EXHIBIT 1-e
MORGAN STANLEY
Global Medium-Term Notes, Series G and Series H
Global Units, Series G and Series H
EURO DISTRIBUTION AGREEMENT
[ ], 2005
Morgan Stanley & Co. International Limited
c/o Morgan Stanley & Co. International
Limited
25 Cabot Square
Canary Wharf London E14 4QA
United Kingdom
Dear Sirs:
Morgan Stanley, a Delaware corporation (the "Company"), confirms its
agreement with you with respect to the issue and sale from time to time by the
Company primarily outside the United States of up to $[ ] (or the equivalent
thereof in one or more currencies other than U.S. dollars) aggregate initial
public offering price of its Global Medium-Term Notes, Series G and Series H,
each due more than nine months from the date of issue (the "Notes") and its
Global Units, Series G and Series H (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 F, to be sold
primarily inside the United States, (ii) Global Units, Series F, to be sold
primarily inside the United States, and (iii) the sale of certain of the
Company's other debt securities, warrants, common stock, preferred stock,
purchase contracts and units and of capital securities of certain Morgan Stanley
Capital Trusts. The Series G Notes are intended to be admitted to listing on the
Official List of the Financial Services Authority (the "UK Listing Authority")
in its capacity as competent authority for the purposes of Part VI of the
Financial Services and Markets Act 2000 (the "FSMA"), and to trading on the
London Stock Exchange plc (the "London Stock Exchange") or admitted to listing,
trading and/or quotation by any other listing authority, stock exchange and/or
quotation system, if so required by Section 3(j) hereof. Application may, in
certain circumstances described in the Prospectus Supplement (as defined below),
be made to admit the Series G Units to the Official List of the UK Listing
Authority and to trading on the London Stock
Exchange. The Series H Notes and the Series H Units will not be listed on any
stock exchange.
The Notes may be issued as senior indebtedness (the "Senior Notes") or
as subordinated indebtedness (the "Subordinated Notes") of the Company. The
Senior Notes will be issued, either alone or as part of a Unit, pursuant to the
provisions of an amended and restated senior indenture dated as of 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
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'
Obligations").(1) Units may include one or more (i) Senior Notes, (ii) warrants
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(1) The Unit Agreement Without Holders' Obligations shall include
additional provisions to allow for the issuance of Pre-paid Purchase Contracts
that are not issued under the Indentures.
("Warrants") entitling the holders thereof to purchase or sell (a) securities
issued by the Company or by an entity not affiliated with the Company (or
securities issued by an entity affiliated with the Company in the case of Series
H Units), a basket of such securities, an index or indices of such securities or
any combination of the above, (b) currencies or (c) commodities, (iii) Purchase
Contracts, including Pre-paid Purchase Contracts, requiring the holders thereof
to purchase or sell (a) securities issued by the Company or by an entity not
affiliated with the Company (or securities issued by an entity affiliated with
the Company in the case of Series H Units), a basket of such securities, an
index or indices of such securities or any combination of the above, (b)
currencies or (c) commodities or (iv) any combination thereof. The applicable
prospectus supplement will specify whether Notes, Warrants and Purchase
Contracts comprised by a Unit may or may not be separated from any series of
Units. Warrants issued as part of a Unit will be issued pursuant to the Warrant
Agreement dated as of 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 has initially appointed (i)
JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), London
Branch, at its principal office in London, as principal paying agent for the
Senior Notes (in such capacity, the "Senior Principal Paying Agent") and (ii)
the Subordinated Debt Trustee (acting through JPMorgan Chase Bank, N.A.
(formerly known as JPMorgan Chase Bank), London Branch, at its principal office
in London, as its sub-agent) as principal paying agent for the Subordinated
Notes (in such capacity, the "Subordinated Principal Paying Agent"). References
herein to the "Principal Paying Agent" are to the Senior Principal Paying Agent
(in the case of duties relating to the Senior Notes) or to the Subordinated
Principal Paying Agent (in the case of duties relating to the Subordinated
Notes).
The Notes will be issued in bearer form or in definitive registered
form without coupons (the "Registered Notes"), the Units will be issued in
bearer form or in definitive registered form (the "Registered Units") and the
securities included in a Unit will be in the form of such Unit. The Program
Securities issued in bearer form will be represented initially by, in the case
of the Notes, a temporary global Note and, in the case of the Units, a temporary
global Unit, each
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of which will be delivered to a common depositary located outside the United
States for Euroclear Bank S.A./N.V., as operator of the Euroclear System (the
"Euroclear Operator"), Clearstream Banking, societe anonyme ("Clearstream"), or
any other relevant clearing system. Beneficial interests in a temporary global
Note or a temporary global Unit will be exchangeable for beneficial interests
in, in the case of a temporary global Note, a permanent global Note and, in the
case of a temporary global Unit, a permanent global Unit. Beneficial interests
in a permanent global Note will be exchangeable in whole, but not in part, for
definitive Notes in bearer form, with interest coupons attached, upon receipt of
the Principal Paying Agent of an initial request to so exchange by any holder of
a beneficial interest in such permanent global Note (such temporary global Note,
permanent global Note and definitive Notes in bearer form are collectively
referred to as the "Bearer Notes"), and Bearer Notes, if the applicable Pricing
Supplement so specifies, will be exchangeable in whole or in part for Registered
Notes. Beneficial interests in a permanent global Unit (including an interest in
the securities included in such Unit) will be exchangeable in whole, but not in
part, for definitive Units in bearer form upon receipt of the Unit Agent of an
initial request to so exchange by any holder of a beneficial interest in such
permanent global Unit (such temporary global Unit, permanent global Unit and
definitive Units in bearer form are collectively referred to as the "Bearer
Units") and Bearer Units, if the applicable Pricing Supplement so specifies,
will be exchangeable in whole or in part for Registered Units. As used in this
Agreement, the term "Note" includes any temporary global Note or permanent
global Note issued pursuant to the Indentures and the term "Unit" includes any
temporary global Unit or permanent global Unit issued pursuant to the Unit
Agreement.
The Company hereby appoints you as its exclusive agents for the purpose
of soliciting and receiving offers to purchase Program Securities from the
Company by others and, on the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, you agree
to use reasonable efforts to solicit and receive offers to purchase Program
Securities upon terms acceptable to the Company at such times and in such
amounts as the Company shall from time to time specify. In addition, you may
also purchase Program Securities as principal pursuant to the terms of a terms
agreement relating to such sale (in the case of Notes, a "Notes Terms Agreement"
and, in the case of Units, a "Units Terms Agreement") in accordance with the
provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Program Securities. Such registration statement, including the exhibits thereto,
as amended at the Commencement Date (as hereinafter defined), is hereinafter
referred to as the "Registration Statement." The Company proposes to file with
the Commission from time to time, pursuant to Rule 424 under the Securities Act
of 1933, as amended (the "Securities Act"), supplements to the prospectus
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relating to the Program Securities included in the Registration Statement that
will describe certain terms of the Program Securities. The prospectus relating
to the Program Securities in the form in which it appears in the Registration
Statement is hereinafter referred to as the "Basic Prospectus." The term
"Prospectus" means the Basic Prospectus together with the prospectus supplement
or supplements (each, a "Prospectus Supplement") specifically relating to the
Program Securities, as filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 under the Securities Act. As used herein, the terms "Basic
Prospectus" and "Prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement," "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated by
reference in the Prospectus that are filed subsequent to the date of the Basic
Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). If the Company has filed
an abbreviated registration statement to register additional Program Securities
pursuant to Rule 462(b) under the Securities Act (a "Rule 462 Registration
Statement"), then any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462 Registration Statement.
1. Representations and Warranties. The Company represents and warrants to
and agrees with you as of the Commencement Date, as of each date on which you
solicit offers to purchase Program Securities, as of each date on which the
Company accepts an offer to purchase Program Securities (including any purchase
by you as principal pursuant to a Notes Terms Agreement or a Units Terms
Agreement), as of each date the Company issues and delivers Program Securities
and as of each date the Registration Statement or the Basic Prospectus is
amended or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as amended
or supplemented to each such date):
(a) The Registration Statement has become effective, no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective,
did not contain and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) the
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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 the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that (1) the representations and warranties
set forth in this Section 1(b) do not apply (A) to statements or omissions
in the Registration Statement or the Prospectus based upon information
relating to you furnished to the Company in writing by you expressly for
use therein or (B) to those parts of the Registration Statement that
constitute the Statements of Eligibility (Form T-1) under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the
Trustees and (2) the representations and warranties set forth in clauses
(iii) and (iv) above, when made as of the Commencement Date or as of any
date on which you solicit offers to purchase Program Securities or on which
the Company accepts an offer to purchase Program Securities, shall 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.
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(e) Each of this Agreement and any applicable Written Notes Terms
Agreement or Written Units Terms Agreement (each as hereinafter defined)
has been duly authorized, executed and delivered by the Company.
(f) Each Indenture has been duly qualified under the Trust Indenture
Act and each of the Senior Indenture, the Subordinated Indenture, the Unit
Agreement and the Warrant Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as the
enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered at a
proceeding in equity or at law.
(g) The form of Unit Agreement Without Holders' Obligations has been
duly authorized by the Company and, when a Unit Agreement Without Holders'
Obligations has been duly executed and delivered by the Company, the Unit
Agreement Without Holders' Obligations will be a valid and binding
agreement of the Company, enforceable in accordance with its terms except
as the enforceability thereof (i) may be limited by 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
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Non-Pre-paid Purchase Contracts, have been duly authorized and established
in conformity with the provisions of (i) in the case of such Units,
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase
Contracts, the Unit Agreement and (ii) in the case of Warrants, the Warrant
Agreement. When such Units have been delivered to and duly paid for by the
purchasers thereof and (A) any Physically-settled Pre-paid Purchase
Contracts and Non-Pre-paid Purchase Contracts included in such Units have
been executed by the Company and countersigned by the Unit Agent and (B)
any Warrants included in such Units have been executed by the Company and
countersigned by the Warrant Agent, such Units (including any such
Physically-settled Pre-paid Purchase Contracts, Non-Pre-paid Purchase
Contracts or Warrants contained therein) will be entitled to the benefits
of the Unit Agreement and, in the case of the Warrants, the Warrant
Agreement and will be valid and binding obligations of the Company,
enforceable in accordance with their respective terms except as the
enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered at a
proceeding in equity or at law.
(j) When a Unit Agreement Without Holders' Obligations has been
executed and delivered by the Company, the Units to be issued thereunder
will have been duly authorized and when such Units have been 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
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Units (including any Purchase Contracts or Warrants included therein), the
Indentures, the Unit Agreement, any Unit Agreement Without Holders'
Obligations, the Warrant Agreement and any applicable Notes Terms Agreement
or Units Terms Agreement will not contravene any provision of applicable
law or the certificate of incorporation or by-laws of the Company or any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its consolidated
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any of its consolidated subsidiaries, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations
under this Agreement, the Notes, the Pre-paid Purchase Contracts, the Units
(including any Purchase Contracts or Warrants included therein), the
Indentures, the Unit Agreement, any Unit Agreement Without Holders'
Obligations, the Warrant Agreement and any applicable Notes Terms Agreement
or Units Terms Agreement, except such as may be required by the securities
or Blue Sky laws of the various states in connection with the offer and
sale of the Program Securities; provided, however, that no representation
is made or warranty given as to whether the purchase of the Program
Securities constitutes a "prohibited transaction" under Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, or Section
4975 of the Internal Revenue Code of 1986, as amended.
(l) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus.
