as a condition precedent to your obligation to begin
soliciting offers to purchase Program Securities as agents of the Company
shall be delivered at the office of Davis Polk & Wardwell, your counsel,
not later than 4:00 p.m., New York City time, on the date hereof, or at
such other time and/or place as you and the Company may agree upon in
writing, but in no event later than the day prior to the earlier of (i)
the date on which you begin soliciting offers to purchase Program
Securities and (ii) the first date on which the Company accepts any offer
by you to purchase Program Securities as principal. The date of delivery
of such documents is referred to herein as the "Commencement Date."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Program
Securities pursuant to this Agreement or pursuant to any Notes Terms
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Agreement or Units Terms Agreement, the Company will not file any
Prospectus Supplement relating to the Program Securities or any amendment
to the Registration Statement relating to the Program Securities unless
the Company has previously furnished to you a copy thereof for your
review and will not file any such proposed supplement or amendment to
which you reasonably object; provided, however, that the foregoing
requirement shall not apply to any of the Company's periodic filings with
the Commission required to be filed pursuant to Section 13(a), 13(c),
13(f), 14 or 15(d) of the Exchange Act, copies of which filings the
Company will cause to be delivered to you promptly after being
transmitted for filing with the Commission. Subject to the foregoing
sentence, the Company will promptly cause each Prospectus Supplement to
be filed with or transmitted for filing to the Commission in accordance
with Rule 424(b) under the Securities Act. The Company will promptly
advise you (i) of the filing of any amendment or supplement to the Basic
Prospectus, (ii) of the filing and effectiveness of any amendment to the
Registration Statement, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Basic Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Program Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use its
best efforts to prevent the issuance of any such stop order or notice of
suspension of qualification and, if issued, to obtain as soon as possible
the withdrawal thereof. If the Basic Prospectus is amended or
supplemented as a result of the filing under the Exchange Act of any
document incorporated by reference in the Prospectus, you shall not be
obligated to solicit offers to purchase Program Securities so long as you
are not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Program
Securities is required to be delivered under the Securities Act, any
event occurs or condition exists as a result of which the Prospectus, as
then amended or supplemented, would include an untrue statement of a
material fact, or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances when the
Prospectus, as then amended or supplemented, is delivered to a purchaser,
not misleading, or if, in your opinion or in the opinion of the Company,
it is necessary at any time to amend or supplement the Prospectus, as
then amended or supplemented, to comply with applicable law, the Company
will immediately notify you by telephone (with confirmation in writing)
to suspend solicitation of offers to purchase Program Securities and, if
so notified by the Company, you shall forthwith suspend such solicitation
and cease using the Prospectus, as then amended or supplemented. If the
12
Company shall decide to amend or supplement the Registration Statement or
Prospectus, as then amended or supplemented, it shall so advise you
promptly by telephone (with confirmation in writing) and, at its expense,
shall prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus, as
then amended or supplemented, satisfactory in all respects to you, that
will correct such statement or omission or effect such compliance and
will supply such amended or supplemented Prospectus to you in such
quantities as you may reasonably request. If any documents, certificates,
opinions and letters furnished to you pursuant to paragraph (f) below and
Sections 5(a), 5(b) and 5(c) in connection with the preparation and
filing of such amendment or supplement are satisfactory in all respects
to you, upon the filing with the Commission of such amendment or
supplement to the Prospectus or upon the effectiveness of an amendment to
the Registration Statement, you will resume the solicitation of offers to
purchase Program Securities hereunder. Notwithstanding any other
provision of this Section 3(b), until the distribution of any Program
Securities you may own as principal has been completed, if any event
described above in this paragraph (b) occurs, the Company will, at its
own expense, forthwith prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, satisfactory in all respects
to you, will supply such amended or supplemented Prospectus to you in
such quantities as you may reasonably request and shall furnish to you
pursuant to paragraph (f) below and Sections 5(a), 5(b) and 5(c) such
documents, certificates, opinions and letters as you may request in
connection with the preparation and filing of such amendment or
supplement.
(c) The Company will make generally available to its security
holders and to you as soon as practicable earning statements that satisfy
the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering twelve month periods
beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in Rule
158 under the Securities Act) of the Registration Statement with respect
to each sale of Program Securities. If such fiscal quarter is the first
fiscal quarter of the Company's fiscal year, such earning statement shall
be made available not later than 90 days after the close of the period
covered thereby and in all other cases shall be made available not later
than 45 days after the close of the period covered thereby.
(d) The Company will furnish in New York City, without charge, (i)
to each Agent, a signed copy of the Registration Statement, including
exhibits and all amendments thereto, and as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto as you may reasonably request and
13
(ii) to each Agent that purchases Program Securities pursuant to a Notes
Terms Agreement or Units Terms Agreement or solicits an offer to purchase
Program Securities that is accepted by the Company, prior to 10:00 a.m.
New York City time on the business day next succeeding the date of such
Notes Terms Agreement or Units Terms Agreement or the acceptance of such
offer, as many copies of the Prospectus, as then amended or supplemented
(including the Prospectus Supplement relating to the Program Securities
to be purchased pursuant to such Notes Terms Agreement or Units Terms
Agreement or accepted offer), as such Agent may reasonably request.
(e) The Company will endeavor to qualify the Notes for offer and
sale under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to maintain such qualifications for as long
as you shall reasonably request.
(f) During the term of this Agreement, the Company shall furnish to
you such relevant documents and certificates of officers of the Company
relating to the 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 Warrant Agreement, the Notes,
the Units, the Warrants, the Purchase Contracts, this Agreement, the
Administrative Procedures, any Notes Terms Agreement or Units Terms
Agreement and the performance by the Company of its obligations hereunder
or thereunder as you may from time to time reasonably request.
(g) The Company shall notify you promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate
the direction of the possible change, in the rating accorded the Company
or any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Program Securities
is consummated, pay all expenses incident to the performance of its
obligations under this Agreement and any Notes Terms Agreement or Units
Terms Agreement, including: (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of the
Program Securities, (iii) the fees and disbursements of the Company's
counsel and accountants, of the Trustees and their counsel, of the Unit
Agent and its counsel, and of the Warrant Agent and its counsel, (iv) the
qualification of the Notes and Units (and of any securities comprised
thereby) under securities or Blue Sky laws in accordance with the
provisions of Section 3(e), including filing fees and the fees and
14
disbursements of your counsel in connection therewith and in connection
with the preparation of any Blue Sky or Legal Investment Memoranda, (v)
the printing and delivery to you in quantities as hereinabove stated of
copies of the Registration Statement and all amendments thereto and of
the Prospectus and any amendments or supplements thereto, (vi) the
printing and delivery to you of copies of the Indentures, the Unit
Agreement, any Unit Agreement Without Holders' Obligations, the Warrant
Agreement and any Blue Sky or Legal Investment Memoranda, (vii) any fees
charged by rating agencies for the rating of the Program Securities,
(viii) the fees and expenses, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc., (ix) the fees
and disbursements of your counsel incurred in connection with the
offering and sale of the Program Securities, including any opinions to be
rendered by such counsel hereunder, and (x) any out-of-pocket expenses
incurred by you; provided that any advertising expenses incurred by you
shall have been approved by the Company.
(i) During the period beginning on the date of any Notes Terms
Agreement or Units Terms Agreement relating to either Notes or Units, as
the case may be, and continuing to and including the Settlement Date with
respect to such Notes Terms Agreement or Units Terms Agreement, the
Company will not, without your prior consent, offer, sell, contract to
sell or otherwise dispose of (i) in the case of Notes, any debt
securities of the Company substantially similar to the Notes set forth in
such Notes Terms Agreement (other than (A) the Notes that are to be sold
pursuant to such Notes Terms Agreement, (B) Notes previously agreed to be
sold by the Company and (C) commercial paper issued in the ordinary
course of business) or (ii) in the case of Units, any securities
substantially similar to such Units (other than (A) the Units that are
sold pursuant to such Units Terms Agreement or (B) Units previously
agreed to be sold by the Company), in each case, except as may otherwise
be provided in the applicable Notes Terms Agreement or Units Terms
Agreement.
