Exhibit 1-e
MORGAN STANLEY
Global Medium-Term Notes, Series D and Series E
Global Units, Series D and Series E
EURO DISTRIBUTION AGREEMENT
[_______], 2004
Morgan Stanley & Co. International Limited
c/o Morgan Stanley & Co. International
Limited
25 Cabot Square
Canary Wharf London E14 4QA
United Kingdom
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 primarily outside the United States 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 D and Series E,
each due more than nine months from the date of issue (the "Notes") and its
Global Units, Series D and Series E (the "Units" and together with the Notes,
the "Program Securities"), in each case subject to reduction as a result of the
sale of the Company's (i) Global Medium-Term Notes, Series C, to be sold
primarily inside the United States, (ii) Global Units, Series C, to be sold
primarily inside the United States, and (iii) the sale of certain of the
Company's other debt securities, warrants, common stock, preferred stock,
purchase contracts and units and of capital securities of certain Morgan
Stanley Capital Trusts. The Series D Notes are intended to be admitted to
listing on the Official List of the Financial Services Authority (the "UK
Listing Authority") in its capacity as competent authority for the purposes of
Part VI of the Financial Services and Markets Act 2000 (the "FSMA"), and to
trading on the London Stock Exchange plc (the "London Stock Exchange") or
admitted to listing, trading and/or quotation by any other listing authority,
stock exchange and/or quotation system, if so required by Section 3(j) hereof.
Application may, in certain circumstances described in the Prospectus
Supplement (as defined below), be made to admit the Series D Units to the
Official List of the UK Listing Authority and to trading on the London Stock
Exchange. The Series E Notes and the Series E Units will not be listed on any
stock exchange.
The Notes may be issued as senior indebtedness (the "Senior Notes") or as
subordinated indebtedness (the "Subordinated Notes") of the Company. The Senior
Notes will be issued, either alone or as part of a Unit, pursuant to the
provisions of an amended and restated senior indenture dated as of May 1, 1999,
between the Company and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as trustee (the "Senior Debt Trustee") (as may be supplemented
or amended from time to time, the "Senior Debt Indenture"). The Subordinated
Notes will be issued pursuant to the provisions of an amended and restated
subordinated indenture dated as of May 1, 1999, between the Company and J.P.
Morgan Trust Company, National Association (as successor in interest to Bank
One Trust Company, N.A., 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
August 26, 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
(formerly known as The Chase Manhattan Bank), as Unit Agent, as Trustee and
Paying Agent under the Indenture referred to therein, and as Warrant Agent
under the Warrant Agreement referred to therein, in the form of such agreement
filed as an exhibit to the Registration Statement referred to below (each such
agreement, a "Unit Agreement Without Holders' Obligations").(1) Units may
include one or more (i) Senior Notes, (ii) warrants ("Warrants") entitling the
holders thereof to
- ---------
(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.
2
purchase or sell (a) securities issued by the Company or by an entity not
affiliated with the Company (or securities issued by an entity affiliated with
the Company in the case of Series E Units), 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 not affiliated with the
Company (or securities issued by an entity affiliated with the Company in the
case of Series E Units), 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 August 26, 2003 (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 has initially
appointed JPMorgan Chase Bank, London Branch, at its principal office in
London, as principal paying agent (the "Principal Paying Agent") for the Notes.
The Notes will be issued in bearer form or in definitive registered form
without coupons (the "Registered Notes"), the Units will be issued in bearer
form or in definitive registered form (the "Registered Units") and the
securities included in a Unit will be in the form of such Unit. The Program
Securities issued in bearer form will be represented initially by, in the case
of the Notes, a temporary global Note and, in the case of the Units, a
temporary global Unit, each of which will be delivered to a common depositary
located outside the United States for Euroclear Bank S.A./N.V., as operator of
the Euroclear System (the "Euroclear Operator"), Clearstream Banking, societe
anonyme ("Clearstream"), or any other relevant clearing system. Beneficial
interests in a temporary global Note or a temporary global Unit will be
exchangeable for beneficial interests in, in the case of a temporary global
Note, a permanent global Note and, in the case of a temporary global Unit, a
permanent global Unit. Beneficial interests in a permanent global Note will be
exchangeable in whole, but not in part, for definitive Notes in bearer form,
with interest coupons attached, upon receipt of the Principal Paying Agent of
an initial request to so exchange by any holder of a
3
beneficial interest in such permanent global Note (such temporary global Note,
permanent global Note and definitive Notes in bearer form are collectively
referred to as the "Bearer Notes"), and Bearer Notes, if the applicable Pricing
Supplement so specifies, will be exchangeable in whole or in part for
Registered Notes. Beneficial interests in a permanent global Unit (including an
interest in the securities included in such Unit) will be exchangeable in
whole, but not in part, for definitive Units in bearer form upon receipt of the
Unit Agent of an initial request to so exchange by any holder of a beneficial
interest in such permanent global Unit (such temporary global Unit, permanent
global Unit and definitive Units in bearer form are collectively referred to as
the "Bearer Units") and Bearer Units, if the applicable Pricing Supplement so
specifies, will be exchangeable in whole or in part for Registered Units. As
used in this Agreement, the term "Note" includes any temporary global Note or
permanent global Note issued pursuant to the Indentures and the term "Unit"
includes any temporary global Unit or permanent global Unit issued pursuant to
the Unit Agreement.
The Company hereby appoints you as its exclusive agents for the purpose of
soliciting and receiving offers to purchase Program Securities from the Company
by others and, on the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, you agree
to use reasonable efforts to solicit and receive offers to purchase Program
Securities upon terms acceptable to the Company at such times and in such
amounts as the Company shall from time to time specify. In addition, you may
also purchase Program Securities as principal pursuant to the terms of a terms
agreement relating to such sale (in the case of Notes, a "Notes Terms
Agreement" and, in the case of Units, a "Units Terms Agreement") in accordance
with the provisions of Section 2(b) hereof.
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
4
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
registration statement to register additional Program Securities pursuant to
Rule 462(b) under the Securities Act (a "Rule 462 Registration Statement"),
then any reference herein to the term "Registration Statement" shall be deemed
to include such Rule 462 Registration Statement.
1. Representations and Warranties. The Company represents and warrants to
and agrees with you as of the Commencement Date, as of each date on which you
solicit offers to purchase Program Securities, as of each date on which the
Company accepts an offer to purchase Program Securities (including any purchase
by you as principal pursuant to a Notes Terms Agreement or a Units Terms
Agreement), as of each date the Company issues and delivers Program Securities
and as of each date the Registration Statement or the Basic Prospectus is
amended or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) The Registration Statement has become effective, no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder,
(ii) each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or supplemented,
if applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (iii) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder and
(iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that (1) the representations and warranties set forth in this
Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information
5
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
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
6
affecting creditors' rights generally and (ii) is subject to general
principles of equity, regardless of whether such enforceability is
considered at a proceeding in equity or at law.
(g) The form of Unit Agreement Without Holders' Obligations has been
duly authorized by the Company and, when a Unit Agreement Without Holders'
Obligations has been duly executed and delivered by the Company, the Unit
Agreement Without Holders' Obligations will be a valid and binding
agreement of the Company, enforceable in accordance with its terms except
as the enforceability thereof (i) may be limited by bankruptcy,
insolvency, 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 and 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 Prepaid
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
7
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 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 of its consolidated
subsidiaries, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the
8
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.
(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.
9
(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 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
10
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 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.
11
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 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 D and Series E and Global Units, Series D and
Series E, Administrative Procedures (attached hereto as Exhibit B) (the
"Administrative Procedures"), as amended from time to time. The Administrative
Procedures may be amended only by written agreement of the Company and you.
12
(d) Delivery. The documents required to be delivered by Section 4 of this
Agreement as a condition precedent to your obligation to begin soliciting
offers to purchase Program Securities as agents of the Company shall be
delivered at the office of Davis Polk & Wardwell, your counsel, not later than
4:00 p.m., New York City time, on the date hereof, or at such other time and/or
place as you and the Company may agree upon in writing, but in no event later
than the day prior to the earlier of (i) the date on which you begin soliciting
offers to purchase Program Securities and (ii) the first date on which the
Company accepts any offer by you to purchase Program Securities as principal.
The date of delivery of such documents is referred to herein as the
"Commencement Date."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Program
Securities pursuant to this Agreement or pursuant to any Notes Terms
Agreement or Units Terms Agreement, the Company will not file any
Prospectus Supplement relating to the Program Securities or any amendment
to the Registration Statement relating to the Program Securities unless
the Company has previously furnished to you a copy thereof for your review
and will not file any such proposed supplement or amendment to which you
reasonably object; provided, however, that the foregoing requirement shall
not apply to any of the Company's periodic filings with the Commission
required to be filed pursuant to Section 13(a), 13(c), 13(f), 14 or 15(d)
of the Exchange Act, copies of which filings the Company will cause to be
delivered to you promptly after being transmitted for filing with the
Commission. Subject to the foregoing sentence, the Company will promptly
cause each Prospectus Supplement to be filed with or transmitted for
filing to the Commission in accordance with Rule 424(b) under the
Securities Act. The Company will promptly advise you (i) of the filing of
any amendment or supplement to the Basic Prospectus, (ii) of the filing
and effectiveness of any amendment to the Registration Statement, (iii) of
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Basic Prospectus or for
any additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose, (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Program Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose and (vi) of the issuance by any non-United States regulatory
authority of any request for information relating to the Program
Securities or suspension of the listing, trading and/or quotation of any
Program Securities then admitted to listing, trading and/or quotation by
any listing authority, stock exchange and/or quotation system. The Company
will use its best efforts to prevent the
13
issuance of any such stop order or notice of suspension of qualification
or listing and, if issued, to obtain as soon as possible the withdrawal
thereof. If the Basic Prospectus is amended or supplemented as a result of
the filing under the Exchange Act of any document incorporated by
reference in the Prospectus, you shall not be obligated to solicit offers
to purchase Program Securities so long as you are not reasonably satisfied
with such document.
(b) If, at any time when a prospectus relating to the Program
Securities is required to be delivered under the Securities Act or made
available to purchasers of the Program Securities, any event occurs or
condition exists as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact, or
omit to state any material fact necessary to make the statements therein,
in the light of the circumstances when the Prospectus, as then amended or
supplemented, is delivered to a purchaser, not misleading, or if, in your
opinion or in the opinion of the Company, it is necessary at any time to
amend or supplement the Prospectus, as then amended or supplemented, to
comply with applicable law, the Company will immediately notify you by
telephone (with confirmation in writing) to suspend solicitation of offers
to purchase Program Securities and, if so notified by the Company, you
shall forthwith suspend such solicitation and cease using the Prospectus,
as then amended or supplemented. If the Company shall decide to amend or
supplement the Registration Statement or Prospectus, as then amended or
supplemented, it shall so advise you promptly by telephone (with
confirmation in writing) and, at its expense, shall prepare and cause to
be filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to you, that will correct such statement or
omission or effect such compliance and will supply such amended or
supplemented Prospectus to you in such quantities as you may reasonably
request. If any documents, certificates, opinions and letters furnished to
you pursuant to paragraph (e) below and Sections 5(a), 5(b) and 5(c) in
connection with the preparation and filing of such amendment or supplement
are satisfactory in all respects to you, upon the filing with the
Commission of such amendment or supplement to the Prospectus or upon the
effectiveness of an amendment to the Registration Statement, you will
resume the solicitation of offers to purchase Program Securities
hereunder. Notwithstanding any other provision of this Section 3(b), until
the distribution of any Program Securities you may own as principal has
been completed, if any event described above in this paragraph (b) occurs,
the Company will, at its own expense, forthwith prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
14
satisfactory in all respects to you, will supply such amended or
supplemented Prospectus to you in such quantities as you may reasonably
request and shall furnish to you pursuant to paragraph (e) below and
Sections 5(a), 5(b) and 5(c) such documents, certificates, opinions and
letters as you may request in connection with the preparation and filing
of such amendment or supplement.