(m) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its consolidated subsidiaries is
a party or to which any of the properties of the Company or any of its
consolidated subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to be
filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required.
(n) Each of the Company and its consolidated subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all
self-regulatory
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organizations and all courts and other tribunals, to own, lease, license
and use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to
obtain or file would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole.
(o) Morgan Stanley DW Inc. is registered as a broker-dealer and
investment adviser with the Commission, is registered with the Commodity
Futures Trading Commission as a futures commission merchant and is a member
of the New York Stock Exchange, Inc. and the National Association of
Securities Dealers, Inc.
(p) Morgan Stanley & Co. Incorporated is registered as a broker-dealer
and investment adviser with the Commission, is registered with the
Commodity Futures Trading Commission as a futures commission merchant and
is a member of the New York Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc.
(q) The Company is not, and after giving effect to the offering and
sale of the Program Securities and the application of the proceeds thereof
as described in the Prospectus, will not be required to register as, an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended.
Notwithstanding the foregoing, it is understood and agreed that the
representations and warranties set forth in Section 1(b)(iii) and 1(b)(iv), 1(h)
(except as to due authorization of the Notes and Cash-settled Pre-paid Purchase
Contracts), 1(i) (except as to due authorization of the Units, Warrants,
Physically-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.
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The Company reserves the right, in its sole discretion, to instruct you
to suspend at any time, for any period of time or permanently, the solicitation
of offers to purchase Program Securities. Upon receipt of at least one business
day's prior notice from the Company, you will forthwith suspend solicitations of
offers to purchase Program Securities from the Company until such time as the
Company has advised you that such solicitation may be resumed. While such
solicitation is suspended, the Company shall not be required to deliver any
certificates, opinions or letters in accordance with Sections 5(a), 5(b) and
5(c); provided, however, that if the Registration Statement or Prospectus is
amended or supplemented during the period of suspension (other than by an
amendment or supplement providing solely for (i) in the case of Notes issued
alone or as part of a Unit, a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Notes, (ii) in
the case of Units, a change in the exercise price, exercise date or period or
expiration of an underlying Warrant or a change in the settlement date or
purchase or sale price of an underlying Purchase Contract or (iii) for a change
you deem to be immaterial), you shall not be required to resume soliciting
offers to purchase Program Securities until the Company has delivered such
certificates, opinions and letters as you may request.
The Company agrees to pay to you, as consideration for the sale of each
Program Security resulting from a solicitation made or an offer to purchase
received by you, a commission in the form of a discount from the purchase price
of such Program Security equal to between .125% and .750% (depending upon such
Note's maturity or, in the case of Units, any underlying Note's maturity or the
terms of the Units and of the securities comprised by such Units) of the
principal amount of such Note 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
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Agreement or Units Terms Agreement that will provide for the sale of such
Program Securities to and the purchase thereof by you. Each Notes Terms
Agreement or Units Terms Agreement will take the form of either (i) a written
agreement between you and the Company, which may be substantially in the form of
Exhibit A or Exhibit A-1 (as applicable) hereto (in the case of Notes, a
"Written Notes Terms Agreement," and in the case of Units, a "Written Units
Terms Agreement"), or (ii) an oral agreement between you and the Company
confirmed in writing by you to the Company.
Your commitment to purchase Program Securities as principal pursuant to
a Notes Terms Agreement or Units Terms Agreement shall be deemed to have been
made on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Each (i) Notes Terms Agreement shall specify the principal amount of Notes to be
purchased by you pursuant thereto, the maturity date of such Notes, the price to
be paid to the Company for such Notes, the interest rate and interest rate
formula, if any, applicable to such Notes and any other terms of such Notes and
(ii) Units Terms Agreement shall specify (a) the information set forth in (i)
above with respect to any Notes issued as part of a Unit, (b) with respect to
any Warrants issued as part of a Unit, the exercise price, the exercise date or
period, the expiration date and any other terms of such Warrants and (c) with
respect to any Purchase Contracts issued as part of a Unit, the settlement date,
the purchase or sale price or any other terms of such Purchase Contracts. Each
such Notes Terms Agreement or Units Terms 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.
12
(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 G and Series H and Global Units, Series G and
Series H, Administrative Procedures (attached hereto as Exhibit B) (the
"Administrative Procedures"), as amended from time to time. The Administrative
Procedures may be amended only by written agreement of the Company and you.
(d) Delivery. The documents required to be delivered by Section 4 of this
Agreement as a condition precedent to your obligation to begin soliciting offers
to purchase Program Securities as agents of the Company shall be delivered at
the office of Davis Polk & Wardwell, your counsel, not later than 4:00 p.m., New
York City time, on the date hereof, or at such other time and/or place as you
and the Company may agree upon in writing, but in no event later than the day
prior to the earlier of (i) the date on which you begin soliciting offers to
purchase Program Securities and (ii) the first date on which the Company accepts
any offer by you to purchase Program Securities as principal. The date of
delivery of such documents is referred to herein as the "Commencement Date."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Program Securities
pursuant to this Agreement or pursuant to any Notes Terms Agreement or
Units Terms Agreement, the Company will not file any 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 of the filing of any amendment or supplement to the
Basic Prospectus, of the filing and effectiveness of any amendment to the
Registration Statement, of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the Basic
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose, (v) of the receipt by the Company of
13
any notification with respect to the suspension of the qualification of the
Program Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vi) of the issuance by
any non-United States regulatory authority of any request for information
relating to the Program Securities or suspension of the listing, trading
and/or quotation of any Program Securities then admitted to listing,
trading and/or quotation by any listing authority, stock exchange and/or
quotation system. The Company will use its best efforts to prevent the
issuance of any such stop order or notice of suspension of qualification or
listing and, if issued, to obtain as soon as possible the withdrawal
thereof. If the Basic Prospectus is amended or supplemented as a result of
the filing under the Exchange Act of any document incorporated by reference
in the Prospectus, you shall not be obligated to solicit offers to purchase
Program Securities so long as you are not reasonably satisfied with such
document.
(b) If, at any time when a prospectus relating to the Program
Securities is required to be delivered under the Securities Act or made
available to purchasers of the Program Securities, any event occurs or
condition exists as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact, or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances when the Prospectus, as then amended or
supplemented, is delivered to a purchaser, not misleading, or if, in your
opinion or in the opinion of the Company, it is necessary at any time to
amend or supplement the Prospectus, as then amended or supplemented, to
comply with applicable law, the Company will immediately notify you by
telephone (with confirmation in writing) to suspend solicitation of offers
to purchase Program Securities and, if so notified by the Company, you
shall forthwith suspend such solicitation and cease using the Prospectus,
as then amended or supplemented. If the Company shall decide to amend or
supplement the Registration Statement or Prospectus, as then amended or
supplemented, it shall so advise you promptly by telephone (with
confirmation in writing) and, at its expense, shall prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to you, that will correct such statement or
omission or effect such compliance and will supply such amended or
supplemented Prospectus to you in such quantities as you may reasonably
request. If any documents, certificates, opinions and letters furnished to
you pursuant to paragraph (e) below and Sections 5(a), 5(b) and 5(c) in
connection with the preparation and filing of such amendment or supplement
are satisfactory in all respects to you, upon the filing with the
Commission of such amendment or supplement to the Prospectus or upon the
effectiveness of an amendment to the Registration Statement, you will
14
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 (e) below and Sections 5(a), 5(b) and 5(c) such
documents, certificates, opinions and letters as you may request in
connection with the preparation and filing of such amendment or supplement.
(c) The Company will make generally available to its security holders
and to you as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering twelve month periods
beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in Rule 158
under the Securities Act) of the Registration Statement with respect to
each sale of Program Securities. If such fiscal quarter is the first fiscal
quarter of the Company's fiscal year, such earning statement shall be made
available not later than 90 days after the close of the period covered
thereby and in all other cases shall be made available not later than 45
days after the close of the period covered thereby.
(d) The Company will furnish in New York City, without charge, (i) to
each Agent, a signed copy of the Registration Statement, including exhibits
and all amendments thereto, and as many copies of the Prospectus, any
documents incorporated by reference therein and any supplements and
amendments thereto as you may reasonably request and (ii) to each Agent
that purchases Program Securities pursuant to a Notes Terms Agreement or
Units Terms Agreement or solicits an offer to purchase Program Securities
that is accepted by the Company, prior to 10:00 a.m. New York City time on
the business day next succeeding the date of such Notes Terms Agreement or
Units Terms Agreement or the acceptance of such offer, as many copies of
the Prospectus, as then amended or supplemented (including the Prospectus
Supplement relating to the Program Securities to be purchased pursuant to
such Notes Terms Agreement or Units Terms Agreement or accepted offer), as
such Agent may reasonably request.
15
(e) During the term of this Agreement, the Company shall furnish to
you such relevant documents and certificates of officers of the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indentures, the Unit Agreement, any Unit Agreement Without
Holders' Obligations, the Warrant Agreement, the Notes, the Units, the
Warrants, the Purchase Contracts, this Agreement, the Administrative
Procedures, any Notes Terms Agreement or Units Terms Agreement and the
performance by the Company of its obligations hereunder or thereunder as
you may from time to time reasonably request.
(f) The Company shall notify you promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate the
direction of the possible change, in the rating accorded the Company or any
of the Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act.
(g) The Company will, whether or not any sale of Program Securities is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement and any Notes Terms Agreement or Units
Terms Agreement, including: (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of the
Program Securities, (iii) the fees and disbursements of the Company's
counsel and accountants, of the Trustees and their counsel, of the Unit
Agent and its counsel, of the Warrant Agent and its counsel and of the
Principal Paying Agent and its counsel and any paying agents for the
Program Securities appointed by the Company, (iv) the fees and expenses
incurred with respect to the admission of the Series G Notes (and the
Series G Units, if application for such admission is made) to the Official
List of the UK Listing Authority and to trading on the London Stock
Exchange or to listing, trading and/or quotation by any other listing
authority, stock exchange and/or quotation system if so required by Section
3(j), (v) the printing and delivery to you in quantities as hereinabove
stated of copies of the Registration Statement and all amendments thereto
and of the Prospectus and any amendments or supplements thereto, (vi) the
printing and delivery to you of copies of the Indentures, the Unit
Agreement, any Unit Agreement Without Holders' Obligations and the Warrant
Agreement, (vii) any fees charged by rating agencies for the rating of the
Program Securities, (viii) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers,
Inc., the fees and disbursements of your counsel incurred in connection
with the offering and sale of the
16
Program Securities, including any opinions to be rendered by such counsel
hereunder, and (x) any out-of-pocket expenses incurred by you; provided
that any advertising expenses incurred by you shall have been approved by
the Company.
(h) During the period beginning on the date of any Notes Terms
Agreement or Units Terms Agreement relating to either Notes or Units, as
the case may be, and continuing to and including the Settlement Date with
respect to such Notes Terms Agreement or Units Terms Agreement, the Company
will not, without your prior consent, offer, sell, contract to sell or
otherwise dispose of (i) in the case of Notes, any debt securities of the
Company substantially similar to the Notes set forth in such Notes Terms
Agreement (other than (A) the Notes that are to be sold pursuant to such
Notes Terms Agreement, (B) Notes previously agreed to be sold by the
Company and (C) commercial paper issued in the ordinary course of business)
or (ii) in the case of Units, any securities substantially similar to such
Units (other than (A) the Units that are sold pursuant to such Units Terms
Agreement or (B) Units previously agreed to be sold by the Company), in
each case, except as may otherwise be provided in the applicable Notes
Terms Agreement or Units Terms Agreement.
