Exhibit 4-yy
[FORM OF FACE OF SECURITY]
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
REGISTERED REGISTERED
NO. [ ] [PRINCIPAL AMOUNT]
CUSIP:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE REGISTERED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANY OTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
THESE SECURITIES ARE NOT INSURED OR PROTECTED BY THE SECURITIES INVESTOR
PROTECTION CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
MORGAN STANLEY JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
Morgan Stanley, a Delaware corporation (together with its successors and
assigns, the "Issuer"), for value received, hereby promises to pay to The Bank
of New York, as Property Trustee (the "Property Trustee," which term includes
any successor Property Trustee for Morgan Stanley Capital Trust ( )) for Morgan
Stanley Capital Trust ( ), a statutory trust formed under the laws of the State
of Delaware (the "Issuer Trust"), or registered assignees, the principal sum of
on such date, as it may be advanced as set forth below, the "Stated
Maturity," and to pay interest thereon at the annual rate of % from and
including , until the principal hereof is paid or duly made
available for payment (except as provided below) payable quarterly in arrears on
the day of , , and of each year (each an "Interest
Payment Date") commencing , .
Interest on this Debenture will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from and including ,
, until, but excluding the date the principal hereof has been paid or duly
made available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
described herein, be paid to the person in whose name this Debenture (or one or
more predecessor Debentures) is registered at the close of business on the day
of , , or (whether or not a Business Day) next preceding such
Interest Payment Date (each such date a "Record Date"). As used herein,
"Business Day" means any day, other than a Saturday or Sunday, that is neither a
legal holiday nor a day on which banking institutions are authorized or required
by law or regulation to close in The City of New York. A Holder of U.S.
$1,000,000 or more in aggregate principal amount of Debentures having the same
Interest Payment Date, the interest on which is payable in U.S. dollars, shall
be entitled to receive payments of interest, other than interest due at maturity
or on any date of redemption or repayment, by wire transfer of immediately
available funds if appropriate wire transfer instructions have been received by
the Paying Agent in writing not less than 15 calendar days prior to the
applicable Interest Payment Date.
Reference is hereby made to the further provisions of this Debenture set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place, including, without
limitation, the provisions relating to the subordination of this Debenture to
the Issuer's Senior Indebtedness, as defined on the reverse hereof.
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Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Debenture shall not be entitled to any benefit
under the Junior Subordinated Indenture, as defined on the reverse hereof, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Debenture to be duly
executed.
DATED:
MORGAN STANLEY
By:
---------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Debentures referred
to in the within-mentioned
Junior Subordinated Indenture.
DATED:
THE BANK OF NEW YORK,
as Trustee
By:-------------------------
Authorized Signatory
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(REVERSE OF SECURITY)
This debenture is one of a duly authorized issue of % Junior Subordinated
Debentures due (the "Debentures") of the Issuer. The Debentures are issuable
under a Junior Subordinated Indenture, dated as of October 1, 2004, between
Morgan Stanley (the "Issuer") and The Bank of New York, as Trustee (the
"Trustee," which term includes any successor trustee under the Junior
Subordinated Indenture) (the "Junior Subordinated Indenture"), to which Junior
Subordinated Indenture reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities of the Issuer,
the Trustee and holders of the Debentures and the terms upon which the
Debentures are, and are to be, authenticated and delivered. The Issuer has
appointed The Bank of New York at its corporate trust office in The City of New
York as the paying agent (the "Paying Agent," which term includes any additional
or successor Paying Agent appointed by the Issuer) with respect to the
Debentures. To the extent not inconsistent herewith, the terms of the Junior
Subordinated Indenture are hereby incorporated by reference herein. Capitalized
terms not otherwise defined herein have the meaning given to such terms in the
Junior Subordinated Indenture.
This Debenture will not be subject to any sinking fund and, except as
provided below, will not be redeemable or subject to repayment at the option of
the holder prior to its Stated Maturity.
