EXHIBIT 1-d
MORGAN STANLEY
Global Medium-Term Notes, Series F
Global Units, Series F
U.S. DISTRIBUTION AGREEMENT
[ ], 2005
Morgan Stanley
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, N.A., (formerly known as
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, N.A. (formerly
known as 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, N.A. (formerly known as 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
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(1) The Unit Agreement Without Holders' Oligations shall include additional
provisions to allow for the issuance of Pre-Paid Purchase Contracts that are
not issued under the Indenture.
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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, N.A. (formerly known as JPMorgan Chase Bank),
as Warrant Agent. Purchase Contracts, other than Pre-paid Purchase Contracts
("Non-Pre-paid Purchase Contracts"), entered into by the Company and the holders
thereof will be governed by the Unit Agreement.
The Notes, whether issued alone or as part of a Unit, will have the
maturities, interest rates, redemption provisions, if any, and other terms as
set forth in supplements to the Basic Prospectus referred to below. The Warrants
will have the exercise prices, exercise dates, expiration dates and other terms
as set forth in supplements to the Basic Prospectus. The Purchase Contracts will
have the closing dates, purchase or sale prices and other terms as set forth in
supplements to the Basic Prospectus.
The Company hereby appoints you as its exclusive agents for the purpose
of soliciting and receiving offers to purchase Program Securities from the
Company by others and, on the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, you agree
to use reasonable efforts to solicit and receive offers to purchase Program
Securities upon terms acceptable to the Company at such times and in such
amounts as the Company shall from time to time specify. In addition, you may
also purchase Program Securities as principal pursuant to the terms of a terms
agreement relating to such sale (in the case of Notes, a "Notes Terms Agreement"
and, in the case of Units, a "Units Terms Agreement") in accordance with the
provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Program Securities. Such registration statement, including the exhibits thereto,
as amended at the Commencement Date (as hereinafter defined), is hereinafter
referred to as the "Registration Statement." The Company proposes to file with
the Commission from time to time, pursuant to Rule 424 under the Securities Act
of 1933, as amended (the "Securities Act"), supplements to the prospectus
relating to the Program Securities included in the Registration Statement that
will describe certain terms of the Program Securities. The prospectus relating
to the Program Securities in the form in which it appears in the Registration
Statement is hereinafter referred to as the "Basic Prospectus." The term
"Prospectus" means the Basic Prospectus together with the prospectus supplement
or supplements (each, a "Prospectus Supplement") specifically relating to the
Program Securities, as filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 under the Securities Act. As used herein, the terms "Basic
Prospectus" and "Prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement," "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated by
reference in the Prospectus that are filed subsequent to the date of the Basic
Prospectus by the
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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 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
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Trustees and (2) the representations and warranties set forth in clauses
(iii) and (iv) above, when made as of the Commencement Date or as of any
date on which you solicit offers to purchase Program Securities or on which
the Company accepts an offer to purchase Program Securities, shall be
deemed not to cover information concerning an offering of particular
Program Securities to the extent such information will be set forth in a
supplement to the Basic Prospectus.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its consolidated subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its consolidated subsidiaries,
taken as a whole.
(e) Each of this Agreement and any applicable Written Notes Terms
Agreement or Written Units Terms Agreement (each as hereinafter defined)
has been duly authorized, executed and delivered by the Company.
(f) Each Indenture has been duly qualified under the Trust Indenture
Act and each of the Senior Indenture, the Subordinated Indenture, the Unit
Agreement and the Warrant Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as the
enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws 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
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Without Holders' Obligations has been duly executed and delivered by the
Company, the Unit Agreement Without Holders' Obligations will be a valid
and binding agreement of the Company, enforceable in accordance with its
terms except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered at a proceeding in equity or at law.