(i) The Company will indemnify and hold you harmless against any
documentary, stamp or similar transfer or issue tax, including any interest
and penalties, on the issue of the Program Securities in accordance with
the terms of this Agreement, on the execution and delivery of this
Agreement, any Written Notes Terms Agreement or Written Units Terms
Agreement and on the exchange of any temporary global Notes for definitive
Notes or permanent global Notes, of any temporary global Units for
definitive Units or permanent global Units, of any permanent global bearer
Notes for definitive bearer Notes or of any permanent global bearer Units
for definitive bearer Units, that are or may be required to be paid under
the laws of the United Kingdom, the United States or any political
subdivision or taxing authority thereof or therein.
(j) In connection with any application to admit the Series G Notes or
Series G Units to the Official List of the UK Listing Authority and to
trading on the London Stock Exchange, the Company will furnish from time to
time any and all documents, instruments, information and undertakings and
publish all advertisements or other material that may be necessary in order
to effect such listing and trading and will maintain such listing and
trading until, (i) in the case of the Notes, none of the Series G Notes is
outstanding, either as part of a Unit or otherwise, or until such time as
payment of principal, premium, if any, and interest in respect of all the
Series G Notes, whether issued alone or as part of a Unit, has been duly
provided for, whichever is earlier and (ii) in the case of the Units,
17
none of the Series G Units is outstanding; provided, however, that if the
Company can no longer reasonably maintain such listing and trading,
including, but not limited to, in circumstances where obtaining or the
maintenance of such listing would require preparation of financial
statements in accordance with accounting standards other than U.S. GAAP or
where the proposed European Union Transparency Obligations Directive (the
"Directive") is implemented in a manner that, in the Company's opinion, is
burdensome, it will consider obtaining and maintaining the quotation for,
or listing and trading of, the Series G Notes and Series G Units by such
other listing authority, stock exchange and/or quotation system (in the
case of a delisting in response to the Directive, outside the European
Union) as you shall reasonably request. However, if such an alternative
listing is not available to the Company or is, in the Company's opinion,
burdensome, an alternative listing for the Series G Notes and Series G
Units need not be considered by the Company. In addition, for so long as
the Series G Notes and Series G Units are admitted to listing, trading
and/or quotation by a listing authority, stock exchange and/or quotation
system, and such listing authority, stock exchange and/or quotation system
so requires, the Company will maintain in London, or in such other place as
the Series G Notes and Series G Units are listed (if the Series G Notes and
Series G Units are no longer listed on the London Stock Exchange), a paying
agent in respect of the Series G Notes or Series G Units, as required.
(k) In respect of any Notes which have a maturity of less than one
year where either (a) the issue proceeds of such Notes are received by the
Company in the United Kingdom or (b) the activity of issuing such Notes is
carried on from an establishment maintained by the Company in the United
Kingdom, the Company will issue such Notes only if the following conditions
apply (or the Notes can otherwise be issued without contravention of
Section 19 of the FSMA): (i) you represent, warrant and agree in the terms
relating to the Notes set out in Section 7(b)(v); and (ii) the redemption
value of each such Note is not less than (pound)100,000 (or an amount of
equivalent value denominated wholly or partly in a currency other than
sterling), and no part of any Note may be transferred unless the redemption
value of that part is not less than (pound)100,000 (or such an equivalent
amount).
4. Conditions of the Obligations of the Agents. Your obligation to solicit
offers to purchase Program Securities as agents of the Company, your obligation
to purchase Program Securities as principals pursuant to any Notes Terms
Agreement or Units Terms Agreement and the obligation of any other purchaser to
purchase Program Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished
18
pursuant to the provisions hereof and to the performance and observance by the
Company of all covenants and agreements herein contained on its part to be
performed and observed (in the case of your obligation to solicit offers to
purchase Program Securities, at the time of such solicitation, and, in the case
of your or any other purchaser's obligation to purchase Program Securities, at
the time the Company accepts the offer to purchase such Program Securities and
at the time of issuance and delivery) and (in each case) to the following
additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus, as amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made, that, in
your judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Program Securities on the terms
and in the manner contemplated by the Prospectus, as so amended or
supplemented;
(ii) there shall not have occurred such a change in national or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would in your view be likely to
prejudice materially the success of the offering and distribution of
the Program Securities or dealings in the Program Securities in the
secondary market; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded the Company
or any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed to you in writing by the Company prior to such solicitation or, in the
case of a purchase of Program Securities, before the offer to purchase such
Program Securities was made or (B) unless in each case described in (ii) above,
the relevant event shall have occurred and been known to you prior to such
solicitation or, in the case of a purchase of Program Securities, before the
offer to purchase such Program Securities was made.
19
(b) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, you
shall have received:
(i) The opinion, dated as of such date, of Sidley Austin Brown & Wood
LLP, counsel to the Company, or of other counsel satisfactory to you and
who may be an officer of the Company, to the following effect that:
(A) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus, as amended
or supplemented, and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a
whole;
(B) each of Morgan Stanley DW Inc., Discover Bank, Morgan Stanley
& Co. Incorporated and Morgan Stanley International Holdings Inc.
(each a "Material Subsidiary") has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus, as amended or supplemented, and is duly qualified
to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole;
(C) each of the Company and its Material 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
20
tribunals, to own, lease, license and use its properties and assets
and to conduct its business in the manner described in the Prospectus,
as amended or supplemented, except to the extent that the failure to
obtain or file would not have a material adverse effect on the Company
and its consolidated subsidiaries, taken as a whole;
(D) each of this Agreement and any applicable Written Notes Terms
Agreement or Written Units Terms Agreement has been duly authorized,
executed and delivered by the Company;
(E) each Indenture has been duly qualified under the Trust
Indenture Act and each of the Senior Indenture, the Subordinated
Indenture, the Unit Agreement and the Warrant Agreement has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its
terms except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law;
(F) the Unit Agreement Without Holders' Obligations, if any, has
been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance
with its terms except as the enforceability thereof (i) may be limited
by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law;
(G) the forms of Notes (including the form of Cash-settled
Pre-paid Purchase Contracts), whether issued alone or as part of a
Unit, have been duly authorized and established in conformity with the
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
21
relevant Trustee or its duly appointed agent in accordance with the
provisions of the relevant Indenture and delivered to and duly paid
for by the purchasers thereof on the date of such opinion, such Notes
and the Cash-settled Pre-paid Purchase Contracts would be entitled to
the benefits of such Indenture and would be valid and binding
obligations of the Company, enforceable in accordance with their
respective terms except as the enforceability thereof (i) may be
limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a
proceeding in equity or at law;
(H) the forms of Units under the Unit Agreement, including the
forms of Warrants, Physically-settled Pre-paid Purchase Contracts and
Non-Pre-paid Purchase Contracts, have been duly authorized and
established in conformity with the provisions of (i) in the case of
Units under the Unit Agreement, Physically-settled Pre-paid Purchase
Contracts and Non-Pre-paid Purchase Contracts, the Unit Agreement and
(ii) in the case of the Warrants, the Warrant Agreement. If such Units
(including the Warrants, the Physically-settled Pre-paid Purchase
Contracts and the Non-Pre-paid Purchase Contracts) had been delivered
to and duly paid for by the purchasers thereof (and any Purchase
Contracts included therein had been executed by the Company and
countersigned by the Unit Agent and any Warrants included therein had
been executed by the Company and countersigned by the Warrant Agent)
on the date of such opinion, such Units (including the
Physically-settled Pre-paid Purchase Contracts, the Non-pre-paid
Purchase Contracts and the Warrants contained therein) would be
entitled to the benefits of the Unit Agreement and, in the case of the
Warrants, the Warrant Agreement, and would be valid and binding
obligations of the Company, enforceable in accordance with their
respective terms except as the enforceability thereof (i) may be
limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a
proceeding in equity or at law;
22
(I) the Units under the Unit Agreement Without Holders'
Obligations have been duly authorized (and the forms of any Warrants
included therein have been duly authorized and established in
conformity with the provisions of the Warrant Agreement), and if such
Units (including any such Warrants included therein) had been
delivered to and duly paid for by the purchasers thereof (and any
Warrants included therein had been executed by the Company and
countersigned by the Warrant Agent) on the date of such opinion, such
Units (including the Warrants contained therein) would be entitled to
the benefits of the Unit Agreement Without Holders' Obligations and in
the case of the Warrants, the Warrant Agreement, and would be valid
and binding obligations of the Company, enforceable in accordance with
their respective terms except as the enforceability thereof (i) may be
limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a
proceeding in equity or at law;
(J) the execution and delivery by the Company of the Notes and
Cash-settled Pre-paid Purchase Contracts (whether issued alone or as
part of a Unit), the Units (including any Purchase Contract or Warrant
included therein), the Indentures, the Unit Agreement, any Unit
Agreement Without Holders' Obligations, the Warrant Agreement and any
applicable Written Notes Terms Agreement or Written Units Terms
Agreement and the performance by the Company of its obligations under
this Agreement, the Notes, the Units, the Indentures, the Unit
Agreement, any Unit Agreement Without Holders' Obligations, the
Warrant Agreement and any applicable Notes Terms Agreement or Units
Terms Agreement will not contravene any provision of applicable law or
the certificate of incorporation or by-laws of the Company or, to the
best of such counsel's knowledge, any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material
to the Company and its consolidated subsidiaries, taken as a whole,
or, to the best of such counsel's knowledge, any judgment, order or
decree of any U.S. governmental body, agency or court having
jurisdiction
23
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; provided, however, that no opinion is expressed on
whether the purchase of the Program Securities constitutes a
"prohibited transaction" under Section 406 of the Employee Retirement
Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended;
(K) the statements (1) in the Prospectus, as then amended or
supplemented, under the captions "Description of Notes" (in the
Prospectus Supplement), "Description of Debt Securities" (in the Basic
Prospectus), "Description of Units" (in the Prospectus Supplement and
in the Basic Prospectus), "Plan of Distribution" (in the Prospectus
Supplement and in the Basic Prospectus), "Description of Purchase
Contracts" (in the Basic Prospectus) and "Description of Warrants" (in
the Basic Prospectus), (2) in the Registration Statement, as then
amended or supplemented, under Item 15, (3) in "Item 3. Legal
Proceedings" of the most recent annual report on Form 10-K
incorporated by reference in the Prospectus and (4) in "Item 1. Legal
Proceedings" of Part II of the quarterly reports on Form 10-Q, if any,
filed since such annual report and incorporated by reference in the
Prospectus, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize the
matters referred to therein;
(L) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or
any of its consolidated subsidiaries is a party or to which any of the
properties of the Company or any of its consolidated
24
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus, as then amended or
supplemented, and are not so described or of any U.S. federal or state
statutes, regulations, contracts or other documents governed by U.S.
federal or state law that are required to be described in the
Registration Statement or the Prospectus, as then amended or
supplemented, or to be filed or incorporated by reference as exhibits
to such Registration Statement that are not described, filed or
incorporated by reference as required;
(M) the Company is not, and after giving effect to the offering
and sale of the Program Securities and the application of the proceeds
thereof as described in the Prospectus, will not be required to
register as, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended; and
(N) such counsel (1) believes that each document, if any, filed
pursuant to the Exchange Act and incorporated by reference in the
Prospectus as then amended or supplemented (except as to financial
statements and schedules and other financial and statistical data
included therein, as to which such counsel need not express any
belief) complied when so filed as to form in all material respects
with the Exchange Act and the applicable rules and regulations of the
Commission thereunder, (2) has no reason to believe that any part of
the Registration Statement (except as to financial statements and
schedules and other financial and statistical data included therein,
as to which such counsel need not express any belief, and except for
that part of the Registration Statement that constitutes the Forms T-1
heretofore referred to), as then amended, if applicable, when such
part became effective contained, and the Registration Statement
(except as to financial statements and schedules and other financial
and statistical data included therein, as to which such counsel need
not express any belief, and except for the part of the Registration
Statement that constitutes the Forms T-1) as of the date such opinion
is delivered contains, any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(3) believes that the Registration Statement and Prospectus, as then
25
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
26
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.