(c) The Company will make generally available to its security holders
and to you as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering twelve month periods
beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in Rule 158
under the Securities Act) of the Registration Statement with respect to
each sale of Program Securities. If such fiscal quarter is the first
fiscal quarter of the Company's fiscal year, such earning statement shall
be made available not later than 90 days after the close of the period
covered thereby and in all other cases shall be made available not later
than 45 days after the close of the period covered thereby.
(d) The Company will furnish in New York City, without charge, (i) to
each Agent, a signed copy of the Registration Statement, including
exhibits and all amendments thereto, and as many copies of the Prospectus,
any documents incorporated by reference therein and any supplements and
amendments thereto as you may reasonably request and (ii) to each Agent
that purchases Program Securities pursuant to a Notes Terms Agreement or
Units Terms Agreement or solicits an offer to purchase Program Securities
that is accepted by the Company, prior to 10:00 a.m. New York City time on
the business day next succeeding the date of such Notes Terms Agreement or
Units Terms Agreement or the acceptance of such offer, as many copies of
the Prospectus, as then amended or supplemented (including the Prospectus
Supplement relating to the Program Securities to be purchased pursuant to
such Notes Terms Agreement or Units Terms Agreement or accepted offer), as
such Agent may reasonably request.
(e) During the term of this Agreement, the Company shall furnish to
you such relevant documents and certificates of officers of the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or
supplements thereto, the Indentures, the Unit Agreement, any Unit
Agreement Without Holders' Obligations, the Warrant Agreement, the Notes,
the Units, the Warrants, the Purchase Contracts, this Agreement, the
Administrative Procedures, any Notes Terms Agreement or Units
15
Terms Agreement and the performance by the Company of its obligations
hereunder or thereunder as you may from time to time reasonably request.
(f) The Company shall notify you promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate
the direction of the possible change, in the rating accorded the Company
or any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act.
(g) The Company will, whether or not any sale of Program Securities
is consummated, pay all expenses incident to the performance of its
obligations under this Agreement and any Notes Terms Agreement or Units
Terms Agreement, including: (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of the
Program Securities, (iii) the fees and disbursements of the Company's
counsel and accountants, of the Trustees and their counsel, of the Unit
Agent and its counsel, of the Warrant Agent and its counsel and of the
Principal Paying Agent and its counsel and any paying agents for the
Program Securities appointed by the Company, (iv) the fees and expenses
incurred with respect to the admission of the Series D Notes (and the
Series D Units, if application for such admission is made) to the Official
List of the UK Listing Authority and to trading on the London Stock
Exchange or to listing, trading and/or quotation by any other listing
authority, stock exchange and/or quotation system if so required by
Section 3(j), (v) the printing and delivery to you in quantities as
hereinabove stated of copies of the Registration Statement and all
amendments thereto and of the Prospectus and any amendments or supplements
thereto, (vi) the printing and delivery to you of copies of the
Indentures, the Unit Agreement, any Unit Agreement Without Holders'
Obligations and the Warrant Agreement, (vii) any fees charged by rating
agencies for the rating of the Program Securities, (viii) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc., (ix) the fees and disbursements
of your counsel incurred in connection with the offering and sale of the
Program Securities, including any opinions to be rendered by such counsel
hereunder, and (x) any out-of-pocket expenses incurred by you; provided
that any advertising expenses incurred by you shall have been approved by
the Company.
(h) During the period beginning on the date of any Notes Terms
Agreement or Units Terms Agreement relating to either Notes or Units, as
the case may be, and continuing to and including the Settlement
16
Date with respect to such Notes Terms Agreement or Units Terms Agreement,
the Company will not, without your prior consent, offer, sell, contract to
sell or otherwise dispose of (i) in the case of Notes, any debt securities
of the Company substantially similar to the Notes set forth in such Notes
Terms Agreement (other than (A) the Notes that are to be sold pursuant to
such Notes Terms Agreement, (B) Notes previously agreed to be sold by the
Company and (C) commercial paper issued in the ordinary course of
business) or (ii) in the case of Units, any securities substantially
similar to such Units (other than (A) the Units that are sold pursuant to
such Units Terms Agreement or (B) Units previously agreed to be sold by
the Company), in each case, except as may otherwise be provided in the
applicable Notes Terms Agreement or Units Terms Agreement.
(i) The Company will indemnify and hold you harmless against any
documentary, stamp or similar transfer or issue tax, including any
interest and penalties, on the issue of the Program Securities in
accordance with the terms of this Agreement, on the execution and delivery
of this Agreement, any Written Notes Terms Agreement or Written Units
Terms Agreement and on the exchange of any temporary global Notes for
definitive Notes or permanent global Notes, of any temporary global Units
for definitive Units or permanent global Units, of any permanent global
bearer Notes for definitive bearer Notes or of any permanent global bearer
Units for definitive bearer Units, that are or may be required to be paid
under the laws of the United Kingdom, the United States or any political
subdivision or taxing authority thereof or therein.
(j) In connection with any application to admit the Series D Notes or
Series D Units to the Official List of the UK Listing Authority and to
trading on the London Stock Exchange, the Company will furnish from time
to time any and all documents, instruments, information and undertakings
and publish all advertisements or other material that may be necessary in
order to effect such listing and trading and will maintain such listing
and trading until, (i) in the case of the Notes, none of the Series D
Notes is outstanding, either as part of a Unit or otherwise, or until such
time as payment of principal, premium, if any, and interest in respect of
all the Series D Notes, whether issued alone or as part of a Unit, has
been duly provided for, whichever is earlier and (ii) in the case of the
Units, none of the Series D Units is outstanding; provided, however, that
if the Company can no longer reasonably maintain such listing and trading,
including, but not limited to, in circumstances where obtaining or the
maintenance of such listing would require preparation of financial
statements in accordance with accounting standards other than U.S. GAAP or
where the proposed European Union Transparency Obligations Directive (the
"Directive") is implemented in a manner that, in the Company's opinion, is
burdensome, it will consider obtaining and
17
maintaining the quotation for, or listing and trading of, the Series D
Notes and Series D Units by such other listing authority, stock exchange
and/or quotation system (in the case of a delisting in response to the
Directive, outside the European Union) as you shall reasonably request.
However, if such an alternative listing is not available to the Company or
is, in the Company's opinion, burdensome, an alternative listing for the
Series D Notes and Series D Units need not be considered by the Company.
In addition, for so long as the Series D Notes and Series D Units are
admitted to listing, trading and/or quotation by a listing authority,
stock exchange and/or quotation system, and such listing authority, stock
exchange and/or quotation system so requires, the Company will maintain in
London, or in such other place as the Series D Notes and Series D Units
are listed (if the Series D Notes and Series D Units are no longer listed
on the London Stock Exchange), a paying agent in respect of the Series D
Notes or Series D Units, as required.
(k) In respect of any Notes which have a maturity of less than one
year where either (a) the issue proceeds of such Notes are received by the
Company in the United Kingdom or (b) the activity of issuing such Notes is
carried on from an establishment maintained by the Company in the United
Kingdom, the Company will issue such Notes only if the following
conditions apply (or the Notes can otherwise be issued without
contravention of Section 19 of the FSMA): (i) you represent, warrant and
agree in the terms relating to the Notes set out in Section 7(b)(v); and
(ii) the redemption value of each such Note is not less than <129>'100,000
(or an amount of equivalent value denominated wholly or partly in a
currency other than sterling), and no part of any Note may be transferred
unless the redemption value of that part is not less than <129>'100,000
(or such an equivalent amount).
4. Conditions of the Obligations of the Agents. Your obligation to solicit
offers to purchase Program Securities as agents of the Company, your obligation
to purchase Program Securities as principals pursuant to any Notes Terms
Agreement or Units Terms Agreement and the obligation of any other purchaser to
purchase Program Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of your obligation to
solicit offers to purchase Program Securities, at the time of such
solicitation, and, in the case of your or any other purchaser's obligation to
purchase Program Securities, at the time the Company accepts the offer to
purchase such Program Securities and at the time of issuance and delivery) and
(in each case) to the following additional conditions precedent when and as
specified:
18
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus, as amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made, that, in
your judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Program Securities on the terms
and in the manner contemplated by the Prospectus, as so amended or
supplemented;
(ii) there shall not have occurred such a change in national or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would in your view be likely
to prejudice materially the success of the offering and distribution
of the Program Securities or dealings in the Program Securities in
the secondary market; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded the Company
or any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed to you in writing by the Company prior to such solicitation or, in
the case of a purchase of Program Securities, before the offer to purchase such
Program Securities was made or (B) unless in each case described in (ii) above,
the relevant event shall have occurred and been known to you prior to such
solicitation or, in the case of a purchase of Program Securities, before the
offer to purchase such Program Securities was made.
(b) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date,
you shall have received:
(i) The opinion, dated as of such date, of Sidley Austin
Brown & Wood LLP, counsel to the Company, or of other counsel
satisfactory to you and who may be an officer of the Company, to
the following effect that:
19
(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 Holdings Inc. (each a "Material Subsidiary")
has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its
business as described in the Prospectus, as amended or
supplemented, and is duly qualified to transact business
and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole;
(C) each of the Company and its Material Subsidiaries
has all necessary consents, authorizations, approvals,
orders, certificates and permits of and from, and has made
all declarations and filings with, all federal, state,
local and other governmental authorities, all
self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use its properties
and assets and to conduct its business in the manner
described in the Prospectus, as amended or supplemented,
except to the extent that the failure to obtain or file
would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole;
(D) each of this Agreement and any applicable Written
Notes Terms Agreement or Written
20
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 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,
21
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 Prepaid 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
Prepaid 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 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
22
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. 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
23
Indentures, the Unit Agreement, any Unit Agreement Without
Holders' Obligations, the Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement;
provided, however, that no opinion is expressed on whether
the purchase of the Program Securities constitutes a
"prohibited transaction" under Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, or
Section 4975 of the Internal Revenue Code of 1986, as
amended;
(K) the statements (1) in the Prospectus, as then
amended or supplemented, under the captions "Description of
Notes" (in the Prospectus Supplement), "Description of Debt
Securities" (in the Basic Prospectus), "Description of
Units" (in the Prospectus Supplement and in the Basic
Prospectus), "Plan of Distribution" (in the Prospectus
Supplement and in the Basic Prospectus), "Description of
Purchase Contracts" (in the Basic Prospectus) and
"Description of Warrants" (in the Basic Prospectus), (2) in
the Registration Statement, as then amended or
supplemented, under Item 15, (3) in "Item 3. Legal
Proceedings" of the most recent annual report on Form 10-K
incorporated by reference in the Prospectus and (4) in
"Item 1. Legal Proceedings" of Part II of the quarterly
reports on Form 10-Q, if any, filed since such annual
report and incorporated by reference in the Prospectus, in
each case insofar as such statements constitute summaries
of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with
respect to such legal matters, documents and proceedings
and fairly summarize the matters referred to therein;
(L) after due inquiry, such counsel does not know of
any legal or governmental proceedings pending or threatened
to which the Company or any of its consolidated
subsidiaries is a party or to which any of the properties
of the Company or any of its consolidated subsidiaries is
subject that are required to be described in the
Registration Statement or the Prospectus, as then amended
or supplemented, and are not so described or of any U.S.
federal or state statutes, regulations, contracts or other
documents governed by U.S. federal or state law that are
required to be described in the Registration Statement or
the Prospectus, as then amended or
24
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 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
25
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), (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
26
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 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
27
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.
(f) On the Commencement Date, application to admit the Series D Notes
issued by the Company during the twelve months following the date of the
approval of such application to listing on the Official List of the UK
Listing Authority and to trading on the London Stock Exchange shall have
been made and, prior to the issuance of the first Series D Note offered
pursuant to this Agreement, such admission to listing and to trading shall
have been granted, subject to official notice of issuance.
5. Additional Agreements of the Company. (a) Each time the Registration
Statement or Prospectus is amended or supplemented (other than by an amendment
or supplement providing solely for (i) in the case of Notes, a change in the
interest rates, redemption provisions, amortization schedules or maturities
offered on the Notes issued alone or as part of a Unit, (ii) in the case of
Units, (x) a change in the exercise price, exercise date or period or
expiration of an underlying 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.
