EXHIBIT 1-d
MORGAN STANLEY
Global Medium-Term Notes, Series F
Global Units, Series F
[FORM OF U.S. DISTRIBUTION AGREEMENT]
[ ], 2004
Morgan Stanley DW Inc.
1585 Broadway
New York, New York 10036
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
Morgan Stanley, a Delaware corporation (the "Company"), confirms its
agreement with you with respect to the issue and sale from time to time by the
Company of up to $[ ] (or the equivalent thereof in one or more currencies
other than U.S. dollars) aggregate initial public offering price of its Global
Medium-Term Notes, Series F, due more than nine months from the date of issue
(the "Notes"), and its Global Units, Series F (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 G and
Series H, to be sold primarily outside of the United States, (ii) Global Units,
Series G and Series H, to be sold primarily outside of the United States, and
(iii) the sale of certain of the Company's other debt securities, warrants,
common stock, preferred stock, purchase contracts and units and of capital
securities of certain Morgan Stanley Capital Trusts.
The Notes may be issued as senior indebtedness (the "Series F Senior
Notes") or as subordinated indebtedness (the "Series F Subordinated Notes") of
the Company. The Series F Senior Notes will be issued, either alone or as part
of a Unit, pursuant to the provisions of a senior indenture dated as of November
1, 2004, between the Company and JPMorgan Chase Bank, as trustee (the "Senior
Debt Trustee") (as may be supplemented or amended from time to time, the "Senior
Debt Indenture"). The Series F Subordinated Notes will be issued pursuant to the
provisions of a subordinated indenture dated as of October 1, 2004, between the
Company and J.P. Morgan Trust Company, National Association, 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
November 1, 2004, among the Company, JPMorgan Chase Bank, as Unit Agent, as
Collateral Agent, as Trustee and Paying Agent under the Indenture referred to
therein, and as Warrant Agent under the Warrant Agreement referred to therein,
and the holders from time to time of the Units described therein (as may be
amended from time to time, the "Unit Agreement") or, if the Units do not include
Purchase Contracts (or include only Pre-paid Purchase Contracts), pursuant to a
Unit Agreement among the Company and JPMorgan Chase Bank, as Unit Agent, as
Trustee and Paying Agent under the Indenture referred to therein, and as Warrant
Agent under the Warrant Agreement referred to therein, in the form of such
agreement filed as an exhibit to the Registration Statement referred to below
(each such agreement, a "Unit Agreement Without Holders's Obligations").(1)
Units may include one or more (i) Series F Senior Notes, (ii) warrants
("Warrants") entitling the holders thereof to purchase or sell (a) securities
issued by the Company or by an entity affiliated or not affiliated with the
Company, a basket of such securities, an index or indices of such securities or
any combination of the above, (b) currencies or (c) commodities, (iii) Purchase
Contracts, including Pre-paid Purchase Contracts, requiring the holders thereof
to purchase or sell (a) securities issued by the Company or by an entity
affiliated or not affiliated with the Company, a basket of such securities, an
index or indices of such securities or any combination of the above, (b)
currencies or (c) commodities or (iv) any combination thereof. The applicable
prospectus supplement will specify whether Notes, Warrants and Purchase
Contracts comprised by a Unit may or may not be separated from any series of
Units. Warrants issued as part of a Unit will be issued pursuant to the Warrant
Agreement dated as of November 1, 2004 (as may be amended from time to time, the
"Warrant Agreement") between the Company and JPMorgan Chase Bank, as Warrant
Agent. Purchase
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(1) The Unit Agreement Without Holders' Obligations shall include additional
provisions to allow for the issuance of Pre-Paid Purchase Contracts that are not
issued under the Indentures.
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Contracts, other than Pre-paid Purchase Contracts ("Non-Pre-paid Purchase
Contracts"), entered into by the Company and the holders thereof will be
governed by the Unit Agreement.
The Notes, whether issued alone or as part of a Unit, will have the
maturities, interest rates, redemption provisions, if any, and other terms as
set forth in supplements to the Basic Prospectus referred to below. The Warrants
will have the exercise prices, exercise dates, expiration dates and other terms
as set forth in supplements to the Basic Prospectus. The Purchase Contracts will
have the closing dates, purchase or sale prices and other terms as set forth in
supplements to the Basic Prospectus.
The Company hereby appoints you as its exclusive agents for the purpose of
soliciting and receiving offers to purchase Program Securities from the Company
by others and, on the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, you agree
to use reasonable efforts to solicit and receive offers to purchase Program
Securities upon terms acceptable to the Company at such times and in such
amounts as the Company shall from time to time specify. In addition, you may
also purchase Program Securities as principal pursuant to the terms of a terms
agreement relating to such sale (in the case of Notes, a "Notes Terms Agreement"
and, in the case of Units, a "Units Terms Agreement") in accordance with the
provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Program Securities. Such registration statement, including the exhibits thereto,
as amended at the Commencement Date (as hereinafter defined), is hereinafter
referred to as the "Registration Statement." The Company proposes to file with
the Commission from time to time, pursuant to Rule 424 under the Securities Act
of 1933, as amended (the "Securities Act"), supplements to the prospectus
relating to the Program Securities included in the Registration Statement that
will describe certain terms of the Program Securities. The prospectus relating
to the Program Securities in the form in which it appears in the Registration
Statement is hereinafter referred to as the "Basic Prospectus." The term
"Prospectus" means the Basic Prospectus together with the prospectus supplement
or supplements (each, a "Prospectus Supplement") specifically relating to the
Program Securities, as filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 under the Securities Act. As used herein, the terms "Basic
Prospectus" and "Prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement," "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated by
reference in the Prospectus that are filed subsequent to the date of the Basic
Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). If the Company has filed
an abbreviated registration statement to register additional Program Securities
pursuant to Rule 462(b) under the Securities Act (the "Rule 462 Registration
Statement"), then
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any reference herein to the term "Registration Statement" shall be deemed to
include such Rule 462 Registration Statement.
1. Representations and Warranties. The Company represents and warrants to
and agrees with you as of the Commencement Date, as of each date on which you
solicit offers to purchase Program Securities, as of each date on which the
Company accepts an offer to purchase Program Securities (including any purchase
by you as principal pursuant to a Notes Terms Agreement or a Units Terms
Agreement), as of each date the Company issues and delivers Program Securities
and as of each date the Registration Statement or the Basic Prospectus is
amended or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as amended
or supplemented to each such date):
(a) The Registration Statement has become effective, no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective,
did not contain and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder and
(iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that (1) the representations and warranties set forth in this
Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
you furnished to the Company in writing by you expressly for use therein or
(B) to those parts of the Registration Statement that constitute the
Statements of Eligibility (Form T-1) under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), of the Trustees and (2) the
representations and warranties set forth in clauses (iii) and (iv) above,
when made as of the Commencement Date or as of any date on which you
solicit offers to purchase Program Securities or on which the Company
accepts an offer to purchase Program Securities, shall
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be deemed not to cover information concerning an offering of particular
Program Securities to the extent such information will be set forth in a
supplement to the Basic Prospectus.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its consolidated subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its consolidated subsidiaries,
taken as a whole.
(e) Each of this Agreement and any applicable Written Notes Terms
Agreement or Written Units Terms Agreement (each as hereinafter defined)
has been duly authorized, executed and delivered by the Company.
(f) Each Indenture has been duly qualified under the Trust Indenture
Act and each of the Senior Indenture, the Subordinated Indenture, the Unit
Agreement and the Warrant Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as the
enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered at a
proceeding in equity or at law.
(g) The form of Unit Agreement Without Holders' Obligations has been
duly authorized by the Company and, when a Unit Agreement Without Holders'
Obligations has been duly executed and delivered by the Company, the Unit
Agreement Without Holders' Obligations will be a valid and binding
agreement of the Company, enforceable in accordance with its terms except
as the enforceability thereof (i) may be limited by
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bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered at a proceeding in equity or at law.
(h) The forms of Notes (including the form of Cash-settled Pre-paid
Purchase Contracts), whether issued alone or as part of a Unit, have been
duly authorized and established in conformity with the provisions of the
relevant Indenture and, when the Notes (and the Cash-settled Pre-paid
Purchase Contracts) have been executed and authenticated in accordance with
the provisions of the relevant Indenture and delivered to and duly paid for
by the purchasers thereof, the Notes (and the Cash-settled Pre-paid
Purchase Contracts) will be entitled to the benefits of such Indenture and
will be valid and binding obligations of the Company, enforceable in
accordance with their respective terms except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law.
(i) The forms of Units under the Unit Agreement, including the forms
of Warrants, Physically-settled Pre-paid Purchase Contracts and
Non-Pre-paid Purchase Contracts, have been duly authorized and established
in conformity with the provisions of (i) in the case of such Units,
Physically-settled Pre-paid Purchase Contracts, Non-Pre-paid Purchase
Contracts, the Unit Agreement and (ii) in the case of Warrants, the Warrant
Agreement. When such Units have been delivered to and duly paid for by the
purchasers thereof and (A) any Physically-settled Pre-paid Purchase
Contracts and Non-Pre-paid Purchase Contracts included in such Units have
been executed by the Company and countersigned by the Unit Agent and (B)
any Warrants included in such Units have been executed by the Company and
countersigned by the Warrant Agent, such Units (including any such
Physically-settled Pre-paid Purchase Contracts, Non-Pre-paid Purchase
Contracts or Warrants contained therein) will be entitled to the benefits
of the Unit Agreement and, in the case of the Warrants, the Warrant
Agreement and will be valid and binding obligations of the Company,
enforceable in accordance with their respective terms except as the
enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered at a
proceeding in equity or at law.
(j) When a Unit Agreement Without Holders' Obligations has been
executed and delivered by the Company, the Units to be issued thereunder
will have been duly authorized and when such Units have been
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established in conformity with the provisions of the Unit Agreement Without
Holders' Obligations and delivered to and duly paid for by the purchasers
thereof, and any Warrants included in such Units have been executed by the
Company and countersigned by the Warrant Agent, such Units (including any
such Warrants contained therein) will be entitled to the benefits of the
Unit Agreement Without Holders' Obligations and will be valid and binding
obligations of the Company, enforceable in accordance with their respective
terms except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered at a proceeding in equity or at law.
(k) The execution and delivery by the Company of this Agreement, the
Notes and Pre-paid Purchase Contracts (whether issued alone or as part of a
Unit), the Units (including any Purchase Contracts and Warrants included
therein), the Indentures, the Unit Agreement, any Unit Agreement Without
Holders' Obligations, the Warrant Agreement and any applicable Written
Notes Terms Agreement or Written Units Terms Agreement and the performance
by the Company of its obligations under this Agreement, the Notes, the
Pre-paid Purchase Contracts, the Units (including any Purchase Contracts or
Warrants included therein), the Indentures, the Unit Agreement, any Unit
Agreement Without Holders' Obligations, the Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its consolidated subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any consolidated subsidiary,
and no consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Notes, the Pre-paid
Purchase Contracts, the Units (including any Purchase Contracts or Warrants
included therein), the Indentures, the Unit Agreement, any Unit Agreement
Without Holders' Obligations, the Warrant Agreement and any applicable
Notes Terms Agreement or Units Terms Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Program Securities; provided,
however, that no representation is made or warranty given as to whether the
purchase of the Program Securities constitutes a "prohibited transaction"
under Section 406 of the Employee Retirement Income Security Act of 1974,
as amended, or Section 4975 of the Internal Revenue Code of 1986, as
amended.