This Debenture may be redeemed at the option of the Issuer (i) on or after
in whole at any time or in part from time to time and (ii) prior to
, in whole (but not in part) at any time within 90 days following the
occurrence and continuation of a Tax Event or an Investment Company Event (the
"90-Day Period"), in each case at a redemption price equal to the accrued and
unpaid interest on the Debentures, plus 100% of the principal amount thereof
(the "Redemption Price"). Notice of redemption shall be mailed to the registered
holders of the Debentures designated for redemption at their addresses as the
same shall appear on the Debenture register not less than 30 nor more than 60
days prior to the date fixed for redemption, subject to all the conditions and
provisions of the Junior Subordinated Indenture. In the event of redemption of
this Debenture in part only, a new Debenture or Debentures for the amount of the
unredeemed portion hereof shall be issued in the name of the holder hereof upon
the cancellation hereof.
The Issuer's right to redeem the Debentures under clause (ii) of the
preceding paragraph shall be subject to the condition that if at the time there
is available to the Issuer or the Morgan Stanley Capital Trust (the "Issuer
Trust," continued pursuant to the Amended and Restated Trust Agreement dated as
of , 200_, among the Issuer, as depositor, The Bank of New York, as
Property Trustee, The Bank of New York (Delaware), as Delaware Trustee and
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the Administrators, the "Trust Agreement") the opportunity to eliminate, within
the 90-Day Period, the Tax Event or Investment Company Event by taking some
ministerial action ("Ministerial Action"), such as filing a form or making an
election, or pursuing some other similar reasonable measure that will have no
adverse effect on the Issuer, the Issuer Trust or the holders of the securities
issued by the Issuer Trust and will involve no material cost, the Issuer shall
pursue such measures in lieu of redemption; provided further, that the Issuer
shall have no right to redeem the Debentures while the Issuer Trust is pursuing
any Ministerial Action pursuant to the Trust Agreement; provided further, that
the Issuer shall, if then required under applicable laws, regulations or
policies, have received the prior approval of the redemption from the Securities
and Exchange Commission or any self-regulatory organization then having
jurisdiction. The Redemption Price shall be paid prior to 12:00 noon, New York
time, on the date of such redemption or such earlier time as the Issuer
determines; provided, that the Issuer shall deposit with the Trustee an amount
sufficient to pay the Redemption Price prior to the redemption date.
In addition, if a Tax Event occurs, then the Issuer will have the right
prior to the termination of the Issuer Trust, subject to obtaining any required
regulatory approval, to advance the Stated Maturity of this Debenture to the
minimum extent required in order to allow for the payments of interest in
respect this Debenture to continue to be tax deductible, but in no event shall
the resulting maturity of this Debenture be less than 15 years from the date of
original issuance thereof. The Stated Maturity shall be advanced only if, in the
opinion of counsel to the Issuer, experienced in such matters, (a) after
advancing the Stated Maturity, interest paid on this Debenture will be
deductible for United States federal income tax purposes and (b) advancing the
Stated Maturity will not result in a taxable event to the holders of the Capital
Securities.
The term "Tax Event" means the receipt by the Issuer Trust of an opinion of
counsel to the Issuer experienced in such matters, who shall not be an officer
or employee of the Issuer or any of its affiliates, to the effect that, as a
result of any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or as a result of
any official or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement, action or decision is announced on or after
the date of initial offering of Capital Securities of the Issuer Trust to the
public, there is more than an insubstantial risk that (i) the Issuer Trust is,
or will be within 90 days of the delivery of such opinion, subject to United
States federal income tax with respect to income received or accrued on the
Debentures, (ii) interest payable by the Issuer on the Debentures is not, or
within 90 days of the delivery of such opinion will not be, deductible by the
Issuer, in whole or in part, for United States federal income tax purposes or
(iii) the Issuer Trust is, or will be within 90 days
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of the delivery of the opinion, subject to more than a de minimis amount of
other taxes, duties or other governmental charges.
"Investment Company Event" means the receipt by the Issuer Trust of an
opinion of counsel to the Issuer experienced in such matters, who shall not be
an officer or employee of the Issuer or any of its affiliates, to the effect
that, as a result of the occurrence of a change in law or regulation or a
written change (including any announced prospective change) in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
the Issuer Trust is or will be considered an "investment company" that is
required to be registered under the Investment Company Act of 1940, as amended
(the "Investment Company Act"), which change or prospective change becomes
effective or would become effective, as the case may be, on or after the date of
the initial offering of the Capital Securities of the Issuer Trust to the
public.