28
(b) Each time the Company furnishes a certificate pursuant to Section 5(a)
(other than any amendment or supplement to the Registration Statement or
Prospectus caused by the filing of a Current Report on Form 8-K unless you
shall reasonably request based on disclosure included or omitted from such
Report), the Company will furnish or cause to be furnished forthwith to you a
written opinion of counsel for the Company. Any such opinion shall be dated the
date of such amendment or supplement, as the case may be, shall be in a form
satisfactory to you and shall be of the same tenor as the opinions referred to
in Section 4(b), but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion.
In lieu of such opinion, counsel last furnishing such an opinion to you may
furnish to you a letter to the effect that you may rely on such last opinion to
the same extent as though it were dated the date of such letter (except that
statements in such last opinion will be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented to the time of delivery
of such letter.)
(c) Each time the Registration Statement or the Prospectus is amended or
supplemented to set forth amended or supplemental financial information or such
amended or supplemental information is incorporated by reference in the
Prospectus, the Company shall cause its independent auditors forthwith to
furnish you with a letter, dated the date of such amendment or supplement, as
the case may be, in form satisfactory to you, of the same tenor as the letter
referred to in Section 4(d), with regard to the amended or supplemental
financial information 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.
29
(b) You agree to indemnify and hold harmless the Company, its directors,
its officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to you, but only with reference to information
relating to you furnished to the Company in writing by you expressly for use in
the Registration Statement or the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by 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
30
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b)
of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Program Securities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and you on the other hand from the offering of such
Program Securities or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and you on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and you on the other hand in connection with the offering of such 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
31
required to contribute any amount in excess of the amount by which the total
price at which the Program Securities referred to in paragraph (d) above that
were offered and sold to the public through you exceeds the amount of any
damages that you have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6
and the representations, warranties and other statements of the Company, its
officers and you set forth in or made pursuant to this Agreement or any Notes
Terms Agreement or Units Terms Agreement will remain operative and in full
force and effect regardless of (i) any termination of this Agreement or any
such Notes Terms Agreement or Units Terms Agreement, (ii) any investigation
made by or on behalf of you or any person controlling you or by or on behalf of
the Company, its officers or directors or any person controlling the Company
and (iii) acceptance of and payment for any of the Program Securities.
7. Offering Restrictions. You hereby represent to the Company and agree
with respect to the Program Securities that:
(a) (i) you have not (A) offered or sold and will not offer or sell
during the Restricted Period (as defined below) Bearer Notes (whether
offered alone or as part of a Unit) (including any Note that is
exchangeable for Bearer Notes) directly or indirectly in the United States
(as defined below) or to or for the account of any United States person
(as defined below), other than to a Qualifying Foreign Branch (as defined
below) or to certain other persons as provided under United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(1)(iii)(B) and (C); and
(B) delivered and will not deliver within the United States definitive
Bearer Notes that are sold during the Restricted Period;
(ii) you have, and throughout the Restricted Period will have,
in effect procedures reasonably designed to ensure that your
employees or agents who are directly engaged in selling Bearer Notes
(whether offered alone or as part of a Unit) are aware that such
Bearer Notes may not be offered or sold during the Restricted Period
to a person who is within the United States or to a United States
person, except as permitted by Section 7(a)(i)(A) above;
32
(iii) if you are a United States person, you are acquiring the
Bearer Notes (whether offered alone or as part of a Unit) for
purposes of resale in connection with their original issuance and if
you retain Bearer Notes for your own account, you will only do so in
accordance with the requirements of United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(6);
(iv) if you transfer to any affiliate Bearer Notes (whether
offered alone or as part of a Unit) for the purpose of offering or
selling such Bearer Notes during the Restricted Period, you will
either (A) obtain from such affiliate for the benefit of the Company
the representations and agreements contained in clauses (i), (ii) and
(iii) above or (B) repeat and confirm the representations and
agreements contained in clauses (i), (ii) and (iii) above on such
affiliate's behalf and obtain from such affiliate the authority to so
obligate it; and
(v) you will obtain for the benefit of the Company the
representations and agreements contained in clauses (i), (ii), (iii)
and (iv) above from any person other than your affiliate with whom
you enter into a written contract, within the meaning of United
States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(4), for the
offer or sale during the Restricted Period of Bearer Notes (whether
offered alone or as part of a Unit).
For purposes of this Section 7(a), an offer or sale will be considered to be
made in the United States if the offeror or seller of such Notes (whether
offered alone or as part of a Unit) has an address within the United States for
the offeree or purchaser of such Notes with respect to the offer or sale. As
used in this Section 7(a), "United States person" means a citizen or resident
of the United States, a corporation or partnership (including an entity treated
as a corporation or partnership for United States federal income tax purposes)
created or organized in or under the laws of the United States, any State
thereof or the District of Columbia, an estate the income of which is subject
to United States federal income taxation regardless of its source or a trust if
both (x) a court within the United States is able to exercise primary
supervision over the administration of the trust and (y) one or more United
States persons have the authority to control all substantial decisions of the
trust; "United States" means the United States (including the States and the
District of Columbia), its territories, its possessions and any other areas
subject to its jurisdiction; "Qualifying Foreign Branch" means a branch of a
United States financial institution, as defined in the applicable United States
Treasury Regulations, located outside the United States that is purchasing for
its own account or for resale and that has agreed, as a condition to purchase,
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended (the
33
"Code"), and the regulations thereunder; and "Restricted Period" with respect
to each issuance means the period which begins on the earlier of the date on
which the Company receives the proceeds of the sale of Notes with respect to
such issuance or the first date on which the Notes are offered to persons other
than you, and which ends 40 days after the date on which the Company receives
the proceeds of the sale of such Notes; provided that with respect to a Note
held as part of an unsold allotment or subscription, any offer or sale of such
Note by the Company or you shall be deemed to be during the Restricted Period.
(b) (i) In relation to Notes which have a maturity of one year or
more and which are to be admitted to the Official List of the UK Listing
Authority, you have not offered or sold and will not offer or sell any
such Notes to persons in the United Kingdom prior to the admission of such
Notes to listing in accordance with Part VI of the FSMA, except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995 or the FSMA,
as amended;
(ii) in relation to Notes which have a maturity of one year or
more and which are not to be admitted to the Official List of the UK
Listing Authority, you have not offered or sold and, prior to the
expiry of the period of six months from the date of issue of such
Notes, will not offer or sell any such Notes to persons in the United
Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise
in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995;
(iii) you have complied with and will comply with all applicable
provisions of the FSMA with respect to anything done by you in
relation to the Notes in, from or otherwise involving the United
Kingdom;
(iv) you have only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the FSMA) received by you in connection with the issue
or sale of
34
Notes in circumstances in which Section 21(1) of the FSMA does not
apply to the Company; and
(v) with respect to any Notes which have a maturity of less than
one year, (A) you are a person whose ordinary activities involve you
in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of your business, and (B) you
have not offered or sold and will not offer or sell any such Notes
other than to persons (1) whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or (2) who
it is reasonable to expect will acquire, hold, manage or dispose of
investments (as principal or agent) for the purposes of their
businesses, where the issue of the Notes would otherwise constitute a
contravention of Section 19 of the FSMA by the Company.
(c) (i) You have complied and will comply with all applicable
provisions of the FSMA in respect to anything done in relation to any
Warrants in, from or otherwise involving the United Kingdom. Any
invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the FSMA) received by any person in connection
with the issue or sale of any Warrants has only communicated or caused to
be communicated and will only communicate or cause to be communicated in
circumstances in which Section 21(l) of the FSMA does not apply to the
Company.
(ii) If the Warrants give entitlements to securities within the
meaning of the Public Offers of Securities Regulations 1995, you have
not offered or sold and will not offer or sell any such Warrants to
persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom
within the meaning of those Regulations.
(d) You will not purchase, deliver, offer or sell any Program
Securities or possess or distribute offering material in relation to such
Program Securities in any jurisdiction if such purchase, delivery, offer
or sale or the possession or distribution of such offering material would
not be in compliance with any applicable law or regulation or if any
consent, approval or permission is needed for such purchase, delivery,
offer or sale or the possession or distribution by you or for or on behalf
of the
35
Company unless such consent, approval or permission has been previously
obtained. Without prejudice to the provisions of this Section 7 above and
subject to the obligations of the Company set forth in Section 3 of this
Agreement, the Company shall have no responsibility for, and you will
obtain, any consent, approval or permission required by you for the
subscription, offer, sale or delivery by you of Program Securities, or the
possession or 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.
(e) You will not offer or sell any Program Securities, directly or
indirectly, in Japan or to, or for the benefit of, any resident of Japan
(which term as used herein means any person resident in Japan including
any corporation or other entity organized under the laws of Japan) or to
others for the re-offering or re-sale, directly or indirectly, in Japan or
to a resident of Japan except pursuant to an exemption from the
registration requirements of, and otherwise in compliance with, the
Securities and Exchange Law of Japan and other relevant laws and
regulations of Japan.
(f) Each of the Agents and the Company represents and agrees that
Program Securities will be issued outside the Republic of France, that it
will not offer or sell any Program Securities in the Republic of France
and will not distribute or cause to be distributed in the Republic of
France the Prospectus or any other offering material relating to Program
Securities, except to (i) qualified investors (investisseurs qualifies)
and/or (ii) within a restricted circle of investors (cercle restreint
d'investisseurs), all as defined in and in accordance with Article L.411-2
of the Code Monetaire et Financier and Decree no 98-880 dated 1st October,
1998.
8. Position of the Agent. In acting under this Agreement and in connection
with the sale of any Program Securities by the Company (other than Program
Securities sold to you pursuant to a Notes Terms Agreement or Units Terms
Agreement, as the case may be), you are acting solely as agent of the Company
and do not assume any obligation towards or relationship of agency or trust
with any purchaser of Program Securities. You shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Program Securities has been solicited by you and accepted by the
Company, but you shall not have any liability to the Company in the event any
such purchase is not consummated for any reason. If the Company shall default
in its obligations to deliver Program Securities to a purchaser whose offer it
has accepted, the Company shall hold you harmless against any loss, claim,
damage or liability arising from or as a result of such default and shall, in
particular, pay to you the commission you would have received had such sale
been consummated.
36
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(g), 3(i), 3(j), 6, 7, 8, 10, 11 and 13 shall survive; provided
that if at the time of termination an offer to purchase Program Securities has
been accepted by the Company but the time of delivery to the purchaser or its
agent of such Program Securities has not occurred, the provisions of Sections
1, 2(b), 2(c), 3(a), 3(d), 3(e), 3(f), 3(h), 4 and 5 shall also survive until
such delivery has been made.
10. Notices. All communications hereunder will be in writing and effective
only on receipt, and (a) if sent to Morgan Stanley & Co. International Limited,
will be mailed, delivered or telefaxed and confirmed to Morgan Stanley & Co.
International Limited, 25 Cabot Square, Canary Wharf, London E14 4QA, United
Kingdom, to the attention of Global Capital Markets - Head of Transaction
Management Group (Telephone No.: +44-20-7677-7799; Telecopy No.:
+44-20-7677-7999) and (b) if sent to the Company, will be mailed, delivered or
telefaxed and confirmed to Morgan Stanley, 1221 Avenue of the Americas, New
York, New York 10020, Attention: Treasurer (Telecopy No.: 212-762-7337) (or to
such other address as the Company may designate).
11. Successors. This Agreement and any Notes Terms Agreement or Units
Terms Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers, directors and
controlling persons referred to in Section 6 and the purchasers of Notes and
Units (to the extent expressly provided in Section 4), and no other person will
have any right or obligation hereunder.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
37
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 & CO.