4. Conditions of the Obligations of the Agents. Your obligation to
solicit offers to purchase Program Securities as agents of the Company, your
obligation to purchase Program Securities as principals pursuant to any Notes
Terms Agreement or Units Terms Agreement and the obligation of any other
purchaser to purchase Program Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of your obligation to
solicit offers to purchase Program Securities, at the time of such
solicitation, and, in the case of your or any other purchaser's obligation to
purchase Program Securities, at the time the Company accepts the offer to
purchase such Program Securities and at the time of issuance and delivery) and
(in each case) to the following additional
15
conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations
of the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus, as amended or supplemented at the time of
such solicitation or at the time such offer to purchase was made,
that, in your judgment, is material and adverse and that makes it,
in your judgment, impracticable to market the Program Securities on
the terms and in the manner contemplated by the Prospectus, as so
amended or supplemented;
(ii) there shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may
be, any of the New York Stock Exchange, the American Stock Exchange,
the Nasdaq National Market, the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade, (B)
suspension of trading of any securities of the Company on any
exchange or in any over-the-counter market, (C) material disruption
in securities settlement, payment or clearance services in the
United States or, in the event of a global offering, in any relevant
foreign jurisdiction, (D) declaration of any moratorium on
commercial banking activities by Federal or New York State
authorities or (E) any outbreak or escalation of hostilities or any
change in financial markets (or, if the relevant Program Securities
are denominated in a currency other than U.S. dollars, any change in
currency exchange rates or controls) or any calamity or crisis that,
in your judgment, is material and adverse and which, singly or
together with any other event specified in this clause (E), makes
it, in your judgment, impracticable or inadvisable to proceed with
the offer, sale or delivery of the Program Securities on the terms
and in the manner contemplated by the Prospectus, as amended or
supplemented, at the time of such solicitation or at the time such
offer to purchase was made; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded the Company
or any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
16
(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 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;
17
(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 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 Cash-settled
Pre-paid Purchase Contracts), whether issued alone or as part
of a Unit, have been duly
18
authorized and established in conformity with the provisions of
the relevant Indenture and, if the Notes and the Cash-settled
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
Cash-settled 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 Warrants, Physically-settled Pre-paid Purchase
Contracts 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,
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid
Purchase Contracts, the Unit Agreement and (ii) in the case of
the Warrants, the Warrant Agreement. If such Units (including
the Warrants, the Physically-settled Pre-paid Purchase
Contracts 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
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 Physically-settled Pre-paid
Purchase Contracts, the Non-Pre-paid Purchase Contracts and the
Warrants contained therein) would be entitled to the benefits
of the Unit Agreement and, in the case of the Warrants, the
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
19
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
Warrants included therein have been duly authorized and
established in conformity with the provisions of the Warrant
Agreement), and if such Units (including any such Warrants
included therein) had been delivered to and duly paid for by
the purchasers thereof (and any 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
Warrants contained therein) would be entitled to the benefits
of the Unit Agreement Without Holders' Obligations and in the
case of the Warrants, the 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 Cash-settled Pre-paid Purchase Contracts (whether issued
alone or as part of a Unit), the Units (including any Purchase
Contract or Warrant included therein), the Indentures, the Unit
Agreement, any Unit Agreement Without Holders' Obligations, the
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 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.
20
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 Cash-settled Pre-paid Purchase
Contracts, the Units (including any Purchase Contracts or
Warrants included therein), the Indentures, the Unit Agreement,
any Unit Agreement Without Holders' Obligations, the Warrant
Agreement and any applicable Notes Terms Agreement or Units
Terms Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection
with the offer and sale of the Program Securities; provided,
however, that no opinion is expressed on whether the purchase
of the Program Securities constitutes a "prohibited
transaction" under Section 406 of the Employee Retirement
Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended;
(K) the statements (1) in the Prospectus, as then amended
or supplemented, under the captions "Description of Notes" (in
the Prospectus Supplement), "Description of Debt Securities"
(in the Basic Prospectus), "Description of Units" (in the
Prospectus Supplement and in the Basic Prospectus), "Plan of
Distribution" (in the Prospectus Supplement and in the Basic
Prospectus), "Description of Purchase Contracts" (in the Basic
Prospectus) and "Description of Warrants" (in the Basic
Prospectus), (2) in the Registration Statement, as then amended
or supplemented, under Item 15, (3) in "Item 3. Legal
Proceedings" of the most recent annual report on Form 10-K
incorporated by reference in the Prospectus and (4) in "Item 1.
Legal Proceedings" of Part II of the quarterly reports on Form
10-Q, if any, filed since such annual report and incorporated
by reference in the Prospectus, in each case insofar as such
statements constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present the
information called for with respect to such legal 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
21
consolidated subsidiaries is a party or to which any of the
properties of the Company or any of its consolidated
subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus, as then amended
or supplemented, and are not so described or of any U.S.
federal or state statutes, regulations, contracts or other
documents governed by U.S. federal or state law that are
required to be described in the Registration Statement or the
Prospectus, as then amended or supplemented, or to be filed or
incorporated by reference as exhibits to such Registration
Statement that are not described, filed or incorporated by
reference as required;
(M) the Company is not, and after giving effect to the
offering and sale of the Program Securities and the application
of the proceeds thereof as described in the Prospectus, will
not be required to register as, an "investment company" as such
term is defined in the Investment Company Act of 1940, as
amended; and
(N) such counsel (1) believes that each document, if any,
filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus as then amended or supplemented
(except as to financial statements and schedules and other
financial and statistical data included therein, as to which
such counsel need not express any belief) complied when so
filed as to form in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission
thereunder, (2) has no reason to believe that any part of the
Registration Statement (except as to financial statements and
schedules and other financial and statistical data included
therein, as to which such counsel need not express any belief,
and except for that part of the Registration Statement that
constitutes the Forms T-1 heretofore referred to), as then
amended, if applicable, when such part became effective
contained, and the Registration Statement (except as to
financial statements and schedules and other financial and
statistical data included therein, as to which such counsel
need not express any belief, and except for the part of the
Registration Statement that constitutes the Forms T-1) as of
the date such opinion is delivered contains, any untrue
statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, (3) believes that
the Registration Statement and Prospectus, as then
22
amended or supplemented, if applicable (except as to financial
statements and schedules and other financial and statistical
data included therein, as to which such counsel need not
express any belief), complied as to form in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (4) has no reason
to believe that the Prospectus, as then amended or
supplemented, if applicable (except as to financial statements
and schedules and other financial and statistical data included
therein, as to which such counsel need not express any belief),
as of the date such opinion is delivered contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not
misleading; provided that in the case of an opinion delivered
on the Commencement Date or pursuant to Section 5(b), the
opinion and belief set forth in clauses (3) and (4) above shall
be deemed not to cover information concerning an offering of
particular Notes or Units to the extent such information will
be set forth in a supplement to the Basic Prospectus.
(ii) The opinion, dated as of such date, of Davis Polk &
Wardwell, your special counsel, covering the matters in
subparagraphs (D), (E), (F), (G), (H), (I) and (K) (with respect to
statements in the Prospectus, as then amended or supplemented, under
the captions "Description of Notes" (in the Prospectus Supplement),
"Description of Debt Securities" (in the Basic Prospectus),
"Description of Units" (in the Prospectus Supplement and the Basic
Prospectus), "Plan of Distribution" (in the Prospectus Supplement
and in the Basic Prospectus), "Description of Purchase Contracts"
(in the Basic Prospectus) and "Description of Warrants" (in the
Basic Prospectus)) and clauses (2), (3) and (4) of subparagraph (N)
in paragraph (b)(i) above.
The opinions described in subparagraphs (F) and (I) need only be
contained in an opinion delivered on a Settlement Date related to an offering
of Units under a Unit Agreement Without Holders' Obligations to be executed on
or prior to such Settlement Date.