Interest payments on this Debenture will include interest accrued to but
excluding the Interest Payment Dates or the Stated Maturity (or any earlier
redemption or repayment date), as the case may be. Interest payments for this
Debenture will be computed and paid on the basis of a 360-day year of twelve
30-day months and the actual days elapsed in a partial month in such period. The
amount of interest payable for any full interest period will be computed by
dividing the rate per annum by four. Accrued interest that is not paid on the
applicable Interest Payment Date will bear additional interest on the amount
thereof at the rate per annum of % (the "Coupon Rate"), compounded quarterly
and computed on the basis of a 360-day year of twelve 30-day months and the
actual days elapsed in a partial month in such period. The amount of additional
interest payable for any full interest period will be computed by dividing the
rate per annum by four. The term "interest' as used herein includes quarterly
interest payments, interest on quarterly interest payments not paid on the
applicable Interest Payment Date and Additional Sums (as defined below), as
applicable.
If any Interest Payment Date or the Stated Maturity (or any redemption or
repayment date) does not fall on a Business Day, payment of interest, premium,
if any, or principal otherwise payable on such date need not be made on such
date, but may be made on the next succeeding Business Day, except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case, with the same force and effect
as if made on the Interest Payment Date or at the Stated Maturity (or any
redemption or repayment date), and no interest on such payment shall accrue for
the period from and after the Interest Payment Date or the Stated Maturity (or
any redemption or repayment date) to such next succeeding Business Day.
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The Junior Subordinated Indenture provides that (a) if an Event of Default
pursuant to Section 5.01(a) of the Junior Subordinated Indenture occurs and is
continuing or an Event of Default pursuant to Section 5.01(d) of the Junior
Subordinated Indenture is provided in the supplemental indenture relating to the
series of Debentures of which this Debenture forms a part or in the form of debt
security for such series (if such Event of Default is with respect to less than
all outstanding debt securities issued under the Junior Subordinated Indenture)
and such Event of Default shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in aggregate principal amount of the
outstanding debt securities of each affected series, voting as one class, by
notice in writing to the Issuer and to the Trustee, if given by the
securityholders, may then declare the principal of all debt securities of all
such series and interest accrued thereon to be due and payable immediately and
(b) if an Event of Default due to certain events of bankruptcy, insolvency and
reorganization of the Issuer, shall have occurred and be continuing or if an
Event of Default pursuant to Section 5.01(d) of the Junior Subordinated
Indenture is provided in the supplemental indenture relating to the series of
Debentures of which this Debenture forms a part or in the form of debt security
for such series (if such Event of Default is with respect to all outstanding
debt securities issued under the Junior Subordinated Indenture) and such Event
of Default shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in aggregate principal amount of all debt
securities issued under the Junior Subordinated Indenture then outstanding
(treated as one class) by notice in writing to the Issuer and to the Trustee, if
given by the securityholders, may declare the principal of all such debt
securities and interest accrued thereon to be due and payable immediately, but
upon certain conditions such declarations may be annulled and past defaults may
be waived (except a continuing default in payment of principal (or premium, if
any) or interest on such debt securities) by the holders of a majority in
aggregate principal amount of all the debt securities of all affected series
then outstanding.
So long as no Event of Default has occurred and is continuing, the Issuer
shall have the right at any time, and from time to time, during the term of the
Debentures to defer payments of interest by extending the interest payment
period of this Debenture for a period not exceeding 20 consecutive quarters (the
"Extension Period"), during which Extension Period no interest shall be due and
payable; provided, that no Extension Period may extend beyond the Stated
Maturity. In the event that the Stated Maturity is advanced to a date prior to
the end of an Extension Period, such Extension Period shall be deemed to end on
such date or such earlier date as may be determined by the Company. In the event
that any Debentures are called for redemption on a date prior to the end of an
Extension Period, with respect to such Debentures, such Extension Period shall
be deemed to end on such date or such earlier date as may be determined by the
Company. Interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this paragraph, will bear
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interest thereon at the Coupon Rate compounded quarterly for each quarter of the
Extension Period and computed on the basis of a 360-day year of twelve 30-day
months and the actual days elapsed in a partial month in such period
("Additional Interest"). The Coupon Rate payable for any full interest period
will be computed by dividing the rate per annum by four. At the end of the
Extension Period, the Issuer shall pay all interest accrued and unpaid on this
Debenture, including any Additional Sums and Additional Interest (together,
"Deferred Interest") that shall be payable to the Holders of this Debenture in
whose names this Debenture is registered in the Securities Register on the first
Record Date after the end of the Extension Period. Before the termination of any
Extension Period, the Issuer may further extend such period; provided, that such
period together with all such further extensions thereof shall not exceed 20
consecutive quarters, or extend beyond the Stated Maturity or any earlier
redemption date. Upon the termination of any Extension Period and upon the
payment of all Deferred Interest then due, the Issuer may commence a new
Extension Period, subject to the foregoing requirements. No interest shall be
due and payable during an Extension Period, except at the end thereof, but the
Issuer may prepay at any time all or any portion of the interest accrued during
an Extension Period.