(h) The forms of Notes (including the form of Cash-settled Pre-paid
Purchase Contracts), whether issued alone or as part of a Unit, have been
duly authorized and established in conformity with the provisions of the
relevant Indenture and, when the Notes (and the Cash-settled Pre-paid
Purchase Contracts) have been executed and authenticated in accordance with
the provisions of the relevant Indenture and delivered to and duly paid for
by the purchasers thereof, the Notes (and the Cash-settled Pre-paid
Purchase Contracts) will be entitled to the benefits of such Indenture and
will be valid and binding obligations of the Company, enforceable in
accordance with their respective terms except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law.
(i) The forms of Units under the Unit Agreement, including the forms
of Warrants, Physically-settled Pre-paid Purchase Contracts and
Non-Pre-paid Purchase Contracts, have been duly authorized and established
in conformity with the provisions of (i) in the case of such Units,
Physically-settled Pre-paid Purchase Contracts, 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.
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(j) When a Unit Agreement Without Holders' Obligations has been
executed and delivered by the Company, the Units to be issued thereunder
will have been duly authorized and when such Units have been established in
conformity with the provisions of the Unit Agreement Without Holders'
Obligations and delivered to and duly paid for by the purchasers thereof,
and any Warrants included in such Units have been executed by the Company
and countersigned by the Warrant Agent, such Units (including any such
Warrants contained therein) will be entitled to the benefits of the Unit
Agreement Without Holders' Obligations and will be valid and binding
obligations of the Company, enforceable in accordance with their respective
terms except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered at a proceeding in equity or at law.
(k) The execution and delivery by the Company of this Agreement, the
Notes and Pre-paid Purchase Contracts (whether issued alone or as part of a
Unit), the Units (including any Purchase Contracts and Warrants included
therein), the Indentures, the Unit Agreement, any Unit Agreement Without
Holders' Obligations, the Warrant Agreement and any applicable Written
Notes Terms Agreement or Written Units Terms Agreement and the performance
by the Company of its obligations under this Agreement, the Notes, the
Pre-paid Purchase Contracts, the Units (including any Purchase Contracts or
Warrants included therein), the Indentures, the Unit Agreement, any Unit
Agreement Without Holders' Obligations, the Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its consolidated subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any 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
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amended.
(l) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus.
(m) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its consolidated subsidiaries is
a party or to which any of the properties of the Company or any of its
consolidated subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to be
filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required.
(n) Each of the Company and its consolidated subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to conduct its
business in the manner described in the Prospectus, except to the extent
that the failure to obtain or file would not have a material adverse effect
on the Company and its consolidated subsidiaries, taken as a whole.
(o) Morgan Stanley 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
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representations and warranties set forth in Section 1(b)(iii) and 1(b)(iv), 1(h)
(except as to due authorization of the Notes and Cash-settled Pre-paid Purchase
Contracts), 1(i) (except as to due authorization of the Units, Warrants,
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase
Contracts), 1(j) (except as to due authorization of the Units and Warrants) and
1(k), when made as of the Commencement Date, or as of any date on which you
solicit offers to purchase Program Securities, with respect to any Program
Securities the payments of principal or interest on which, or any other payments
with respect to which, will be determined by reference to one or more currency
exchange rates, commodity prices, securities of entities affiliated or
unaffiliated with the Company, baskets of such securities, equity indices or
other factors, shall be deemed not to address the application of the Commodity
Exchange Act, as amended, or the rules, regulations or interpretations of the
Commodity Futures Trading Commission.
2. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. In connection with your actions as agents
hereunder, you agree to use reasonable efforts to solicit offers to
purchase Program Securities upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct
you to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Program Securities. Upon receipt of at
least one business day's prior notice from the Company, you will forthwith
suspend solicitations of offers to purchase Program Securities from the
Company until such time as the Company has advised you that such
solicitation may be resumed. While such solicitation is suspended, the
Company shall not be required to deliver any certificates, opinions or
letters in accordance with Sections 5(a), 5(b) and 5(c); provided, however,
that if the Registration Statement or Prospectus is amended or supplemented
during the period of suspension (other than by an amendment or 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%
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and .750% (depending upon such Note's maturity or, in the case of Units,
any underlying Note's maturity or the terms of the Units and of the
securities comprised by such Units) of the principal amount of such Note
or, in the case of Units, the face amount of such Unit (provided that the
commission for Notes having, or Units including Notes or other securities
having, a maturity of 30 years or greater will be negotiated) or such other
discount as may be specified in the Prospectus Supplement relating to such
Note or Unit.