Notwithstanding the foregoing, the opinions described in subparagraphs
(G) (except as to due authorization of the Notes and Cash-settled Pre-paid
Purchase Contracts), (H) (except as to due authorization of the Units,
Warrants, Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid
Purchase Contracts), (I) (except as to due authorization of the Units and
Warrants), (J),
23
(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 affiliated or unaffiliated with the Company, baskets of such
securities, equity indices or other factors.
With respect to subparagraph (N) of paragraph (b)(i) above, if such
opinion is given by counsel who is also an officer of the Company, such counsel
may state that his or her opinion and belief are based upon his or her
participation, or the participation of someone under his or her supervision, in
the preparation of the Registration Statement and Prospectus and any amendments
or supplements thereto and documents incorporated therein by reference and
review and discussion of the contents thereof, but are without independent
check or verification, except as specified. With respect to subparagraph (N) of
paragraph (b)(i) above, Davis Polk & Wardwell and, if Sidley Austin Brown &
Wood LLP is giving such opinion, Sidley Austin Brown & Wood LLP may state that
their opinion and belief are based upon their participation in the preparation
of the Registration Statement and Prospectus and any amendments or supplements
thereto (but not including documents incorporated therein by reference) and
review and discussion of the contents thereof (including documents incorporated
therein by reference), but are without independent check or verification,
except as specified.
(iii) The opinion, dated as of such date, of Sidley Austin
Brown & Wood LLP, special counsel to the Company, to the effect that
the statements set forth under the caption "United States Federal
Taxation" in the Prospectus Supplement and under the caption "Forms
of Securities--Limitations on Issuance of Bearer Securities" 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
24
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.
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 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.
25
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 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
26
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 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
27
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 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
28
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. Position of the Agent. In acting under this Agreement and in
connection with the sale of any Program Securities by the Company (other than
Program Securities sold to you pursuant to a Notes Terms Agreement or Units
Terms Agreement, as the case may be), you are acting solely as agent of the
Company and do not assume any obligation towards or relationship of agency or
trust with any purchaser of Program Securities. You shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Program Securities has been solicited by you and accepted by
the Company, but you shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default in its obligations to deliver Program Securities to a purchaser whose
offer it has accepted, the Company shall hold you harmless against any loss,
claim, damage or liability arising from or as a result of such default and
shall, in particular, pay to you the commission you would have received had
such sale been consummated.
8. Offering Restrictions. If any Program Securities are to be offered
outside the United States, you will not offer or sell any such Program
Securities in any jurisdiction if such offer or sale would not be in compliance
with any applicable law or regulation or if any consent, approval or permission
is needed for such offer or sale by you or for or on behalf of the Company
unless such consent, approval or permission has been previously obtained.
Subject to the obligations of the Company set forth in Section 3 of this
Agreement, the Company shall have no responsibility for, and you will obtain,
any consent, approval or permission required by you for the subscription,
offer, sale or delivery by you of Program Securities, or the distribution of
any offering materials, under the laws and regulations in force in any
jurisdiction to which you are subject or in or from which you make any
subscription, offer, sale or delivery.
29
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 paragraph of Section 2(a), the last sentence of Section 3(b) and
Sections 3(c), 3(h), 6, 7, 10, 11 and 13 shall survive; provided that if at the
time of termination an offer to purchase Program Securities has been accepted
by the Company but the time of delivery to the purchaser or its agent of such
Program Securities has not occurred, the provisions of Sections 1, 2(b), 2(c),
3(a), 3(d), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall also survive until such
delivery has been made.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to you, will be mailed, delivered or
telefaxed and confirmed to you at 1585 Broadway, New York, New York 10036,
Attention: Manager, Continuously Offered Products (telefax number:
212-761-0781), with a copy to 1585 Broadway, 34th Floor, New York, New York
10036, Attention: Peter Cooper, Investment Banking Information Center (telefax
number: 212-761-0260) or, if sent to the Company, will be mailed, delivered or
telefaxed and confirmed to the Company at 1221 Avenue of the Americas, New
York, New York 10020, Attention: Treasurer; Facsimile No.: 212-762-7337.
11. Successors. This Agreement and any Notes Terms Agreement or Units
Terms Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers, directors and
controlling persons referred to in Section 6 and the purchasers of Notes and
Units (to the extent expressly provided in Section 4), and no other person will
have any right or obligation hereunder.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
30
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
By: ___________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
MORGAN STANLEY DW INC.
By: ___________________________________
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
By: ___________________________________
Name:
Title:
31
EXHIBIT A
MORGAN STANLEY
GLOBAL MEDIUM-TERM NOTES, SERIES C
NOTES TERMS AGREEMENT
__________________, 200_
Morgan Stanley
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement dated [ ], 2003 (the
"U.S. Distribution Agreement")
-----------------------------------------------------
The undersigned agrees to purchase your Global Medium-Term Notes, Series
C, [specified designation] having the following terms:
All Notes Fixed Rate Notes Floating Rate Notes
- -------------------------------------------------------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Index Maturity:
Modified Payment upon
Acceleration:
Price to Public: If yes, state issue Index Currency:
price:
Settlement Date and Amortization Schedule: Spread (Plus or Minus):
Time:
Place of Delivery: Applicability of Spread Multiplier:
Annual Interest
Payments:
Specified Currency:
Denominated Currency Alternate Rate Event
(if any): Spread:
Original Issue Date: Indexed Currency or Initial Interest Rate:
Currencies (if any):
Interest Accrual Date: Payment Currency (if Initial Interest Reset
any): Date:
Interest Payment Dates: Exchange Rate Agent Interest Reset Dates:
(if any):
Interest Payment Period: Reference Dealers: Interest Reset Period:
A-1
All Notes Fixed Rate Notes Floating Rate Notes
- -------------------------------------------------------------------------
Maturity Date: Face Amount (if any): Maximum Interest Rate:
Optional Repayment Fixed Amount of each Minimum Interest Rate:
Date(s): Indexed Currency (if
any):
Optional Redemption Aggregate Fixed Amount Calculation Agent:
Date(s): of each Indexed
Currency (if any):
Initial Redemption Date: Applicability of Reporting Service:
Issuer's Option to
Extend Original
Maturity Date:
Initial Redemption If yes, state Final Variable Rate
Percentage: Maturity Date: Renewable Notes:
Annual Redemption Redemption Dates:
Percentage Reduction:
Ranking: Redemption Percentage:
Minimum Denominations: Initial Maturity Date:
Other Provisions: Final Maturity Date:
Applicability of
Issuer's Option to
Reset Spread or Spread
Multiplier:
The provisions of Sections 1, 2(b) and 2(c), 3 through 6, 8 and 10
through 14 of the U.S. Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is also subject to termination on the terms incorporated
by reference herein. If this Agreement is terminated, the provisions of
Sections 3(h), 6, 10, 11 and 13 of the U.S. Distribution Agreement shall
survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the U.S. Distribution Agreement will be required:
___________.
A-2
MORGAN STANLEY DW INC.