(l) There has not occurred any material adverse change, or any
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development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus.
(m) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its consolidated subsidiaries is
a party or to which any of the properties of the Company or any of its
consolidated subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to be
filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required.
(n) Each of the Company and its consolidated subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to conduct its
business in the manner described in the Prospectus, except to the extent
that the failure to obtain or file would not have a material adverse effect
on the Company and its consolidated subsidiaries, taken as a whole.
(o) Morgan Stanley DW Inc. is registered as a broker-dealer and
investment adviser with the Commission, is registered with the Commodity
Futures Trading Commission as a futures commission merchant and is a member
of the New York Stock Exchange, Inc. and the National Association of
Securities Dealers, Inc.
(p) Morgan Stanley & Co. Incorporated is registered as a broker-dealer
and investment adviser with the Commission, is registered with the
Commodity Futures Trading Commission as a futures commission merchant and
is a member of the New York Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc.
(q) The Company is not, and after giving effect to the offering and
sale of the Program Securities and the application of the proceeds thereof
as described in the Prospectus, will not be required to register as, an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended.
Notwithstanding the foregoing, it is understood and agreed that the
representations and warranties set forth in Section 1(b)(iii) and 1(b)(iv), 1(h)
(except as to due authorization of the Notes and Cash-settled Pre-paid Purchase
Contracts), 1(i) (except as to due authorization of the Units, Warrants,
Physically-
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settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase Contracts), 1(j)
(except as to due authorization of the Units and Warrants) and 1(k), when made
as of the Commencement Date, or as of any date on which you solicit offers to
purchase Program Securities, with respect to any Program Securities the payments
of principal or interest on which, or any other payments with respect to which,
will be determined by reference to one or more currency exchange rates,
commodity prices, securities of entities affiliated or unaffiliated with the
Company, baskets of such securities, equity indices or other factors, shall be
deemed not to address the application of the Commodity Exchange Act, as amended,
or the rules, regulations or interpretations of the Commodity Futures Trading
Commission.
2. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. In connection with your actions as agents
hereunder, you agree to use reasonable efforts to solicit offers to
purchase Program Securities upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct
you to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Program Securities. Upon receipt of at
least one business day's prior notice from the Company, you will forthwith
suspend solicitations of offers to purchase Program Securities from the
Company until such time as the Company has advised you that such
solicitation may be resumed. While such solicitation is suspended, the
Company shall not be required to deliver any certificates, opinions or
letters in accordance with Sections 5(a), 5(b) and 5(c); provided, however,
that if the Registration Statement or Prospectus is amended or supplemented
during the period of suspension (other than by an amendment or supplement
providing solely for (i) in the case of Notes issued alone or as part of a
Unit, a change in the interest rates, redemption provisions, amortization
schedules or maturities offered on the Notes, (ii) in the case of Units, a
change in the exercise price, exercise date or period or expiration of an
underlying Warrant or a change in the settlement date or purchase or sale
price of an underlying Purchase Contract or (iii) for a change you deem to
be immaterial), you shall not be required to resume soliciting offers to
purchase Program Securities until the Company has delivered such
certificates, opinions and letters as you may request.
The Company agrees to pay to you, as consideration for the sale of
each Program Security resulting from a solicitation made or an offer to
purchase received by you, a commission in the form of a discount from the
purchase price of such Program Security equal to between .125% and .750%
(depending upon such Note's maturity or, in the case of Units, any
underlying Note's maturity or the terms of the Units and of the securities
comprised by such Units) of the principal amount of such Note
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or, in the case of Units, the face amount of such Unit (provided that the
commission for Notes having, or Units including Notes or other securities
having, a maturity of 30 years or greater will be negotiated) or such other
discount as may be specified in the Prospectus Supplement relating to such
Note or Unit.
You shall communicate to the Company, orally or in writing, each offer
to purchase Program Securities received by you as agent that in your
judgment should be considered by the Company. The Company shall have the
sole right to accept offers to purchase Program Securities and may reject
any offer in whole or in part. You shall have the right to reject any offer
to purchase Program Securities that you consider to be unacceptable, and
any such rejection shall not be deemed a breach of your agreements
contained herein. The procedural details relating to the issue and delivery
of Program Securities sold by you as agent and the payment therefor shall
be as set forth in the Administrative Procedures (as hereinafter defined).
(b) Purchases as Principals. Each sale of Program Securities to you as
principals shall be made in accordance with the terms of this Agreement. In
connection with each such sale, the Company will enter into a Notes Terms
Agreement or Units Terms Agreement that will provide for the sale of such
Program Securities to and the purchase thereof by you. Each Notes Terms
Agreement or Units Terms Agreement will take the form of either (i) a
written agreement between you and the Company, which may be substantially
in the form of Exhibit A or Exhibit A-1 (as applicable) hereto (in the case
of Notes, a "Written Notes Terms Agreement," and in the case of Units, a
"Written Units Terms Agreement"), or (ii) an oral agreement between you and
the Company confirmed in writing by you to the Company.
Your commitment to purchase Program Securities as principal pursuant
to a Notes Terms Agreement or Units Terms Agreement shall be deemed to have
been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein
set forth. Each (i) Notes Terms Agreement shall specify the principal
amount of Notes to be purchased by you pursuant thereto, the maturity date
of such Notes, the price to be paid to the Company for such Notes, the
interest rate and interest rate formula, if any, applicable to such Notes
and any other terms of such Notes and (ii) Units Terms Agreement shall
specify (a) the information set forth in (i) above with respect to any
Notes issued as part of a Unit, (b) with respect to any Warrants issued as
part of a Unit, the exercise price, the exercise date or period, the
expiration date and any other terms of such Warrants and (c) with respect
to any Purchase Contracts issued as part of a Unit, the settlement date,
the purchase or sale price or any other terms of such Purchase Contracts.
Each such Notes Terms Agreement or Units Terms
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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 F, and Global Units, Series F,
Administrative Procedures (attached hereto as Exhibit B) (the
"Administrative Procedures"), as amended from time to time. The
Administrative Procedures may be amended only by written agreement of the
Company and you.
(d) Delivery. The documents required to be delivered by Section 4 of
this Agreement as a condition precedent to your obligation to begin
soliciting offers to purchase Program Securities as agents of the Company
shall be delivered at the office of Davis Polk & Wardwell, your counsel,
not later than 4:00 p.m., New York City time, on the date hereof, or at
such other time and/or place as you and the Company may agree upon in
writing, but in no event later than the day prior to the earlier of (i) the
date on which you begin soliciting offers to purchase Program Securities
and (ii) the first date on which the Company accepts any offer by you to
purchase Program Securities as principal. The date of delivery of such
documents is referred to herein as the "Commencement Date."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Program Securities
pursuant to this Agreement or pursuant to any Notes Terms Agreement or
Units Terms Agreement, the Company will not file any
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Prospectus Supplement relating to the Program Securities or any amendment
to the Registration Statement relating to the Program Securities unless the
Company has previously furnished to you a copy thereof for your review and
will not file any such proposed supplement or amendment to which you
reasonably object; provided, however, that the foregoing requirement shall
not apply to any of the Company's periodic filings with the Commission
required to be filed pursuant to Section 13(a), 13(c), 13(f), 14 or 15(d)
of the Exchange Act, copies of which filings the Company will cause to be
delivered to you promptly after being transmitted for filing with the
Commission. Subject to the foregoing sentence, the Company will promptly
cause each Prospectus Supplement to be filed with or transmitted for filing
to the Commission in accordance with Rule 424(b) under the Securities Act.
The Company will promptly advise you (i) of the filing of any amendment or
supplement to the Basic Prospectus, (ii) of the filing and effectiveness of
any amendment to the Registration Statement, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Basic Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Program Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order or
notice of suspension of qualification and, if issued, to obtain as soon as
possible the withdrawal thereof. If the Basic Prospectus is amended or
supplemented as a result of the filing under the Exchange Act of any
document incorporated by reference in the Prospectus, you shall not be
obligated to solicit offers to purchase Program Securities so long as you
are not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Program
Securities is required to be delivered under the Securities Act, any event
occurs or condition exists as a result of which the Prospectus, as then
amended or supplemented, would include an untrue statement of a material
fact, or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances when the Prospectus, as then
amended or supplemented, is delivered to a purchaser, not misleading, or
if, in your opinion or in the opinion of the Company, it is necessary at
any time to amend or supplement the Prospectus, as then amended or
supplemented, to comply with applicable law, the Company will immediately
notify you by telephone (with confirmation in writing) to suspend
solicitation of offers to purchase Program Securities and, if so notified
by the Company, you shall forthwith suspend such solicitation and cease
using the Prospectus, as then amended or supplemented. If the Company shall
decide to amend or supplement the Registration Statement
12
or Prospectus, as then amended or supplemented, it shall so advise you
promptly by telephone (with confirmation in writing) and, at its expense,
shall prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus, as
then amended or supplemented, satisfactory in all respects to you, that
will correct such statement or omission or effect such compliance and will
supply such amended or supplemented Prospectus to you in such quantities as
you may reasonably request. If any documents, certificates, opinions and
letters furnished to you pursuant to paragraph (f) below and Sections 5(a),
5(b) and 5(c) in connection with the preparation and filing of such
amendment or supplement are satisfactory in all respects to you, upon the
filing with the Commission of such amendment or supplement to the
Prospectus or upon the effectiveness of an amendment to the Registration
Statement, you will resume the solicitation of offers to purchase Program
Securities hereunder. Notwithstanding any other provision of this Section
3(b), until the distribution of any Program Securities you may own as
principal has been completed, if any event described above in this
paragraph (b) occurs, the Company will, at its own expense, forthwith
prepare and cause to be filed promptly with the Commission an amendment or
supplement to the Registration Statement or Prospectus, as then amended or
supplemented, satisfactory in all respects to you, will supply such amended
or supplemented Prospectus to you in such quantities as you may reasonably
request and shall furnish to you pursuant to paragraph (f) below and
Sections 5(a), 5(b) and 5(c) such documents, certificates, opinions and
letters as you may request in connection with the preparation and filing of
such amendment or supplement.
(c) The Company will make generally available to its security holders
and to you as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering twelve month periods
beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in Rule 158
under the Securities Act) of the Registration Statement with respect to
each sale of Program Securities. If such fiscal quarter is the first fiscal
quarter of the Company's fiscal year, such earning statement shall be made
available not later than 90 days after the close of the period covered
thereby and in all other cases shall be made available not later than 45
days after the close of the period covered thereby.
(d) The Company will furnish in New York City, without charge, (i) to
each Agent, a signed copy of the Registration Statement, including exhibits
and all amendments thereto, and as many copies of the Prospectus, any
documents incorporated by reference therein and any supplements and
amendments thereto as you may reasonably request and (ii) to each Agent
that purchases Program Securities pursuant to a Notes
13
Terms Agreement or Units Terms Agreement or solicits an offer to purchase
Program Securities that is accepted by the Company, prior to 10:00 a.m. New
York City time on the business day next succeeding the date of such Notes
Terms Agreement or Units Terms Agreement or the acceptance of such offer,
as many copies of the Prospectus, as then amended or supplemented
(including the Prospectus Supplement relating to the Program Securities to
be purchased pursuant to such Notes Terms Agreement or Units Terms
Agreement or accepted offer), as such Agent may reasonably request.