INTERNATIONAL LIMITED
By:
-----------------------------
Name:
Title:
EXHIBIT A
MORGAN STANLEY
GLOBAL MEDIUM-TERM NOTES, SERIES D AND SERIES E
NOTES TERMS AGREEMENT
_______________, 200_
Morgan Stanley
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated [______], 2004 (the "Euro
Distribution Agreement")
------------------------------------------------------------
The undersigned agrees to purchase your Global Medium-Term Notes, Series
D/E, [specific designation] having the following terms:
All Notes Fixed Rate Notes Floating Rate Notes
- --------------------------------- ---------------------------------- -------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset Date:
Currencies (if any):
A-1
All Notes Fixed Rate Notes Floating Rate Notes
- --------------------------------- ---------------------------------- -------------------
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Interest Payment Period: Reference Dealers: Maximum Interest Rate:
Maturity Date: Face Amount (if any): Minimum Interest Rate:
Optional Repayment Fixed Amount of each Calculation Agent:
Date(s): Indexed Currency (if any):
Optional Redemption Aggregate Fixed Amount of Reporting Service:
Date(s): each Indexed Currency (if
any):
Initial Redemption Date: Index Currency:
Initial Redemption Designated CMT Telerate
Percentage: Page:
Annual Redemption Designated CMT Maturity
Percentage Reduction: Index:
Ranking:
Series:
Minimum Denominations:
Other Terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and 10 through
14 of the Euro Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is also subject to termination on the terms incorporated by
reference herein. If this Agreement is so terminated, the provisions of
Sections 3(g), 6, 10, 11 and 13 of the Euro Distribution Agreement shall
survive for the purposes of this Agreement.
A-2
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the Euro Distribution Agreement will be required:
________________.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:
--------------------------
Name:
Title:
Accepted:
MORGAN STANLEY
By:
------------------------
Name:
Title:
A-3
EXHIBIT A-1
MORGAN STANLEY
GLOBAL UNITS, SERIES D AND SERIES E
UNITS TERMS AGREEMENT
_______________, 200_
Morgan Stanley
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated [__________],
2004 (the "Euro Distribution Agreement")
-----------------------------------------------
The undersigned agrees to purchase your Global Units, Series D/E,
[specified designation] having the following terms:
Warrants Issued as Part Purchase Contracts
All Units: of a Unit: Issued as Part of a Unit:
- ----------------------------------- ------------------------------------ -----------------------------
Settlement Date and Time: Price: Price:
Number (Face Amount): Designation of the Series of Designation of the Series of
Warrants: [Call] [Put] Purchase Contracts:
Warrants [Purchase][Sale] Purchase
Contracts
Purchase Price: Warrant Property: Aggregate Number of Purchase
Contracts:
Specified Currency: Aggregate Number of
Warrants: Purchase Contract Property:
Severability: Date(s) upon which Quantity per Purchase
Warrants may be exercised: Contract:
Other Terms: Currency in which exercise [Purchase] [Sale] Price:
payments shall be made:
A-1-1
Warrants Issued as Part Purchase Contracts
All Units: of a Unit: Issued as Part of a Unit:
- ----------------------------------- ------------------------------------ -----------------------------
Exchange Rate (or method Settlement Date:
of calculation:
Expiration Date: Payment Location:
Form of Settlement: Method of Settlement:
[Call Price:](1)
[Formula for determining Currency of Settlement
Cash Settlement Value:](2) Payment:
[Amount of Warrant Contract Fees, if any:
Property Salable per
Warrant:](3)
[Put Price for such specified Corporation Acceleration:
amount of Warrant Property
per Warrant:](2)
[Method of delivery of any Holders' Acceleration:
Warrant Property to be
delivered for sale upon
exercise of Warrants:](3)
Other Terms: Redemption Provisions:
Other Terms:
- --------------------
(1) Applicable to Call Warrants
(2) Applicable to Put Warrants
(3) Applicable to Put Warrants only if such Put Warrants contemplate that the
holder deliver Warrant Property to settle Put Warrants
A-1-2
All Notes Issued as Part of Fixed Rate Notes Issued Floating Rate Notes
a Unit: as Part of a Unit: Issued as Part of a Unit:
- ----------------------------------- ----------------------------------- -------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset Date:
Currencies (if any):
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Interest Payment Period: Reference Dealers: Maximum Interest Rate:
Maturity Date: Face Amount (if any): Minimum Interest Rate:
Optional Repayment Fixed Amount of each Calculation Agent:
Date(s): Indexed Currency (if any):
Optional Redemption Aggregate Fixed Amount of Reporting Service:
Date(s): each Indexed Currency (if
any):
Initial Redemption Date: Index Currency:
Initial Redemption Designated CMT Telerate
Percentage: Page:
Annual Redemption Designated CMT Maturity
Percentage Reduction: Index:
Ranking:
A-1-3
All Notes Issued as Part of Fixed Rate Notes Issued Floating Rate Notes
a Unit: as Part of a Unit: Issued as Part of a Unit:
- ----------------------------------- ----------------------------------- -------------------------
Series:
Minimum Denominations:
Other Terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and 10 through
14 of the Euro Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.(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(g), 6, 10, 11 and 13 of the Euro Distribution Agreement shall survive for the
purposes of this Agreement.
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the Euro Distribution Agreement will be required:
___________.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:
------------------------------
Name:
Title:
-----------
(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
Accepted:
MORGAN STANLEY
By:
----------------------------
Name:
Title:
A-1-5
EXHIBIT B
MORGAN STANLEY
GLOBAL MEDIUM-TERM NOTES, SERIES D AND SERIES E
GLOBAL UNITS, SERIES D AND SERIES E
ADMINISTRATIVE PROCEDURES
_________________________________
Explained below are the administrative procedures and specific terms of
the offering of (i) Global Medium-Term Notes, Series D (the "Series D Notes"),
(ii) Global Medium-Term Notes, Series E (the "Series E Notes" and together with
the Series D Notes, the "Notes"), (iii) Global Units, Series D (the "Series D
Units") and (iv) Global Units, Series E (the "Series E Units" and together with
the Series D Units, the "Units", and the Units together with the Notes, the
"Program Securities"), on a continuous basis by Morgan Stanley (the "Company")
pursuant to the Euro Distribution Agreement dated [__________], 2004 (as may be
amended from time to time, the "Distribution Agreement") between the Company
and Morgan Stanley & Co. International Limited (the "Agent"). The Notes may be
issued, either alone or as part of a Unit, in registered form without coupons
("Registered Notes"), in bearer form with or without coupons ("Bearer Notes")
or in any combination of Registered Notes and Bearer Notes. The Units may be
issued in registered form ("Registered Units"), in bearer form ("Bearer Units")
or in any combination of Registered Units and Bearer Units. The securities
comprised by a Unit will be issued in the same form as such Unit. Bearer Notes
and Bearer Units initially will be represented by, in the case of Bearer Notes,
a Temporary Global Note and, in the case of Bearer Units, a Temporary Global
Unit. Such Temporary Global Note and Temporary Global Unit will subsequently be
represented by, in the case of the Temporary Global Note, a Permanent Global
Note and, in the case of the Temporary Global Unit, a Permanent Global Unit.
Interests in a Permanent Global Note may be exchanged, in whole, for individual
definitive Bearer Notes with or without coupons attached. Definitive Bearer
Notes may be exchanged, if the applicable Pricing Supplement so specifies, in
whole or in part, for Registered Notes. Interests in a Permanent Global Unit
may be exchanged, in whole, for individual definitive Bearer Units. Definitive
Bearer Units may be exchanged, if the applicable Pricing Supplement so
specifies, in whole or in part, for Registered Units.
The Notes may be issued as senior indebtedness (the "Senior Notes") or
subordinated indebtedness (the "Subordinated Notes") of the Company, and as
used herein the term "Notes" includes the Senior Notes and the Subordinated
B-1
Notes. The Senior Notes will be issued, either alone or as part of a Unit,
pursuant to the provisions of an amended and restated senior indenture dated
May 1, 1999 (as may be supplemented or amended from time to time, the "Senior
Debt Indenture"), between the Company and JPMorgan Chase Bank (formerly known
as The Chase Manhattan Bank), as trustee (the "Senior Debt Trustee"). The
Subordinated Notes will be issued pursuant to the provisions of an amended and
restated subordinated indenture, dated as of May 1, 1999 (as may be
supplemented or amended from time to time, the "Subordinated Debt Indenture"),
between the Company and J.P. Morgan Trust Company, National Association (as
successor in interest to Bank One Trust Company, N.A., 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 (1) pursuant to the Unit Agreement dated as of August 26, 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 (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 D & E Senior Notes,
(ii) warrants ("Warrants") entitling the holders thereof to purchase or sell
(a) securities issued by the Company or by an entity not affiliated with the
Company (or securities issued by an entity affiliated with the Company in the
case of Series E Units), a basket of such securities, an index or indices of
such
- ----------
(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
securities or any combination of the above, (b) currencies or (c) commodities,
(iii) purchase contracts ("Purchase Contracts"), including Pre-paid Purchase
Contracts, requiring the holders thereof to purchase or sell (a) securities
issued by the Company or by an entity not affiliated with the Company (or
securities issued by an entity affiliated with the Company in the case of
Series E Units), 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 August 26, 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 or Units for its own account, and the
Company and the Agent will enter into a terms agreement (in the case of Notes,
a "Notes Terms Agreement" and, in the case of Units, a "Units Terms
Agreement"), as contemplated by the Distribution Agreement. The administrative
procedures explained below will govern the issuance and settlement of any Notes
or Units purchased by the Agent, as principal, unless otherwise specified in
the applicable Notes Terms Agreement or Units Terms Agreement.
JPMorgan Chase Bank ("JPMorgan Chase") has initially been appointed the
(i) Calculation Agent, Authenticating Agent and Principal Paying Agent for the
Notes (and any Cash-settled Pre-Paid Purchase Contracts), (ii) the Unit Agent
for the Units and Purchase Contracts (other than Cash-settled Pre-Paid Purchase
Contracts), (iii) the Warrant Agent for the Warrants and (iv) the Registrar for
the Registered Notes, and will perform the duties specified herein. As used
herein, the term "Principal Paying Agent" shall mean JPMorgan Chase acting
through its London office in connection with the authentication and delivery of
the Notes, whether issued alone or as part of a Unit, (and any Cash-settled
Pre-Paid Purchase Contracts) pursuant to the terms of the Indentures, and the
term "Unit Agent" shall mean JPMorgan Chase acting through its London office in
connection with the completion and delivery of the Units (including, as
applicable, countersigning and delivering any Warrants, as Warrant Agent, and
countersigning, executing and delivering any Purchase Contracts (other than
Cash-settled Pre-Paid Purchase Contracts), as Unit Agent, includable in such
Unit), pursuant to the terms of the Unit Agreements. "Warrant Agent" shall mean
JPMorgan Chase acting through
B-3
its London office. The Series D Notes are intended to be, and the Series D
Units, in certain circumstances described in the Prospectus Supplement (as such
term is defined in the Distribution Agreement), may be, admitted to the
Official List of the Financial Services Authority (the "UK Listing Authority")
in its capacity as competent authority for the purposes of Part VI of the
Financial Services and Markets Act 2000 (the "FSMA"), and to trading on the
London Stock Exchange plc (the "London Stock Exchange"). Series E Notes and the
Series E Units will not be listed on any stock exchange. The Company has
appointed Morgan Stanley & Co. International Limited as the authorized adviser
for purposes of applications to admit the Series D Notes and the Series D
Units, if it is determined that Series D Units are to be so admitted, to the
Official List of the UK Listing Authority and to trading on the London Stock
Exchange.