If the Property Trustee (as defined in the Trust Agreement) is the only
Holder of the Debentures at the time the Issuer selects an Extension Period, the
Issuer shall give written notice to the Administrators (as defined in the Trust
Agreement) and the Property Trustee of its selection of such Extension Period at
least 30 calendar days prior to the date the Distributions (as defined in the
Trust Agreement) on the Trust Securities (as defined in the Trust Agreement)
would have been payable but for the election to begin such Extension Period.
If the Property Trustee is not the only Holder of the Debentures at the
time the Issuer selects an Extension Period, the Issuer shall give the Holders
of the Debentures and the Trustee written notice of its selection of such
Extension Period no more than five Business Days before the earlier of the next
succeeding Interest Payment Date or the date the Issuer is required to give
notice of the record or payment date of such interest payment to Holders of the
Debentures.
The Issuer covenants that it will not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Issuer's capital stock or (ii) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Issuer that rank pari passu in all respects with or
junior in interest to the Debentures (other than (a) repurchases, redemptions or
other acquisitions of shares of capital stock of the Issuer (1) in connection
with any employment contract, benefit plan or other similar arrangement with or
for the benefit of any one or more employees, officers, directors or
consultants, (2) in connection with a dividend reinvestment or stockholder stock
purchase plan or (3) in connection with the issuance of capital stock of the
Issuer (or securities
8
convertible into or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the applicable Extension Period or
other event referred to below, (b) as a result of an exchange, redemption or
conversion of any class or series of the Issuer's capital stock (or any capital
stock of a subsidiary of the Issuer) for any class or series of the Issuer's
capital stock or of any class or series of the Issuer's indebtedness for any
class or series of the Issuer's capital stock, (c) the purchase of fractional
interests in shares of the Issuer's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged, (d) any declaration of a dividend in connection with any
stockholder's rights plan, or the issuance of rights, stock or other property
under any stockholder's rights plan, or the redemption or repurchase of rights
pursuant thereto, (e) payments under the Guarantee executed and delivered by the
Issuer and The Bank of New York, as trustee, for the benefit of the holders of
any Capital Securities (as defined in the Trust Agreement), as amended from time
to time (the "Guarantee") or (f) any dividend in the form of stock, warrants,
options or other rights where the dividend stock or the stock issuable upon
exercise of such warrants, options or other rights is the same stock as that on
which the dividend is being paid or ranks pari passu with or junior to such
stock), if at such time (i) there has occurred any event (a) of which the Issuer
has actual knowledge that with the giving of notice or the lapse of time, or
both, would constitute an Event of Default and (b) that the Issuer has not taken
reasonable steps to cure, (ii) if the Debentures are held by the Issuer Trust,
the Issuer is in default with respect to its payment of any obligations under
the Guarantee or (iii) the Issuer has given notice of its election of an
Extension Period as provided in the Junior Subordinated Indenture and has not
rescinded such notice, or such Extension Period, or any extension thereof, is
continuing.
If an Event of Default or Default has occurred and is continuing and such
event or default is attributable to the failure of the Issuer to pay any amounts
payable in respect of the Debentures on the date such amounts are otherwise
payable, a registered holder of Capital Securities may institute a legal
proceeding directly against the Issuer for enforcement of payment to such
registered holder of an amount equal to the amount payable in respect of
Debentures having a principal amount equal to the aggregate Liquidation Amount
(as defined in the Trust Agreement) of the Capital Securities held by such
registered holder (a "Direct Action"). The Issuer shall have the right to set
off any payment made to such registered holder of Capital Securities by the
Issuer in connection with a Direct Action.