By: __________________________________
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
By: __________________________________
Name:
Title:
Accepted:
MORGAN STANLEY
By: __________________________________
Name:
Title:
A-3
EXHIBIT A-1
MORGAN STANLEY
GLOBAL UNITS, SERIES C
UNITS TERMS AGREEMENT
___________________, 200_
Morgan Stanley
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement dated [ ], 2003 (the
"U.S. Distribution Agreement")
------------------------------------------------------
The undersigned agrees to purchase your Global Units, Series C,
[specified designation] having the following terms:
Warrants Issued as Purchase Contracts Issued
All Units: Part of a Unit: as Part of a Unit:
- -------------------------------------------------------------------------
Settlement Date and Designation of the Designation of the
Time: Series of Warrants: Series of Purchase
[Call] [Put] Warrants Contracts:
[Purchase][Sale]
Purchase Contracts
Number (Face Amount): Warrant Property: Aggregate Number of
Purchase Contracts:
Purchase Price: Aggregate Number of Purchase Contract
Warrants: Property:
Specified Currency: Date(s) upon which Quantity per Purchase
Warrants may be Contract:
exercised:
Severability: Currency in which [Purchase] [Sale]
exercise payments Price:
shall be made:
Other Terms: Exchange Rate (or Settlement Date:
method of calculation:
Expiration Date: Payment Location:
A-1-1
Warrants Issued as Purchase Contracts Issued
All Units: Part of a Unit: as Part of a Unit:
- -------------------------------------------------------------------------
Form of Settlement: Method of Settlement:
[Call Price:](1)
[Formula for Currency of Settlement
determining Cash Payment:
Settlement Value:](2)
[Amount of Warrant Contract Fees, if any:
Property Salable per
Warrant:](3)
[Put Price for such Corporation
specified amount of Acceleration:
Warrant Property per
Warrant:](2)
[Method of delivery of Holders' Acceleration:
any Warrant Property
to be delivered for
sale upon exercise of
Warrants:](3)
Other Terms: Redemption Provisions:
Other Terms:
Fixed Rate Notes Floating Rate Notes
All Notes Issued as Issued as Part of a Issued as Part of a
Part of a Unit: Unit: Unit:
- -------------------------------------------------------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Index Maturity:
Modified Payment upon
Acceleration:
Price to Public: If yes, state issue Index Currency:
price:
Settlement Date and Amortization Schedule: Spread (Plus or Minus):
Time:
Place of Delivery: Applicability of Spread Multiplier:
Annual Interest
Payments:
Specified Currency: Denominated Currency Alternate Rate Event
(if any): Spread:
- -------------
(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
Fixed Rate Notes Floating Rate Notes
All Notes Issued as Issued as Part of a Issued as Part of a
Part of a Unit: Unit: Unit:
- -------------------------------------------------------------------------
Original Issue Date: Indexed Currency or Initial Interest Rate:
Currencies (if any):
Interest Accrual Date: Payment Currency (if Initial Interest Reset
any): Date:
Maturity Date: Exchange Rate Agent Interest Reset Dates:
(if any):
Interest Payment Reference Dealers: Interest Reset Period:
Date(s):
Interest Payment Period: Face Amount (if any): Maximum Interest Rate:
Optional Repayment Fixed Amount of each Minimum Interest Rate:
Date(s): Indexed Currency (if
any):
Optional Redemption Aggregate Fixed Amount Calculation Agent:
Date(s): of each Indexed
Currency (if any):
Initial Redemption Date: Applicability of Reporting Service:
Issuer's Option to
Extend Original
Maturity Date:
Initial Redemption If yes, state Final Variable Rate
Percentage: Maturity Date: Renewable Notes:
Annual Redemption Redemption Dates:
Percentage Reduction:
Ranking: Redemption Percentage:
Series: Initial Maturity Date:
Minimum Denominations: Final Maturity Date:
Other Terms: Applicability of
Issuer's Option to
Reset Spread or Spread
Multiplier:
A-1-3
The provisions of Sections 1, 2(b) and 2(c), 3 through 6, 8 and 10
through 14 of the U.S. Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.(4)
This Agreement is also subject to termination on the terms incorporated
by reference herein. If this Agreement is terminated, the provisions of
Sections 3(h), 6, 10, 11 and 13 of the U.S. Distribution Agreement shall
survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the U.S. Distribution Agreement will be required:
___________.
MORGAN STANLEY DW INC.
By: ________________________________
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
By: ________________________________
Name:
Title:
Accepted:
MORGAN STANLEY
By: ________________________________
Name:
Title:
- -------------
(4) In the case of Physically-settled Pre-paid Purchase Contracts issued
under a Unit Agreement Without Holders' Obligations, additional representations
and warranties will be added with respect to such Physically-settled Pre-paid
Purchase Contracts and the opinions of counsel delivered pursuant to Sections
4(b)(i) and 4(b)(ii) will cover such additional representations and warranties,
as appropriate.
A-1-4
EXHIBIT B
MORGAN STANLEY
GLOBAL MEDIUM-TERM NOTES, SERIES C
GLOBAL UNITS, SERIES C
ADMINISTRATIVE PROCEDURES
----------------------
Explained below are the administrative procedures and specific terms of
the offering of Global Medium-Term Notes, Series C (the "Notes") and Global
Units, Series C (the "Units"), on a continuous basis by Morgan Stanley (the
"Company") pursuant to the U.S. Distribution Agreement dated [ ], 2003 (as may
be amended from time to time, the "Distribution Agreement") among the Company,
Morgan Stanley DW Inc. and Morgan Stanley & Co. Incorporated (collectively or
individually the "Agent" as the context requires). The Notes may be issued as
senior indebtedness (the "Senior Notes") or subordinated indebtedness (the
"Subordinated Notes") of the Company, and as used herein the term "Notes"
includes the Senior Notes and the Subordinated Notes. The Senior Notes will be
issued, either alone or as part of a Unit, pursuant to the provisions of an
amended and restated senior indenture dated as of May 1, 1999 (as may be
supplemented or amended from time to time, the "Senior Debt Indenture"),
between the Company and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank) ("JPMorgan Chase"), as trustee. The Subordinated Notes will be
issued pursuant to the provisions of an amended and restated subordinated
indenture, dated as of May 1, 1999 (as may be supplemented or amended from time
to time, the "Subordinated Debt Indenture"), between the Company and Bank One
Trust Company, N.A. (as successor to The First National Bank of Chicago), as
trustee. The Senior Debt Indenture and the Subordinated Debt Indenture are
sometimes hereinafter referred to individually as an "Indenture" and
collectively as the "Indentures." Purchase contracts ("Purchase Contracts")
that require holders to satisfy their obligations thereunder when such Purchase
Contracts are issued are referred to as "Pre-paid Purchase Contracts." Pre-paid
Purchase Contracts that settle in cash ("Cash-settled Pre-paid Purchase
Contracts") generally will be issued under the Indentures. Pre-paid Purchase
Contracts that do not settle in cash ("Physically-settled Pre-paid Purchase
Contracts") generally will be issued under the Unit Agreement or the Unit
Agreement Without Holders' Obligations (each as defined below).
Unless otherwise specified in the applicable Pricing Supplement, the
Units will be issued (i) pursuant to the Unit Agreement dated as of [ ], 2003,
among the Company, JPMorgan Chase Bank, as Unit Agent, as Collateral Agent,
B-1
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 (or include only 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").(1) Units may include one or more (i) Series C Senior Notes, (ii)
warrants ("Warrants") entitling the holders thereof to purchase or sell (a)
securities issued by the Company or by an entity affiliated or not affiliated
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 issued by the Company or by
an entity affiliated or not affiliated 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, Warrants
and Purchase Contracts comprised by a Unit may or may not be separated from the
Unit. Warrants issued as part of a Unit will be issued pursuant to the Warrant
Agreement dated as of [ ], 2003, between the Company and JPMorgan Chase Bank,
as Warrant Agent (as may be amended from time to time, the "Warrant
Agreement"). Purchase Contracts, other than Pre-paid Purchase Contracts,
entered into by the Company and the holders thereof will be governed by the
Unit Agreement.
In the Distribution Agreement, the Agent has agreed to use reasonable
efforts to solicit purchases of the Notes and the Units, and the administrative
procedures explained below will govern the issuance and settlement of any Notes
or Units sold through the Agent, as agent of the Company. The Agent, as
principal, may also purchase Notes and Units for its own account, and the
Company and the Agent will enter into a terms agreement (in the case of Notes,
a "Notes Terms Agreement," and in the case of Units, a "Units Terms
Agreement"), as contemplated by the Distribution Agreement. The administrative
procedures explained below will govern the issuance and settlement of any Notes
or Units purchased by the Agent, as principal, unless otherwise specified in
the applicable Notes Terms Agreement or Units Terms Agreement.