(e) The Company will endeavor to qualify the Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and to maintain such qualifications for as long as you
shall reasonably request.
(f) During the term of this Agreement, the Company shall furnish to
you such relevant documents and certificates of officers of the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indentures, the Unit Agreement, any Unit Agreement Without
Holders' Obligations, the Warrant Agreement, the Notes, the Units, the
Warrants, the Purchase Contracts, this Agreement, the Administrative
Procedures, any Notes Terms Agreement or Units Terms Agreement and the
performance by the Company of its obligations hereunder or thereunder as
you may from time to time reasonably request.
(g) The Company shall notify you promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate the
direction of the possible change, in the rating accorded the Company or any
of the Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Program Securities is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement and any Notes Terms Agreement or Units
Terms Agreement, including: (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of the
Program Securities, (iii) the fees and disbursements of the Company's
counsel and accountants, of the Trustees and their counsel, of the Unit
Agent and its counsel, and of the Warrant Agent and its counsel, (iv) the
qualification of the Notes and Units (and of any securities comprised
thereby) under securities or Blue Sky laws in accordance with the
provisions of Section 3(e), including filing fees and the fees and
disbursements of your counsel in connection therewith and in connection
14
with the preparation of any Blue Sky or Legal Investment Memoranda, (v) the
printing and delivery to you in quantities as hereinabove stated of copies
of the Registration Statement and all amendments thereto and of the
Prospectus and any amendments or supplements thereto, (vi) the printing and
delivery to you of copies of the Indentures, the Unit Agreement, any Unit
Agreement Without Holders' Obligations, the Warrant Agreement and any Blue
Sky or Legal Investment Memoranda, (vii) any fees charged by rating
agencies for the rating of the Program Securities, (viii) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc., (ix) the fees and disbursements of
your counsel incurred in connection with the offering and sale of the
Program Securities, including any opinions to be rendered by such counsel
hereunder, and (x) any out-of-pocket expenses incurred by you; provided
that any advertising expenses incurred by you shall have been approved by
the Company.
(i) During the period beginning on the date of any Notes Terms
Agreement or Units Terms Agreement relating to either Notes or Units, as
the case may be, and continuing to and including the Settlement Date with
respect to such Notes Terms Agreement or Units Terms Agreement, the Company
will not, without your prior consent, offer, sell, contract to sell or
otherwise dispose of (i) in the case of Notes, any debt securities of the
Company substantially similar to the Notes set forth in such Notes Terms
Agreement (other than (A) the Notes that are to be sold pursuant to such
Notes Terms Agreement, (B) Notes previously agreed to be sold by the
Company and (C) commercial paper issued in the ordinary course of business)
or (ii) in the case of Units, any securities substantially similar to such
Units (other than (A) the Units that are sold pursuant to such Units Terms
Agreement or (B) Units previously agreed to be sold by the Company), in
each case, except as may otherwise be provided in the applicable Notes
Terms Agreement or Units Terms Agreement.
4. Conditions of the Obligations of the Agents. Your obligation to
solicit offers to purchase Program Securities as agents of the
Company, your obligation to purchase Program Securities as principals
pursuant to any Notes Terms Agreement or Units Terms Agreement and the
obligation of any other purchaser to purchase Program Securities will
be subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements of
the Company's officers made in each certificate furnished pursuant to
the provisions hereof and to the performance and observance by the
Company of all covenants and agreements herein contained on its part
to be performed and observed (in the case of your obligation to
solicit offers to purchase Program Securities, at the time of such
solicitation, and, in the case of your or any other purchaser's
obligation to purchase Program Securities, at the time the Company
accepts the offer to purchase such Program Securities and at the time
of issuance and delivery) and (in each case) to the following
additional conditions precedent when and as specified:
15
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus, as amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made, that, in
your judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Program Securities on the terms
and in the manner contemplated by the Prospectus, as so amended or
supplemented;
(ii) there shall not have occurred any (A) suspension or material
limitation of trading generally on or by, as the case may be, any of
the New York Stock Exchange, the American Stock Exchange, the Nasdaq
National Market, the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (B) suspension of
trading of any securities of the Company on any exchange or in any
over-the-counter market, (C) material disruption in securities
settlement, payment or clearance services in the United States or, in
the event of a global offering, in any relevant foreign jurisdiction,
(D) declaration of any moratorium on commercial banking activities by
Federal or New York State authorities or (E) any outbreak or
escalation of hostilities or any change in financial markets (or, if
the relevant Program Securities are denominated in a currency other
than U.S. dollars, any change in currency exchange rates or controls)
or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified
in this clause (E), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Program
Securities on the terms and in the manner contemplated by the
Prospectus, as amended or supplemented, at the time of such
solicitation or at the time such offer to purchase was made; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded the Company
or any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed
16
to you in writing by the Company prior to such solicitation or, in the case of a
purchase of Program Securities, before the offer to purchase such Program
Securities was made or (B) unless in each case described in (ii) above, the
relevant event shall have occurred and been known to you prior to such
solicitation or, in the case of a purchase of Program Securities, before the
offer to purchase such Program Securities was made.
(b) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date,
you shall have received:
(i) The opinion, dated as of such date, of Sidley Austin Brown &
Wood LLP, counsel to the Company, or of other counsel satisfactory to
you and who may be an officer of the Company, to the following effect
that:
(A) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Delaware, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus, as amended or supplemented, and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(B) each of Morgan Stanley DW Inc., Discover Bank, Morgan
Stanley & Co. Incorporated and Morgan Stanley International
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
17
Subsidiaries has all necessary consents, authorizations,
approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its
business in the manner described in the Prospectus, as amended or
supplemented, except to the extent that the failure to obtain or
file would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole;
(D) each of this Agreement and any applicable Written Notes
Terms Agreement or Written Units Terms Agreement has been duly
authorized, executed and delivered by the Company;
(E) each Indenture has been duly qualified under the Trust
Indenture Act and each of the Senior Indenture, the Subordinated
Indenture, the Unit Agreement and the Warrant Agreement has been
duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in
accordance with its terms except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general
principles of equity, regardless of whether such enforceability
is considered at a proceeding in equity or at law;
(F) the Unit Agreement Without Holders' Obligations, if any,
has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company, enforceable
in accordance with its terms except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general
principles of equity, regardless of whether such enforceability
is considered at a proceeding in equity or at law;
(G) the forms of Notes (including the form of Cash-settled
Pre-paid Purchase Contracts), whether issued alone or as part of
a Unit, have been duly authorized and established in conformity
with the
18
provisions of the relevant Indenture and, if the Notes and the
Cash-settled Pre-paid Purchase Contracts, had been executed by
the Company and authenticated by the relevant Trustee or its duly
appointed agent in accordance with the provisions of the relevant
Indenture and delivered to and duly paid for by the purchasers
thereof on the date of such opinion, such Notes and the
Cash-settled Pre-paid Purchase Contracts would be entitled to the
benefits of such Indenture and would be valid and binding
obligations of the Company, enforceable in accordance with their
respective terms except as the enforceability thereof (i) may be
limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a
proceeding in equity or at law;
(H) the forms of Units under the Unit Agreement, including
the forms of Warrants, Physically-settled Pre-paid Purchase
Contracts and Non-Pre-paid Purchase Contracts, have been duly
authorized and established in conformity with the provisions of
(i) in the case of Units under the Unit Agreement,
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid
Purchase Contracts, the Unit Agreement and (ii) in the case of
the Warrants, the Warrant Agreement. If such Units (including the
Warrants, the Physically-settled Pre-paid Purchase Contracts and
the Non-Pre-paid Purchase Contracts) had been delivered to and
duly paid for by the purchasers thereof (and any Purchase
Contracts included therein had been executed by the Company and
countersigned by the Unit Agent and any Warrants included therein
had been executed by the Company and countersigned by the Warrant
Agent) on the date of such opinion, such Units (including the
Physically-settled Pre-paid Purchase Contracts, the Non-Pre-paid
Purchase Contracts and the Warrants contained therein) would be
entitled to the benefits of the Unit Agreement and, in the case
of the Warrants, the Warrant Agreement, and would be valid and
binding obligations of the Company, enforceable in accordance
with their respective terms except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general
principles of equity, regardless of whether such enforceability
is
19
considered at a proceeding in equity or at law;
(I) the Units under the Unit Agreement Without Holders'
Obligations have been duly authorized (and the forms of any
Warrants included therein have been duly authorized and
established in conformity with the provisions of the Warrant
Agreement), and if such Units (including any such Warrants
included therein) had been delivered to and duly paid for by the
purchasers thereof (and any Warrants included therein had been
executed by the Company and countersigned by the Warrant Agent)
on the date of such opinion, such Units (including the Warrants
contained therein) would be entitled to the benefits of the Unit
Agreement Without Holders' Obligations and in the case of the
Warrants, the Warrant Agreement, and would be valid and binding
obligations of the Company, enforceable in accordance with their
respective terms except as the enforceability thereof (i) may be
limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a
proceeding in equity or at law;
(J) the execution and delivery by the Company of the Notes
and Cash-settled Pre-paid Purchase Contracts (whether issued
alone or as part of a Unit), the Units (including any Purchase
Contract or Warrant included therein), the Indentures, the Unit
Agreement, any Unit Agreement Without Holders' Obligations, the
Warrant Agreement and any applicable Written Notes Terms
Agreement or Written Units Terms Agreement and the performance by
the Company of its obligations under this Agreement, the Notes,
the Units, the Indentures, the Unit Agreement, any Unit Agreement
Without Holders' Obligations, the Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will
not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or, to the best of
such counsel's knowledge, any agreement or other instrument
binding upon the Company or any of its subsidiaries that is
material to the Company and its consolidated subsidiaries, taken
as a whole, or, to the best of such counsel's knowledge, any
judgment, order or decree of any U.S. governmental body, agency
or court having jurisdiction
20
over the Company or any of its consolidated subsidiaries, and no
consent, approval, authorization or order of or qualification
with any U.S. governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Notes, the Cash-settled Pre-paid Purchase
Contracts, the Units (including any Purchase Contracts or
Warrants included therein), the Indentures, the Unit Agreement,
any Unit Agreement Without Holders' Obligations, the Warrant
Agreement and any applicable Notes Terms Agreement or Units Terms
Agreement, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer
and sale of the Program Securities; provided, however, that no
opinion is expressed on whether the purchase of the Program
Securities constitutes a "prohibited transaction" under Section
406 of the Employee Retirement Income Security Act of 1974, as
amended, or Section 4975 of the Internal Revenue Code of 1986, as
amended;
(K) the statements (1) in the Prospectus, as then amended or
supplemented, under the captions "Description of Notes" (in the
Prospectus Supplement), "Description of Debt Securities" (in the
Basic Prospectus), "Description of Units" (in the Prospectus
Supplement and in the Basic Prospectus), "Plan of Distribution"
(in the Prospectus Supplement and in the Basic Prospectus),
"Description of Purchase Contracts" (in the Basic Prospectus) and
"Description of Warrants" (in the Basic Prospectus), (2) in the
Registration Statement, as then amended or supplemented, under
Item 15, (3) in "Item 3. Legal Proceedings" of the most recent
annual report on Form 10-K incorporated by reference in the
Prospectus and (4) in "Item 1. Legal Proceedings" of Part II of
the quarterly reports on Form 10-Q, if any, filed since such
annual report and incorporated by reference in the Prospectus, in
each case insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize the
matters referred to therein;
(L) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which
the Company or any of its consolidated subsidiaries is a party or
to which any of the
21
properties of the Company or any of its consolidated subsidiaries
is subject that are required to be described in the Registration
Statement or the Prospectus, as then amended or supplemented, and
are not so described or of any U.S. federal or state statutes,
regulations, contracts or other documents governed by U.S.