Each Bearer Note and each Bearer Unit (including each security comprised
by such Bearer Unit) initially will be represented by, in the case of a Bearer
Note, a Temporary Global Note and, in the case of a Bearer Unit, a Temporary
Global Unit, each of which will be delivered to a common depositary located
outside the United States (the "Depositary") for Euroclear Bank S.A./N.V., as
operator of the Euroclear System (the "Euroclear Operator"), Clearstream
Banking, societe anonyme ("Clearstream"), and/or any other relevant clearing
system (including Euroclear France). Such Temporary Global Note and Temporary
Global Unit will subsequently be represented by, in the case of the Temporary
Global Note, a Permanent Global Note and, in the case of the Temporary Global
Unit, a Permanent Global Unit. Upon the first request by any beneficial owner
to exchange any interest in a Permanent Global Note to a definitive Bearer
Note, or if any Note represented by such Permanent Global Note is accelerated
following an event of default with respect to such Note or if either the
Euroclear Operator, Clearstream or any other relevant clearing system is closed
for business for a continuous period of fourteen days (other than by reason of
public holidays) or announces an intention to cease business permanently or in
fact does so, then all (and not less than all) interests in such Permanent
Global Note shall be exchanged for definitive Bearer Notes; provided that, if
the applicable Pricing Supplement so specifies, nothing herein shall prevent
the further exchange of definitive Bearer Notes for Registered Notes. Upon the
first request by any beneficial owner to exchange any interest in a Permanent
Global Unit to a definitive Bearer Unit, or if any Note comprised by such
Permanent Global Note is accelerated following an event of default with respect
to such Note or if either the Euroclear Operator, Clearstream or any other
relevant clearing system is closed for business for a continuous period of
fourteen days (other than by reason of public holidays) or announces an
intention to cease business permanently or in fact does so, then all (and not
less than all) interests in such Permanent Global Unit shall be exchanged for
definitive Bearer Units; provided that, if the applicable Pricing Supplement so
specifies, nothing herein shall prevent the further exchange of definitive
Bearer Units for Registered Units.
B-4
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.
B-5
ADMINISTRATIVE PROCEDURES FOR
BEARER NOTES, REGISTERED NOTES,
BEARER UNITS AND REGISTERED UNITS
Issuance: Bearer Notes. Each Bearer Note, whether issued alone
or as part of a Unit, will be dated as of its Original
Issue Date. Each Bearer Note will bear an Original
Issue Date, which will be (i) with respect to a
Temporary Global Note (or any portion thereof), the
date of its original issue as specified in such
Temporary Global Note or (ii) with respect to any
Permanent Global Note or any definitive Bearer Note
(or any portion thereof) issued subsequently upon
transfer or exchange of a Bearer Note or in lieu of a
destroyed, lost or stolen Bearer Note (a "Replacement
Bearer Note"), the Original Issue Date of the
predecessor Bearer Note, regardless of the date of
authentication of such subsequently issued Bearer
Note.
Registered Notes. Each Registered Note, whether issued
alone or as part of a Unit, will be dated as of the
date of its authentication by JPMorgan Chase. Each
Registered Note will also bear an Original Issue Date,
which will be (i) with respect to an original
Registered Note (an "Original Registered Note") (or
any portion thereof), its original issuance date
(which will be the settlement date) and (ii) with
respect to any Registered Note (or portion thereof)
issued subsequently upon transfer or exchange of a
Registered Note or in lieu of a destroyed, lost or
stolen Registered Note or upon exchange of a Bearer
Note (a "Replacement Registered Note"), the original
issuance date of the predecessor Registered Note or
Bearer Note, as the case may be, regardless of the
date of authentication of such subsequently issued
B-6
Registered Note.
Bearer Units. Each Bearer Unit (whether in temporary,
permanent or definitive form) will be deemed to be
dated as of the Original Issue Date of the Bearer Note
comprised by such Unit or, if there is no such
underlying Bearer Note, the date of the other
securities comprised thereby in accordance with the
procedures described above.
Registered Units. Each Registered Unit will be deemed
to be dated as of the Original Issue Date of the
Registered Note comprised by such Unit or, if there is
no such underlying Registered Note, as of the date of
the other securities comprised thereby in accordance
with the procedures described above.
Denominations: Bearer Notes. Unless otherwise specified in the
applicable Pricing Supplement, Bearer Notes, whether
issued alone or as part of a Unit, will be issued only
in denominations of $1,000 (or, in the case of Bearer
Notes not denominated in U.S. dollars, the equivalent
thereof in the Specified Currency, rounded to the
nearest 1,000 units of the Specified Currency) or any
amount in excess thereof which is an integral multiple
of $1,000 (or, in the case of Bearer Notes not
denominated in U.S. dollars, 1,000 units of the
Specified Currency).
Registered Notes. Unless otherwise specified in the
applicable Pricing Supplement, Registered Notes will
be issued, either alone or as part of a Unit, only in
denominations of $1,000 (or, in the case of Registered
Notes not denominated in U.S. dollars, the equivalent
thereof in the Specified Currency, rounded to the
nearest 1,000 units of the Specified Currency) or
B-7
any amount in excess thereof which is an integral
multiple of $1,000 (or, in the case of Registered
Notes not denominated in U.S. dollars, 1,000 units of
the Specified Currency).
Bearer Units. Unless otherwise specified in the
applicable Pricing Supplement, Bearer Units will be
issued only in denominations of a single Unit and any
integral multiple thereof, with face amounts in
denominations as indicated in the applicable Pricing
Supplement, generally corresponding to the
denominations of any Notes or other securities
comprised by such Units.
Registered Units. Unless otherwise specified in the
applicable Pricing Supplement, Registered Units will
be issued only in denominations of a single Unit and
any integral multiple thereof, with face amounts in
denominations as indicated in the applicable Pricing
Supplement, generally corresponding to the
denominations of any Notes or other securities
comprised by such Units.
Global Notes and
Definitive Bearer and
Registered Notes: Until Final Certification (as defined below) with
respect to an issuance of Bearer Notes has occurred,
such Notes, together with all other Bearer Notes that
have the same terms (other than their respective
principal amounts) (all such Notes herein referred to
collectively as a "Note Tranche"), will be represented
by a single Temporary Global Note in bearer form
without interest coupons. The Company shall execute,
and upon Company instructions the Principal Paying
Agent shall complete and authenticate, such Temporary
Global Note upon the same conditions and in
substantially the same manner, and with the
B-8
same effect, as an individual definitive Bearer Note.
On or prior to the settlement date (which will
normally be the Original Issue Date) with respect to
such Notes, the Principal Paying Agent shall deposit
the Temporary Global Note with the Depositary in the
manner specified below under "Settlement Procedures;
Bearer Notes and Bearer Units". The interest of each
beneficial owner of Notes represented by such
Temporary Global Note will be credited to the
appropriate account with the Euroclear Operator,
Clearstream or any other relevant clearing system.
On or after the date (the "Exchange Date") that is the
40th day following the date on which the Company
receives the proceeds of the sale of a Temporary
Global Note (the "Closing Date"), or if such Note is
held by the Agent as part of an unsold allotment or
subscription more than 40 days after the Closing Date
for such Note, on or after the day after the date such
Note is sold by the Agent, all as notified by the
Agent in writing to JPMorgan Chase, the interest of
the beneficial owners of the Notes represented by the
Temporary Global Note shall be canceled and such
interests shall thereafter be represented by a
Permanent Global Note in bearer form without interest
coupons held in London by the Depositary; provided
that Final Certification (as described below) has
occurred. The interest of each beneficial owner of
Notes represented by such Permanent Global Note will
be credited to the appropriate account with the
Euroclear Operator, Clearstream or any other relevant
clearing system.
If the beneficial owner of an interest in a Permanent
Global Note requests, at any time, upon 30 days'
written notice to the Principal Paying Agent given by
such
B-9
beneficial owner through either the Euroclear
Operator, Clearstream or any other relevant clearing
system, as the case may be, or if any Note represented
by such Permanent Global Note is accelerated following
an event of default with respect to such Note or if
either the Euroclear Operator, Clearstream or any
other relevant clearing system is closed for business
for a continuous period of fourteen days (other than
by reason of public holidays) or announces an
intention to cease business permanently or in fact
does so, such Permanent Global Note shall be exchanged
for one or more definitive Bearer Notes with coupons
attached, if appropriate, or, if the applicable
Pricing Supplement so specifies, one or more
Registered Notes in authorized denominations equal in
aggregate principal amount to such beneficial
interest; provided that any such exchange of an
interest in a Permanent Global Note for a definitive
Bearer Note shall result in the exchange of all (and
not less than all) interests in such Permanent Global
Note for definitive Bearer Notes; provided further,
that, if the applicable Pricing Supplement so
specifies, nothing herein shall prevent the further
exchange of definitive Bearer Notes for Registered
Notes. To effect such exchange, the interest of such
beneficial owner in such Permanent Global Note shall
be canceled and one or more definitive Bearer Notes or
Registered Notes, as the case may be, shall be issued
to such beneficial owner, through the Euroclear
Operator, Clearstream or any other relevant clearing
system, as the case may be.
In all events, Bearer Notes and coupons will be
delivered by the Principal Paying Agent only outside
the United States.
B-10
Global Units and
Definitive Bearer
and Registered Units: Until Final Certification (as defined below) has
occurred with respect to an issuance of Bearer Notes
included in an issuance of Bearer Units, such Units,
together with all other Bearer Units that include
securities that have the same terms (other than their
respective number and face amounts) (all such Units
herein referred to collectively as a "Unit Tranche"),
will be represented by a single Temporary Global Unit
in bearer form (which form shall include the
corresponding temporary global forms of each security
comprised by such Unit). The Company shall execute,
and upon Company instructions, JPMorgan Chase, as Unit
Agent, shall complete, such Temporary Global Unit
(including, as applicable, authenticating any
Temporary Global Note or Cash-settled Pre-paid
Purchase Contracts, as Principal Paying Agent,
countersigning and delivering any Warrants, as Warrant
Agent, and countersigning, executing and delivering
any Purchase Contracts (other than Cash-settled
Pre-paid Purchase Contracts), as Unit Agent,
includable in such Unit) upon the same conditions and
in substantially the same manner, and with the same
effect, as an individual definitive Bearer Unit. On or
prior to the settlement date (which will normally be
the Original Issue Date of the Note comprised by a
Unit or, if there is no such underlying Note, the date
of the other securities comprised thereby) with
respect to such Units, the Unit Agent shall deposit
the Temporary Global Unit (with the corresponding
temporary global forms of each security comprised by
such Unit) with the Depositary in the manner specified
below under "Settlement Procedures; Bearer Notes and
Bearer Units." The interest of each beneficial owner
of Units represented by such Temporary Global
B-11
Unit will be credited to the appropriate account with
the Euroclear Operator, Clearstream or any other
relevant clearing system.
On or after the Exchange Date of any Temporary Global
Note comprised by a Temporary Global Unit, the
interest of the beneficial owners of the Units
represented by the Temporary Global Unit shall be
canceled and such interests shall thereafter be
represented by a Permanent Global Unit in bearer form
(with the corresponding permanent global forms of each
security comprised by such Unit) held in London by the
Depositary; provided that Final Certification (as
described below) of any Notes comprised by such Unit
has occurred. The interest of each beneficial owner of
Units represented by such Permanent Global Unit will
be credited to the appropriate account with the
Euroclear Operator, Clearstream or any other relevant
clearing system.
If the beneficial owner of an interest in a Permanent
Global Unit requests, at any time, upon 30 days'
written notice to the Unit Agent given by such
beneficial owner through either the Euroclear
Operator, Clearstream or any other relevant clearing
system, as the case may be, or if any Note comprised
by such Permanent Global Note is accelerated following
an event of default with respect to such Note or if
either the Euroclear Operator, Clearstream or any
other relevant clearing system is closed for business
for a continuous period of fourteen days (other than
by reason of public holidays) or announces an
intention to cease business permanently or in fact
does so, such Permanent Global Unit shall be exchanged
for one or more definitive Bearer Units or, if the
applicable Pricing Supplement so specifies, one or
more
B-12
Registered Units in authorized denominations equal in
aggregate number and aggregate face amount to such
beneficial interest; provided that any such exchange
in any interest in a Permanent Global Unit for a
definitive Bearer Unit shall result in the exchange of
all (and not less than all) interests in such
Permanent Global Unit for definitive Bearer Units;
provided further, that, if the applicable Pricing
Supplement so specifies, nothing herein shall prevent
the further exchange of definitive Bearer Units for
Registered Units. To effect such exchange, the
interest of such beneficial owner in such Permanent
Global Unit shall be canceled and one or more
definitive Bearer Units or Registered Units, as the
case may be, shall be issued to such beneficial owner,
through the Euroclear Operator, Clearstream or any
other relevant clearing system, as the case may be.