You shall communicate to the Company, orally or in writing, each offer
to purchase Program Securities received by you as agent that in your
judgment should be considered by the Company. The Company shall have the
sole right to accept offers to purchase Program Securities and may reject
any offer in whole or in part. You shall have the right to reject any offer
to purchase Program Securities that you consider to be unacceptable, and
any such rejection shall not be deemed a breach of your agreements
contained herein. The procedural details relating to the issue and delivery
of Program Securities sold by you as agent and the payment therefor shall
be as set forth in the Administrative Procedures (as hereinafter defined).
(b) Purchases as Principals. Each sale of Program Securities to you as
principals shall be made in accordance with the terms of this Agreement. In
connection with each such sale, the Company will enter into a Notes Terms
Agreement or Units Terms Agreement that will provide for the sale of such
Program Securities to and the purchase thereof by you. Each Notes Terms
Agreement or Units Terms Agreement will take the form of either (i) a
written agreement between you and the Company, which may be substantially
in the form of Exhibit A or Exhibit A-1 (as applicable) hereto (in the case
of Notes, a "Written Notes Terms Agreement," and in the case of Units, a
"Written Units Terms Agreement"), or (ii) an oral agreement between you and
the Company confirmed in writing by you to the Company.
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
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and (c) with respect to any Purchase Contracts issued as part of a Unit,
the settlement date, the purchase or sale price or any other terms of such
Purchase Contracts. Each such Notes Terms Agreement or Units Terms
Agreement may also specify any requirements for officers' certificates,
opinions of counsel and letters from the independent auditors of the
Company pursuant to Section 4 hereof. A Notes Terms Agreement and a Unit
Terms Agreement may also specify certain provisions relating to the
reoffering of such Notes or Units, as the case may be, by you.
Each Notes Terms Agreement and each Units Terms Agreement shall specify
the time and place of delivery of and payment for such Notes or Units, as the
case may be. Unless otherwise specified in a Notes Terms Agreement or a Units
Terms Agreement, the procedural details relating to the issue and delivery of
Notes or Units, as the case may be, purchased by you as principal and the
payment therefor shall be as set forth in the Administrative Procedures. Each
date of delivery of and payment for Program Securities to be purchased by you
as principal pursuant to a Notes Terms Agreement or a Units Terms Agreement, as
the case may be, is referred to herein as a "Settlement Date."
Unless otherwise specified in a Notes Terms Agreement or a Units Terms
Agreement, if you are purchasing Program Securities as principal you may resell
such Program Securities to other dealers. Any such sales may be at a discount,
which shall not exceed the amount set forth in the Prospectus Supplement
relating to such Notes or Units.