federal or state law that are required to be described in the
Registration Statement or the Prospectus, as then amended or
supplemented, or to be filed or incorporated by reference as
exhibits to such Registration Statement that are not described,
filed or incorporated by reference as required;
(M) the Company is not, and after giving effect to the
offering and sale of the Program Securities and the application
of the proceeds thereof as described in the Prospectus, will not
be required to register as, an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended; and
(N) such counsel (1) believes that each document, if any,
filed pursuant to the Exchange Act and incorporated by reference
in the Prospectus as then amended or supplemented (except as to
financial statements and schedules and other financial and
statistical data included therein, as to which such counsel need
not express any belief) complied when so filed as to form in all
material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (2) has no reason
to believe that any part of the Registration Statement (except as
to financial statements and schedules and other financial and
statistical data included therein, as to which such counsel need
not express any belief, and except for that part of the
Registration Statement that constitutes the Forms T-1 heretofore
referred to), as then amended, if applicable, when such part
became effective contained, and the Registration Statement
(except as to financial statements and schedules and other
financial and statistical data included therein, as to which such
counsel need not express any belief, and except for the part of
the Registration Statement that constitutes the Forms T-1) as of
the date such opinion is delivered contains, any untrue statement
of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (3) believes that the Registration
Statement and Prospectus, as then amended or supplemented, if
applicable (except as to
22
financial statements and schedules and other financial and
statistical data included therein, as to which such counsel need
not express any belief), complied as to form in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (4) has no reason to
believe that the Prospectus, as then amended or supplemented, if
applicable (except as to financial statements and schedules and
other financial and statistical data included therein, as to
which such counsel need not express any belief), as of the date
such opinion is delivered contains any untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that in the case of an opinion delivered on the
Commencement Date or pursuant to Section 5(b), the opinion and
belief set forth in clauses (3) and (4) above shall be deemed not
to cover information concerning an offering of particular Notes
or Units to the extent such information will be set forth in a
supplement to the Basic Prospectus.
(ii) The opinion, dated as of such date, of Davis Polk &
Wardwell, your special counsel, covering the matters in subparagraphs
(D), (E), (F), (G), (H), (I) and (K) (with respect to statements in
the Prospectus, as then amended or supplemented, under the captions
"Description of Notes" (in the Prospectus Supplement), "Description of
Debt Securities" (in the Basic Prospectus), "Description of Units" (in
the Prospectus Supplement and the Basic Prospectus), "Plan of
Distribution" (in the Prospectus Supplement and in the Basic
Prospectus), "Description of Purchase Contracts" (in the Basic
Prospectus) and "Description of Warrants" (in the Basic Prospectus))
and clauses (2), (3) and (4) of subparagraph (N) in paragraph (b)(i)
above.
The opinions described in subparagraphs (F) and (I) need only be contained
in an opinion delivered on a Settlement Date related to an offering of Units
under a Unit Agreement Without Holders' Obligations to be executed on or prior
to such Settlement Date.
Notwithstanding the foregoing, the opinions described in subparagraphs (G)
(except as to due authorization of the Notes and Cash-settled Pre-paid Purchase
Contracts), (H) (except as to due authorization of the Units, Warrants,
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase
Contracts), (I) (except as to due authorization of the Units and Warrants), (J),
(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
23
deemed not to address the application of the Commodity Exchange Act, as amended,
or the rules, regulations or interpretations of the Commodity Futures Trading
Commission to Program Securities the payments of principal or interest on which,
or any other payments with respect to which, will be determined by reference to
one or more currency exchange rates, commodity prices, securities of entities
affiliated or unaffiliated with the Company, baskets of such securities, equity
indices or other factors.
With respect to subparagraph (N) of paragraph (b)(i) above, if such opinion
is given by counsel who is also an officer of the Company, such counsel may
state that his or her opinion and belief are based upon his or her
participation, or the participation of someone under his or her supervision, in
the preparation of the Registration Statement and Prospectus and any amendments
or supplements thereto and documents incorporated therein by reference and
review and discussion of the contents thereof, but are without independent check
or verification, except as specified. With respect to subparagraph (N) of
paragraph (b)(i) above, Davis Polk & Wardwell and, if Sidley Austin Brown & Wood
LLP is giving such opinion, Sidley Austin Brown & Wood LLP may state that their
opinion and belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
(but not including documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents incorporated therein by
reference), but are without independent check or verification, except as
specified.
(iii) The opinion, dated as of such date, of Sidley Austin Brown
& Wood LLP, special counsel to the Company, to the effect that the
statements set forth under the caption "United States Federal
Taxation" in the Prospectus Supplement and under the caption "Forms of
Securities--Limitations on Issuance of Bearer Securities" in the Basic
Prospectus, insofar as such statements relate to statements of law or
legal conclusions under the laws of the United States or matters of
United States law, fairly present the information called for and
fairly summarize the matters referred to therein.
The opinion of Sidley Austin Brown & Wood LLP described in paragraph
(b)(iii) above and in paragraph (b)(i) above, if such opinion is given by Sidley
Austin Brown & Wood LLP, shall be rendered to you at the request of the Company
and shall so state therein.
(c) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date,
you shall have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, and 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
24
warranties of the Company contained in this Agreement are true and correct
as of such date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be performed
or satisfied on or before such date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date,
the Company's independent auditors shall have furnished to you a letter or
letters, dated as of the Commencement Date or such Settlement Date, as the
case may be, in form and substance satisfactory to you containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Prospectus, as then amended or supplemented; provided that each
letter so furnished shall use a "cut-off date" no more than three business
days prior to the date of such letter.
(e) On the Commencement Date and on each Settlement Date, the Company
shall have furnished to you such appropriate further information,
certificates and documents as you may reasonably request.
5. Additional Agreements of the Company. (a) Each time the Registration
Statement or Prospectus is amended or supplemented (other than by an amendment
or supplement providing solely for (i) in the case of Notes, a change in the
interest rates, redemption provisions, amortization schedules or maturities
offered on the Notes issued alone or as part of a Unit, (ii) in the case of
Units, (x) a change in the exercise price, exercise date or period or expiration
of an underlying Warrant or (y) a change in the settlement date or purchase or
sale price of an underlying Purchase Contract or (iii) a change you deem to be
immaterial), the Company will deliver or cause to be delivered forthwith to you
a certificate signed by an executive officer of the Company, dated the date of
such amendment or supplement, as the case may be, in form reasonably
satisfactory to you, of the same tenor as the certificate referred to in Section
4(c) relating to the Registration Statement or the Prospectus as amended or
supplemented to the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to Section
5(a) (other than any amendment or supplement to the Registration Statement
or Prospectus caused by the filing of a Current Report on Form 8-K unless
you shall reasonably request based on disclosure included or omitted from
such Report), the Company will furnish or cause to be furnished forthwith
to you a written opinion of counsel for the Company. 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
25
shall be of the same tenor as the opinions referred to in Section 4(b), but
modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such opinion. In lieu
of such opinion, counsel last furnishing such an opinion to you may furnish
to you a letter to the effect that you may rely on such last opinion to the
same extent as though it were dated the date of such letter (except that
statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented to the
time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is amended
or supplemented to set forth amended or supplemental financial information
or such amended or supplemental information is incorporated by reference in
the Prospectus, the Company shall cause its independent auditors forthwith
to furnish you with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to you, of the same
tenor as the letter referred to in Section 4(d), with regard to the amended
or supplemental financial information included or incorporated by reference
in the Registration Statement or the Prospectus as amended or supplemented
to the date of such letter; provided that each letter so furnished shall
use a "cut-off date" no more than three business days prior to the date of
such letter.
6. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless you and each person, if any, who controls you within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to you
furnished to the Company in writing by you expressly for use therein.
(b) You agree to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and each
person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Company to you, but only
with reference to information relating to you furnished to the Company in
writing by you expressly for use in the Registration Statement or the
Prospectus or any amendments or supplements thereto.
26
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by you, in
the case of parties indemnified pursuant to paragraph (a) above, and by the
Company, in the case of parties indemnified pursuant to paragraph (b)
above. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there were to be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second and
third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party
27
from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein in connection with any offering of Program Securities,
then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and you on
the other hand from the offering of such Program Securities or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on the one hand and you on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities,
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and you on the other hand
in connection with the offering of such Program Securities shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of such Program Securities (before deducting expenses) received by
the Company bear to the total discounts and commissions received by you in
respect thereof. The relative fault of the Company on the one hand and of
you on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by you and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Company and you agree that it would not be just or equitable
if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 6, you shall not be required to contribute
any amount in excess of the amount by which the total price at which the
Program Securities referred to in paragraph (d) above that were offered and
sold to the public through you exceeds the amount of any damages that you
have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of
28
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 6 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6 and the representations, warranties and other statements of the
Company, its officers and you set forth in or made pursuant to this
Agreement or any Notes Terms Agreement or Units Terms Agreement will remain
operative and in full force and effect regardless of (i) any termination of
this Agreement or any such Notes Terms Agreement or Units Terms Agreement,
(ii) any investigation made by or on behalf of you or any person
controlling you or by or on behalf of the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Program Securities.
7. Position of the Agent. In acting under this Agreement and in connection
with the sale of any Program Securities by the Company (other than Program
Securities sold to you pursuant to a Notes Terms Agreement or Units Terms
Agreement, as the case may be), you are acting solely as agent of the Company
and do not assume any obligation towards or relationship of agency or trust with
any purchaser of Program Securities. You shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Program Securities has been solicited by you and accepted by the Company, but
you shall not have any liability to the Company in the event any such purchase
is not consummated for any reason. If the Company shall default in its
obligations to deliver Program Securities to a purchaser whose offer it has
accepted, the Company shall hold you harmless against any loss, claim, damage or
liability arising from or as a result of such default and shall, in particular,
pay to you the commission you would have received had such sale been
consummated.
8. Offering Restrictions. If any Program Securities are to be offered
outside the United States, you will not offer or sell any such Program
Securities in any jurisdiction if such offer or sale would not be in compliance
with any applicable law or regulation or if any consent, approval or permission
is needed for such offer or sale by you or for or on behalf of the Company
unless such consent, approval or permission has been previously obtained.
Subject to the obligations of the Company set forth in Section 3 of this
Agreement, the Company shall have no responsibility for, and you will obtain,
any consent, approval or permission required by you for the subscription, offer,
sale or delivery by you of Program Securities, or the distribution of any
offering materials, under the laws and regulations in force in any jurisdiction
to which you are subject or in or from which you make any subscription, offer,
sale or delivery.