In all events, Bearer Units will be delivered by the
Unit Agent only outside the United States.
Notes or Units
Purchased by U.S.
Persons: All Notes (whether issued alone or as part of a Unit)
purchased in connection with their original issuance
by or on behalf of a United States person (as defined
in the Distribution Agreement) (other than a branch of
a United States financial institution (as defined in
the applicable United States Treasury Regulation)
located outside the United States purchasing for its
own account or for resale (a "Qualifying Foreign
Branch") or other permitted U.S. purchasers as
provided in the Prospectus Supplement that satisfies
the conditions for receiving Bearer Notes as described
under "Final Certification" below) will be issued only
as Registered Notes and any Units comprising such
Notes will be issued
B-13
only as Registered Units.
Final Certification: Final Certification with respect to a Temporary Global
Note (whether issued alone or as part of a Unit) shall
mean the delivery by the Euroclear Operator,
Clearstream or any other relevant clearing system, as
the case may be, to the Principal Paying Agent of a
signed certificate (each a "Clearance System
Certificate") in the form set forth in Appendix 1
hereto with respect to the Notes being exchanged,
dated no earlier than the Exchange Date for such
Notes, to the effect that the Euroclear Operator,
Clearstream or any other relevant clearing system, as
the case may be, has received certificates in writing,
by tested telex or by electronic transmission from the
account holders appearing on its records as entitled
to such Notes ("Ownership Certificates") in the form
set forth in Appendix 2 hereto with respect to each of
such Notes, which Ownership Certificates shall be
dated no earlier than ten days before the Exchange
Date.
Preparation of Pricing
Supplement: If any offer to purchase a Program Security is
accepted by or on behalf of the Company, the Company
will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Program
Security, will arrange to file an electronic format
document, in the manner prescribed by the EDGAR Filer
Manual, of such Pricing Supplement with the Commission
in accordance with the applicable paragraph of Rule
424(b) under the Securities Act and will, as soon as
possible and in any event not later than the date on
which such Pricing Supplement is filed with the
Commission, deliver the number of copies of such
Pricing Supplement to the Agent as the Agent shall
request. The Agent will cause such Pricing
B-14
Supplement to be delivered to the purchaser of the
Program Security.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing Supplement
to Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will
be destroyed.
Settlement: The receipt by the Company of immediately available
funds in exchange for (i) the delivery of an
authenticated Temporary Global Note or a Temporary
Global Unit (including each security comprised by such
Unit) to the Depositary in the manner described in
"Settlement Procedures; Bearer Notes and Bearer Units"
below or (ii) the delivery of an authenticated
Registered Note or a Registered Unit (including each
security comprised by such Unit) to the Agent shall
constitute "settlement" with respect to such Note or
Unit. All offers accepted by the Company will be
settled on the fifth Business Day next succeeding the
date of acceptance pursuant to the timetable for
settlement set forth below, unless the Company and the
purchaser agree to settlement on another day, which
shall be no earlier than the next Business Day.
Settlement Procedures;
Bearer Notes and Bearer
Units: Procedures with regard to each Bearer Note or Bearer
Unit sold by the Company to or through the Agent
(unless otherwise specified pursuant to a Notes Terms
Agreement or a Units Terms Agreement) shall be as
follows:
A. In the case of a Bearer Note (whether issued
alone or as part of a Unit), the
B-15
Agent will advise the Company by telephone that
such Note is initially a Bearer Note and of the
following settlement information:
1. Principal amount.
2. Maturity Date.
3. Interest Payment Date(s).
4. In the case of a Fixed Rate Bearer Note, the
Interest Rate and whether such Note is an
Amortizing Note, and, if so, the
amortization schedule, or, in the case of a
Floating Rate Bearer Note, the Initial
Interest Rate (if known at such time),
Interest Payment Period, Calculation Agent,
Base Rate, Index Maturity, Index Currency,
Interest Reset Period, Initial Interest
Reset Date, Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum Interest
Rate (if any), Maximum Interest Rate (if
any) and the Alternate Rate Event Spread (if
any).
5. Redemption or repayment provisions, if any.
6. Ranking.
7. Settlement date and time (Original Issue
Date).
8. Interest Accrual Date.
9. Price.
10. Agent's commission, if any, determined as
provided in the
B-16
Distribution Agreement.
11. Specified Currency.
12. Whether the Note is an Original Issue
Discount Note (an "OID Note"), and if it is
an OID Note, the applicability of Modified
Payment upon Acceleration (and, if so, the
Issue Price).
13. Agent's account number at the Euroclear
Operator, Clearstream or any other relevant
clearing system.
14. Whether such Note is a Series D Note or a
Series E Note.
15. Any other applicable provisions.
B. In the case of a Bearer Unit, the Agent will
advise the Company by telephone that such Unit is
initially a Bearer Unit, of the information set
forth in Settlement Procedures; Bearer Notes and
Bearer Units "A" above with respect to Bearer
Notes that constitute a part of such Bearer Unit
and of the following information:
1. Settlement date and time.
2. Face Amount.
3. Agent's commission, if any, determined as
provided in the Distribution Agreement.
4. Designation of the Securities comprised by
such Units:
B-17
a. Notes (See "Settlement Procedures; Bearer
Notes and Bearer Units" "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 Bearer Unit comprises Bearer
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;
B-18
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 Bearer Unit comprises Bearer Purchase
Contracts:
a. Purchase Contract Property;
b. Price to Public;
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
B-19
f. Method of Computing Settlement Amount;
g. Currency of Settlement Payment;
h. Authorized Number of Purchase Contracts;
i. [Purchase] [Sale] Price of Purchase
Contract Property;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions; and
j. Any other applicable provisions.
C. The Company will advise JPMorgan Chase as the
Principal Paying Agent for the Notes or as the
Unit Agent for the Units by telephone or
electronic transmission (confirmed in writing at
any time on the same date) of the information set
forth in "Settlement Procedures; Bearer Notes and
Bearer Units" "A" or "B", above, as applicable,
and shall give the Principal Paying Agent or the
Unit Agent, as the case may be, written
instructions (substantially in the form set out
in Appendix 3 and Appendix 4, as applicable) to
prepare a Temporary Global Note for each Note
Tranche or a Temporary Global Unit (with the
corresponding temporary global forms of each
security comprised by such Unit) for
B-20
each Unit Tranche, as the case may be, which the
Company has agreed to sell. The Company will send
a copy of such instructions to the Agent and the
relevant Trustee, such instructions to contain a
representation as to the aggregate principal
amount of Program Securities permitted to be
issued hereunder after such issuance.
The Principal Paying Agent or the Unit Agent
shall telephone each of the Euroclear Operator,
Clearstream or any other relevant clearing system
with a request for a security code for each Note
Tranche or Unit Tranche (and, if applicable, a
security code for each security comprised by the
Units of such Unit Tranche) agreed to be issued
and shall notify the Company and the Agent of
such security code or codes as soon as
practicable.
D. In accordance with instructions received from the
Company, (i) the Principal Paying Agent shall
authenticate and deliver a Temporary Global Note
or Cash-settled Pre-paid Purchase Contract for
each Note Tranche or Unit Tranche, as applicable,
which the Company has agreed to sell and (ii) the
Unit Agent shall prepare a Temporary Global Unit
for each Unit Tranche which the Company has
agreed to sell (including, as applicable, by
countersigning and delivering any Warrants
includable in such Unit, by countersigning,
executing and delivering any Purchase Contracts
(other than Cash-settled Pre-Paid Purchase
Contracts) includable in such Unit and by
obtaining from the
B-21
Principal Paying Agent any Notes or Cash-settled
Pre-paid Purchase Contracts to be included in
such Units, authenticated in accordance with
clause (i) above). The settlement of each of the
Note Tranche and the Unit Tranche is to occur on
the relevant settlement date. All such Temporary
Global Notes and all such Temporary Global Units
(including all of the securities included in such
Units) will then be delivered to the Depositary.
The Principal Paying Agent or the Unit Agent, as
the case may be, will also give instructions to
the Euroclear Operator, Clearstream or any other
relevant clearing system to credit the Notes or
Units represented by such Temporary Global Note
or Temporary Global Unit delivered to such
Depositary to, in the case of the Notes, the
Principal Paying Agent's distribution account
and, in the case of the Units, the Unit Agent's
distribution account, at the Euroclear Operator,
Clearstream or any other relevant clearing
system. At settlement of any Note Tranche, the
Principal Paying Agent will instruct the
Euroclear Operator, Clearstream or any other
relevant clearing system to debit, on the
settlement date, from the distribution account of
the Principal Paying Agent the principal amount
of Notes of each Note Tranche, with respect to
which the Agent has solicited an offer to
purchase and to credit, on the settlement date,
such principal amount to the account of the Agent
with the Euroclear Operator, Clearstream or any
other relevant clearing system against payment of
B-22
the purchase payment price of such Notes. At
settlement of any Unit Tranche, the Unit Agent
will instruct the Euroclear Operator, Clearstream
or any other relevant clearing system to debit,
on the settlement date, from the distribution
account of the Unit Agent the number and face
amount of Units of each Unit Tranche, with
respect to which the Agent has solicited an offer
to purchase and to credit, on the settlement
date, such number and face amount to the account
of the Agent with the Euroclear Operator,
Clearstream or any other relevant clearing system
against payment of the purchase payment price of
such Units. In the case of the Notes and the
Units, the Agent shall give corresponding
instructions to the Euroclear Operator,
Clearstream or any other relevant clearing
system.
E. The Euroclear Operator, Clearstream and any other
relevant clearing system shall debit and credit
accounts in accordance with instructions received
from the Principal Paying Agent and the Agent, in
the case of Notes and the Unit Agent and the
Agent, in the case of Units.
Each of the Principal Paying Agent and the Unit
Agent shall pay the Company the aggregate net
proceeds received by it in immediately available
funds via a transfer of funds to the U.S. dollar
account of the Company with a bank in New York
City (or, with respect to Notes and Units payable
in a Specified Currency other than U.S. dollars,
to an account maintained at a bank
B-23
selected by the Company, which bank shall be
located outside the United Kingdom in the case of
Notes and Units payable in a Specified Currency
other than pounds sterling that mature not later
than five years from and including the date of
issue thereof) designed by the Company in
writing.
Settlement Procedures
Timetable; Bearer Notes
and Bearer Units: For sales by the Company of Bearer Notes or of Bearer
Units to or through the Agent, "Settlement Procedures;
Bearer Notes and Bearer Units" "A" through "E" above
shall be completed on or before the respective times
set forth below:
Settlement Procedure;
Bearer Notes and
Bearer Units Time
-------------------- ---------------------------------
A 12:00 P.M. (NYC time) three days
before settlement date
B 12:00 P.M. (NYC time) three days
before settlement date
C 9:00 A.M. (London time) two days
before settlement date
D 3:45 P.M. (London time) one day
before settlement date
E 5:00 P.M. (NYC time) on
settlement date
Settlement Procedures;
Registered Notes and
Registered Units: Settlement Procedures with regard to each Registered
Note and Registered Unit sold by the Company to or
through the Agent (unless otherwise specified pursuant
to a Notes Terms Agreement or a Units Terms Agreement)
shall be as follows:
AA. In the case of a Registered Note
B-24
(whether issued alone or as part of a Unit), the
Agent will advise the Company by telephone that
such Note is a Registered Note and of the
following settlement information:
1. Name in which such Note is to be registered
("Registered Note Owner").
2. Address of the Registered Note Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Note Owner (if available).
4. Principal amount.
5. Maturity Date.
6. Interest Payment Date(s)
7. In the case of a Fixed Rate Registered Note,
the Interest Rate, whether such Note is an
Amortizing Note and, if so, the amortization
schedule, or, in the case of a Floating Rate
Registered Note, the Initial Interest Rate
(if known at such time), Interest Payment
Dates, Interest Payment Period, Calculation
Agent, Base Rate, Index Maturity, Index
Currency, Interest Reset Period, Initial
Interest Reset Date, Interest Reset Dates,
Spread or Spread Multiplier (if any),
B-25
Minimum Interest Rate (if any), Maximum
Interest Rate (if any) and the Alternate
Rate Event Spread (if any).