(c) Administrative Procedures. You and the Company agree to perform
the respective duties and obligations specifically provided to be performed
in the Global Medium-Term Notes, Series 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:
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(a) Prior to the termination of the offering of the Program Securities
pursuant to this Agreement or pursuant to any Notes Terms Agreement or
Units Terms Agreement, the Company will not file any Prospectus Supplement
relating to the Program Securities or any amendment to the Registration
Statement relating to the Program Securities unless the Company has
previously furnished to you a copy thereof for your review and will not
file any such proposed supplement or amendment to which you reasonably
object; provided, however, that the foregoing requirement shall not apply
to any of the Company's periodic filings with the Commission required to be
filed pursuant to Section 13(a), 13(c), 13(f), 14 or 15(d) of the Exchange
Act, copies of which filings the Company will cause to be delivered to you
promptly after being transmitted for filing with the Commission. Subject to
the foregoing sentence, the Company will promptly cause each Prospectus
Supplement to be filed with or transmitted for filing to the Commission in
accordance with Rule 424(b) under the Securities Act. The Company will
promptly advise you (i) of the filing of any amendment or supplement to the
Basic Prospectus, (ii) of the filing and effectiveness of any amendment to
the Registration Statement, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Basic Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose 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
12
notified by the Company, you shall forthwith suspend such solicitation and
cease using the Prospectus, as then amended or supplemented. If the Company
shall decide to amend or supplement the Registration Statement or
Prospectus, as then amended or supplemented, it shall so advise you
promptly by telephone (with confirmation in writing) and, at its expense,
shall prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus, as
then amended or supplemented, satisfactory in all respects to you, that
will correct such statement or omission or effect such compliance and will
supply such amended or supplemented Prospectus to you in such quantities as
you may reasonably request. If any documents, certificates, opinions and
letters furnished to you pursuant to paragraph (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
13
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto as you may reasonably request and (ii)
to each Agent that purchases Program Securities pursuant to a Notes Terms
Agreement or Units Terms Agreement or solicits an offer to purchase Program
Securities that is accepted by the Company, prior to 10:00 a.m. New York
City time on the business day next succeeding the date of such Notes Terms
Agreement or Units Terms Agreement or the acceptance of such offer, as many
copies of the Prospectus, as then amended or supplemented (including the
Prospectus Supplement relating to the Program Securities to be purchased
pursuant to such Notes Terms Agreement or Units Terms Agreement or accepted
offer), as such Agent may reasonably request.
(e) 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
14
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
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
15
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:
(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
16
term is defined for purposes of Rule 436(g)(2) under the Securities
Act;
(A) except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed to you in writing by the Company prior to such solicitation or, in the
case of a purchase of Program Securities, before the offer to purchase such
Program Securities was made or (B) unless in each case described in (ii) above,
the relevant event shall have occurred and been known to you prior to such
solicitation or, in the case of a purchase of Program Securities, before the
offer to purchase such Program Securities was made.
(b) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date,
you shall have received:
(i) The opinion, dated as of such date, of Sidley Austin Brown &
Wood LLP, counsel to the Company, or of other counsel satisfactory to
you and who may be an officer of the Company, to the following effect
that:
(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, 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
17
and its consolidated subsidiaries, taken as a whole;
(C) each of the Company and its Material Subsidiaries has
all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local and
other governmental authorities, all self-regulatory organizations
and all courts and other tribunals, to own, lease, license and
use its properties and assets and to conduct its business in the
manner described in the Prospectus, as amended or supplemented,
except to the extent that the failure to obtain or file would not
have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(D) each of this Agreement and any applicable Written Notes
Terms Agreement or Written 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
18
of Cash-settled Pre-paid Purchase Contracts), whether issued
alone or as part of a Unit, have been duly authorized and
established in conformity with the provisions of the relevant
Indenture and, if the Notes and the Cash-settled Pre-paid
Purchase Contracts, had been executed by the Company and
authenticated by the relevant Trustee or its duly appointed agent
in accordance with the provisions of the relevant Indenture and
delivered to and duly paid for by the purchasers thereof on the
date of such opinion, such Notes and the Cash-settled Pre-paid
Purchase Contracts would be entitled to the benefits of such
Indenture and would be valid and binding obligations of the
Company, enforceable in accordance with their respective terms
except as the enforceability thereof (i) may be limited by
bankruptcy, 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,
19
moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a
proceeding in equity or at law;
(I) the Units under the Unit Agreement Without Holders'
Obligations have been duly authorized (and the forms of any
Warrants included therein have been duly authorized and
established in conformity with the provisions of the Warrant
Agreement), and if such Units (including any such Warrants
included therein) had been delivered to and duly paid for by the
purchasers thereof (and any Warrants included therein had been
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,
20
taken as a whole, or, to the best of such counsel's knowledge,
any judgment, order or decree of any U.S. governmental body,
agency or court having jurisdiction over the Company or any of
its consolidated subsidiaries, and no consent, approval,
authorization or order of or qualification with any U.S.