27
(c) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date,
you shall have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, and signed by an executive officer of
the Company to the effect set forth in subparagraph (a)(iii) above and to
the effect that the representations and warranties of the Company contained
in this Agreement are true and correct as of such date and that the Company
has complied with all of the agreements and satisfied all of the conditions
on its part to be performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely upon the best of
his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date,
the Company's independent auditors shall have furnished to you a letter or
letters, dated as of the Commencement Date or such Settlement Date, as the
case may be, in form and substance satisfactory to you containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Prospectus, as then amended or supplemented; provided that each
letter so furnished shall use a "cut-off date" no more than three business
days prior to the date of such letter.
(e) On the Commencement Date and on each Settlement Date, the Company
shall have furnished to you such appropriate further information,
certificates and documents as you may reasonably request.
(f) On the Commencement Date, application to admit the Series G Notes
issued by the Company during the twelve months following the date of the
approval of such application to listing on the Official List of the UK
Listing Authority and to trading on the London Stock Exchange shall have
been made and, prior to the issuance of the first Series G Note offered
pursuant to this Agreement, such admission to listing and to trading shall
have been granted, subject to official notice of issuance.
5. Additional Agreements of the Company. 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
28
price of an underlying Purchase Contract or (iii) a change you deem to be
immaterial), the Company will deliver or cause to be delivered forthwith to you
a certificate signed by an executive officer of the Company, dated the date of
such amendment or supplement, as the case may be, in form reasonably
satisfactory to you, of the same tenor as the certificate referred to in Section
4(c) relating to the Registration Statement or the Prospectus as amended or
supplemented to the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to Section 5(a)
(other than any amendment or supplement to the Registration Statement or
Prospectus caused by the filing of a Current Report on Form 8-K unless you shall
reasonably request based on disclosure included or omitted from such Report),
the Company will furnish or cause to be furnished forthwith to you a written
opinion of counsel for the Company. Any such opinion shall be dated the date of
such amendment or supplement, as the case may be, shall be in a form
satisfactory to you and 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 , 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
29
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to you
furnished to the Company in writing by you expressly for use therein.
(b) You agree to indemnify and hold harmless the Company, its directors,
its officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to you, but only with reference to information
relating to you furnished to the Company in writing by you expressly for use in
the Registration Statement or the Prospectus or any amendments or supplements
thereto.
(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
30
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party 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
31
considerations referred to in paragraph (d) above. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, you shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Program Securities referred to in paragraph (d) above that
were offered and sold to the public through you exceeds the amount of any
damages that you have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6
and the representations, warranties and other statements of the Company, its
officers and you set forth in or made pursuant to this Agreement or any Notes
Terms Agreement or Units Terms Agreement will remain operative and in full force
and effect regardless of (i) any termination of this Agreement or any such Notes
Terms Agreement or Units Terms Agreement, (ii) any investigation made by or on
behalf of you or any person controlling you or by or on behalf of the Company,
its officers or directors or any person controlling the Company and (iii)
acceptance of and payment for any of the Program Securities.
7. Offering Restrictions. You hereby represent to the Company and agree
with respect to the Program Securities that:
(a) you have not (A) offered or sold and will not offer or sell during
the Restricted Period (as defined below) Bearer Notes (whether offered
alone or as part of a Unit) (including any Note that is exchangeable for
Bearer Notes) directly or indirectly in the United States (as defined
below) or to or for the account of any United States person (as defined
below), other than to a Qualifying Foreign Branch (as defined below) or to
certain other persons as provided under United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(1)(iii)(B) and (C); and (B) delivered and will
not deliver within the United States definitive Bearer Notes that are sold
during the Restricted Period;
(ii) you have, and throughout the Restricted Period will have, in
effect procedures reasonably designed to ensure that your employees or
agents who are directly engaged in selling Bearer Notes (whether
offered alone or as part of a Unit) are
32
aware that such Bearer Notes may not be offered or sold during the
Restricted Period to a person who is within the United States or to a
United States person, except as permitted by Section 7(a)(i)(A) above;
(iii) if you are a United States person, you are acquiring the
Bearer Notes (whether offered alone or as part of a Unit) for purposes
of resale in connection with their original issuance and if you retain
Bearer Notes for your own account, you will only do so in accordance
with the requirements of United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(6);
(iv) if you transfer to any affiliate Bearer Notes (whether
offered alone or as part of a Unit) for the purpose of offering or
selling such Bearer Notes during the Restricted Period, you will
either (A) obtain from such affiliate for the benefit of the Company
the representations and agreements contained in clauses , (ii) and
(iii) above or (B) repeat and confirm the representations and
agreements contained in clauses (i), (ii) and (iii) above on such
affiliate's behalf and obtain from such affiliate the authority to so
obligate it; and
(v) you will obtain for the benefit of the Company the
representations and agreements contained in clauses (i), (ii), (iii)
and (iv) above from any person other than your affiliate with whom you
enter into a written contract, within the meaning of United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(4), for the offer or
sale during the Restricted Period of Bearer Notes (whether offered
alone or as part of a Unit).
For purposes of this Section 7(a), an offer or sale will be considered to be
made in the United States if the offeror or seller of such Notes (whether
offered alone or as part of a Unit) has an address within the United States for
the offeree or purchaser of such Notes with respect to the offer or sale. As
used in this Section 7(a), "United States person" means a citizen or resident of
the United States, a corporation or partnership (including an entity treated as
a corporation or partnership for United States federal income tax purposes)
created or organized in or under the laws of the United States, any State
thereof or the District of Columbia, an estate the income of which is subject to
United States federal income taxation regardless of its source or a trust if
both (x) a court within the United States is able to exercise primary
supervision over the administration of the trust and (y) one or more United
States persons have the authority to control all substantial decisions of the
trust; "United States" means the United States (including the States and the
District of Columbia), its territories, its possessions and any other areas
subject to its jurisdiction; "Qualifying Foreign Branch"
33
means a branch of a United States financial institution, as defined in the
applicable United States Treasury Regulations, located outside the United States
that is purchasing for its own account or for resale and that has agreed, as a
condition to purchase, to comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended (the
"Code"), and the regulations thereunder; and "Restricted Period" with respect to
each issuance means the period which begins on the earlier of the date on which
the Company receives the proceeds of the sale of Notes with respect to such
issuance or the first date on which the Notes are offered to persons other than
you, and which ends 40 days after the date on which the Company receives the
proceeds of the sale of such Notes; provided that with respect to a Note held as
part of an unsold allotment or subscription, any offer or sale of such Note by
the Company or you shall be deemed to be during the Restricted Period.
(b) (i) In relation to Notes which have a maturity of one year or
more and which are to be admitted to the Official List of the UK
Listing Authority, you have not offered or sold and will not offer or
sell any such Notes to persons in the United Kingdom prior to the
admission of such Notes to listing in accordance with Part VI of the
FSMA, except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal
or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer
to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995 or the FSMA, as amended;
(ii) in relation to Notes which have a maturity of one year
or more and which are not to be admitted to the Official List of
the UK Listing Authority, you have not offered or sold and, prior
to the expiry of the period of six months from the date of issue
of such Notes, will not offer or sell any such Notes to persons
in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted
and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities
Regulations 1995;
(iii) you have complied with and will comply with all
applicable provisions of the FSMA with respect to anything done
by you in relation to the Notes in, from or otherwise involving
the United Kingdom;
34
(iv) you have only communicated or caused to be communicated
and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within
the meaning of Section 21 of the FSMA) received by you in
connection with the issue or sale of Notes in circumstances in
which Section 21(1) of the FSMA does not apply to the Company;
and
(v) with respect to any Notes which have a maturity of less
than one year, (A) you are a person whose ordinary activities
involve you in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of your
business, and (B) you have not offered or sold and will not offer
or sell any such Notes other than to persons (1) whose ordinary
activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes
of their businesses or (2) who it is reasonable to expect will
acquire, hold, manage or dispose of investments (as principal or
agent) for the purposes of their businesses, where the issue of
the Notes would otherwise constitute a contravention of Section
19 of the FSMA by the Company.
(c) (i) You have complied and will comply with all applicable
provisions of the FSMA in respect to anything done in relation to any
Warrants in, from or otherwise involving the United Kingdom. Any invitation
or inducement to engage in investment activity (within the meaning of
Section 21 of the FSMA) received by any person in connection with the issue
or sale of any Warrants has only communicated or caused to be communicated
and will only communicate or cause to be communicated in circumstances in
which Section 21(l) of the FSMA does not apply to the Company.
(ii) If the Warrants give entitlements to securities within
the meaning of the Public Offers of Securities Regulations 1995,
you have not offered or sold and will not offer or sell any such
Warrants to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to the public
in the United Kingdom within the meaning of those Regulations.
(d) You will not purchase, deliver, offer or sell any Program
Securities or possess or distribute offering material in relation to such
35
Program Securities in any jurisdiction if such purchase, delivery, offer or
sale or the possession or distribution of such offering material would not
be in compliance with any applicable law or regulation or if any consent,
approval or permission is needed for such purchase, delivery, offer or sale
or the possession or distribution by you or for or on behalf of the Company
unless such consent, approval or permission has been previously obtained.
Without prejudice to the provisions of this Section 7 above and subject to
the obligations of the Company set forth in Section 3 of this Agreement,
the Company shall have no responsibility for, and you will obtain, any
consent, approval or permission required by you for the subscription,
offer, sale or delivery by you of Program Securities, or the possession or
distribution of any offering materials, under the laws and regulations in
force in any jurisdiction to which you are subject or in or from which you
make any subscription, offer, sale or delivery.
(e) You will not offer or sell any Program Securities, directly or
indirectly, in Japan or to, or for the benefit of, any resident of Japan
(which term as used herein means any person resident in Japan including any
corporation or other entity organized under the laws of Japan) or to others
for the re-offering or re-sale, directly or indirectly, in Japan or to a
resident of Japan except pursuant to an exemption from the registration
requirements of, and otherwise in compliance with, the Securities and
Exchange Law of Japan and other relevant laws and regulations of Japan.
(f) Each of the Agents and the Company represents and agrees that
Program Securities will be issued outside the Republic of France, that it
will not offer or sell any Program Securities in the Republic of France and
will not distribute or cause to be distributed in the Republic of France
the Prospectus or any other offering material relating to Program
Securities, except to (i) qualified investors (investisseurs qualifies)
and/or (ii) within a restricted circle of investors (cercle restreint
d'investisseurs), all as defined in and in accordance with Article L.411-2
of the Code Monetaire et Financier and Decree no 98-880 dated 1st October,
1998.
8. Position of the Agent. In acting under this Agreement and in connection
with the sale of any Program Securities by the Company (other than Program
Securities sold to you pursuant to a Notes Terms Agreement or Units Terms
Agreement, as the case may be), you are acting solely as agent of the Company
and do not assume any obligation towards or relationship of agency or trust with
any purchaser of Program Securities. You shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Program Securities has been solicited by you and accepted by the Company, but
you shall not have any liability to the Company in the event any such purchase
is not consummated for any reason. If the Company shall default in its
obligations to deliver Program Securities to a purchaser whose offer it has
36
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.