- -------------
(1) The Unit Agreement Without Holders' Obligations shall include
provisions to allow for the issuance of Pre-Paid Purchase Contracts that are
not issued under the Indentures.
B-2
JPMorgan Chase will be the Registrar, Calculation Agent, Authenticating
Agent and Paying Agent for both the Senior Notes and the Subordinated Notes
(and any Cash-settled Pre-paid Purchase Contracts), the Unit Agent for the
Units and Purchase Contracts (other than Cash-settled Pre-paid Purchase
Contracts) and Warrant Agent for the Warrants, and in each case, will perform
the duties specified herein. Each Note and each Unit will be represented by
either (i) in the case of the Notes, a Global Note and, in the case of the
Units, a Global Unit (each as defined below) delivered to JPMorgan Chase, as
agent for The Depository Trust Company ("DTC"), and recorded in the book-entry
system maintained by DTC (in the case of a Note, a "Book-Entry Note" and, in
the case of a Unit, a "Book-Entry Unit") or (ii) a certificate delivered to the
holder thereof or a person designated by such holder (in the case of a Note, a
"Certificated Note" and, in the case of a Unit, a "Certificated Unit"). Each
Note, Warrant or Purchase Contract which may be included in any Unit will be
issued in the corresponding global or certificated form. Except as set forth in
the Indentures, in the case of Notes or Cash-settled Pre-paid Purchase
Contracts, the Unit Agreement or a Unit Agreement Without Holders' Obligations,
as applicable, in the case of Units and all other Purchase Contracts, or the
Warrant Agreement, in the case of the Warrants, an owner of a Book-Entry Note
or Book-Entry Unit (or of any Note, Warrant or Purchase Contract included in
such Book-Entry Unit), as the case may be, will not be entitled to receive a
Certificated Note (including with respect to a Book-Entry Note included in a
Book-Entry Unit) or a Certificated Unit (or certificated Warrants or Purchase
Contracts, as applicable).
Book-Entry Notes and Book-Entry Units, which may be payable in either
U.S. dollars or other specified currencies, will be issued in accordance with
the administrative procedures set forth in Part I hereof as they may
subsequently be amended as the result of changes in DTC's operating procedures.
Certificated Notes and Certificated Units will be issued in accordance with the
administrative procedures set forth in Part II hereof.
Unless otherwise defined herein, terms defined in the Indentures, the
Unit Agreement, the Unit Agreement Without Holders' Obligations, the Warrant
Agreement, the Notes, the Units, the 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.
The Company will advise the Agent in writing of the employees of the
Company with whom the Agent is to communicate regarding offers to purchase
Notes and Units and the related settlement details.
B-3
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
AND BOOK-ENTRY UNITS
In connection with the qualification of the Book-Entry Notes and
Book-Entry Units for eligibility in the book-entry system maintained by DTC,
JPMorgan Chase will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations under
(i) a Letter of Representations from the Company and JPMorgan Chase to DTC,
dated as of August [ ], 2003, for medium-term notes (the "MTN Letter of
Representations"), (ii) a letter of representations from the Company and
JPMorgan Chase to DTC, dated as of August [ ], 2003, for optionally
exchangeable medium-term notes (the "Optionally Exchangeable MTN Letter of
Representations"), (iii) a Letter of Representations from the Company and
JPMorgan Chase to DTC, dated as of August [ ], 2003, for mandatorily
exchangeable medium-term notes (the "Mandatorily Exchangeable MTN Letter of
Representations"), (iv) a Letter of Representations from the Company and
JPMorgan Chase to DTC, dated as of August [ ], 2003, for global units
consisting of medium-term notes and warrants (the "Optionally Exchangeable Unit
Letter of Representations") and (v) a Letter of Representations from the
Company and JPMorgan Chase to DTC, dated as of August [ ], 2003, for global
units consisting of medium-term notes and purchase contracts (the "Mandatorily
Exchangeable Unit Letter of Representations" and, collectively, the "Letters of
Representations"), its obligations under a Medium-Term Note Certificate
Agreement between JPMorgan Chase and DTC dated as of November 13, 2001, and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes,
or one or more Book-Entry Units, the Company will
issue, in the case of the Notes, a single global Note
in fully registered form without coupons (a "Global
Note") representing up to U.S. $500,000,000 principal
amount of all such Notes that have the same Original
Issue Date, Maturity Date and other terms and, in the
case of a Unit, a single global unit in fully
registered form (a "Global Unit"), representing up to
U.S. $500,000,000 face amount of all such Units that
have the same Original Issue Date and that otherwise
comprise the same securities and have the same terms.
Each Global Note, whether issued alone or as part of a
Unit, will be dated and issued as of the date of its
authentication by JPMorgan Chase and each Global Unit
will be dated
B-4
and issued as of the date of the issuances of the other
securities comprised by such Unit. Each Global Note,
whether alone or as part of a Unit, will bear an
"Interest Accrual Date," which will be (i) with respect
to an original Global Note (or any portion thereof),
its original issuance date and (ii) with respect to any
Global Note (or any portion thereof) issued
subsequently upon exchange of a Global Note, or in lieu
of a destroyed, lost or stolen Global Note, the most
recent Interest Payment Date to which interest has been
paid or duly provided for on the predecessor Global
Note or Notes (or if no such payment or provision has
been made, the original issuance date of the
predecessor Global Note), regardless of the date of
authentication of such subsequently issued Global Note.
Book-Entry Notes and Book-Entry Units may be payable in
either U.S. dollars or other specified currencies. No
Global Note or Global Unit will represent, any
Certificated Note or Certificated Unit, as the case may
be.
Denominations: Book-Entry Notes and Book-Entry Units will be issued in
(i) in the case of Book-Entry Notes, principal amounts
of U.S. $1,000 or any amount in excess thereof that is
an integral multiple of U.S. $1,000 or, if such
Book-Entry Notes are issued in a currency other than
U.S. dollars, principal amounts of such currency in
denominations of the equivalent of U.S. $1,000 (rounded
to an integral multiple of 1,000 units of such
currency), unless otherwise indicated in the applicable
Pricing Supplement and (ii) in the case of Book-Entry
Units, denominations of a single unit and any integral
multiple thereof with face amounts of U.S. $1,000 or
any amount in excess thereof that is an integral
multiple of U.S. $1,000 or, if such Book-Entry Units
are issued in a currency other than U.S. dollars, face
amounts of such currency in denominations of the
equivalent of U.S. $1,000 (rounded to an integral
multiple of 1,000 units of such currency), unless
otherwise indicated in the applicable Pricing
Supplement. Global Notes and Global Units will be
denominated in, in the case of Global Notes, principal
amounts not in excess of U.S.$500,000,000 and, in the
case of Global Units,
B-5
face amounts not in excess of U.S. $500,000,000. If one
or more Book-Entry Notes having an aggregate principal
amount in excess of U.S. $500,000,000, or one or more
Book-Entry Units having an aggregate face amount, in
excess of $500,000,000 would, but for the preceding
sentence, be represented by a single Global Note or
Global Unit, as the case may be, then one Global Note
will be issued to represent each U.S. $500,000,000
principal amount of such Book-Entry Note or Notes and
one Global Unit will be issued to represent each
U.S.$500,000,000 face amount of such Book-Entry Unit or
Units and an additional Global Note or Global Unit,
will be issued to represent any remaining principal
amount of such Book-Entry Note or Notes or face amount
of such Book-Entry Unit or Units. In such a case, each
of the Global Notes or Global Units representing such
Book-Entry Note or Notes or such Book-Entry Unit or
Units, as the case may be, shall be assigned the same
CUSIP number.