As long as any Debentures are held by the Issuer Trust, the Issuer
covenants (i) to continue to hold, directly or indirectly, 100% of the Common
Securities, provided that certain successors that are permitted pursuant to the
Junior Subordinated Indenture may succeed to the Issuer's ownership of the
Common Securities, (ii) as holder of the Common Securities, not to voluntarily
dissolve, windup or liquidate the Issuer Trust, other than (a) in connection
with a
9
distribution of Debentures to the holders of the Capital Securities in
liquidation of the Issuer Trust or (b) in connection with certain mergers,
consolidations or amalgamations permitted by the Trust Agreement and (iii) to
use its reasonable efforts, consistent with the terms and provisions of the
Trust Agreement, to cause the Issuer Trust to continue not to be taxable as a
corporation for United States federal income tax purposes.
If, and for so long as, (i) the Issuer Trust is the holder of all the
Debentures and (ii) the Issuer Trust is required to pay any additional taxes,
duties or other governmental charges as a result of a Tax Event, the Issuer will
pay as additional sums on the Debentures ("Additional Sums") such amounts as may
be required so that the Distributions (as defined in the Trust Agreement) paid
by the Issuer Trust will not be reduced as a result of any such additional
taxes, duties or other governmental charges.
The Issuer, as borrower, agrees to pay all debts and other obligations
(other than with respect to the Capital Securities issued by the Issuer Trust)
and all costs and expenses of the Issuer Trust (including costs and expenses
relating to the organization of the Issuer Trust, the fees and expenses of the
Issuer Trustees (as defined in the Trust Agreement) for the Issuer Trust and the
costs and expenses relating to the operation of the Issuer Trust) and to pay any
and all taxes and all costs and expenses with respect thereto (other than United
States withholding taxes) to which the Issuer Trust might become subject. The
foregoing obligations of the Issuer under the Debentures owned by the Issuer
Trust are for the benefit of, and shall be enforceable by, any person to whom
any such debts, obligations, costs, expenses and taxes are owed (a "Creditor")
whether or not such Creditor has received notice thereof. Any such Creditor may
enforce such obligations of the Issuer directly against the Issuer, and the
Issuer irrevocably waives any right or remedy to require that any such Creditor
take any action against the Issuer Trust or any other person before proceeding
against the Issuer. The Issuer agrees to execute any additional agreements as
may be necessary or desirable to give full effect to the foregoing.
The provisions of Section 3.04 and Section 10.01 of the Junior Subordinated
Indenture relating to discharge, defeasance and covenant defeasance are not
applicable to this Debenture.
This Debenture and all other obligations of the Issuer hereunder will
constitute part of the junior subordinated debt of the Issuer, will be issued
under the Junior Subordinated Indenture and will be subordinate and junior in
right of payment, to the extent and in the manner set forth in the Junior
Subordinated Indenture, to all "Senior Indebtedness" of the Issuer. The Junior
Subordinated Indenture defines "Senior Indebtedness" as (i) obligations with
respect to securities issued under the Senior Indentures meaning (a) an
Indenture dated June 15, 1988 between Morgan Stanley (formerly known as Morgan
Stanley Group
10
Inc.) and JPMorgan Chase Bank (formerly known as Chemical Bank), Trustee, as the
same may be amended from time to time, (b) an Indenture between Morgan Stanley
(formerly known as Dean Witter Discover & Co.) and The First National Bank of
Chicago, as trustee, dated as of February 24, 1993, as the same may be amended
from time to time, (c) an Amended and Restated Senior Indenture between Morgan
Stanley (formerly known as Morgan Stanley Dean Witter & Co.) and JPMorgan Chase
Bank (formerly known as The Chase Manhattan Bank), as trustee, dated May 1,
1999, as supplemented by a First Supplemental Senior Indenture dated as of
September 15, 2000 and a Second Supplemental Indenture, dated as of October 8,
2002 and a Third Supplemental Indenture dated as of August 29, 2003, between the
Issuer and JPMorgan Chase Bank, as trustee, as the same may be further amended
or supplemented from time to time, (d) a Senior Indenture dated as of May 15,
1999, between Morgan Stanley (formerly known as Morgan Stanley Dean Witter &
Co.) and JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank),
Trustee, as the same may be amended from time to time, and (e) a Senior
Indenture between Morgan Stanley and JPMorgan Chase Bank, as trustee, dated as
of November 1, 2004, as the same may be amended or supplemented from time to