9. Termination. This Agreement may be terminated at any time either by the
Company or by you upon the giving of written notice of such termination to the
other parties hereto, but without prejudice to any rights, obligations or
liabilities of the other parties hereto accrued or incurred prior to such
termination. The termination of this Agreement shall not require termination of
any Notes Terms Agreement or Units Terms Agreement, and the termination of any
such Notes Terms Agreement or Units Terms Agreement shall not require
termination of this Agreement. If this Agreement is terminated, the provisions
of the third paragraph of Section 2(a), the last sentence of Section 3(b) and
Sections 3(c), 3(g), 3(i), 3(j), 6, 7, 8, 10, 11 and 13 shall survive; provided
that if at the time of termination an offer to purchase Program Securities has
been accepted by the Company but the time of delivery to the purchaser or its
agent of such Program Securities has not occurred, the provisions of Sections 1,
2(b), 2(c), 3(a), 3(d), 3(e), 3(f), 3(h), 4 and 5 shall also survive until such
delivery has been made.
10. Notices. All communications hereunder will be in writing and effective
only on receipt, and (a) if sent to Morgan Stanley & Co. International Limited,
will be mailed, delivered or telefaxed and confirmed to Morgan Stanley & Co.
International Limited, 25 Cabot Square, Canary Wharf, London E14 4QA, United
Kingdom, to the attention of Global Capital Markets - Head of Transaction
Management Group (Telephone No.: +44-20-7677-7799; Telecopy No.:
+44-20-7677-7999) and (b) if sent to the Company, will be mailed, delivered or
telefaxed and confirmed to Morgan Stanley, 1221 Avenue of the Americas, New
York, New York 10020, Attention: Treasurer (Telecopy No.: 212-762-7337) (or to
such other address as the Company may designate).
11. Successors. This Agreement and any Notes Terms Agreement or Units Terms
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors and controlling
persons referred to in Section 6 and the purchasers of Notes and Units (to the
extent expressly provided in Section 4), and no other person will have any right
or obligation hereunder.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York.
37
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.
38
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 & CO.
INTERNATIONAL LIMITED
By:
--------------------------------------------
Name:
Title:
EXHIBIT A
MORGAN STANLEY
GLOBAL MEDIUM-TERM NOTES, SERIES G AND SERIES H
NOTES TERMS AGREEMENT
_______________, 200_
Morgan Stanley
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated [ ], 2005 (the "Euro
Distribution Agreement")
----------------------------------------------------------------
The undersigned agrees to purchase your Global Medium-Term Notes, Series
G/H, [specific designation] having the following terms:
All Notes Fixed Rate Notes Floating Rate Notes
- -------------------------------------------------------------------------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Payment Index Maturity:
upon Acceleration:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Interest Alternate Rate Event Spread:
Payments:
Specified Currency: Denominated Currency (if any): Initial Interest Rate:
Original Issue Date: Indexed Currency or Currencies Initial Interest Reset Date:
(if any):
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
A-1
All Notes Fixed Rate Notes Floating Rate Notes
- -------------------------------------------------------------------------------------------
Interest Payment Date(s): Exchange Rate Agent (if any): Interest Reset Period:
Interest Payment Period: Reference Dealers: Maximum Interest Rate:
Maturity Date: Face Amount (if any): Minimum Interest Rate:
Optional Repayment Fixed Amount of each Indexed Calculation Agent:
Date(s): Currency (if any):
Optional Redemption Date(s): Aggregate Fixed Amount of each Reporting Service:
Indexed Currency (if any):
Initial Redemption Date: Index Currency:
Initial Redemption Percentage: Designated CMT Telerate Page:
Annual Redemption Percentage Designated CMT Maturity Index:
Reduction:
Ranking:
Series:
Minimum Denominations:
Other Terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and 10
through 14 of the Euro Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is also subject to termination on the terms incorporated
by reference herein. If this Agreement is so terminated, the provisions of
Sections 3(g), 6, 10, 11 and 13 of the Euro Distribution Agreement shall survive
for the purposes of this Agreement.
A-2
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the Euro Distribution Agreement will be required:
________________.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:
-------------------------------------------
Name:
Title:
Accepted:
MORGAN STANLEY
By:
------------------------------------------
Name:
Title:
A-3
EXHIBIT A-1
MORGAN STANLEY
GLOBAL UNITS, SERIES G AND SERIES H
UNITS TERMS AGREEMENT
_______________, 200_
Morgan Stanley
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated [ ], 2005 (the "Euro
Distribution Agreement")
--------------------------------------------------------------
The undersigned agrees to purchase your Global Units, Series G/H,
[specified designation] having the following terms:
Warrants Issued as Part of a Purchase Contracts Issued as
All Units: Unit: Part of a Unit:
- ----------------------------------- -------------------------------- ----------------------------
Settlement Date and Time: Price: Price:
Number (Face Amount): Designation of the Series of Designation of the Series of
Warrants: [Call] [Put] Purchase Contracts:
Warrants [Purchase][Sale] Purchase
Contracts
Purchase Price: Warrant Property: Aggregate Number of Purchase
Contracts:
Specified Currency: Aggregate Number of Warrants: Purchase Contract Property:
Severability: Date(s) upon which Warrants may Quantity per Purchase Contract:
be exercised:
Other Terms: Currency in which exercise [Purchase] [Sale] Price:
payments shall be made:
A-1-1
Warrants Issued as Part of a Purchase Contracts Issued as
All Units: Unit: Part of a Unit:
- ----------------------------------- ---------------------------- ----------------------------
Exchange Rate (or method of Settlement Date:
calculation:
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:
- --------------------------------
(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 Part Floating Rate Notes Issued as
a Unit: 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: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Interest Alternate Rate Event Spread:
Payments:
Specified Currency: Denominated Currency (if any): Initial Interest Rate:
Original Issue Date: Indexed Currency or Currencies Initial Interest Reset Date:
(if any):
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if any): Interest Reset Period:
Interest Payment Period: Reference Dealers: Maximum Interest Rate:
Maturity Date: Face Amount (if any): Minimum Interest Rate:
Optional Repayment Date(s): Fixed Amount of each Indexed Calculation Agent:
Currency (if any):
Optional Redemption Date(s): Aggregate Fixed Amount of each Reporting Service:
Indexed Currency (if any):
Initial Redemption Date: Index Currency:
Initial Redemption Percentage: Designated CMT Telerate Page:
Annual Redemption Percentage Designated CMT Maturity Index:
Reduction:
Ranking:
A-1-3
All Notes Issued as Part of Fixed Rate Notes Issued as Part Floating Rate Notes Issued as
a Unit: of a Unit: Part of a Unit:
- ---------------------------------- --------------------------------- -----------------------------
Series:
Minimum Denominations:
Other Terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and 10
through 14 of the Euro Distribution Agreement and the
related definitions are incorporated by reference herein and shall be deemed to
have the same force and effect as if set forth in full herein.(4)
This Agreement is also subject to termination on the terms incorporated
by reference herein. If this Agreement is terminated, the provisions of Sections
3(g), 6, 10, 11 and 13 of the Euro Distribution Agreement shall survive for the
purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Euro Distribution Agreement will be
required: ___________.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:
-------------------------------------------
Name:
Title:
- ------------------------
(4) In the case of Physically-settled Pre-paid Purchase Contracts issued
under a Unit Agreement Without Holders' Obligations, additional representations
and warranties will be added with respect to such Physically-settled Pre-paid
Purchase Contracts and the opinions of counsel delivered pursuant to Sections
4(b)(i) and 4(b)(ii) will cover such additional representations and warranties,
as appropriate.
A-1-4
Accepted:
MORGAN STANLEY
By:
--------------------------------------------
Name:
Title:
A-1-5
EXHIBIT B
MORGAN STANLEY
GLOBAL MEDIUM-TERM NOTES, SERIES G AND SERIES H
GLOBAL UNITS, SERIES G AND SERIES H
ADMINISTRATIVE PROCEDURES
---------------------------------
Explained below are the administrative procedures and specific terms of
the offering of (i) Global Medium-Term Notes, Series G (the "Series G Notes"),
(ii) Global Medium-Term Notes, Series H (the "Series H Notes" and together with
the Series G Notes, the "Notes"), (iii) Global Units, Series G (the "Series G
Units") and (iv) Global Units, Series H (the "Series H Units" and together with
the Series G Units, the "Units", and the Units together with the Notes, the
"Program Securities"), on a continuous basis by Morgan Stanley (the "Company")
pursuant to the Euro Distribution Agreement dated [ ], 2005 (as may be amended
from time to time, the "Distribution Agreement") between the Company and Morgan
Stanley & Co. International Limited (the "Agent"). The Notes may be issued,
either alone or as part of a Unit, in registered form without coupons
("Registered Notes"), in bearer form with or without coupons ("Bearer Notes") or
in any combination of Registered Notes and Bearer Notes. The Units may be issued
in registered form ("Registered Units"), in bearer form ("Bearer Units") or in
any combination of Registered Units and Bearer Units. The securities comprised
by a Unit will be issued in the same form as such Unit. Bearer Notes and Bearer
Units initially will be represented by, in the case of Bearer Notes, a Temporary
Global Note and, in the case of Bearer Units, a Temporary Global Unit. Such
Temporary Global Note and Temporary Global Unit will subsequently be represented
by, in the case of the Temporary Global Note, a Permanent Global Note and, in
the case of the Temporary Global Unit, a Permanent Global Unit. Interests in a
Permanent Global Note may be exchanged, in whole, for individual definitive
Bearer Notes with or without coupons attached. Definitive Bearer Notes may be
exchanged, if the applicable Pricing Supplement so specifies, in whole or in
part, for Registered Notes. Interests in a Permanent Global Unit may be
exchanged, in whole, for individual definitive Bearer Units. Definitive Bearer
Units may be exchanged, if the applicable Pricing Supplement so specifies, in
whole or in part, for Registered Units.
The Notes may be issued as senior indebtedness (the "Senior Notes") or
subordinated indebtedness (the "Subordinated Notes") of the Company, and as used
herein the term "Notes" includes the Senior Notes and the Subordinated Notes.
The Senior Notes will be issued, either alone or as part of a Unit, pursuant
B-1
to the provisions of an amended and restated senior indenture dated 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), as trustee (the "Senior Debt 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, as trustee. The Senior Debt
Indenture and the Subordinated Debt Indenture are sometimes hereinafter referred
to individually as an "Indenture" and collectively as the "Indentures." Purchase
contracts ("Purchase Contracts") that require holders to satisfy their
obligations thereunder when such Purchase Contracts are issued are referred to
as "Pre-paid Purchase Contracts." Pre-paid Purchase Contracts that settle in
cash ("Cash-settled Pre-paid Purchase Contracts") generally will be issued under
the Indentures. Pre-paid Purchase Contracts that do not settle in cash
("Physically-settled Pre-paid Purchase Contracts") generally will be issued
under the Unit Agreement or the Unit Agreement Without Holders' Obligations
(each as defined below).