Preparation of Pricing If any order to purchase a Book-Entry Note or Book-
Supplement: -Entry Unit is accepted by or on behalf of the Company,
the Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of such Note
or Unit. The Company (i) will arrange to file an
electronic format document, in the manner prescribed by
the EDGAR Filer Manual, of such Pricing Supplement with
the Commission in accordance with the applicable
paragraph of Rule 424(b) under the Securities Act, (ii)
will, as soon as possible and in any event not later
than the date on which such Pricing Supplement is filed
with the Commission, deliver the number of copies of
such Pricing Supplement to the Agent as the Agent shall
request and (iii) will, on the Agent's behalf, promptly
file five copies of such Pricing Supplement with the
National Association of Securities Dealers, Inc. (the
"NASD"). The Agent will cause such Pricing Supplement
to be delivered to the purchaser of the Note or Unit.
In each instance that a Pricing Supplement is prepared,
the Agent will affix the Pricing Supplement
B-6
to Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note or a Book-Entry
Unit and, in the case of the Note, the authentication
and issuance of the Global Note representing such Note
or, in the case of the Unit, the completion and
issuance of the Global Unit representing such Unit (and
of each security comprised by such Unit) shall
constitute "settlement" with respect to such Note or
Unit, as the case may be. All orders accepted by the
Company will be settled on the fifth Business Day
pursuant to the timetable for settlement set forth
below unless the Company and the purchaser agree to
settlement on another day, which shall be no earlier
than the next Business Day.
Settlement Procedures: Settlement Procedures with regard to each Book-Entry
Note and each Book-Entry Unit sold by the Company to or
through the Agent (unless otherwise specified pursuant
to a Notes Terms Agreement or a Units Terms Agreement),
shall be as follows:
A. In the case of a Book-Entry Note (whether issued
alone or as part of a Unit), the Agent will
advise the Company by telephone that such Note is
a Book-Entry Note and of the following settlement
information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry
Note, the Interest Rate, whether such Note
will pay interest annually or semiannually
and whether such Note is an Amortizing
Note, and, if so, the amortization
schedule, or, in the case of a Floating
Rate Book-Entry Note, the Initial Interest
Rate (if known at such time), Interest
B-7
Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index
Maturity, Index Currency, Interest Reset
Period, Initial Interest Reset Date,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any), Maximum Interest Rate (if any)
and the Alternate Rate Event Spread (if
any).
4. Redemption or repayment provisions, if any.
5. Ranking.
6. Settlement date and time (Original Issue
Date).
7. Interest Accrual Date.
8. Price.
9. Agent's commission, if any, determined as
provided in the Distribution Agreement.
10. Specified Currency.
11. 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).
12. Whether the Note is a Renewable Note, and
if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date,
the Election Dates and the Maturity
Extension Dates.
13. Whether the Company has the option to
reset the Spread or Spread Multiplier of
the Note.
14. Whether the Note is an Optionally
Exchangeable Note, a Mandatorily
Exchangeable Note, or any form of
exchangeable Note.
B-8
15. Any other applicable provisions.
B. In the case of a Book-Entry Unit, the Agent will
advise the Company by telephone that such Unit is
a Book-Entry Unit, of the information set forth
in Settlement Procedures "A" above with respect
to any Book-Entry Notes that constitute a part of
such Book-Entry Unit and of the following
information:
1. Settlement date and time.
2. Face Amount.
3. Agent's commission, if any, determined as
provided in the Distribution Agreement.
4. Designation of the Securities comprised by
such Units:
a. Notes (See Settlement
Procedures "A");
b. Warrants, if any; and
c. Purchase Contracts, if any.
5. Whether, and the terms under which, the
Securities comprised by such Unit will be
separately tradeable.
6. Any other provisions applicable to the
Unit (other than those provisions
applicable to the securities comprised by
such Unit).
7. If the Book-Entry Unit comprises
Book-Entry Warrants:
a. Designation of the Series of
Warrants: [Call][Put] Warrants;
b. Warrant Property;
c. Aggregate Number of Warrants;
d. Price to Public;
e. Warrant Exercise Price;
f. Dates upon which Warrants
B-9
may be exercised;
g. Expiration Date;
h. Form;
i. Currency in which exercise payments
shall be made;
j. Minimum number of Warrants
exercisable by any holder on any
day;
k. Maximum number of Warrants
exercisable on any day: [In the
aggregate] [By any beneficial
owner];
l. Formula for determining Cash
Settlement Value;
m. Exchange Rate (or method of
calculation);
n. Whether the Company or the holder is
the writer of the Warrant; and
o. Any other applicable provisions.
8. If the Book-Entry Unit comprises
Book-Entry Purchase Contracts:
a. Designation of the Series of
Purchase Contracts: [Purchase][Sale]
Purchase Contracts;
b. Purchase Contract Property;
c. Aggregate Number of Purchase
Contracts;
d. Price to Public;
e. Settlement Date;
f. [Purchase/Sale] Price of Purchase
Contract Property;
g. Form; and
h. Any other applicable
B-10
provisions.
C. The Company will advise JPMorgan Chase by
telephone or electronic transmission (confirmed
in writing at any time on the same date) of the
information set forth in "Settlement Procedure"
"A" and "B" above, as applicable. JPMorgan Chase
will then assign a CUSIP number to the Global
Note representing a Note, whether issued alone or
as part of a Unit, and will notify the Company
and the Agent of such CUSIP number(s) by
telephone as soon as practicable, except that for
Optionally Exchangeable and Mandatorily
Exchangeable Notes the Agent will obtain a CUSIP
number for the Global Note representing such Note
and will notify the Company and JPMorgan Chase of
such CUSIP number(s) by telephone as soon as
practicable. The Agent will obtain a CUSIP number
for (i) the Global Unit representing a Unit, (ii)
the Warrant, if any, issued as part of a Unit and
(iii) the Purchase Contract, if any, issued as
part of a Unit and, in each case will notify the
Company and JPMorgan Chase of such CUSIP
number(s) by telephone as soon as practicable.
D. JPMorgan Chase will enter a pending deposit
message through DTC's Participant Terminal
System, providing the following settlement
information to DTC, the Agent and Standard &
Poor's Corporation:
1. The information set forth in "Settlement
Procedure" "A" and "B" above, as
applicable.
2. The Initial Interest Payment Date for the
Notes, whether issued alone or as part of
a Unit, the number of days by which such
date succeeds the related DTC Record Date
and, if known, amount of interest payable
on such Initial Interest Payment Date.
3. The CUSIP number of the Global
B-11
Note (whether issued alone or as part of a
Unit), Global Unit, Warrant issued as part
of a Unit and Purchase Contract issued as
part of a Unit, as applicable.
4. Whether the Global Note or Global Unit
will represent any other Book-Entry Note
or Book-Entry Unit, as the case may be (to
the extent known at such time).
5. Whether any Note, issued alone or as part
of a Unit, is an Amortizing Note (by an
appropriate notation in the comments field
of DTC's Participant Terminal System).
6. The number of Participant accounts to be
maintained by DTC on behalf of the Agent
and JPMorgan Chase.
E. JPMorgan Chase will, as applicable, authenticate,
complete and deliver the Global Note representing
the Note and will complete the Global Unit
representing the Unit (including, as applicable,
by authenticating, completing and delivering any
Global Note or Cash-settled Pre-paid Purchase
Contracts, by countersigning and delivering any
Warrants and by countersigning, executing and
delivering any Purchase Contracts (other than
Cash-settled Pre-paid Purchase Contracts)
includable in such Unit).
F. DTC will credit such Note or Unit to JPMorgan
Chase's participant account at DTC.
G. JPMorgan Chase will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit the Note or Unit, as
the case may be, to JPMorgan Chase's participant
account and credit such Note or Unit to the
Agent's participant account and (ii) debit the
Agent's settlement account and credit JPMorgan
Chase's settlement account for an amount equal to
the
B-12
price of such Note or Unit, as the case may be,
less the Agent's commission, if any. The entry of
such a deliver order shall constitute a
representation and warranty by JPMorgan Chase to
DTC that (a) the Global Note representing a
Book-Entry Note has been issued and authenticated
or a Global Unit representing a Book-Entry Unit
has been completed and issued and (b) JPMorgan
Chase is holding such Global Note or Global Unit
pursuant to the Medium-Term Note Certificate
Agreement between JPMorgan Chase and DTC.