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, the Notes,
the Cash-settled Pre-paid Purchase Contracts, the Units
(including any Purchase Contracts or Warrants included therein),
the 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
21
know of any legal or governmental proceedings pending or
threatened to which the Company or any of its consolidated
subsidiaries is a party or to which any of the properties of the
Company or any of its consolidated subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus, as then amended or supplemented, and are not so
described or of any U.S. federal or state statutes, regulations,
contracts or other documents governed by U.S. federal or state
law that are required to be described in the Registration
Statement or the Prospectus, as then amended or 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
22
make the statements therein not misleading, (3) believes that the
Registration Statement and Prospectus, as then amended or
supplemented, if applicable (except as to financial statements
and schedules and other financial and statistical data included
therein, as to which such counsel need not express any belief),
complied as to form in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder and (4) has no reason to believe that the 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
23
Contracts), (I) (except as to due authorization of the Units and Warrants), (J),
(K)(1) and (N)(3) and (4) of paragraph (b)(i) above, when contained in an
opinion delivered on the Commencement Date or pursuant to Section 5(b), shall be
deemed not to address the application of the Commodity Exchange Act, as amended,
or the rules, regulations or interpretations of the Commodity Futures Trading
Commission to Program Securities the payments of principal or interest on which,
or any other payments with respect to which, will be determined by 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
24
Commencement Date or such Settlement Date, as the case may be, and signed
by an executive officer of the Company to the effect set forth in
subparagraph (a)(iii) above and to the effect that the representations and
warranties of the Company contained in this Agreement are true and correct
as of such date and that the Company has complied with all of the
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
25
furnished forthwith to you a written opinion of counsel for the Company.
Any such opinion shall be dated the date of such amendment or supplement,
as the case may be, shall be in a form satisfactory to you and shall be of
the same tenor as the opinions referred to in Section 4(b), but modified
to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion. In lieu of such
opinion, counsel last furnishing such an opinion to you may furnish to you
a letter to the effect that you may rely on such last opinion to the same
extent as though it were dated the date of such letter (except that
statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented to
the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is amended
or supplemented to set forth amended or supplemental financial information
or such amended or supplemental information is incorporated by reference
in the Prospectus, the Company shall cause its independent auditors
forthwith to furnish you with a letter, dated the date of such amendment
or supplement, as the case may be, in form satisfactory to you, of the
same tenor as the letter referred to in Section 4(d), with regard to the
amended or supplemental financial information included or incorporated by
reference in the Registration Statement or the Prospectus as amended or
supplemented to the date of such letter; provided that each letter so
furnished shall use a "cut-off date" no more than three business days
prior to the date of such letter.
6. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless you and each person, if any, who controls you within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any amendment
thereof or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to you furnished to the Company in writing by you
expressly for use therein.
(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
26
only with reference to information relating to you furnished to the
Company in writing by you expressly for use in the Registration Statement
or the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing
by you, in the case of parties indemnified pursuant to paragraph (a)
above, and by the Company, in the case of parties indemnified pursuant to
paragraph (b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there were to be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement
or judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such 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
27
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in paragraph (a)
or (b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein in connection with any offering of Program Securities,
then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and you on
the other hand from the offering of such Program Securities or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and you on the other hand in connection with
the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and you on
the other hand in connection with the offering of such Program Securities
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of such Program Securities (before deducting
expenses) received by the Company bear to the total discounts and
commissions received by you in respect thereof. The relative fault of the
Company on the one hand and of you on the other hand shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by you
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and you agree that it would not be just or equitable
if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall
be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, you shall not be
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
28
damages that you have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 6 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6
and the representations, warranties and other statements of the Company,
its officers and you set forth in or made pursuant to this Agreement or
any Notes Terms Agreement or Units Terms Agreement will remain operative
and in full force and effect regardless of (i) any termination of this
Agreement or any such Notes Terms Agreement or Units Terms Agreement, (ii)
any investigation made by or on behalf of you or any person controlling
you or by or on behalf of the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for any
of the Program Securities.