Unless otherwise specified in the applicable Pricing Supplement, the
Units will be issued (1) pursuant to the Unit Agreement dated as of 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
(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 G & H Senior Notes, (ii) warrants ("Warrants")
entitling the holders thereof to purchase or sell (a) securities issued by the
Company or by an entity not affiliated with the Company (or securities issued by
an entity affiliated with the Company in the case of Series H Units), a basket
of such securities, an index or indices of such securities or any combination of
the above, (b) currencies or (c) commodities, (iii) purchase contracts
("Purchase Contracts"), including Pre-paid Purchase Contracts, requiring the
holders thereof to purchase or sell (a) securities issued by the Company or by
an entity not
- -----------------------------
(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
affiliated with the Company (or securities issued by an entity affiliated
with the Company in the case of Series H Units), a basket of such securities, an
index or indices of such securities or any combination of the above, (b)
currencies or (c) commodities or (iv) any combination thereof. The applicable
Pricing Supplement will specify whether or not any Notes, Warrants and Purchase
Contracts comprised by a Unit may or may not be separated from the Unit.
Warrants issued as part of a Unit will be issued pursuant to the Warrant
Agreement dated as of 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 or Units for its own account, and the Company
and the Agent will enter into a terms agreement (in the case of Notes, a "Notes
Terms Agreement" and, in the case of Units, a "Units Terms Agreement"), as
contemplated by the Distribution Agreement. The administrative procedures
explained below will govern the issuance and settlement of any Notes or Units
purchased by the Agent, as principal, unless otherwise specified in the
applicable Notes Terms Agreement or Units Terms Agreement.
JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank),
("JPMorgan Chase") has initially been appointed the (i) Calculation Agent and
Principal Paying Agent for the Senior Notes (and any Cash-settled Pre-Paid
Purchase Contracts), (ii) the Unit Agent for the Units and Purchase Contracts
(other than Cash-settled Pre-Paid Purchase Contracts), (iii) the Warrant Agent
for the Warrants and (iv) the Registrar for the Senior Registered Notes, and
will perform the duties specified herein. J.P. Morgan Trust Company, National
Association (acting through JPMorgan Chase at its corporate trust office in
London as its sub-agent) has initially been appointed the (x) Calculation Agent
and Principal Paying Agent for the Subordinated Notes and (y) the Registrar for
the Subordinated Registered Notes, and will perform the duties specified herein.
As used herein, the term "Principal Paying Agent" shall mean (i) JPMorgan Chase
acting
B-3
through its London office in connection with the authentication and
delivery of the Senior Notes and (ii) J.P. Morgan Trust Company, National
Association (acting through JPMorgan Chase at its corporate trust office in
London as its sub-agent) in connection with the authentication and delivery of
the Subordinated Notes, in each case whether issued alone or as part of a Unit,
(and any Cash-settled Pre-Paid Purchase Contracts) pursuant to the terms of the
Indentures, and the term "Unit Agent" shall mean JPMorgan Chase acting through
its London office in connection with the completion and delivery of the Units
(including, as applicable, countersigning and delivering any Warrants, as
Warrant Agent, and countersigning, executing and delivering any Purchase
Contracts (other than Cash-settled Pre-Paid Purchase Contracts), as Unit Agent,
includable in such Unit), pursuant to the terms of the Unit Agreements. "Warrant
Agent" shall mean JPMorgan Chase acting through its London office. The Series G
Notes are intended to be, and the Series G Units, in certain circumstances
described in the Prospectus Supplement (as such term is defined in the
Distribution Agreement), may be, admitted to the Official List of the Financial
Services Authority (the "UK Listing Authority") in its capacity as competent
authority for the purposes of Part VI of the Financial Services and Markets Act
2000 (the "FSMA"), and to trading on the London Stock Exchange plc (the "London
Stock Exchange"). Series H Notes and the Series H Units will not be listed on
any stock exchange. The Company has appointed Morgan Stanley & Co. International
Limited as the authorized adviser for purposes of applications to admit the
Series G Notes and the Series G Units, if it is determined that Series G Units
are to be so admitted, to the Official List of the UK Listing Authority and to
trading on the London Stock Exchange.
Each Bearer Note and each Bearer Unit (including each security
comprised by such Bearer Unit) initially will be represented by, in the
case of a Bearer Note, a Temporary Global Note and, in the case of a Bearer
Unit, a Temporary Global Unit, each of which will be delivered to a common
depositary located outside the United States (the "Depositary") for Euroclear
Bank S.A./N.V., as operator of the Euroclear System (the "Euroclear Operator"),
Clearstream Banking, societe anonyme ("Clearstream"), and/or any other relevant
clearing system (including Euroclear France). Such Temporary Global Note and
Temporary Global Unit will subsequently be represented by, in the case of the
Temporary Global Note, a Permanent Global Note and, in the case of the Temporary
Global Unit, a Permanent Global Unit. Upon the first request by any beneficial
owner to exchange any interest in a Permanent Global Note to a definitive Bearer
Note, or if any Note represented by such Permanent Global Note is accelerated
following an event of default with respect to such Note or if either the
Euroclear Operator, Clearstream or any other relevant clearing system is closed
for business for a continuous period of fourteen days (other than
by reason of public holidays) or announces an intention to cease business
permanently or in fact does so, then all (and not less than all) interests in
such Permanent Global Note shall be exchanged for definitive Bearer Notes;
provided that, if the applicable Pricing Supplement so specifies, nothing herein
shall prevent the further exchange of definitive Bearer Notes for Registered
Notes. Upon the first request by any beneficial owner to exchange any interest
in a Permanent Global Unit to a definitive Bearer Unit, or if any Note comprised
by such Permanent Global Note is accelerated following an event of default with
respect to such Note or if either the Euroclear Operator, Clearstream or any
other relevant clearing system is closed for business for a continuous period of
fourteen days (other than
B-4
by reason of public holidays) or announces an intention to cease business
permanently or in fact does so, then all (and not less than all) interests in
such Permanent Global Unit shall be exchanged for definitive Bearer Units;
provided that, if the applicable Pricing Supplement so specifies, nothing
herein shall prevent the further exchange of definitive Bearer Units for
Registered Units.
Unless otherwise defined herein, terms defined in the Indentures, the
Unit Agreement, the Unit Agreement Without Holders' Obligations, the Warrant
Agreement, the Notes, the Units, the Warrants, the Purchase Contracts or any
Prospectus Supplement relating to the Notes and Units shall be used herein as
therein defined.
The Company will advise the Agent in writing of the employees of the
Company with whom the Agent is to communicate regarding offers to purchase Notes
and Units and the related settlement details.
B-5
ADMINISTRATIVE PROCEDURES FOR
BEARER NOTES, REGISTERED NOTES,
BEARER UNITS AND REGISTERED UNITS
Issuance: Bearer Notes. Each Bearer Note, whether issued
alone or as part of a Unit, will be dated as of
its Original Issue Date. Each Bearer Note will
bear an Original Issue Date, which will be (i)
with respect to a Temporary Global Note (or any
portion thereof), the date of its original issue
as specified in such Temporary Global Note or
(ii) with respect to any Permanent Global Note
or any definitive Bearer Note (or any portion
thereof) issued subsequently upon transfer or
exchange of a Bearer Note or in lieu of a
destroyed, lost or stolen Bearer Note (a
"Replacement Bearer Note"), the Original Issue
Date of the predecessor Bearer Note, regardless
of the date of authentication of such
subsequently issued Bearer Note.
Registered Notes. Each Registered Note, whether
issued alone or as part of a Unit, will be dated
as of the date of its authentication by JPMorgan
Chase. Each Registered Note will also bear an
Original Issue Date, which will be (i) with
respect to an original Registered Note (an
"Original Registered Note") (or any portion
thereof), its original issuance date (which will
be the settlement date) and (ii) with respect to
any Registered Note (or portion thereof) issued
subsequently upon transfer or exchange of a
Registered Note or in lieu of a destroyed, lost
or stolen Registered Note or upon exchange of a
Bearer Note (a "Replacement Registered Note"),
the original issuance date of the predecessor
Registered Note or Bearer Note, as the case may
be, regardless of the date of authentication of
such subsequently issued Registered Note.
B-6
Bearer Units. Each Bearer Unit (whether in
temporary, permanent or definitive form) will be
deemed to be dated as of the Original Issue Date
of the Bearer Note comprised by such Unit or, if
there is no such underlying Bearer Note, the
date of the other securities comprised thereby
in accordance with the procedures described
above.
Registered Units. Each Registered Unit will be
deemed to be dated as of the Original Issue Date
of the Registered Note comprised by such Unit
or, if there is no such underlying Registered
Note, as of the date of the other securities
comprised thereby in accordance with the
procedures described above.
Denominations: Bearer Notes. Unless otherwise specified in the
applicable Pricing Supplement, Bearer Notes,
whether issued alone or as part of a Unit, will
be issued only in denominations of $1,000 (or,
in the case of Bearer Notes not denominated in
U.S. dollars, the equivalent thereof in the
Specified Currency, rounded to the nearest 1,000
units of the Specified Currency) or any amount
in excess thereof which is an integral multiple
of $1,000 (or, in the case of Bearer Notes not
denominated in U.S. dollars, 1,000 units of the
Specified Currency).
Registered Notes. Unless otherwise specified in
the applicable Pricing Supplement, Registered
Notes will be issued, either alone or as part of
a Unit, only in denominations of $1,000 (or, in
the case of Registered Notes not denominated in
U.S. dollars, the equivalent thereof in the
Specified Currency, rounded to the nearest 1,000
units of the Specified Currency) or any amount
in excess thereof which is an integral multiple
of $1,000 (or, in the case
B-7
of Registered Notes not denominated in U.S.
dollars, 1,000 units of the Specified Currency).
Bearer Units. Unless otherwise specified in the
applicable Pricing Supplement, Bearer Units will
be issued only in denominations of a single Unit
and any integral multiple thereof, with face
amounts in denominations as indicated in the
applicable Pricing Supplement, generally
corresponding to the denominations of any Notes
or other securities comprised by such Units.
Registered Units. Unless otherwise specified in
the applicable Pricing Supplement, Registered
Units will be issued only in denominations of a
single Unit and any integral multiple thereof,
with face amounts in denominations as indicated
in the applicable Pricing Supplement, generally
corresponding to the denominations of any Notes
or other securities comprised by such Units.
Global Notes and
Definitive Bearer
and Registered Notes: Until Final Certification (as defined below)
with respect to an issuance of Bearer Notes has
occurred, such Notes, together with all other
Bearer Notes that have the same terms (other
than their respective principal amounts) (all
such Notes herein referred to collectively as a
"Note Tranche"), will be represented by a single
Temporary Global Note in bearer form without
interest coupons. The Company shall execute, and
upon Company instructions the Principal Paying
Agent shall complete and authenticate, such
Temporary Global Note upon the same conditions
and in substantially the same manner, and with
the same effect, as an individual definitive
Bearer Note. On or prior to the settlement
B-8
date (which will normally be the Original Issue
Date) with respect to such Notes, the Principal
Paying Agent shall deposit the Temporary Global
Note with the Depositary in the manner specified
below under "Settlement Procedures; Bearer Notes
and Bearer Units". The interest of each
beneficial owner of Notes represented by such
Temporary Global Note will be credited to the
appropriate account with the Euroclear Operator,
Clearstream or any other relevant clearing
system.
On or after the date (the "Exchange Date") that
is the 40th day following the date on which the
Company receives the proceeds of the sale of a
Temporary Global Note (the "Closing Date"), or
if such Note is held by the Agent as part of an
unsold allotment or subscription more than 40
days after the Closing Date for such Note, on or
after the day after the date such Note is sold
by the Agent, all as notified by the Agent in
writing to JPMorgan Chase, the interest of the
beneficial owners of the Notes represented by
the Temporary Global Note shall be canceled and
such interests shall thereafter be represented
by a Permanent Global Note in bearer form
without interest coupons held in London by the
Depositary; provided that Final Certification
(as described below) has occurred. The interest
of each beneficial owner of Notes represented by
such Permanent Global Note will be credited to
the appropriate account with the Euroclear
Operator, Clearstream or any other relevant
clearing system.