8. Redemption or repayment provisions (if any).
9. Ranking.
10. Settlement date and time (Original Issue
Date).
11. Interest Accrual Date.
12. Price.
13. Agent's commission (if any) determined as
provided in the Distribution Agreement.
14. Denominations.
15. Specified Currency.
16. Whether the Note is an OID Note, and if it
is an OID Note, and the applicability of
Modified Payment upon Acceleration (and if
so, the Issue Price).
17. Whether such Note is a Series D Note or a
Series E Note.
18. Any other applicable provisions.
BB. In the case of a Registered Unit, the Agent will
advise the Company by telephone that such Unit is
a Registered Unit, of the information set forth in
"Settlement
B-26
Procedures; Registered Notes and Registered
Units" "A" above with respect to any
Registered Notes that constitute a part of
such Registered Unit and of the following
information:
1. Name in which such Unit is to be registered
("Registered Unit Owner").
2. Address of the Registered Unit Owner.
3. Taxpayer identification number of the
Registered Unit Owner (if available).
4. Denominations.
5. Settlement date and time.
6. Number of Units (and Face Amount).
7. Agent's commission, if any, determined as
provided in the Distribution Agreement.
8. Designation of the Securities comprised by
such Units:
a. Notes, if any (See "Settlement
Procedures; Registered Notes and
Registered Units" "A");
b. Warrants, if any; and
c. Purchase Contracts, if any.
B-27
9. Whether, and the terms under which, the
Securities comprised by such Unit will be
separately tradeable.
10. Any other provisions applicable to the Unit
(other than those provisions applicable to
the securities comprised by such Unit).
11. If the Registered Unit comprises Registered
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;
h. Currency in which exercise payments shall
be made;
i. Minimum number of Warrants exercisable by
any holder on any day;
j. Maximum number of Warrants exercisable
B-28
on any day: [In the aggregate] [By any
beneficial owner];
k. Formula for determining Cash Settlement
Value;
l. Exchange Rate (or method of calculation);
m. Whether the Company or the holder is the
writer of the warrant; and
n. Any other applicable provisions.
12. If the Registered Unit comprises Registered
Purchase Contracts:
a. Purchase Contract Property;
b. Price to Public;
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
f. Method of Computing Settlement Amount;
g. Currency of Settlement Payment;
h. Authorized Number of Purchase Contracts;
B-29
i. [Purchase] [Sale] Price of Purchase
Contract Property;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions; and
j. Any other applicable provisions.
CC. The Company will advise JPMorgan Chase as
Principal Paying Agent for the Notes or as Unit
Agent for the Units, by telephone or electronic
transmission (confirmed in writing at any time on
the same date) of the information set forth in
"Settlement Procedures; Registered Notes and
Registered Units" "AA" and "BB" above, as
applicable, such advice to contain a
representation as to the aggregate principal
amount of Program Securities permitted to be
issued hereunder after such issuance.
DD. The Company will have delivered to JPMorgan Chase
as Principal Paying Agent for the Notes, or as
Unit Agent for the Units, a pre-printed four-ply
packet for such Note or such Unit, as the case
may be, which packet will contain the
following documents in forms that have been
approved by the
B-30
Company, the Agent and JPMorgan Chase, as
Principal Paying Agent for the Notes, or
as Unit Agent for the Units:
1. Note or Unit, as the case may be, with
customer confirmation.
2. Stub One - For JPMorgan Chase.
3. Stub Two - For the Agent.
4. Stub Three - For the Company.
EE. JPMorgan Chase will (i) authenticate and deliver
any Note (whether issued alone or as part of a
Unit) or Cash-settled Pre-Paid Purchase Contract
through the Principal Paying Agent, if necessary,
with the confirmation and Stubs One and Two to
the Agent, and (ii) complete and deliver any Unit
(including by countersigning and delivering any
Warrant includable in such Unit, by
countersigning, executing and delivering any
Purchase Contract (other than Cash-settled
Pre-paid Purchase Contracts) includable in such
Unit and by obtaining from the Principal Paying
Agent any Notes or Cash-settled Pre-paid Purchase
Contracts to be included in such Units,
authenticated in accordance with clause (i)
above) with the confirmation and Stubs One and
Two to the Agent. The Agent will acknowledge
receipt of the Note or the Unit, as the case
may be, by stamping or otherwise marking Stub One
and returning it
B-31
to JPMorgan Chase, through the Principal Paying
Agent, in the case of the Notes, if necessary.
Such delivery will be made only against such
acknowledgment of receipt and evidence that
instructions have been given by the Agent, with
respect to Program Securities denominated in U.S.
dollars, for payment to the account of the
Company at JPMorgan Chase, New York, New York
(or, with respect to Program Securities payable
in a Specified Currency other than U.S. dollars,
to an account maintained at a bank selected by
the Company, which bank shall be located outside
the United Kingdom in the case of Program
Securities payable in a Specified Currency other
than pounds sterling that mature not later than
five years from and including the date of issue
thereof), in immediately available funds, of an
amount equal to the purchase price of such
Program Securities less the Agent's commission
(if any). In the event that the instructions
given by the Agent for payment to the account of
the Company are revoked, the Company will as
promptly as possible wire transfer to the account
of the Agent an amount of immediately available
funds equal to the amount of such payment made.
The Principal Paying Agent and the Unit Agent
shall pay the Company the aggregate net proceeds
received by it in immediately available funds via
a transfer of funds to the U.S. dollar account of
the Company with JPMorgan Chase in New York City
B-32
(or, with respect to Program Securities payable
in a Specified Currency other than U.S. dollars,
to an account maintained at a bank selected by
the Company which bank shall be located outside
the United Kingdom in the case of Program
Securities payable in a Specified Currency other
than pounds sterling that mature not later than
five years including the date of issue thereof)
designated by the Company in writing.
FF. Unless the Agent purchased such Program
Securities as principal, the Agent will deliver
(with confirmation) such Program Securities to
the customer against payment in immediately
available funds. The Agent will obtain the
acknowledgment of receipt of such Program
Securities by retaining Stub Two.
GG. In the case of all Program Securities, JPMorgan
Chase will send Stub Three to the Company by
first-class mail. Periodically, JPMorgan Chase
will also send to the Company a statement setting
forth, in the case of the Notes, the principal
amount of the Notes outstanding as of that date
under each Indenture and, in the case of the
Units, the aggregate face amount of the Units
outstanding under the Unit Agreement and, in each
case, setting forth a brief description of any
sales of which the Company has advised JPMorgan
Chase that have not yet been settled.
B-33
Settlement Procedures
Timetable; Registered
Notes and Registered
Units: For sales by the Company of Registered Notes or
Registered Units to or through the Agent, "Settlement
Procedures; Registered Notes and Registered Units"
"AA" through "GG" set forth above shall be completed
on or before the respective times (London time) set
forth below:
Settlement
Procedure;
Registered Notes
and Registered Units Time
-------------------- --------------------------------
AA 2:00 P.M. on second day before
settlement date
BB 2:00 P.M. on second day before
settlement date
CC 3:00 P.M. on second day before
settlement date
DD-EE 2:15 P.M. on settlement date
FF 3:00 P.M. on settlement date
GG 5:00 P.M. on settlement date
B-34
Failure to Settle: Bearer Notes and Bearer Units. If the Agent shall have
advanced its own funds for payment against subsequent
receipt of funds from the purchaser and if a purchaser
shall fail to make payment for a Note or a Unit, the
Agent will promptly notify, in the case of a Note, the
Company, the Principal Paying Agent, the Depositary
and the Euroclear Operator, Clearstream and any other
relevant clearing system, and, in the case of the
Unit, the Company, the Unit Agent, the Depositary, and
the Euroclear Operator, Clearstream and any other
relevant clearing system, in each case by telephone,
promptly confirmed in writing (but no later than the
next Business Day). In such event, the Company shall
promptly instruct the Principal Paying Agent, in the
case of the Note, and the Unit Agent, in the case of
the Unit, to cancel the purchaser's interest in the
appropriate Temporary Global Note representing such
Note or the appropriate Temporary Global Unit
representing such Unit. Upon (i) confirmation from the
Principal Paying Agent or the Unit Agent in writing
(which may be given by telex or telecopy) that the
Principal Paying Agent or the Unit Agent has canceled
such purchaser's interest in such Temporary Global
Note or Temporary Global Unit, as the case may be, and
(ii) confirmation from the Agent in writing (which may
be given by telex or telecopy) that the Agent has not
received payment from the purchaser for the Note or
the Unit, the Company will promptly pay to the Agent
an amount in immediately available funds equal to the
amount previously paid by the Agent in respect of such
Bearer Note or Bearer Unit. Such payment will be made
on the settlement date, if possible, and in any event
not later than 12 noon (New York City time) on the
Business Day following the settlement date. The
B-35
Principal Paying Agent or the Unit Agent, as the case
may be, and the Depositary will make or cause to be
made such revisions to such Temporary Global Note or
Temporary Global Unit as are necessary to reflect the
cancellation of such portion of such Temporary Global
Note or Temporary Global Unit.
If a purchaser shall fail to make payment for the Note
or Unit for any reason other than a default by the
Agent in the performance of its obligations hereunder
and under the Distribution Agreement, then the Company
will reimburse the Agent on an equitable basis for the
Agent's loss of the use of funds during the period
when they were credited to the account of the Company,
the Principal Paying Agent or the Unit Agent, as
applicable.
Immediately upon such cancellation, the Principal
Paying Agent or the Unit Agent, as the case may be,
will make appropriate entries in its records to
reflect the fact that a settlement did not occur with
respect to such Note or Unit.
Registered Notes and Registered Units. If a purchaser
fails to accept delivery of and make payment for any
Registered Note or Registered Unit, the Agent will
notify the Company and JPMorgan Chase, as Registrar of
the Registered Notes or as Unit Agent, by telephone
and return such Note or Unit to JPMorgan Chase through
the Principal Paying Agent, in the case of the Notes
or the Unit Agent, in the case of the Units, if
necessary. Upon receipt of such notice, the Company
will immediately wire transfer to the account of the
Agent an amount equal to the amount previously
B-36
credited to the Company's account in respect of such
Note or Unit. Such wire transfer will be made on the
settlement date, if possible, and in any event not
later than the Business Day following the settlement
date. If the failure shall have occurred for any
reason other than a default by the Agent in the
performance of its obligations hereunder and under the
Distribution Agreement, then the Company will
reimburse the Agent on an equitable basis for its loss
of the use of the funds during the period when they
were credited to the account of the Company or
JPMorgan Chase. Immediately upon receipt of the
Registered Note or Registered Unit in respect of which
such failure occurred, JPMorgan Chase will mark such
Note or Unit "canceled," make appropriate entries in
JPMorgan Chase's records and send such Note or Unit to
the Company.
Cancellation of
Issuance: If any Program Securities of a particular series in
respect of which information has been supplied under
"Settlement Procedures" above is not to be issued on a
given issue date, the Issuer shall promptly notify the
Principal Paying Agent and the Trustee and shall
promptly confirm such notification in writing. Upon
receipt of such notice, neither the Principal Paying
Agent nor the Trustee shall thereafter issue or
release the relevant Program Securities but shall, if
applicable, cancel and, unless otherwise instructed by
the Issuer in writing, dispose of them in accordance
with their customary procedures.
Notice of Issuance to
the UK Listing
Authority and the
London Stock Exchange: The Sponsoring Member Firm will provide information
with respect to the issuance of each Series D Note and
Series D Unit to the UK Listing Authority and the
London Stock Exchange or any other stock exchange or
quotation system, as
B-37
appropriate, and will advise the Company in writing as
to the effectiveness of the listing of such Series D
Note and Series D Unit by the close of business on the
related settlement date.