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
29
to the other parties hereto, but without prejudice to any rights, obligations or
liabilities of the other parties hereto accrued or incurred prior to such
termination. The termination of this Agreement shall not require termination of
any Notes Terms Agreement or Units Terms Agreement, and the termination of any
such Notes Terms Agreement or Units Terms Agreement shall not require
termination of this Agreement. If this Agreement is terminated, the provisions
of the third paragraph of Section 2(a), the last sentence of Section 3(b) and
Sections 3(c), 3(h), 6, 7, 10, 11 and 13 shall survive; provided that if at the
time of termination an offer to purchase Program Securities has been accepted by
the Company but the time of delivery to the purchaser or its agent of such
Program Securities has not occurred, the provisions of Sections 1, 2(b), 2(c),
3(a), 3(d), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall also survive until such
delivery has been made.
10. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to you, will be mailed, delivered or telefaxed and
confirmed to you at 1585 Broadway, New York, New York 10036, Attention: Manager,
Continuously Offered Products (telefax number: 212-761-0781), with a copy to
1585 Broadway, 34th Floor, New York, New York 10036, Attention: Peter Cooper,
Investment Banking Information Center (telefax number: 212-761-0260) or, if sent
to the Company, will be mailed, delivered or telefaxed and confirmed to the
Company at 1221 Avenue of the Americas, New York, New York 10020, Attention:
Treasurer; Facsimile No.: 212-762-7337.
11. Successors. This Agreement and any Notes Terms Agreement or Units Terms
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors and controlling
persons referred to in Section 6 and the purchasers of Notes and Units (to the
extent expressly provided in Section 4), and no other person will have any right
or obligation hereunder.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
30
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
MORGAN STANLEY
By:
----------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
MORGAN STANLEY DW INC.
By:
--------------------------------------
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
By:
--------------------------------------
Name:
Title:
EXHIBIT A
MORGAN STANLEY
GLOBAL MEDIUM-TERM NOTES, SERIES F
NOTES TERMS AGREEMENT
__________________, 200_
Morgan Stanley
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement dated [ ], 2004
(the "U.S. Distribution Agreement")
-----------------------------------------------
The undersigned agrees to purchase your Global Medium-Term Notes, Series F,
[specified designation] having the following terms:
All Notes Fixed Rate Notes Floating Rate Notes
- -----------------------------------------------------------------------------------------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Payment Index Maturity:
upon Acceleration:
Price to Public: If yes, state issue price: Index Currency:
Settlement Date and Time: Amortization Schedule: Spread (Plus or Minus):
Place of Delivery: Applicability of Annual Interest Spread Multiplier:
Payments:
Specified Currency:
Denominated Currency (if any): Alternate Rate Event Spread:
Original Issue Date: Indexed Currency or Currencies Initial Interest Rate:
(if any):
Interest Accrual Date: Payment Currency (if any): Initial Interest Reset Date:
Interest Payment Dates: Exchange Rate Agent (if any): Interest Reset Dates:
A-1
All Notes Fixed Rate Notes Floating Rate Notes
- -----------------------------------------------------------------------------------------------------------
Interest Payment Period: Reference Dealers: Interest Reset Period:
Maturity Date: Face Amount (if any): Maximum Interest Rate:
Optional Repayment Date(s): Fixed Amount of each Indexed Minimum Interest Rate:
Currency (if any):
Optional Redemption Date(s): Aggregate Fixed Amount of each Calculation Agent:
Indexed Currency (if any):
Initial Redemption Date: Applicability of Issuer's Option Reporting Service:
to Extend Original Maturity Date:
Initial Redemption Percentage: If yes, state Final Maturity Date: Variable Rate Renewable Notes:
Annual Redemption Percentage Redemption Dates:
Reduction:
Ranking: Redemption Percentage:
Minimum Denominations: Initial Maturity Date:
Other Provisions: Final Maturity Date:
Applicability of Issuer's Option
to Reset Spread or Spread
Multiplier:
The provisions of Sections 1, 2(b) and 2(c), 3 through 6, 8 and 10
through 14 of the U.S. Distribution Agreement and the related definitions
are incorporated by reference herein and shall be deemed to have the same
force and effect as if set forth in full herein.
This Agreement is also subject to termination on the terms
incorporated by reference herein. If this Agreement is terminated, the
provisions of Sections 3(h), 6, 10, 11 and 13 of the U.S. Distribution
Agreement shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the U.S. Distribution Agreement will
be required: ___________.
A-2
MORGAN STANLEY DW INC.
By:
--------------------------------
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
By:
--------------------------------
Name:
Title:
Accepted:
MORGAN STANLEY
By:
--------------------------------------------
Name:
Title:
A-3
EXHIBIT A-1
MORGAN STANLEY
GLOBAL UNITS, SERIES F
UNITS TERMS AGREEMENT
___________________, 200_
Morgan Stanley
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement dated [ ], 2004
(the "U.S. Distribution Agreement")
----------------------------------------------
The undersigned agrees to purchase your Global Units, Series F,
[specified designation] having the following terms:
All Units: Warrants Issued as Part of a Unit: Purchase Contracts Issued
as Part of a Unit:
- ----------------------------------------------------------------------------------------------------
Settlement Date and Time: Designation of the Series of Designation of the Series of
Warrants: [Call] [Put] Warrants Purchase Contracts:
[Purchase][Sale] Purchase
Contracts
Number (Face Amount): Warrant Property: Aggregate Number of Purchase
Contracts:
Purchase Price: Aggregate Number of Warrants: Purchase Contract Property:
Specified Currency: Date(s) upon which Warrants may Quantity per Purchase Contract:
be exercised:
Severability: Currency in which exercise [Purchase] [Sale] Price:
payments shall be made:
Other Terms: Exchange Rate (or method of Settlement Date:
calculation:
Expiration Date: Payment Location:
A-1-1
All Units: Warrants Issued as Part of a Unit: Purchase Contracts Issued
as Part of a Unit:
- ----------------------------------------------------------------------------------------------------
Form of Settlement: Method of Settlement:
[Call Price:](1)
[Formula for determining Cash Currency of Settlement Payment:
Settlement Value:](2)
[Amount of Warrant Property Contract Fees, if any:
Salable per Warrant:](3)
[Put Price for such specified Corporation Acceleration:
amount of Warrant Property per
Warrant:](2)
[Method of delivery of any Holders' Acceleration:
Warrant Property to be delivered
for sale upon exercise of
Warrants:](3)
Other Terms: Redemption Provisions:
Other Terms:
All Notes Issued as Part of a Fixed Rate Notes Issued as Floating Rate Notes Issued
Unit Part of a Unit: as Part of a Unit:
- -----------------------------------------------------------------------------------------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Payment Index Maturity:
upon Acceleration:
Price to Public: If yes, state issue price: Index Currency:
Settlement Date and Time: Amortization Schedule: Spread (Plus or Minus):
Place of Delivery: Applicability of Annual Interest Spread Multiplier:
Payments:
Specified Currency: Denominated Currency (if any): Alternate Rate Event Spread:
- ----------
(1) Applicable to Call Warrants
(2) Applicable to Put Warrants
(3) Applicable to Put Warrants only if such Put Warrants contemplate that
the holder deliver Warrant Property to settle Put Warrants
A-1-2
All Notes Issued as Part of a Fixed Rate Notes Issued as Floating Rate Notes Issued
Unit Part of a Unit: as Part of a Unit:
- -----------------------------------------------------------------------------------------------------------
Original Issue Date: Indexed Currency or Currencies Initial Interest Rate:
(if any):
Interest Accrual Date: Payment Currency (if any): Initial Interest Reset Date:
Maturity Date: Exchange Rate Agent (if any): Interest Reset Dates:
Interest Payment Date(s): Reference Dealers: Interest Reset Period:
Interest Payment Period: Face Amount (if any): Maximum Interest Rate:
Optional Repayment Date(s): Fixed Amount of each Indexed Minimum Interest Rate:
Currency (if any):
Optional Redemption Date(s): Aggregate Fixed Amount of each Calculation Agent:
Indexed Currency (if any):
Initial Redemption Date: Applicability of Issuer's Option Reporting Service:
to Extend Original Maturity Date:
Initial Redemption Percentage: If yes, state Final Maturity Date: Variable Rate Renewable Notes:
Annual Redemption Percentage Redemption Dates:
Reduction:
Ranking: Redemption Percentage:
Series: Initial Maturity Date:
Minimum Denominations: Final Maturity Date:
Other Terms: Applicability of Issuer's Option
to Reset Spread or Spread
Multiplier:
A-1-3
The provisions of Sections 1, 2(b) and 2(c), 3 through 6, 8 and 10 through
14 of the U.S. Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.(4)
This Agreement is also subject to termination on the terms incorporated by
reference herein. If this Agreement is terminated, the provisions of Sections
3(h), 6, 10, 11 and 13 of the U.S. Distribution Agreement shall survive for the
purposes of this Agreement.
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the U.S. Distribution Agreement will be required:
___________.
MORGAN STANLEY DW INC.
By:
------------------------------------
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
By:
------------------------------------
Name:
Title:
Accepted:
MORGAN STANLEY
By:
--------------------------------
Name:
Title:
- ----------
(4) In the case of Physically-settled Pre-paid Purchase Contracts issued
under a Unit Agreement Without Holders' Obligations, additional representations
and warranties will be added with respect to such Physically-settled Pre-paid
Purchase Contracts and the opinions of counsel delivered pursuant to Sections
4(b)(i) and 4(b)(ii) will cover such additional representations and warranties,
as appropriate.
A-1-4
EXHIBIT B
MORGAN STANLEY
GLOBAL MEDIUM-TERM NOTES, SERIES F
GLOBAL UNITS, SERIES F
ADMINISTRATIVE PROCEDURES
----------------------
Explained below are the administrative procedures and specific terms of the
offering of Global Medium-Term Notes, Series F (the "Notes") and Global Units,
Series F (the "Units"), on a continuous basis by Morgan Stanley (the "Company")
pursuant to the U.S. Distribution Agreement dated [ ], 2004 (as may be amended
from time to time, the "Distribution Agreement") among the Company, Morgan
Stanley DW Inc. and Morgan Stanley & Co. Incorporated (collectively or
individually the "Agent" as the context requires). The Notes may be issued as
senior indebtedness (the "Senior Notes") or subordinated indebtedness (the
"Subordinated Notes") of the Company, and as used herein the term "Notes"
includes the Senior Notes and the Subordinated Notes. The Senior Notes will be
issued, either alone or as part of a Unit, pursuant to the provisions of a
senior indenture dated as of November 1, 2004 (as may be supplemented or amended
from time to time, the "Senior Debt Indenture"), between the Company and
JPMorgan Chase Bank ("JPMorgan Chase"), as trustee. The Subordinated Notes will
be issued pursuant to the provisions of a subordinated indenture, dated as of
October 1, 2004 (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 ("JPMorgan Trust"), as trustee. The Senior Debt
Indenture and the Subordinated Debt Indenture are sometimes hereinafter referred
to individually as an "Indenture" and collectively as the "Indentures." Purchase
contracts ("Purchase Contracts") that require holders to satisfy their
obligations thereunder when such Purchase Contracts are issued are referred to
as "Pre-paid Purchase Contracts." Pre-paid Purchase Contracts that settle in
cash ("Cash-settled Pre-paid Purchase Contracts") generally will be issued under
the Indentures. Pre-paid Purchase Contracts that do not settle in cash
("Physically-settled Pre-paid Purchase Contracts") generally will be issued
under the Unit Agreement or the Unit Agreement Without Holders' Obligations
(each as defined below).