time, or the Senior Subordinated Indentures meaning (a) an Amended and Restated
Subordinated Indenture between Morgan Stanley (formerly known as Morgan Stanley
Dean Witter & Co.) and J.P. Morgan Trust Company, National Association, as
successor in interest to Bank One Trust Company, N.A., successor to The First
National Bank of Chicago, as trustee, dated as of May 1, 1999, as the same may
be amended from time to time, and (b) a Subordinated Indenture dated as of
October 1, 2004 between Morgan Stanley and J.P. Morgan Trust Company, National
Association, as trustee, as the same may be amended or supplemented from time to
time, and any other obligations (other than non-recourse obligations, the debt
securities, including this Debenture, issued under the Junior Subordinated
Indenture or any other obligations specifically designated as being subordinate
in right of payment to Senior Indebtedness) of, or guaranteed or assumed by, the
Issuer for borrowed money or evidenced by bonds, debentures, notes or other
similar instruments, and amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligation and (ii) if provided in the
supplemental indenture under which a series of Securities is issued or in the
form of Security for such series, any additional obligations that the Issuer
determines to include within the definition of Senior Indebtedness in order to
assure that the Securities of such series will be accorded the regulatory
capital recognition desired by the Issuer in accordance with Rule 15c3-1 under
the Securities Exchange Act of 1934, as amended, or any other rule or regulation
governing the definition of capital that is applicable to the Issuer or its
affiliates.
This Debenture, and any Debenture or Debentures issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons, and
is
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issuable only in denominations of U.S. $25 and any integral multiple of U.S. $25
in excess thereof, unless otherwise indicated on the face thereof.
The Bank of New York has been appointed registrar for the Debentures (the
"Registrar," which term includes any successor registrar appointed by the
Issuer), and the Registrar will maintain at its office in The City of New York a
register for the registration and transfer of Debentures. This Debenture may be
transferred at the aforesaid office of the Registrar by surrendering this
Debenture for cancellation, accompanied by a written instrument of transfer in
form satisfactory to the Registrar and duly executed by the registered holder
hereof in person or by the holder's attorney duly authorized in writing, and
thereupon the Registrar shall issue in the name of the transferee or
transferees, in exchange herefor, a new Debenture or Debentures having identical
terms and provisions and having a like aggregate principal amount in authorized
denominations, subject to the terms and conditions set forth herein; provided,
however, that the Registrar will not be required (i) to register the transfer of
or exchange any Debenture that has been called for redemption in whole or in
part, except the unredeemed portion of Debentures being redeemed in part or (ii)
to register the transfer of or exchange Debentures to the extent and during the
period so provided in the Junior Subordinated Indenture with respect to the
redemption of Debentures. Debentures are exchangeable at said office for other
Debentures of other authorized denominations of equal aggregate principal amount
having identical terms and provisions. All such exchanges and transfers of
Debentures will be free of charge, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge in connection
therewith. All Debentures surrendered for exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Registrar and
executed by the registered holder in person or by the holder's attorney duly
authorized in writing. The date of registration of any Debenture deliebentures
shall be such that no gain or loss of interest results from such exchange or
transfer.
In case this Debenture shall at any time become mutilated, defaced or be
destroyed, lost or stolen and this Debenture or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Registrar, a new Debenture of like tenor will be issued by the
Issuer in exchange for this Debenture, but, if this Debenture has been
destroyed, lost or stolen, only upon receipt of evidence satisfactory to the
Registrar and the Issuer that such Debenture was destroyed or lost or stolen
and, if required, upon receipt also of indemnity satisfactory to each of them.
All expenses and reasonable charges associated with procuring such indemnity and
with the preparation, authentication and delivery of a new Debenture shall be
borne by the owner of the Debenture mutilated, defaced, destroyed, lost or
stolen.