7. Position of the Agent. In acting under this Agreement and in connection
with the sale of any Program Securities by the Company (other than Program
Securities sold to you pursuant to a Notes Terms Agreement or Units Terms
Agreement, as the case may be), you are acting solely as agent of the Company
and do not assume any obligation towards or relationship of agency or trust with
any purchaser of Program Securities. You shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Program Securities has been solicited by you and accepted by the Company, but
you shall not have any liability to the Company in the event any such purchase
is not consummated for any reason. If the Company shall default in its
obligations to deliver Program Securities to a purchaser whose offer it has
accepted, the Company shall hold you harmless against any loss, claim, damage or
liability arising from or as a result of such default and shall, in particular,
pay to you the commission you would have received had such sale been
consummated.
8. Offering Restrictions. If any Program Securities are to be offered
outside the United States, you will not offer or sell any such Program
Securities in any jurisdiction if such offer or sale would not be in compliance
with any applicable law or regulation or if any consent, approval or permission
is needed for such offer or sale by you or for or on behalf of the Company
unless such consent, approval or permission has been previously obtained.
Subject to the obligations of the Company set forth in Section 3 of this
Agreement, the Company shall have no responsibility for, and you will obtain,
any consent, approval or permission required by you for the subscription, offer,
sale or delivery by you of Program Securities, or the distribution of any
offering materials, under the laws and regulations in force in any jurisdiction
to which you are subject or in or from which you make any subscription, offer,
sale or delivery.
29
9. Termination. This Agreement may be terminated at any time either by the
Company or by you upon the giving of written notice of such termination to the
other parties hereto, but without prejudice to any rights, obligations or
liabilities of the other parties hereto accrued or incurred prior to such
termination. The termination of this Agreement shall not require termination of
any Notes Terms Agreement or Units Terms Agreement, and the termination of any
such Notes Terms Agreement or Units Terms Agreement shall not require
termination of this Agreement. If this Agreement is terminated, the provisions
of the third paragraph of Section 2(a), the last sentence of Section 3(b) and
Sections 3(c), 3(h), 6, 7, 10, 11 and 13 shall survive; provided that if at the
time of termination an offer to purchase Program Securities has been accepted by
the Company but the time of delivery to the purchaser or its agent of such
Program Securities has not occurred, the provisions of Sections 1, 2(b), 2(c),
3(a), 3(d), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall also survive until such
delivery has been made.
10. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to you, will be mailed, delivered or telefaxed and
confirmed to you at 1585 Broadway, New York, New York 10036, Attention: Manager,
Continuously Offered Products (telefax number: 212-761-0781), with a copy to
1585 Broadway, 34th Floor, New York, New York 10036, Attention: Peter Cooper,
Investment Banking Information Center (telefax number: 212-761-0260) or, if sent
to the Company, will be mailed, delivered or telefaxed and confirmed to the
Company at 1221 Avenue of the Americas, New York, New York 10020, Attention:
Treasurer; Facsimile No.: 212-762-7337.
11. Successors. This Agreement and any Notes Terms Agreement or Units Terms
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors and controlling
persons referred to in Section 6 and the purchasers of Notes and Units (to the
extent expressly provided in Section 4), and no other person will have any right
or obligation hereunder.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
30
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
MORGAN STANLEY
By:
----------------------------------
Name: Jai Sooklal
Title: Assistant Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
MORGAN STANLEY
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 [ ], 2005 (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
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 [ ], 2005 (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:
A-1-1
All Units: Warrants Issued as Part of a Unit: Purchase Contracts Issued as Part
of a Unit:
- -----------------------------------------------------------------------------------------------------------
Expiration Date: Payment Location:
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 Unit: Fixed Rate Notes Issued as Part Floating Rate Notes Issued as
of a Unit: 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 Fixed Rate Notes Issued as Floating Rate Notes Issued
a Units: 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
By:
------------------------------------
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
By:
------------------------------------
Name:
Title:
Accepted:
MORGAN STANLEY
By:
------------------------------------
Name:
Title:
- ----------------------
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.