Unless otherwise specified in the applicable Pricing Supplement, the Units
will be issued (i) pursuant to the Unit Agreement dated as of November 1, 2004,
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
B-1
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, 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 F
Senior Notes, (ii) warrants ("Warrants") entitling the holders thereof to
purchase or sell (a) securities issued by the Company or by an entity affiliated
or not affiliated with the Company, a basket of such securities, an index or
indices of such securities or any combination of the above, (b) currencies or
(c) commodities, (iii) Purchase Contracts, including Pre-paid Purchase
Contracts, requiring the holders thereof to purchase or sell (a) securities
issued by the Company or by an entity affiliated or not affiliated with the
Company, a basket of such securities, an index or indices of such securities or
any combination of the above, (b) currencies or (c) commodities or (iv) any
combination thereof. The applicable Pricing Supplement will specify whether or
not any Notes, Warrants and Purchase Contracts comprised by a Unit may or may
not be separated from the Unit. Warrants issued as part of a Unit will be issued
pursuant to the Warrant Agreement dated as of November 1, 2004, between the
Company and JPMorgan Chase Bank, as Warrant Agent (as may be amended from time
to time, the "Warrant Agreement"). Purchase Contracts, other than Pre-paid
Purchase Contracts, entered into by the Company and the holders thereof will be
governed by the Unit Agreement.
In the Distribution Agreement, the Agent has agreed to use reasonable
efforts to solicit purchases of the Notes and the Units, and the administrative
procedures explained below will govern the issuance and settlement of any Notes
or Units sold through the Agent, as agent of the Company. The Agent, as
principal, may also purchase Notes and Units for its own account, and the
Company and the Agent will enter into a terms agreement (in the case of Notes, a
"Notes Terms Agreement," and in the case of Units, a "Units Terms Agreement"),
as contemplated by the Distribution Agreement. The administrative procedures
explained below will govern the issuance and settlement of any Notes or Units
purchased by the Agent, as principal, unless otherwise specified in the
applicable Notes Terms Agreement or Units Terms Agreement.
- ----------
(1) The Unit Agreement Without Holders' Obligations shall include
provisions to allow for the issuance of Pre-Paid Purchase Contracts that are not
issued under the Indentures.
B-2
JPMorgan Chase will be the Registrar, Calculation Agent, Authenticating
Agent and Paying Agent for the Senior Notes (and any Cash-settled Pre-paid
Purchase Contracts), the Unit Agent for the Units and Purchase Contracts (other
than Cash-settled Pre-paid Purchase Contracts) and Warrant Agent for the
Warrants, and in each case, will perform the duties specified herein. JPMorgan
Trust will be the Registrar, Calculation Agent, Authenticating Agent and Paying
Agent for the Subordinated Notes (and any Cash-settled Pre-paid Purchase
Contracts) and in each case, will perform the duties specified herein.
References herein to "JPMorgan" are to JPMorgan Chase (in the case of duties
relating to the Senior Notes) or to JPMorgan Trust (in the case of duties
relating to the Subordinated Notes).
Each Note and each Unit will be represented by either (i) in the case of
the Notes, a Global Note and, in the case of the Units, a Global Unit (each as
defined below) delivered to JPMorgan, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC (in the case of
a Note, a "Book-Entry Note" and, in the case of a Unit, a "Book-Entry Unit") or
(ii) a certificate delivered to the holder thereof or a person designated by
such holder (in the case of a Note, a "Certificated Note" and, in the case of a
Unit, a "Certificated Unit"). Each Note, Warrant or Purchase Contract which may
be included in any Unit will be issued in the corresponding global or
certificated form. Except as set forth in the Indentures, in the case of Notes
or Cash-settled Pre-paid Purchase Contracts, the Unit Agreement or a Unit
Agreement Without Holders' Obligations, as applicable, in the case of Units and
all other Purchase Contracts, or the Warrant Agreement, in the case of the
Warrants, an owner of a Book-Entry Note or Book-Entry Unit (or of any Note,
Warrant or Purchase Contract included in such Book-Entry Unit), as the case may
be, will not be entitled to receive a Certificated Note (including with respect
to a Book-Entry Note included in a Book-Entry Unit) or a Certificated Unit (or
certificated Warrants or Purchase Contracts, as applicable).
Book-Entry Notes and Book-Entry Units, which may be payable in either U.S.
dollars or other specified currencies, will be issued in accordance with the
administrative procedures set forth in Part I hereof as they may subsequently be
amended as the result of changes in DTC's operating procedures. Certificated
Notes and Certificated Units will be issued in accordance with the
administrative procedures set forth in Part II hereof.
Unless otherwise defined herein, terms defined in the Indentures, the Unit
Agreement, the Unit Agreement Without Holders' Obligations, the Warrant
Agreement, the Notes, the Units, the Warrants, the Purchase Contracts or any
Prospectus Supplement relating to the Notes and Units shall be used herein as
therein defined. The Company will advise the Agent in writing of the employees
of the Company with whom the Agent is to communicate regarding offers to
purchase Notes and Units and the related settlement details.
B-3
The Company will advise the Agent in writing of the employees of the
Company with whom the Agent is to communicate regarding offers to purchase Notes
and Units and the related settlement details.
B-4
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES AND BOOK-ENTRY UNITS
In connection with the qualification of the Book-Entry Notes and Book-Entry
Units for eligibility in the book-entry system maintained by DTC, JPMorgan will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under DTC's Operational
Arrangements dated February 20, 2002, as amended from time to time, including by
the Blanket Issuer Letter of Representations from the Company to DTC, dated as
of August 25, 2003, its obligations under a Medium-Term Note Certificate
Agreement between JPMorgan Chase and DTC dated as of November 13, 2001, and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS").
Issuance: On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes, or one or more
Book-Entry Units, the Company will issue, in the case of the
Notes, a single global Note in fully registered form without
coupons (a "Global Note") representing up to U.S.
$500,000,000 principal amount of all such Notes that have
the same Original Issue Date, Maturity Date and other terms
and, in the case of a Unit, a single global unit in fully
registered form (a "Global Unit"), representing up to U.S.
$500,000,000 face amount of all such Units that have the
same Original Issue Date and that otherwise comprise the
same securities and have the same terms. Each Global Note,
whether issued alone or as part of a Unit, will be dated and
issued as of the date of its authentication by JPMorgan and
each Global Unit will be dated and issued as of the date of
the issuances of the other securities comprised by such
Unit. Each Global Note, whether alone or as part of a Unit,
will bear an "Interest Accrual Date," which will be (i) with
respect to an original Global Note (or any portion thereof),
its original issuance date and (ii) with respect to any
Global Note (or any portion thereof) issued subsequently
upon exchange of a Global Note, or in lieu of a destroyed,
lost or stolen Global Note, the most recent Interest Payment
Date to which interest has been paid or duly provided for on
the predecessor Global Note or Notes (or if no such payment
or provision has been made, the original
B-5
issuance date of the predecessor Global Note), regardless of
the date of authentication of such subsequently issued
Global Note. Book-Entry Notes and Book-Entry Units may be
payable in either U.S. dollars or other specified
currencies. No Global Note or Global Unit will represent,
any Certificated Note or Certificated Unit, as the case may
be.
Denominations: Book-Entry Notes and Book-Entry Units will be issued in (i)
in the case of Book-Entry Notes, principal amounts of U.S.
$1,000 or any amount in excess thereof that is an integral
multiple of U.S. $1,000 or, if such Book-Entry Notes are
issued in a currency other than U.S. dollars, principal
amounts of such currency in denominations of the equivalent
of U.S. $1,000 (rounded to an integral multiple of 1,000
units of such currency), unless otherwise indicated in the
applicable Pricing Supplement and (ii) in the case of
Book-Entry Units, denominations of a single unit and any
integral multiple thereof with face amounts of U.S. $1,000
or any amount in excess thereof that is an integral multiple
of U.S. $1,000 or, if such Book-Entry Units are issued in a
currency other than U.S. dollars, face amounts of such
currency in denominations of the equivalent of U.S. $1,000
(rounded to an integral multiple of 1,000 units of such
currency), unless otherwise indicated in the applicable
Pricing Supplement. Global Notes and Global Units will be
denominated in, in the case of Global Notes, principal
amounts not in excess of U.S.$500,000,000 and, in the case
of Global Units, face amounts not in excess of U.S.
$500,000,000. If one or more Book-Entry Notes having an
aggregate principal amount in excess of U.S. $500,000,000,
or one or more Book-Entry Units having an aggregate face
amount, in excess of $500,000,000 would, but for the
preceding sentence, be represented by a single Global Note
or Global Unit, as the case may be, then one Global Note
will be issued to represent each U.S. $500,000,000 principal
amount of such Book-Entry Note or Notes and one Global Unit
will be issued to represent each U.S.$500,000,000 face
amount of such Book-Entry Unit or Units and an additional
Global Note or Global Unit, will be issued to
B-6
represent any remaining principal amount of such Book-Entry
Note or Notes or face amount of such Book-Entry Unit or
Units. In such a case, each of the Global Notes or Global
Units representing such Book-Entry Note or Notes or such
Book-Entry Unit or Units, as the case may be, shall be
assigned the same CUSIP number.
Preparation of If any order to purchase a Book-Entry Note or Book-Entry
Pricing Supplement: Unit is accepted by or on behalf of the Company, the Company
will prepare a pricing supplement (a "Pricing Supplement")
reflecting the terms of such Note or Unit. The Company (i)
will arrange to file an electronic format document, in the
manner prescribed by the EDGAR Filer Manual, of such Pricing
Supplement with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Securities
Act, (ii) will, as soon as possible and in any event not
later than the date on which such Pricing Supplement is
filed with the Commission, deliver the number of copies of
such Pricing Supplement to the Agent as the Agent shall
request and (iii) will, on the Agent's behalf, promptly file
five copies of such Pricing Supplement with the National
Association of Securities Dealers, Inc. (the "NASD"). The
Agent will cause such Pricing Supplement to be delivered to
the purchaser of the Note or Unit.
In each instance that a Pricing Supplement is prepared, the
Agent will affix the Pricing Supplement to Prospectuses
prior to their use. Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other than those
retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available funds in
payment for a Book-Entry Note or a Book-Entry Unit and, in
the case of the Note, the authentication and issuance of the
Global Note representing such Note or, in the case of the
Unit, the completion and issuance of the Global Unit
representing such Unit (and of each security comprised by
such Unit) shall constitute
B-7
"settlement" with respect to such Note or Unit, as the case
may be. All orders accepted by the Company will be settled
on the fifth Business Day pursuant to the timetable for
settlement set forth below unless the Company and the
purchaser agree to settlement on another day, which shall be
no earlier than the next Business Day.