12
The Junior Subordinated Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Junior Subordinated
Indenture then outstanding and affected (voting as one class), to execute
supplemental indentures adding any provisions to or changing in any manner the
rights of the holders of each series so affected; provided that the Issuer and
the Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby and the prior written consent of each holder of
Capital Securities, to the extent that the Debentures are held by a Morgan
Stanley Capital Trust, (a) extend the final maturity of any such debt security,
or reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, except as otherwise provided herein or in the
Junior Subordinated Indenture, or reduce any amount payable on redemption or
repayment thereof, or change the currency of payment thereof, or impair or
affect the rights of any holder to institute suit for the payment thereof
without the consent of the holder of each debt security so affected or (b)
reduce the aforesaid percentage in principal amount of debt securities the
consent of the holders of which is required for any such supplemental indenture;
provided, however, that neither this Debenture nor the Junior Subordinated
Indenture may be amended to alter the subordination provisions hereof or thereof
without the written consent of each holder of Senior Indebtedness then
outstanding that would be adversely affected thereby. In addition, so long as
any of the Capital Securities remain outstanding, no such modification may be
made that adversely affects the holders of such Capital Securities in any
material respect, and no termination of the Junior Subordinated Indenture may
occur, and no waiver of any Default or compliance with any covenant under the
Junior Subordinated Indenture, without the prior consent of the holders of at
least a majority of the aggregate Liquidation Amount of the outstanding Capital
Securities unless and until the principal of (and premium, if any, on) the
Debentures and all accrued and unpaid interest thereon have been paid in full
and certain other conditions are satisfied. So long as the Issuer acts in
accordance with the terms of the Debentures, the Issuer may shorten the Stated
Maturity of and defer interest payable on the Debentures, in each case without
the consent of the Issuer Trust or the holders of Capital Securities. However,
the Issuer may not amend the Junior Subordinated Indenture to remove the rights
of holders of Capital Securities to institute a Direct Action without the prior
written consent of all the holders of Capital Securities of the Issuer Trust.
So long as this Debenture shall be outstanding, the Issuer will cause to be
maintained an office or agency for the payment of the principal of and premium,
if any, and interest on this Debenture as herein provided in the Borough of
Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, transfer and exchange as aforesaid of the
Debentures. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws
13
and regulations) as the Issuer may decide. So long as there shall be such an
agency, the Issuer shall keep the Trustee advised of the names and locations of
such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or any
Paying Agent for payment of the principal of or interest or premium, if any, on
any Debentures that remain unclaimed at the end of two years after such
principal, interest or premium shall have become due and payable (whether at
maturity or upon call for redemption or otherwise), (i) the Trustee or such
Paying Agent shall notify the holders of such Debentures that such moneys shall
be repaid to the Issuer and any person claiming such moneys shall thereafter
look only to the Issuer for payment thereof and (ii) such moneys shall be so
repaid to the Issuer. Upon such repayment all liability of the Trustee or such
Paying Agent with respect to such moneys shall thereupon cease, without,
however, limiting in any way any obligation that the Issuer may have to pay the
principal of or interest or premium, if any, on this Debenture as the same shall
become due.
No provision of this Debenture or of the Junior Subordinated Indenture
shall alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Debenture at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the registered holder
of this Debenture.
Prior to due presentment of this Debenture for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
holder in whose name this Debenture is registered as the owner hereof for all
purposes, whether or not this Debenture be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if
any, or the interest on this Debenture, for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Junior Subordinated
Indenture or any indenture supplemental thereto, against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Issuer or of any successor corporation, either directly or through the Issuer or
any successor corporation, whether by virtue of any constitution, statute or
rule of law or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released.
This Debenture shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
14
All terms used in this Debenture which are defined in the Junior
Subordinated Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Junior Subordinated Indenture.
15
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the
entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT - ______________ Custodian _________________
(Minor) (Cust)
Under Uniform Gifts to Minors Act _________________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_______________________________________
(PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
the within Debenture and all rights thereunder, hereby irrevocably constituting
and appointing such person attorney to transfer such Debenture on the books of
the Issuer, with full power of substitution in the premises.
Dated:__________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Debenture in every particular
without alteration or enlargement or any change whatsoever.
Signature Guaranty: _____________________________
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the (Registrar),
which requirements include membership or participation in
the Security Transfer Agent Medallion Program ("Stamp") or
such other "signature guarantee program" as may be
determined by the (Registrar) in addition to, or in
substitution for, Stamp, all in accordance with the
Securities Exchange Act of 1934, as amended.