If the beneficial owner of an interest in a
Permanent Global Note requests, at any time,
upon 30 days' written notice to the Principal
Paying Agent given by such beneficial owner
through either the Euroclear Operator,
Clearstream or any
B-9
other relevant clearing system, as the case may
be, or if any Note represented by such Permanent
Global Note is accelerated following an event of
default with respect to such Note or if either
the Euroclear Operator, Clearstream or any other
relevant clearing system is closed for business
for a continuous period of fourteen days (other
than by reason of public holidays) or announces
an intention to cease business permanently or in
fact does so, such Permanent Global Note shall
be exchanged for one or more definitive Bearer
Notes with coupons attached, if appropriate, or,
if the applicable Pricing Supplement so
specifies, one or more Registered Notes in
authorized denominations equal in aggregate
principal amount to such beneficial interest;
provided that any such exchange of an interest
in a Permanent Global Note for a definitive
Bearer Note shall result in the exchange of all
(and not less than all) interests in such
Permanent Global Note for definitive Bearer
Notes; provided further, that, if the applicable
Pricing Supplement so specifies, nothing herein
shall prevent the further exchange of definitive
Bearer Notes for Registered Notes. To effect
such exchange, the interest of such beneficial
owner in such Permanent Global Note shall be
canceled and one or more definitive Bearer Notes
or Registered Notes, as the case may be, shall
be issued to such beneficial owner, through the
Euroclear Operator, Clearstream or any other
relevant clearing system, as the case may be.
In all events, Bearer Notes and coupons will be
delivered by the Principal Paying Agent only
outside the United States.
B-10
Global Units and
Definitive Bearer Until Final Certification (as defined below)
and Registered Units: has occurred with respect to an issuance of
Bearer Notes included in an issuance of Bearer
Units, such Units, together with all other
Bearer Units that include securities that have
the same terms (other than their respective
number and face amounts) (all such Units herein
referred to collectively as a "Unit Tranche"),
will be represented by a single Temporary Global
Unit in bearer form (which form shall include
the corresponding temporary global forms of each
security comprised by such Unit). The Company
shall execute, and upon Company instructions,
JPMorgan Chase, as Unit Agent, shall complete,
such Temporary Global Unit (including, as
applicable, authenticating any Temporary Global
Note or Cash-settled Pre-paid Purchase
Contracts, as Principal Paying Agent,
countersigning and delivering any Warrants, as
Warrant Agent, and countersigning, executing and
delivering any Purchase Contracts (other than
Cash-settled Pre-paid Purchase Contracts), as
Unit Agent, includable in such Unit) upon the
same conditions and in substantially the same
manner, and with the same effect, as an
individual definitive Bearer Unit. On or prior
to the settlement date (which will normally be
the Original Issue Date of the Note comprised by
a Unit or, if there is no such underlying Note,
the date of the other securities comprised
thereby) with respect to such Units, the Unit
Agent shall deposit the Temporary Global Unit
(with the corresponding temporary global forms
of each security comprised by such Unit) with
the Depositary in the manner specified below
under "Settlement Procedures; Bearer Notes and
Bearer Units." The interest of each beneficial
owner of Units represented by such Temporary
Global Unit will be credited to the appropriate
account with the Euroclear Operator, Clearstream
or any other relevant clearing
system.
B-11
On or after the Exchange Date of any Temporary
Global Note comprised by a Temporary Global
Unit, the interest of the beneficial owners of
the Units represented by the Temporary Global
Unit shall be canceled and such interests shall
thereafter be represented by a Permanent Global
Unit in bearer form (with the corresponding
permanent global forms of each security
comprised by such Unit) held in London by the
Depositary; provided that Final Certification
(as described below) of any Notes comprised by
such Unit has occurred. The interest of each
beneficial owner of Units represented by such
Permanent Global Unit will be credited to the
appropriate account with the Euroclear Operator,
Clearstream or any other relevant clearing
system.
If the beneficial owner of an interest in a
Permanent Global Unit requests, at any time,
upon 30 days' written notice to the Unit Agent
given by such beneficial owner through either
the Euroclear Operator, Clearstream or any other
relevant clearing system, as the case may be, or
if any Note comprised by such Permanent Global
Note is accelerated following an event of
default with respect to such Note or if either
the Euroclear Operator, Clearstream or any other
relevant clearing system is closed for business
for a continuous period of fourteen days (other
than by reason of public holidays) or announces
an intention to cease business permanently or in
fact does so, such Permanent Global Unit shall
be exchanged for one or more definitive Bearer
Units or, if the applicable Pricing Supplement
so specifies, one or more Registered Units in
authorized denominations equal in aggregate
number and aggregate face amount to such
B-12
beneficial interest; provided that any such
exchange in any interest in a Permanent Global
Unit for a definitive Bearer Unit shall result
in the exchange of all (and not less than all)
interests in such Permanent Global Unit for
definitive Bearer Units; provided further, that,
if the applicable Pricing Supplement so
specifies, nothing herein shall prevent the
further exchange of definitive Bearer Units for
Registered Units. To effect such exchange, the
interest of such beneficial owner in such
Permanent Global Unit shall be canceled and one
or more definitive Bearer Units or Registered
Units, as the case may be, shall be issued to
such beneficial owner, through the Euroclear
Operator, Clearstream or any other relevant
clearing system, as the case may be.
In all events, Bearer Units will be delivered by
the Unit Agent only outside the United States.
Notes or Units Purchased
by U.S. Persons: All Notes (whether issued alone or as part of a
Unit) purchased in connection with their
original issuance by or on behalf of a United
States person (as defined in the Distribution
Agreement) (other than a branch of a United
States financial institution (as defined in the
applicable United States Treasury Regulation)
located outside the United States purchasing for
its own account or for resale (a "Qualifying
Foreign Branch") or other permitted U.S.
purchasers as provided in the Prospectus
Supplement that satisfies the conditions for
receiving Bearer Notes as described under "Final
Certification" below) will be issued only as
Registered Notes and any Units comprising such
Notes will be issued only as Registered Units.
B-13
Final Certification: Final Certification with respect to a
Temporary Global Note (whether issued alone or
as part of a Unit) shall mean the delivery by
the Euroclear Operator, Clearstream or any other
relevant clearing system, as the case may be, to
the Principal Paying Agent of a signed
certificate (each a "Clearance System
Certificate") in the form set forth in Appendix
1 hereto with respect to the Notes being
exchanged, dated no earlier than the Exchange
Date for such Notes, to the effect that the
Euroclear Operator, Clearstream or any other
relevant clearing system, as the case may be,
has received certificates in writing, by tested
telex or by electronic transmission from the
account holders appearing on its records as
entitled to such Notes ("Ownership
Certificates") in the form set forth in Appendix
2 hereto with respect to each of such Notes,
which Ownership Certificates shall be dated no
earlier than ten days before the Exchange Date.
Preparation of
Pricing Supplement: If any offer to purchase a Program Security is
accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of
such Program Security, will arrange to file an
electronic format document, in the manner
prescribed by the EDGAR Filer Manual, of such
Pricing Supplement with the Commission in
accordance with the applicable paragraph of Rule
424(b) under the Securities Act and will, as
soon as possible and in any event not later than
the date on which such Pricing Supplement is
filed with the Commission, deliver the number of
copies of such Pricing Supplement to the Agent
as the Agent shall request. The Agent will cause
such Pricing Supplement to be delivered to the
purchaser of the Program Security.
B-14
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other
than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for (i) the delivery
of an authenticated Temporary Global Note or a
Temporary Global Unit (including each security
comprised by such Unit) to the Depositary in the
manner described in "Settlement Procedures;
Bearer Notes and Bearer Units" below or (ii) the
delivery of an authenticated Registered Note or
a Registered Unit (including each security
comprised by such Unit) to the Agent shall
constitute "settlement" with respect to such
Note or Unit. All offers accepted by the Company
will be settled on the fifth Business Day next
succeeding the date of acceptance pursuant to
the timetable for settlement set forth below,
unless the Company and the purchaser agree to
settlement on another day, which shall be no
earlier than the next Business Day.
Settlement
Procedures;
Bearer Notes
and Bearer Units: Procedures with regard to each Bearer Note or
Bearer Unit sold by the Company to or through
the Agent (unless otherwise specified pursuant
to a Notes Terms Agreement or a Units Terms
Agreement) shall be as follows:
A. In the case of a Bearer Note (whether issued
alone or as part of a Unit), the Agent will
advise the Company by telephone that such
Note is initially a Bearer Note and of the
following settlement information:
B-15
1. Principal amount.
2. Maturity Date.
3. Interest Payment Date(s).
4. In the case of a Fixed Rate Bearer Note,
the Interest Rate and whether such Note
is an Amortizing Note, and, if so, the
amortization schedule, or, in the case
of a Floating Rate Bearer Note, the
Initial Interest Rate (if known at such
time), Interest Payment Period,
Calculation Agent, Base Rate, Index
Maturity, Index Currency, Interest Reset
Period, Initial Interest Reset Date,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest
Rate (if any), Maximum Interest Rate (if
any) and the Alternate Rate Event Spread
(if any).
5. Redemption or repayment provisions, if
any.
6. Ranking.
7. Settlement date and time (Original Issue
Date).
8. Interest Accrual Date.
9. Price.
10. Agent's commission, if any, determined
as provided in the Distribution
Agreement.
11. Specified Currency.
B-16
12. Whether the Note is an Original Issue
Discount Note (an "OID Note"), and if it
is an OID Note, the applicability of
Modified Payment upon Acceleration (and,
if so, the Issue Price).
13. Agent's account number at the Euroclear
Operator, Clearstream or any other
relevant clearing system.
14. Whether such Note is a Series G Note or
a Series H Note.
15. Any other applicable provisions.
B. In the case of a Bearer Unit, the Agent will
advise the Company by telephone that such
Unit is initially a Bearer Unit, of the
information set forth in Settlement
Procedures; Bearer Notes and Bearer Units
"A" above with respect to Bearer Notes that
constitute a part of such Bearer Unit and of
the following information:
1. Settlement date and time.
2. Face Amount.
3. Agent's commission, if any, determined
as provided in the Distribution
Agreement.
4. Designation of the Securities comprised
by such Units:
a. Notes (See "Settlement Procedures;
Bearer Notes and Bearer
Units" "A");
B-17
b. Warrants, if any; and
c. Purchase Contracts, if any.
5. Whether, and the terms under which, the
Securities comprised by such Unit will
be separately tradeable.
6. Any other provisions applicable to the
Unit (other than those provisions
applicable to the securities comprised
by such Unit).
7. If the Bearer Unit comprises Bearer
Warrants:
a. Designation of the Series of
Warrants: [Call] [Put] Warrants;
b. Warrant Property;
c. Aggregate Number of Warrants;
d. Price to Public;
e. Warrant Exercise Price;
f. Dates upon which Warrants may be
exercised;
g. Expiration Date;
h. Form;
i. Currency in which exercise payments
shall be made;
B-18
j. Minimum number of Warrants
exercisable by any holder on any
day;
k. Maximum number of Warrants
exercisable on any day: [In the
aggregate] [By any beneficial
owner];
l. Formula for determining Cash
Settlement Value;
m. Exchange Rate (or method of
calculation);
n. Whether the Company or the holder is
the writer of the Warrant; and
o. Any other applicable provisions.