Settlement Settlement Procedures with regard to each Book-Entry Note
Procedures: and each Book-Entry Unit sold by the Company to or through
the Agent (unless otherwise specified pursuant to a Notes
Terms Agreement or a Units Terms Agreement), shall be as
follows:
A. In the case of a Book-Entry Note (whether issued alone
or as part of a Unit), the Agent will advise the
Company by telephone that such Note is a Book-Entry
Note and of the following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note,
the Interest Rate, whether such Note will pay
interest annually or semiannually and whether
such Note is an Amortizing Note, and, if so,
the amortization schedule, or, in the case of
a Floating Rate Book-Entry Note, the Initial
Interest Rate (if known at such time),
Interest Payment Date(s), Interest Payment
Period, Calculation Agent, Base Rate, Index
Maturity, Index Currency, Interest Reset
Period, Initial Interest Reset Date, Interest
Reset Dates, Spread or Spread Multiplier (if
any), Minimum Interest Rate (if any), Maximum
Interest Rate (if any) and the Alternate Rate
Event Spread (if any).
4. Redemption or repayment provisions, if
any.
B-8
5. Ranking.
6. Settlement date and time (Original Issue
Date).
7. Interest Accrual Date.
8. Price.
9. Agent's commission, if any, determined as
provided in the Distribution Agreement.
10. Specified Currency.
11. Whether the Note is an Original Issue
Discount Note (an "OID Note"), and if it
is an OID Note, the applicability of
Modified Payment upon Acceleration (and,
if so, the Issue Price).
12. Whether the Note is a Renewable Note, and
if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date,
the Election Dates and the Maturity
Extension Dates.
13. Whether the Company has the option to
reset the Spread or Spread Multiplier of
the Note.
14. Whether the Note is an Optionally
Exchangeable Note, a Mandatorily
Exchangeable Note, or any form of
exchangeable Note.
15. Any other applicable provisions.
B. In the case of a Book-Entry Unit, the Agent will
advise the Company by telephone that such Unit is a
Book-Entry Unit, of the information set forth in
Settlement Procedures "A" above with respect to any
Book-Entry Notes that constitute a part of such
Book-Entry Unit and of the following information:
1. Settlement date and time.
2. Face Amount.
3. Agent's commission, if any,
B-9
determined as provided in the Distribution
Agreement.
4. Designation of the Securities comprised by
such Units:
a. Notes (See Settlement Procedures "A");
b. Warrants, if any; and
c. Purchase Contracts, if any.
5. Whether, and the terms under which, the
Securities comprised by such Unit will be
separately tradeable.
6. Any other provisions applicable to the
Unit (other than those provisions
applicable to the securities comprised
by such Unit).
7. If the Book-Entry Unit comprises
Book-Entry Warrants:
a. Designation of the Series of Warrants:
[Call][Put] Warrants;
b. Warrant Property;
c. Aggregate Number of Warrants;
d. Price to Public;
e. Warrant Exercise Price;
f. Dates upon which Warrants may be exercised;
g. Expiration Date;
h. Form;
i. Currency in which exercise payments shall be
made;
j. Minimum number of Warrants exercisable by
any holder on any day;
k. Maximum number of Warrants exercisable on
any day: [In the aggregate] [By any
B-10
beneficial owner];
l. Formula for determining Cash Settlement
Value;
m. Exchange Rate (or method of calculation);
n. Whether the Company or the holder is the
writer of the Warrant; and
o. Any other applicable provisions.
8. If the Book-Entry Unit comprises Book-Entry
Purchase Contracts:
a. Designation of the Series of Purchase
Contracts: [Purchase][Sale] Purchase
Contracts;
b. Purchase Contract Property;
c. Aggregate Number of Purchase Contracts;
d. Price to Public;
e. Settlement Date;
f. [Purchase/Sale] Price of Purchase Contract
Property;
g. Form; and
h. Any other applicable provisions.
C. The Company will advise JPMorgan by telephone or
electronic transmission (confirmed in writing at any
time on the same date) of the information set forth in
"Settlement Procedures" "A" and "B" 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. JPMorgan will then assign a CUSIP number to
the Global Note representing a Note, whether issued
alone or as part of a Unit, and
B-11
will notify the Company and the Agent of such CUSIP
number(s) by telephone as soon as practicable, except
that for Optionally Exchangeable and Mandatorily
Exchangeable Notes the Agent will obtain a CUSIP
number for the Global Note representing such Note and
will notify the Company and JPMorgan of such CUSIP
number(s) by telephone as soon as practicable. The
Agent will obtain a CUSIP number for (i) the Global
Unit representing a Unit, (ii) the Warrant, if any,
issued as part of a Unit and (iii) the Purchase
Contract, if any, issued as part of a Unit and, in
each case will notify the Company and JPMorgan of such
CUSIP number(s) by telephone as soon as practicable.
D. JPMorgan will enter a pending deposit message through
DTC's Participant Terminal System, providing the
following settlement information to DTC, the Agent and
Standard & Poor's Corporation:
1. The information set forth in "Settlement
Procedure" "A" and "B" above, as applicable.
2. The Initial Interest Payment Date for the
Notes, whether issued alone or as part of a
Unit, the number of days by which such date
succeeds the related DTC Record Date and, if
known, amount of interest payable on such
Initial Interest Payment Date.
3. The CUSIP number of the Global Note (whether
issued alone or as part of a Unit), Global
Unit, Warrant issued as part of a Unit and
Purchase Contract issued as part of a Unit, as
applicable.
4. Whether the Global Note or Global Unit will
represent any other Book-Entry Note or
Book-Entry Unit, as the case may be (to the
extent known at such time).
B-12
5. Whether any Note, issued alone or as part of a
Unit, is an Amortizing Note (by an appropriate
notation in the comments field of DTC's
Participant Terminal System).
6. The number of Participant accounts to be
maintained by DTC on behalf of the Agent and
JPMorgan.
E. JPMorgan will, as applicable, authenticate, complete
and deliver the Global Note representing the Note and
will complete the Global Unit representing the Unit
(including, as applicable, by authenticating,
completing and delivering any Global Note or
Cash-settled Pre-paid Purchase Contracts, by
countersigning and delivering any Warrants and by
countersigning, executing and delivering any Purchase
Contracts (other than Cash-settled Pre-paid Purchase
Contracts) includable in such Unit).
F. DTC will credit such Note or Unit to JPMorgan's
participant account at DTC.
G. JPMorgan will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit the Note or Unit, as the case may be, to
JPMorgan's participant account and credit such Note or
Unit to the Agent's participant account and (ii) debit
the Agent's settlement account and credit JPMorgan's
settlement account for an amount equal to the price of
such Note or Unit, as the case may be, less the
Agent's commission, if any. The entry of such a
deliver order shall constitute a representation and
warranty by JPMorgan to DTC that (a) the Global Note
representing a Book-Entry Note has been issued and
authenticated or a Global Unit representing a
Book-Entry Unit has been completed and issued and (b)
JPMorgan is holding such Global Note or Global Unit
pursuant to the Medium-Term Note Certificate Agreement
between JPMorgan and
B-13
DTC.
H. Unless the Agent is the end purchaser of a Note or
Unit, the Agent will enter an SDFS deliver order
through DTC's Participant Terminal System instructing
DTC (i) to debit such Note or Unit to the Agent's
participant account and credit such Note or Unit to
the participant accounts of the Participants with
respect to such Note or Unit and (ii) to debit the
settlement accounts of such Participants and credit
the settlement account of the Agent for an amount
equal to the price of such Note or Unit.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and "H"
will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
J. JPMorgan will credit to the account of the Company
maintained at JPMorgan Chase, New York, New York, in
funds available for immediate use in the amount
transferred to JPMorgan in accordance with
"Settlement Procedure" "G".
K. Unless the Agent is the end purchaser of the Note or
Unit, the Agent will confirm the purchase of such Note
or Unit to the purchaser either by transmitting to the
Participants with respect to such Note or Unit a
confirmation order or orders through DTC's
institutional delivery system or by mailing a written
confirmation to such purchaser.
L. Monthly, JPMorgan will send to the Company a statement
setting forth the principal amount of Notes
outstanding as of that date under the Indentures or,
in the case of Units, the aggregate face amount of
Units outstanding as of that date, under the Unit
Agreement, and setting forth a brief description of
any sales of which the Company has advised JPMorgan
that have not yet been settled.
B-14
Settlement For sales by the Company of Book-Entry Notes or Book-Entry
Procedures Units to or through the Agent (unless otherwise specified
Timetable: pursuant to a Notes Terms Agreement or a Units Terms
Agreement) for settlement on the first Business Day after
the sale date, Settlement Procedures "A" through "K" set
forth above shall be completed as soon as possible but not
later than the respective times in New York City set forth
below:
Settlement
----------
Procedure Time
--------- -----
A 11:00 A.M. on the sale date
B 11:00 A.M. on the sale date
C 12:00 Noon on the sale date
D 2:00 P.M. on the sale date
E 9:00 A.M. on the settlement date
F 10:00 A.M. on the settlement date
G-H 2:00 P.M. on the settlement date
I 4:45 P.M. on the settlement date
J-K 5:00 P.M. on the settlement date
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "A", "B", "C" and "D"
shall be completed as soon as practicable but no later than
11:00 A.M., 11:00 A.M., 12 Noon and 2:00 P.M., respectively,
on the first Business Day after the sale date. If the
Initial Interest Rate for a Floating Rate Book-Entry Note,
whether issued alone or as part of a Unit, has not been
determined at the time that "Settlement Procedure" "A" is
completed, "Settlement Procedure" "C" and "D" shall be
completed as soon as such rate has been determined but no
later than 12 Noon and 2:00 P.M.,
B-15
respectively, on the first Business Day before the
settlement date. "Settlement Procedure" "I" is subject to
extension in accordance with any extension of Fedwire
closing deadlines and in the other events specified in the
SDFS operating procedures in effect on the settlement date.
If settlement of a Book-Entry Note or a Book-Entry Unit is
rescheduled or canceled, JPMorgan, after receiving notice
from the Company or the Agent, will deliver to DTC, through
DTC's Participant Terminal System, a cancellation message to
such effect by no later than 2:00 P.M. on the Business Day
immediately preceding the scheduled settlement date.
Failure to Settle: If JPMorgan fails to enter an SDFS deliver order with
respect to a Book-Entry Note or a Book-Entry Unit pursuant
to "Settlement Procedure" "G", JPMorgan may deliver to DTC,
through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to debit
such Note or Unit to JPMorgan's participant account,
provided that JPMorgan's participant account contains a
principal amount of the Global Note representing such Note
or a face amount of the Global Unit representing such Unit
that is at least equal to the principal amount or face
amount to be debited. If a withdrawal message is processed
with respect to all the Book-Entry Notes represented by a
Global Note or all of the Book-Entry Units represented by a
Global Unit, JPMorgan will mark such Global Note or Global
Unit "canceled," make appropriate entries in JPMorgan's
records and send such canceled Global Note or Global Unit to
the Company. The CUSIP number assigned to such Global Note,
Global Unit, Warrant included in such Unit, or Purchase
Contract included in such Unit, shall, in accordance with
the procedures of the CUSIP Service Bureau of Standard &
Poor's Corporation, be canceled and not immediately
reassigned. If a withdrawal message is processed with
respect to one or more, but not all, of the Book-
B-16
Entry Notes represented by a Global Note or with respect to
one or more, but not all, of the Book-Entry Units
represented by a Global Unit, JPMorgan will exchange such
Global Note or Global Unit, as the case may be, for two
Global Notes or for two Global Units, as the case may be,
one of which shall represent such Book-Entry Note or Notes
or such Book-Entry Unit or Units and shall be canceled
immediately after issuance and the other of which shall
represent the remaining Book-Entry Notes or Book-Entry Units
previously represented by the surrendered Global Note or
Global Unit and shall bear the CUSIP number of the
surrendered Global Note, Global Unit, Warrant included in
such Unit, or Purchase Contract included in such Unit.