H. Unless the Agent is the end purchaser of a Note
or Unit, the Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note or Unit to
the Agent's participant account and credit such
Note or Unit to the participant accounts of the
Participants with respect to such Note or Unit
and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of
the Agent for an amount equal to the price of
such Note or Unit.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement Procedures
"G" and "H" will be settled in accordance with
SDFS operating procedures in effect on the
settlement date.
J. JPMorgan Chase will credit to the account of the
Company maintained at JPMorgan Chase, New York,
New York, in funds available for immediate use in
the amount transferred to JPMorgan Chase in
accordance with "Settlement Procedure" "G".
K. Unless the Agent is the end purchaser of the Note
or Unit, the Agent will confirm the purchase of
such Note or Unit to the purchaser either by
transmitting to the Participants with respect to
such Note or Unit a confirmation order or orders
through DTC's institutional delivery system or by
mailing a
B-13
written confirmation to such purchaser.
L. Monthly, JPMorgan Chase will send to the Company
a statement setting forth the principal amount of
Notes outstanding as of that date under the
Indentures or, in the case of Units, the
aggregate face amount of Units outstanding as of
that date, under the Unit Agreement, and setting
forth a brief description of any sales of which
the Company has advised JPMorgan Chase that have
not yet been settled.
Settlement Procedures For sales by the Company of Book-Entry
Timetable: Notes or Book-Entry Units to or through the
Agent (unless otherwise specified pursuant to a Notes
Terms Agreement or a Units Terms Agreement) for
settlement on the first Business Day after the sale
date, Settlement Procedures "A" through "K" set forth
above shall be completed as soon as possible but not
later than the respective times in New York City set
forth below:
Settlement
Procedure Time
--------- ----
A 11:00 A.M. on the sale date
B 11:00 A.M. on the sale date
C 12:00 Noon on the sale date
D 2:00 P.M. on the sale date
E 9:00 A.M. on the settlement date
F 10:00 A.M. on the settlement date
G-H 2:00 P.M. on the settlement date
I 4:45 P.M. on the settlement date
J-K 5:00 P.M. on the settlement date
B-14
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A", "B",
"C" and "D" shall be completed as soon as practicable
but no later than 11:00 A.M., 11:00 A.M., 12 Noon and
2:00 P.M., respectively, on the first Business Day
after the sale date. If the Initial Interest Rate for a
Floating Rate Book-Entry Note, whether issued alone or
as part of a Unit, has not been determined at the time
that "Settlement Procedure" "A" is completed,
"Settlement Procedure" "C" and "D" shall be completed
as soon as such rate has been determined but no later
than 12 Noon and 2:00 P.M., respectively, on the first
Business Day before the settlement date. "Settlement
Procedure" "I" is subject to extension in accordance
with any extension of Fedwire closing deadlines and in
the other events specified in the SDFS operating
procedures in effect on the settlement date.
If settlement of a Book-Entry Note or a Book-Entry Unit
is rescheduled or canceled, JPMorgan Chase, after
receiving notice from the Company or the Agent, will
deliver to DTC, through DTC's Participant Terminal
System, a cancellation message to such effect by no
later than 2:00 P.M. on the Business Day immediately
preceding the scheduled settlement date.
Failure to Settle: If JPMorgan Chase fails to enter an SDFS deliver order
with respect to a Book-Entry Note or a Book-Entry Unit
pursuant to "Settlement Procedure" "G", JPMorgan Chase
may deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal message
instructing DTC to debit such Note or Unit to JPMorgan
Chase's participant account, provided that JPMorgan
Chase's participant account contains a principal amount
of the Global Note representing such Note or a face
amount of the Global Unit representing such Unit that
is at least equal to the principal amount or face
amount to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Notes
represented by a Global Note or all of the Book-Entry
Units
B-15
represented by a Global Unit, JPMorgan Chase will mark
such Global Note or Global Unit "canceled," make
appropriate entries in JPMorgan Chase's records and
send such canceled Global Note or Global Unit to the
Company. The CUSIP number assigned to such Global Note,
Global Unit, Warrant included in such Unit, or Purchase
Contract included in such Unit, shall, in accordance
with the procedures of the CUSIP Service Bureau of
Standard & Poor's Corporation, be canceled and not
immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all, of
the Book-Entry Notes represented by a Global Note or
with respect to one or more, but not all, of the
Book-Entry Units represented by a Global Unit, JPMorgan
Chase will exchange such Global Note or Global Unit, as
the case may be, for two Global Notes or for two Global
Units, as the case may be, one of which shall represent
such Book-Entry Note or Notes or such Book-Entry Unit
or Units and shall be canceled immediately after
issuance and the other of which shall represent the
remaining Book-Entry Notes or Book-Entry Units
previously represented by the surrendered Global Note
or Global Unit and shall bear the CUSIP number of the
surrendered Global Note, Global Unit, Warrant included
in such Unit, or Purchase Contract included in such
Unit.
If the purchase price for any Book-Entry Note or
Book-Entry Unit is not timely paid to the Participants
with respect to such Note or Unit by the beneficial
purchaser thereof (or a person, including an indirect
participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the Agent
may enter SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered pursuant
to Settlement Procedures "G" and "H", respectively.
Thereafter, JPMorgan Chase will deliver the withdrawal
message and take the related actions described in the
preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note or Book-
B-16
Entry Unit, DTC may take any actions in accordance with
its SDFS operating procedures then in effect.
In the event of a failure to settle with respect to one
or more, but not all, of the Book-Entry Notes or
Book-Entry Units to have been represented by a Global
Note or a Global Unit, as the case may be, JPMorgan
Chase will provide, in accordance with Settlement
Procedures "E" and "G", for the authentication and
issuance of a Global Note representing the Book-Entry
Notes to be represented by such Global Note and for the
issuance of a Global Unit representing the Book-Entry
Units to be represented by such Global Unit and, in
each case, will make appropriate entries in its
records.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES AND
CERTIFICATED UNITS
JPMorgan Chase will serve as registrar in connection
with the Certificated Notes and the Certificated Units.
Issuance: Each Certificated Note will be dated and
issued as of the date of its authentication
by JPMorgan Chase and each Certificated
Unit will be deemed to be dated as of the
date of the underlying Certificated Note
or, if there is not such underlying
Certificated Note on the date of the other
securities comprised thereby. Each
Certificated Note will bear an Original
Issue Date, which will be (i) with respect
to an original Certificated Note (or any
portion thereof), its original issuance
date (which will be the settlement date)
and (ii) with respect to any Certificated
Note (or portion thereof) issued
subsequently upon transfer or exchange of a
Certificated Note or in lieu of a
destroyed, lost or stolen Certificated
Note, the original issuance date of the
predecessor Certificated Note, regardless
of the date of authentication of such
subsequently issued Certificated Note.
B-17
Preparation of Pricing If any order to purchase a Certificated Note or a
Supplement: Certificated Unit is accepted by or on behalf of the
Company, the Company will prepare a pricing supplement
(a "Pricing Supplement") reflecting the terms of such
Note or Unit. The Company (i) will arrange to file an
electronic format document, in the manner prescribed by
the EDGAR Filer Manual, of such Pricing Supplement with
the Commission in accordance with the applicable
paragraph of Rule 424(b) under the Securities Act, (ii)
will, as soon as possible and in any event not later
than the date on which such Pricing Supplement is filed
with the Commission, deliver the number of copies of
such Pricing Supplement to the Agent as the Agent shall
request and (iii) will, on the Agent's behalf, promptly
file five copies of such Pricing Supplement with the
NASD. The Agent will cause such Pricing Supplement to
be delivered to the purchaser of the Note or the Unit,
as the case may be.