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 [ ], 2005 (as
may be amended from time to time, the "Distribution Agreement") among the
Company, Morgan Stanley 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, N.A. (formerly known as 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, N.A. (formerly known as JPMorgan
B-1
Chase Bank), as Unit Agent, as Collateral Agent, as Trustee and Paying Agent
under the Indenture referred to therein, and as Warrant Agent under the Warrant
Agreement referred to therein, and the holders from time to time of the Units
described therein (as may be amended from time to time, the "Unit Agreement"),
or (ii) if Units do not include Purchase Contracts (or include only Pre-paid
Purchase Contracts), pursuant to a unit agreement among the Company and JPMorgan
Chase Bank, N.A. (formerly known as 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, N.A. (formerly known as
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
B-3
of the Company with whom the Agent is to communicate regarding offers to
purchase Notes and Units and the related settlement details.
The Company will advise the Agent in writing of the employees of the
Company with whom the Agent is to communicate regarding offers to purchase Notes
and Units and the related settlement details.
B-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 issuance date of the predecessor
Global Note),
B-5
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 represent any
remaining principal amount of such Book-Entry
Note or Notes or face amount of such
B-6
Book-Entry Unit or Units. In such a case, each
of the Global Notes or Global Units representing
such Book-Entry Note or Notes or such Book-Entry
Unit or Units, as the case may be, shall be
assigned the same CUSIP number.
Preparation of Pricing If any order to purchase a Book-Entry Note or
Supplement: Book-Entry Unit is accepted by or on behalf of
the Company, the Company will prepare a pricing
supplement (a "Pricing Supplement") reflecting
the terms of such Note or Unit. The Company (i)
will arrange to file an electronic format
document, in the manner prescribed by the EDGAR
Filer Manual, of such Pricing Supplement with
the Commission in accordance with the applicable
paragraph of Rule 424(b) under the Securities
Act, (ii) will, as soon as possible and in any
event not later than the date on which such
Pricing Supplement is filed with the Commission,
deliver the number of copies of such Pricing
Supplement to the Agent as the Agent shall
request and (iii) will, on the Agent's behalf,
promptly file five copies of such Pricing
Supplement with the National Association of
Securities Dealers, Inc. (the "NASD"). The Agent
will cause such Pricing Supplement to be
delivered to the purchaser of the Note or Unit.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other
than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry Note
or a Book-Entry Unit and, in the case of the
Note, the authentication and issuance of the
Global Note representing such Note or, in the
case of the Unit, the completion and issuance of
the Global Unit representing such Unit (and of
each security comprised by such Unit) shall
constitute "settlement" with respect to such
Note or Unit, as the case may be. All orders
accepted by the Company will be settled on the
fifth Business Day
B-7
pursuant to the timetable for settlement set
forth below unless the Company and the purchaser
agree to settlement on another day, which shall
be no earlier than the next Business Day.
Settlement Procedures: Settlement Procedures with regard to each
Book-Entry Note and each Book-Entry Unit sold by
the Company to or through the Agent (unless
otherwise specified pursuant to a Notes Terms
Agreement or a Units Terms Agreement), shall be
as follows:
A. In the case of a Book-Entry Note (whether
issued alone or as part of a Unit), the
Agent will advise the Company by telephone
that such Note is a Book-Entry Note and of
the following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry
Note, the Interest Rate, whether such
Note will pay interest annually or
semiannually and whether such Note is an
Amortizing Note, and, if so, the
amortization schedule, or, in the case
of a Floating Rate Book-Entry Note, the
Initial Interest Rate (if known at such
time), Interest Payment Date(s),
Interest Payment Period, Calculation
Agent, Base Rate, Index Maturity, Index
Currency, Interest Reset Period, Initial
Interest Reset Date, Interest Reset
Dates, Spread or Spread Multiplier (if
any), Minimum Interest Rate (if any),
Maximum Interest Rate (if any) and the
Alternate Rate Event Spread (if any).