Listing: The Sponsoring Member Firm will, on a regular basis,
provide the UK Listing Authority and the London Stock
Exchange or any other stock exchange or listing
authority or quotation system, as appropriate, with
such information regarding Series D Notes and Series D
Units issued and outstanding as such exchange or
listing authority may require.
B-38
APPENDIX 1
[FORM OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR, CLEARSTREAM AND/OR ANY OTHER RELEVANT
CLEARING SYSTEM]
CERTIFICATE
_______________
Morgan Stanley
Notes, Series D/E
Represented by Temporary Global [Fixed/Floating] Rate
Senior Bearer Note No. ___
This is to certify that, based solely on certifications we have received
in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in Appendix 2 to Exhibit B to the Euro
Distribution Agreement relating to such Notes, as of the date hereof,
__________ principal amount of the above-captioned Securities (i) is owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or other entity created or organized in or
under the laws of the United States or any political subdivision thereof, an
estate the income of which is subject to United States federal income taxation
regardless of its source or a trust if both (a) a court within the United
States is able to exercise primary supervision over the administration of the
trust and (b) one or more United States persons have the authority to control
all substantial decisions of the trust ("United States persons"), (ii) is owned
by United States persons that are (a) foreign branches of United States
financial institutions (as defined in the applicable U.S. Treasury Regulations)
("financial institutions") purchasing for their own account or for resale, or
(b) United States persons who acquired the Securities through foreign branches
of United States financial institutions and who hold the Securities through
such United States financial institutions on the date hereof (and in either
case (a) or (b), each such United States financial institution has agreed, on
its own behalf or through its agent, that we may advise the Issuer or the
Issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue Code of 1986, as amended,
and the regulations thereunder), or (iii) is owned by United States or foreign
financial institutions for purposes of resale during the restricted period (as
defined in the applicable U.S. Treasury Regulations), and such United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified
that they have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions. Any such certification by electronic transmission satisfies
the requirements set forth in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(3)(ii). We will retain all certifications from our Member
Organizations for the period specified in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(3)(i).
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, seeking to collect principal or interest with
respect to) any portion of the temporary global Security representing the
above-captioned Securities excepted in the above-referenced certificates of
Member Organizations and (ii) that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith (or, if relevant, with respect to which principal or
interest is being requested) are no longer true and cannot be relied upon as of
the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
Dated: ___________, 20__
[To be dated no earlier than [insert date of Interest
Payment Date prior to Exchange Date] [insert date of
Redemption Date prior to Exchange Date] [insert
Exchange Date]]
2
[EUROCLEAR BANK S.A./N.V., as
Operator of the Euroclear System]
[CLEARSTREAM BANKING,
SOCIETE ANONYME]
[OTHER]
By:
Name:
Title:
3
APPENDIX 2
[FORM OF CERTIFICATE TO BE GIVEN BY
AN ACCOUNT HOLDER OF EUROCLEAR, CLEARSTREAM AND/OR
ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
______________
Morgan Stanley
Notes, Series D/E
Represented by Temporary Global [Fixed/Floating] Rate
Senior Bearer Note No. __
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or other entity created or organized in or
under the laws of the United States or any political subdivision thereof, an
estate the income of which is subject to United States Federal income taxation
regardless of its source, or a trust if both (a) a court within the United
States is able to exercise primary supervision over the administration of the
trust and (b) one or more United States persons have the authority to control
all substantial decisions of the trust ("United States persons"), (ii) is owned
by United States persons that are (a) foreign branches of United States
financial institutions (as defined in the applicable U.S. Treasury Regulations)
("financial institutions") purchasing for their own account or for resale, or
(b) United States persons who acquired the Securities through foreign branches
of United States financial institutions and who hold the Securities through
such United States financial institutions on the date hereof (and in either
case (a) or (b), each such United States financial institution hereby agrees,
on its own behalf or through its agent, that you may advise the Issuer or the
Issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue Code of 1986, as amended,
and the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period
(as defined in the applicable U.S. Treasury Regulations), and in addition if
the owner of the Securities is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) such financial institution has not acquired the Securities for purposes
of resale directly or indirectly to a United States person or to a person
within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to [U.S.$] _________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand exchange for and delivery of
definitive Securities (or, if relevant, exercise of any rights or collection of
any principal or interest) cannot be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
2
Dated: ___________, 20__
[To be dated no earlier than the
10th day before [insert date of
Interest Payment Date prior to
Exchange Date] [insert date of
Redemption Date prior to
Exchange Date] [insert
Exchange Date]]
[NAME OF ACCOUNT HOLDER]
By:
-------------------------------
(Authorized Signatory)
Name:
Title:
3
APPENDIX 3
FORM OF COMPANY'S NOTICE TO PRINCIPAL PAYING AGENT
To: JPMorgan Chase Bank,
London Office
Attention: ___________________________________
___________________________________
and with a copy to:
[JPMorgan Chase Bank, as Senior Debt Trustee]
[J.P. Morgan Trust Company, National Association,
as Subordinated Debt Trustee]
Re: Euro Distribution Agreement
dated [_____ __], 2004
---------------------------
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete, authenticate
and issue a Temporary Global Note in accordance with the terms of the [Notes
Terms Agreement dated _______,] Administrative Procedures and Euro Distribution
Agreement and to give instructions to the Euroclear Operator, Clearstream
and/or any other relevant clearing system in order for you to:(1)
Credit account of [Name of Agent] with [Euroclear/Clearstream/Other](2) with the
following Bearer Notes:
- --------------------
(1) Separate instructions are to be sent in respect of each offer accepted
by the Company. Repeat this information (numbering consecutively) if Bearer
Notes of more than one Note Tranche are to be issued to an Agent.
(2) Delete as appropriate.
- ----------------------------------------------------------------------------------------------------
All Notes: Fixed Rate Notes: Floating Rate Notes:
- ----------------------------------------------------------------------------------------------------
Principal Amount: Interest Rate: Base Rate:
- ----------------------------------------------------------------------------------------------------
Purchase Price: Applicability of Modified Index Maturity:
Payment upon
Acceleration:
- ----------------------------------------------------------------------------------------------------
Price to Public: If yes, state issue price: Spread (Plus or Minus):
- ----------------------------------------------------------------------------------------------------
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
- ----------------------------------------------------------------------------------------------------
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
- ----------------------------------------------------------------------------------------------------
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
- ----------------------------------------------------------------------------------------------------
Original Issue Date: Indexed Currency or Initial Interest Reset
Currencies (if any): Date:
- ----------------------------------------------------------------------------------------------------
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
- ----------------------------------------------------------------------------------------------------
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
- ----------------------------------------------------------------------------------------------------
Maturity Date: Reference Dealers: Maximum Interest Rate:
- ----------------------------------------------------------------------------------------------------
Optional Redemption Face Amount: Minimum Interest Rate:
Date(s):
- ----------------------------------------------------------------------------------------------------
Initial Redemption Date: Fixed Amount of each Interest Payment Period:
Indexed Currency (if any):
- ----------------------------------------------------------------------------------------------------
Initial Redemption Aggregate Fixed Amount Calculation Agent:
Percentage: of each Indexed Currency
(if any):
- ----------------------------------------------------------------------------------------------------
Annual Redemption Indexed Currency (if any): Reporting Service:
Percentage Reduction:
- ----------------------------------------------------------------------------------------------------
Ranking: Index Currency:
- ----------------------------------------------------------------------------------------------------
Series: Designated CMT
Telerate Page:
- ----------------------------------------------------------------------------------------------------
Minimum Denominations: Designated CMT
Maturity Index:
- ----------------------------------------------------------------------------------------------------
Other Provisions:
- ----------------------------------------------------------------------------------------------------
2
against payment of
[__________________________].
Date:
MORGAN STANLEY
By:
--------------------------
3
APPENDIX 4
FORM OF COMPANY'S NOTICE TO UNIT AGENT
To: JPMorgan Chase Bank,
Attention: ____________________________
____________________________
Re: Euro Distribution Agreement
dated [ __], 2004
---------------------------
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete and issue a
Temporary Global Unit in accordance with the terms of the [Units Terms
Agreement dated _______________] Administrative Procedures and Euro
Distribution Agreement and to give instructions to the Euroclear Operator,
Clearstream and/or any other relevant clearing system in order for you to:(1)
Credit account of [Name of Agent] with
[Euroclear/Clearstream/Other](2) with the following Bearer Units:
- --------------------
(1) Separate instructions are to be sent in respect of each offer accepted
by the Company. Repeat this information (numbering consecutively) if Bearer
Units of more than one Unit Tranche are to be issued to an Agent.
(2) Delete as appropriate.
- ----------------------------------------------------------------------------------------------------
Warrants Purchase Contracts
All Units: Issued as Part of a Unit: Issued as Part of a Unit:
- ----------------------------------------------------------------------------------------------------
Principal Amount: Price: Price:
- ----------------------------------------------------------------------------------------------------
Purchase Price: Specified Currency or Settlement Date and Time:
Composite Currency:
- ----------------------------------------------------------------------------------------------------
Price to Public: Exercise Date: Buy or Sell:
- ----------------------------------------------------------------------------------------------------
Place of Delivery: Warrant Property: Purchase Contract
Property:
- ----------------------------------------------------------------------------------------------------
Specified Currency: Permitted Payment: Purchase or Sale Price:
- ----------------------------------------------------------------------------------------------------
Original Issue Date: Exercise Price:
- ----------------------------------------------------------------------------------------------------
Expiration Date: Specified Currency or
Composite Currency:
- ----------------------------------------------------------------------------------------------------
Put or Call: Permitted Payment:
- ----------------------------------------------------------------------------------------------------
2
- ----------------------------------------------------------------------------------------------------
All Notes Issued as Part Fixed Rate Notes Issued Floating Rate Notes
of a Unit: as Part of a Unit: Issued as Part of a Unit:
- ----------------------------------------------------------------------------------------------------
Principal Amount: Interest Rate: Base Rate:
- ----------------------------------------------------------------------------------------------------
Purchase Price: Applicability of Modified Index Maturity:
Payment upon
Acceleration:
- ----------------------------------------------------------------------------------------------------
Price to Public: If yes, state issue price: Spread (Plus or Minus):
- ----------------------------------------------------------------------------------------------------
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
- ----------------------------------------------------------------------------------------------------
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
- ----------------------------------------------------------------------------------------------------
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
- ----------------------------------------------------------------------------------------------------
Original Issue Date: Indexed Currency or Initial Interest Reset
Currencies (if any): Date:
- ----------------------------------------------------------------------------------------------------
Interest Accrual Date: Payment Currency (if Interest Reset Dates:
any):
- ----------------------------------------------------------------------------------------------------
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
- ----------------------------------------------------------------------------------------------------
Maturity Date: Reference Dealers: Maximum Interest Rate:
- ----------------------------------------------------------------------------------------------------
Optional Repayment Face Amount: Minimum Interest Rate:
Date(s):
- ----------------------------------------------------------------------------------------------------
Optional Redemption Fixed Amount of each Interest Payment Period:
Date(s): Indexed Currency (if any):
- ----------------------------------------------------------------------------------------------------
Initial Redemption Date: Aggregate Fixed Amount Calculation Agent:
of each Indexed Currency
(if any):
- ----------------------------------------------------------------------------------------------------
Initial Redemption Indexed Currency (if any): Reporting Service:
Percentage:
- ----------------------------------------------------------------------------------------------------
Annual Redemption Index Currency:
Percentage Reduction:
- ----------------------------------------------------------------------------------------------------
3
- ----------------------------------------------------------------------------------------------------
All Notes Issued as Part Fixed Rate Notes Issued Floating Rate Notes
of a Unit: as Part of a Unit: Issued as Part of a Unit:
- ----------------------------------------------------------------------------------------------------
Ranking: Designated CMT
Telerate Page:
- ----------------------------------------------------------------------------------------------------
Series: Designated CMT
Maturity Index:
- ----------------------------------------------------------------------------------------------------
Minimum Denominations:
- ----------------------------------------------------------------------------------------------------
Other Provisions:
- ----------------------------------------------------------------------------------------------------
against payment of [ ].
Date:
MORGAN STANLEY
By:
-------------------------------
4