If the purchase price for any Book-Entry Note or Book-Entry
Unit is not timely paid to the Participants with respect to
such Note or Unit by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC, acting on
behalf of such purchaser), such Participants and, in turn,
the Agent may enter SDFS deliver orders through DTC's
Participant Terminal System reversing the orders entered
pursuant to Settlement Procedures "G" and "H", respectively.
Thereafter, JPMorgan will deliver the withdrawal message and
take the related actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any failure to settle
with respect to a Book-Entry Note or Book-Entry Unit, DTC
may take any actions in accordance with its SDFS operating
procedures then in effect.
In the event of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes or Book-Entry
Units to have been represented by a Global Note or a Global
Unit, as the case may be, JPMorgan will provide, in
accordance with Settlement Procedures "E" and "G", for the
authentication and issuance of a Global Note representing
the Book-Entry Notes to be represented by such Global Note
and for the issuance of a Global Unit representing the
Book-Entry Units to be
B-17
represented by such Global Unit and, in each case, will make
appropriate entries in its records.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES AND
CERTIFICATED UNITS
JPMorgan will serve as registrar in connection with the
Certificated Notes and the Certificated Units.
Issuance: Each Certificated Note will be dated and issued as of the
date of its authentication by JPMorgan and each Certificated
Unit will be deemed to be dated as of the date of the
underlying Certificated Note or, if there is not such
underlying Certificated Note on the date of the other
securities comprised thereby. Each Certificated Note will
bear an Original Issue Date, which will be (i) with respect
to an original Certificated Note (or any portion thereof),
its original issuance date (which will be the settlement
date) and (ii) with respect to any Certificated Note (or
portion thereof) issued subsequently upon transfer or
exchange of a Certificated Note or in lieu of a destroyed,
lost or stolen Certificated Note, the original issuance date
of the predecessor Certificated Note, regardless of the date
of authentication of such subsequently issued Certificated
Note.
Preparation of If any order to purchase a Certificated Note or a
Pricing Supplement: Certificated Unit is accepted by or on behalf of the
Company, the Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of such Note or
Unit. The Company (i) will arrange to file an electronic
format document, in the manner prescribed by the EDGAR Filer
Manual, of such Pricing Supplement with the Commission in
accordance with the applicable paragraph of Rule 424(b)
under the Securities Act, (ii) will, as soon as possible and
in any event not later than the date on which such Pricing
Supplement is filed with the Commission, deliver the number
of copies of such Pricing Supplement to the Agent as the
Agent shall
B-18
request and (iii) will, on the Agent's behalf, promptly file
five copies of such Pricing Supplement with the NASD. The
Agent will cause such Pricing Supplement to be delivered to
the purchaser of the Note or the Unit, as the case may be.
In each instance that a Pricing Supplement is prepared, the
Agent will affix the Pricing Supplement to Prospectuses
prior to their use. Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other than those
retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available funds in
exchange for an authenticated Certificated Note or a
Certificated Unit delivered to the Agent and the Agent's
delivery of such Note or Unit against receipt of immediately
available funds shall constitute "settlement" with respect
to such Note or Unit. All offers accepted by the Company
will be settled on or before the fifth Business Day next
succeeding the date of acceptance pursuant to the timetable
for settlement set forth below, unless the Company and the
purchaser agree to settlement on another date.
Settlement Settlement Procedures with regard to each Certificated Note
Procedures: and each Certificated Unit sold by the Company to or through
the Agent (unless otherwise specified pursuant to a Notes
Terms Agreement or a Units Terms Agreement) shall be as
follows:
A. In the case of Certificated Notes (whether issued alone
or as part of a Unit), the Agent will advise the
Company by telephone that such Note is a Certificated
Note and of the following settlement information:
1. Name in which such Note is to be registered
("Registered Note Owner").
2. Address of the Registered Note
B-19
Owner and address for payment of principal and
interest.
3. Taxpayer identification number of the Registered
Note Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated Note, the
Interest Rate, whether such Note will pay interest
annually or semiannually and whether such Note is
an Amortizing Note and, if so, the amortization
schedule, or, in the case of a Floating Rate
Certificated Note, the Initial Interest Rate (if
known at such time), Interest Payment Date(s),
Interest Payment Period, Calculation Agent, Base
Rate, Index Maturity, Index Currency, Interest
Reset Period, Initial Interest Reset Date, Interest
Reset Dates, Spread or Spread Multiplier (if any),
Minimum Interest Rate (if any), Maximum Interest
Rate (if any) and the Alternate Rate Event Spread
(if any).
7. Redemption or repayment provisions, if any.
8. Ranking.
9. Settlement date and time (Original Issue Date).
10. Interest Accrual Date.
11. Price.
12. Agent's commission, if any, determined as provided
in the Distribution Agreement.
13. Denominations.
14. Specified Currency.
15. Whether the Note is an OID Note, and if it is an
OID Note, the applicability
B-20
of Modified Payment upon Acceleration (and if so,
the Issue Price).
16. Whether the Note is a Renewable Note, and if it is
a Renewable Note, the Initial Maturity Date, the
Final Maturity Date, the Election Dates and the
Maturity Extension Dates.
17. Whether the Company has the option to reset the
Spread or Spread Multiplier of the Note.
18. Whether the Note is an Optionally Exchangeable
Note, a Mandatorily Exchangeable Note, or any
form of exchangeable Note.
19. Any other applicable provisions.
B. In the case of a Certificated Unit, the Agent will
advise the Company by telephone that such Unit is a
Certificated Unit, of the information set forth in
Settlement Procedure "A" above with respect to
Certificated Notes that constitute a part of such
Certificated Unit and of the following information:
1. Name in which such Unit is to be registered
("Registered Unit Owner").
2. Address of the Registered Unit Owner.
3. Taxpayer identification number of the Registered
Unit Owner (if available).
4. Denominations.
5. Settlement date and time.
6. Face Amount.
7. Agent's commission, if any, determined as provided
in the Distribution Agreement.
8. Designation of the Securities comprised by such
Units:
B-21
a. Notes, if any (See Settlement Procedures "A");
b. Warrants, if any; and
c. Purchase Contracts, if any.
9. Whether, and the terms under which, the Securities
comprised by such Unit will be separately
tradeable.
10. Any other provisions applicable to the Unit (other
than those provisions applicable to the securities
comprised by such Unit).
11. If the Certificated Unit comprises Certificated
Warrants:
a. Designation of the Series of Warrants:
[Call][Put] Warrants;
b. Warrant Property;
c. Aggregate Number of Warrants;
d. Price to Public;
e. Warrant Exercise Price;
f. Dates upon which Warrants may be exercised;
g. Expiration Date;
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
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calculation);
n. Whether the Company or the holder is the writer
of the warrant; and
o. Any other applicable provisions.
12. If the Certificated Unit comprises Certificated
Purchase Contracts:
a. Designation of the Series of Purchase
Contracts: [Purchase][Sale] Purchase Contracts;
b. Purchase Contract Property;
c. Aggregate Number of Purchase Contracts;
d. Price to Public;
e. Settlement Date;
f. [Purchase/Sale] Price of Purchase Contract
Property;
g. Form; and
h. Any other applicable provisions.
C. The Company will advise JPMorgan by telephone or
electronic transmission (confirmed in writing at any
time on the sale date) of the information set forth in
Settlement Procedure "A" and "B" above, as applicable,
such advice to contain a representation as to the
aggregate principal amount of Program Securities
permitted to be issued hereunder after such issuance.
D. The Company will have delivered to JPMorgan a pre-
printed four-ply packet for each Note and Unit, which
packet will contain the following documents in forms
that have been approved by the Company, the Agent, the
Trustee and the Unit Agent, as applicable:
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1. Note or Unit, as the case may be, with customer
confirmation.
2. Stub One - For JPMorgan.
3. Stub Two - For the Agent.
4. Stub Three - For the Company.
E. JPMorgan will (i) with respect to a Note or Cash-
settled Pre-paid Purchase Contract, authenticate
such Note or Cash-settled Pre-paid Purchase
Contract and deliver it (with the confirmation) and
Stubs One and Two to the Agent or (ii) with respect
to a Unit, complete and deliver the Unit (including
countersigning and delivering the Warrant, if any,
and countersigning, executing and delivering the
Purchase Contract (other than a Cash-settled Pre-
paid Purchase Contract, if any) with the
confirmation Stubs One and Two to the Agent. The
Agent will acknowledge receipt of the Note or the
Unit, as the case may be, by stamping or otherwise
marking Stub One and returning it to JPMorgan.
Such delivery will be made only against such
acknowledgment of receipt and evidence that
instructions have been given by the Agent for
payment to the account of the Company at JPMorgan
Chase, New York, New York, or to such other account
as the Company shall have specified to the Agent
and JPMorgan in funds available for immediate use,
of an amount equal to the price of such Note or
Unit less the Agent's commission, if any. In the
event that the instructions given by the Agent for
payment to the account of the Company are revoked,
the Company will as promptly as possible wire
transfer to the account of the Agent an amount of
immediately available funds equal to the amount of
such payment made.
F. Unless the Agent is the end purchaser of such Note
or Unit, the Agent will deliver such Note or Unit
(with confirmation) to the customer against payment
in immediately
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payable funds. The Agent will obtain the acknowledgment
of receipt of such Note or Unit by retaining Stub Two.
G. JPMorgan will send Stub Three to the Company by
first-class mail. Periodically, JPMorgan 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 that have not yet been
settled.
Settlement For sales by the Company of Certificated Notes or of
Procedures Certificated Units to or through the Agent (unless otherwise
Timetable: specified pursuant to a Notes Terms Agreement or a Units
Terms Agreement), Settlement Procedures "A" through "G" set
forth above shall be completed on or before the respective
times in New York City set forth below:
Settlement Time
----------- ----
Procedure
---------
A 2:00 P.M. on day before settlement date
B 2:00 P.M. on day before settlement date
C 3:00 P.M. on day before settlement date
D-E 2:15 P.M. on settlement date
F 3:00 P.M. on settlement date
G 5:00 P.M. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and make payment
for any Certificated Note or any Certificated Unit, the
Agent will notify the Company and JPMorgan by telephone and
return such Note or Unit to JPMorgan. Upon receipt of such
notice, the Company will immediately wire transfer to the
B-25
account of the Agent an amount equal to the amount
previously credited thereto in respect to such Note or Unit.
Such wire transfer will be made on the settlement date, if
possible, and in any event not later than the Business Day
following the settlement date. If the failure shall have
occurred for any reason other than a default by the Agent in
the performance of its obligations hereunder and under the
Distribution Agreement, then the Company will reimburse the
Agent or JPMorgan, as appropriate, on an equitable basis for
its loss of the use of the funds during the period when they
were credited to the account of the Company. Immediately
upon receipt of the Certificated Note or the Certificated
Unit in respect of which such failure occurred, JPMorgan
will mark such note or Unit "canceled," make appropriate
entries in JPMorgan's records and send such Note or Unit, as
the case may be, to the Company.
B-26