4. Redemption or repayment provisions, if
any.
5. Ranking.
6. Settlement date and time (Original
Issue Date).
B-8
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, determined
as provided in the Distribution
Agreement.
4. Designation of the Securities
comprised by such Units:
B-9
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 beneficial
owner];
l. Formula for determining Cash
Settlement Value;
B-10
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 will
notify the Company and the Agent of such
CUSIP number(s) by telephone as soon as
practicable, except that for Optionally
B-11
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).
5. Whether any Note, issued alone or as
part of a Unit, is an Amortizing Note
(by an appropriate notation in the
B-12
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 DTC.
H. Unless the Agent is the end purchaser of a
Note or Unit, the Agent will enter an SDFS
B-13
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.
Settlement Procedures For sales by the Company of Book-Entry Notes or
Timetable: Book-Entry Units to or through the Agent (unless
otherwise specified pursuant to a Notes Terms
B-14
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., 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.
B-16
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-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
B-16
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 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
B-17
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 Pricing If any order to purchase a Certificated Note or
Supplement: a Certificated Unit is accepted by or on behalf
of the Company, the Company will prepare a
pricing supplement (a "Pricing Supplement")
reflecting the terms of such Note or Unit. The
Company (i) will arrange to file an electronic
format document, in the manner prescribed by the
EDGAR Filer Manual, of such Pricing Supplement
with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the
Securities Act, (ii) will, as soon as possible
and in any event not later than the date on
which such Pricing Supplement is filed with the
Commission, deliver the number of copies of such
Pricing Supplement to the Agent as the Agent
shall request and (iii) will, on the Agent's
behalf, promptly file five copies of such
Pricing Supplement with the NASD. The Agent will
cause such Pricing Supplement to be delivered to
the purchaser of the Note or the Unit, as the
case may be.
B-18
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other
than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for an authenticated
Certificated Note or a Certificated Unit
delivered to the Agent and the Agent's delivery
of such Note or Unit against receipt of
immediately available funds shall constitute
"settlement" with respect to such Note or Unit.
All offers accepted by the Company will be
settled on or before the fifth Business Day next
succeeding the date of acceptance pursuant to
the timetable for settlement set forth below,
unless the Company and the purchaser agree to
settlement on another date.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note and each Certificated Unit
sold by the Company to or through the Agent
(unless otherwise specified pursuant to a Notes
Terms Agreement or a Units Terms Agreement)
shall be as follows:
A. In the case of Certificated Notes (whether
issued alone or as part of a Unit), the
Agent will advise the Company by telephone
that such Note is a Certificated Note and of
the following settlement information:
1. Name in which such Note is to be
registered ("Registered Note Owner").
2. Address of the Registered Note Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Note Owner (if available).
B-19
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 of
Modified Payment upon Acceleration (and
if so, the Issue Price).
B-20
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:
a. Notes, if any (See Settlement
Procedures "A");
b. Warrants, if any; and
c. Purchase Contracts, if any.
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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
calculation);
n. Whether the Company or the holder is
the writer of the warrant; and
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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:
1. Note or Unit, as the case may be, with
customer confirmation.
2. Stub One - For JPMorgan.
3. Stub Two - For the Agent.
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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
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,
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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 Procedures For sales by the Company of Certificated Notes
Timetable: or of Certificated Units to or through the Agent
(unless otherwise specified pursuant to a Notes
Terms Agreement or a Units Terms Agreement),
Settlement Procedures "A" through "G" set forth
above shall be completed on or before the
respective times in New York City set forth
below:
Settlement 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 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.
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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.
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