In each instance that a Pricing Supplement is prepared,
the Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note or a Certificated Unit delivered to the Agent and
the Agent's delivery of such Note or Unit against
receipt of immediately available funds shall constitute
"settlement" with respect to such Note or Unit. All
offers accepted by the Company will be settled on or
before the fifth Business Day next succeeding the date
of acceptance pursuant to the timetable for settlement
set forth below, unless the Company and the purchaser
agree to settlement on another date.
Settlement Procedures: Settlement Procedures with regard to each Certificated
Note and each Certificated Unit sold by the Company to
or through the Agent (unless
B-18
otherwise specified pursuant to a Notes Terms Agreement
or a Units Terms Agreement) shall be as follows:
A. In the case of Certificated Notes (whether issued
alone or as part of a Unit), the Agent will
advise the Company by telephone that such Note is
a Certificated Note and of the following
settlement information:
1. Name in which such Note is to be
registered ("Registered Note Owner").
2. Address of the Registered Note Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Note Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the Interest Rate, whether such Note
will pay interest annually or semiannually
and whether such Note is an Amortizing
Note and, if so, the amortization
schedule, or, in the case of a Floating
Rate Certificated Note, the Initial
Interest Rate (if known at such time),
Interest Payment Date(s), Interest Payment
Period, Calculation Agent, Base Rate,
Index Maturity, Index Currency, Interest
Reset Period, Initial Interest Reset Date,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any), Maximum Interest Rate (if any)
and the Alternate Rate Event Spread (if
any).
7. Redemption or repayment provisions, if
any.
B-19
8. Ranking.
9. Settlement date and time (Original Issue
Date).
10. Interest Accrual Date.
11. Price.
12. Agent's commission, if any, determined as
provided in the Distribution Agreement.
13. Denominations.
14. Specified Currency.
15. Whether the Note is an OID Note, and if it
is an OID Note, the applicability of
Modified Payment upon Acceleration (and if
so, the Issue Price).
16. Whether the Note is a Renewable Note, and
if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date,
the Election Dates and the Maturity
Extension Dates.
17. Whether the Company has the option to
reset the Spread or Spread Multiplier of
the Note.
18. Whether the Note is an Optionally
Exchangeable Note, a Mandatorily
Exchangeable Note, or any form of
exchangeable Note.
19. Any other applicable provisions.
B. In the case of a Certificated Unit, the Agent
will advise the Company by telephone that such
Unit is a Certificated Unit, of the information
set forth in Settlement Procedure "A" above with
respect to Certificated Notes that constitute a
part of such Certificated Unit and of the
following information:
1. Name in which such Unit is to be
registered ("Registered Unit Owner").
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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.
6. Face Amount.
7. Agent's commission, if any, determined as
provided in the Distribution Agreement.
8. Designation of the Securities comprised by
such Units:
a. Notes, if any (See Settlement
Procedures "A");
b. Warrants, if any; and
c. Purchase Contracts, if any.
9. Whether, and the terms under which, the
Securities comprised by such Unit will be
separately tradeable.
10. Any other provisions applicable to the
Unit (other than those provisions
applicable to the securities comprised by
such Unit).
11. If the Certificated Unit comprises
Certificated Warrants:
a. Designation of the Series of
Warrants: [Call][Put] Warrants;
b. Warrant Property;
c. Aggregate Number of Warrants;
d. Price to Public;
e. Warrant Exercise Price;
f. Dates upon which Warrants may be
exercised;
g. Expiration Date;
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h. Form;
i. Currency in which exercise payments
shall be made;
j. Minimum number of Warrants
exercisable by any holder on any
day;
k. Maximum number of Warrants
exercisable on any day: [In the
aggregate] [By any beneficial
owner];
l. Formula for determining Cash
Settlement Value;
m. Exchange Rate (or method of
calculation);
n. Whether the Company or the holder is
the writer of the warrant; and
o. Any other applicable provisions.
12. If the Certificated Unit comprises
Certificated Purchase Contracts:
a. Designation of the Series of
Purchase Contracts: [Purchase][Sale]
Purchase Contracts;
b. Purchase Contract Property;
c. Aggregate Number of Purchase
Contracts;
d. Price to Public;
e. Settlement Date;
f. [Purchase/Sale] Price of Purchase
Contract Property;
g. Form; and
h. Any other applicable provisions.
C. The Company will advise JPMorgan Chase by
telephone or electronic transmission
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(confirmed in writing at any time on the sale
date) of the information set forth in Settlement
Procedure "A" and "B" above, as applicable.
D. The Company will have delivered to JPMorgan Chase
a pre-printed four-ply packet for each Note and
Unit, which packet will contain the following
documents in forms that have been approved by the
Company, the Agent, the Trustee and the Unit
Agent, as applicable:
1. Note 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.
E. JPMorgan Chase will (i) with respect to a Note or
Cash-settled Pre-paid Purchase Contract,
authenticate such Note or Cash-settled Pre-paid
Purchase Contract and deliver it (with the
confirmation) and Stubs One and Two to the Agent
or (ii) with respect to a Unit, complete and
deliver the Unit (including countersigning and
delivering the Warrant, if any, and
countersigning, executing and delivering the
Purchase Contract (other than a Cash-settled
Pre-paid Purchase Contract, if any) with the
confirmation Stubs One and Two to the Agent. The
Agent will acknowledge receipt of the Note or the
Unit, as the case may be, by stamping or
otherwise marking Stub One and returning it to
JPMorgan Chase. Such delivery will be made only
against such acknowledgment of receipt and
evidence that instructions have been given by the
Agent for payment to the account of the Company
at JPMorgan Chase, New York, New York, or to such
other account as the Company shall have specified
to the Agent and JPMorgan Chase in funds
available for immediate use, of an amount equal
to the price of such Note or Unit less
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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.
F. Unless the Agent is the end purchaser of such
Note or Unit, the Agent will deliver such Note or
Unit (with confirmation) to the customer against
payment in immediately payable funds. The Agent
will obtain the acknowledgment of receipt of such
Note or Unit by retaining Stub Two.
G. JPMorgan Chase will send Stub Three to the
Company by first-class mail. Periodically,
JPMorgan Chase will also send to the Company a
statement setting forth, in the case of the
Notes, the principal amount of the Notes
outstanding as of that date under each Indenture
and, in the case of the Units, the aggregate face
amount of the Units outstanding under the Unit
Agreement and, in each case, setting forth a
brief description of any sales of which the
Company has advised JPMorgan Chase that have not
yet been settled.
Settlement Procedures For sales by the Company of Certificated Notes or of
Timetable: Certificated Units to or through the Agent (unless
otherwise specified pursuant to a Notes Terms Agreement
or a Units Terms Agreement), Settlement Procedures "A"
through "G" set forth above shall be completed on or
before the respective times in New York City set forth
below:
Settlement
Procedure Time
--------- ----
A 2:00 P.M. on day before settlement date
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B 2:00 P.M. on day before settlement date
C 3:00 P.M. on day before settlement date
D-E 2:15 P.M. on settlement date
F 3:00 P.M. on settlement date
G 5:00 P.M. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and make
payment for any Certificated Note or any Certificated
Unit, the Agent will notify the Company and JPMorgan
Chase by telephone and return such Note or Unit to
JPMorgan Chase. Upon receipt of such notice, the
Company will immediately wire transfer to the account
of the Agent an amount equal to the amount previously
credited thereto in respect to such Note or Unit. Such
wire transfer will be made on the settlement date, if
possible, and in any event not later than the Business
Day following the settlement date. If the failure shall
have occurred for any reason other than a default by
the Agent in the performance of its obligations
hereunder and under the Distribution Agreement, then
the Company will reimburse the Agent or JPMorgan Chase,
as appropriate, on an equitable basis for its loss of
the use of the funds during the period when they were
credited to the account of the Company. Immediately
upon receipt of the Certificated Note or the
Certificated Unit in respect of which such failure
occurred, JPMorgan Chase will mark such note or Unit
"canceled," make appropriate entries in JPMorgan
Chase's records and send such Note or Unit, as the case
may be, to the Company.
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