8. If the Bearer Unit comprises Bearer
Purchase Contracts:
a. Purchase Contract Property;
b. Price to Public;
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
f. Method of Computing Settlement
Amount;
g. Currency of Settlement Payment;
h. Authorized Number of Purchase
Contracts;
B-19
i. [Purchase] [Sale] Price of Purchase
Contract Property;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions; and
j. Any other applicable provisions.
C. The Company will advise JPMorgan Chase as
the Principal Paying Agent for the Notes or
as the Unit Agent for the Units by telephone
or electronic transmission (confirmed in
writing at any time on the same date) of the
information set forth in "Settlement
Procedures; Bearer Notes and Bearer Units"
"A" or "B", above, as applicable, and shall
give the Principal Paying Agent or the Unit
Agent, as the case may be, written
instructions (substantially in the form set
out in Appendix 3 and Appendix 4, as
applicable) to prepare a Temporary Global
Note for each Note Tranche or a Temporary
Global Unit (with the corresponding
temporary global forms of each security
comprised by such Unit) for each Unit
Tranche, as the case may be, which the
Company has agreed to sell. The Company will
send a copy of such instructions to the
Agent and the relevant Trustee, such
instructions to contain a representation as
to the aggregate
B-20
principal amount of Program Securities
permitted to be issued hereunder after such
issuance.
The Principal Paying Agent or the Unit Agent
shall telephone each of the Euroclear
Operator, Clearstream or any other relevant
clearing system with a request for a
security code for each Note Tranche or Unit
Tranche (and, if applicable, a security code
for each security comprised by the Units of
such Unit Tranche) agreed to be issued and
shall notify the Company and the Agent of
such security code or codes as soon as
practicable.
D. In accordance with instructions received
from the Company, (i) the Principal Paying
Agent shall authenticate and deliver a
Temporary Global Note or Cash-settled
Pre-paid Purchase Contract for each Note
Tranche or Unit Tranche, as applicable,
which the Company has agreed to sell and
(ii) the Unit Agent shall prepare a
Temporary Global Unit for each Unit Tranche
which the Company has agreed to sell
(including, as applicable, by countersigning
and delivering any Warrants includable in
such Unit, by countersigning, executing and
delivering any Purchase Contracts (other
than Cash-settled Pre-Paid Purchase
Contracts) includable in such Unit and by
obtaining from the Principal Paying Agent
any Notes or Cash-settled Pre-paid Purchase
Contracts to be included in such Units,
authenticated in accordance with clause (i)
above). The settlement of each of the Note
Tranche and the Unit Tranche is to
B-21
occur on the relevant settlement date. All
such Temporary Global Notes and all such
Temporary Global Units (including all of the
securities included in such Units) will then
be delivered to the Depositary. The
Principal Paying Agent or the Unit Agent, as
the case may be, will also give instructions
to the Euroclear Operator, Clearstream or
any other relevant clearing system to credit
the Notes or Units represented by such
Temporary Global Note or Temporary Global
Unit delivered to such Depositary to, in the
case of the Notes, the Principal Paying
Agent's distribution account and, in the
case of the Units, the Unit Agent's
distribution account, at the Euroclear
Operator, Clearstream or any other relevant
clearing system. At settlement of any Note
Tranche, the Principal Paying Agent will
instruct the Euroclear Operator, Clearstream
or any other relevant clearing system to
debit, on the settlement date, from the
distribution account of the Principal Paying
Agent the principal amount of Notes of each
Note Tranche, with respect to which the
Agent has solicited an offer to purchase and
to credit, on the settlement date, such
principal amount to the account of the Agent
with the Euroclear Operator, Clearstream or
any other relevant clearing system against
payment of the purchase payment price of
such Notes. At settlement of any Unit
Tranche, the Unit Agent will instruct the
Euroclear Operator, Clearstream or any other
relevant clearing system to debit, on the
settlement date, from the distribution
account of the Unit Agent the number and
face amount
B-22
of Units of each Unit Tranche, with respect
to which the Agent has solicited an offer to
purchase and to credit, on the settlement
date, such number and face amount to the
account of the Agent with the Euroclear
Operator, Clearstream or any other relevant
clearing system against payment of the
purchase payment price of such Units. In the
case of the Notes and the Units, the Agent
shall give corresponding instructions to the
Euroclear Operator, Clearstream or any other
relevant clearing system.
E. The Euroclear Operator, Clearstream and any
other relevant clearing system shall debit
and credit accounts in accordance with
instructions received from the Principal
Paying Agent and the Agent, in the case of
Notes and the Unit Agent and the Agent, in
the case of Units.
Each of the Principal Paying Agent and the
Unit Agent shall pay the Company the
aggregate net proceeds received by it in
immediately available funds via a transfer
of funds to the U.S. dollar account of the
Company with a bank in New York City (or,
with respect to Notes and Units payable in a
Specified Currency other than U.S. dollars,
to an account maintained at a bank selected
by the Company, which bank shall be located
outside the United Kingdom in the case of
Notes and Units payable in a Specified
Currency other than pounds sterling that
mature not later than five years from and
including the date of issue thereof)
designed by the Company in writing.
B-23
Settlement Procedures For sales by the Company of Bearer Notes or of
Timetable; Bearer Notes Bearer Units to or through the Agent,
and Bearer Units: "Settlement Procedures; Bearer Notes and Bearer
Units" "A" through "E" above shall be completed
on or before the respective times set forth
below:
Settlement
Procedure;
Bearer Notes
and Bearer Units Time
------------------------ ----------------------
A 12:00 P.M. (NYC time) three days before
settlement date
B 12:00 P.M. (NYC time) three days before
settlement date
C 9:00 A.M. (London time) two days before
settlement date
D 3:45 P.M. (London time) one day before
settlement date
E 5:00 P.M. (NYC time) on settlement date
Settlement Procedures;
Registered Notes and Settlement Procedures with regard to each
Registered Units: Registered Note and Registered Unit sold by the
Company to or through the Agent (unless
otherwise specified pursuant to a Notes Terms
Agreement or a Units Terms Agreement) shall be
as follows:
AA. In the case of a Registered Note (whether
issued alone or as part of a Unit), the
Agent will advise the Company by telephone
that such Note is a Registered Note and of
the following settlement information:
1. Name in which such Note is to be
registered ("Registered Note Owner").
B-24
2. Address of the Registered Note Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Note Owner (if available).
4. Principal amount.
5. Maturity Date.
6. Interest Payment Date(s)
7. In the case of a Fixed Rate Registered
Note, the Interest Rate, whether such
Note is an Amortizing Note and, if so,
the amortization schedule, or, in the
case of a Floating Rate Registered Note,
the Initial Interest Rate (if known at
such time), Interest Payment Dates,
Interest Payment Period, Calculation
Agent, Base Rate, Index Maturity, Index
Currency, Interest Reset Period, Initial
Interest Reset Date, Interest Reset
Dates, Spread or Spread Multiplier (if
any), Minimum Interest Rate (if any),
Maximum Interest Rate (if any) and the
Alternate Rate Event Spread (if any).
8. Redemption or repayment provisions (if
any).
B-25
9. Ranking.
10. Settlement date and time (Original Issue
Date).
11. Interest Accrual Date.
12. Price.
13. Agent's commission (if any) determined
as provided in the Distribution
Agreement.
14. Denominations.
15. Specified Currency.
16. Whether the Note is an OID Note, and if
it is an OID Note, and the applicability
of Modified Payment upon Acceleration
(and if so, the Issue Price).
17. Whether such Note is a Series G Note or
a Series H Note.
18. Any other applicable provisions.
BB. In the case of a Registered Unit, the Agent
will advise the Company by telephone that
such Unit is a Registered Unit, of the
information set forth in "Settlement
Procedures; Registered Notes and Registered
Units" "A" above with respect to any
Registered Notes that constitute a part of
such Registered Unit and of the following
information:
1. Name in which such Unit is to be
registered ("Registered Unit Owner").
B-26
2. Address of the Registered Unit Owner.
3. Taxpayer identification number of the
Registered Unit Owner (if available).
4. Denominations.
5. Settlement date and time.
6. Number of Units (and Face Amount).
7. Agent's commission, if any, determined
as provided in the Distribution
Agreement.
8. Designation of the Securities comprised
by such Units:
a. Notes, if any (See "Settlement
Procedures; Registered Notes and
Registered Units" "A");
b. Warrants, if any; and
c. Purchase Contracts, if any.
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).
B-27
11. If the Registered Unit comprises
Registered Warrants:
a. Designation of Series of Warrants:
the Series of Warrants:
[Call][Put] Warrants;
b. Warrant Property;
c. Aggregate Number of Warrants;
d. Price to Public;
e. Warrant Exercise Price;
f. Dates upon which Warrants may be
exercised;
g. Expiration Date;
h. Currency in which exercise payments
shall be made;
i. Minimum number of Warrants
exercisable by any holder on any
day;
j. Maximum number of Warrants
exercisable on any day: [In the
aggregate] [By any beneficial
owner];
k. Formula for determining Cash
Settlement Value;
l. Exchange Rate (or method of
calculation);
B-28
m. Whether the Company or the holder is
the writer of the warrant; and
n. Any other applicable provisions.
12. If the Registered Unit comprises
Registered Purchase Contracts:
a. Purchase Contract Property;
b. Price to Public;
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
f. Method of Computing Settlement
Amount;
g. Currency of Settlement Payment;
h. Authorized Number of Purchase
Contracts;
i. [Purchase] [Sale] Price of Purchase
Contract Property;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions; and
B-29
j. Any other applicable provisions.
CC. The Company will advise JPMorgan Chase as
Principal Paying Agent for the Notes or as
Unit Agent for the Units, by telephone or
electronic transmission (confirmed in
writing at any time on the same date) of the
information set forth in "Settlement
Procedures; Registered Notes and Registered
Units" "AA" and "BB" above, as applicable,
such advice to contain a representation as
to the aggregate principal amount of Program
Securities permitted to be issued hereunder
after such issuance.
DD. The Company will have delivered to JPMorgan
Chase as Principal Paying Agent for the
Notes, or as Unit Agent for the Units, a
pre-printed four-ply packet for such Note or
such Unit, as the case may be, which packet
will contain the following documents in
forms that have been approved by the
Company, the Agent and JPMorgan Chase, as
Principal Paying Agent for the Notes, or as
Unit Agent for the Units:
1. Note or Unit, as the case may be, with
customer confirmation.
2. Stub One - For JPMorgan Chase.
3. Stub Two - For the Agent.
B-30
4. Stub Three - For the Company.
EE. JPMorgan Chase will (i) authenticate and
deliver any Note (whether issued alone or as
part of a Unit) or Cash-settled Pre-Paid
Purchase Contract through the Principal
Paying Agent, if necessary, with the
confirmation and Stubs One and Two to the
Agent, and (ii) complete and deliver any
Unit (including by countersigning and
delivering any Warrant includable in such
Unit, by countersigning, executing and
delivering any Purchase Contract (other than
Cash-settled Pre-paid Purchase Contracts)
includable in such Unit and by obtaining
from the Principal Paying Agent any Notes or
Cash-settled Pre-paid Purchase Contracts to
be included in such Units, authenticated in
accordance with clause (i) above) with the
confirmation and Stubs One and Two to the
Agent. The Agent will acknowledge receipt of
the Note or the Unit, as the case may be, by
stamping or otherwise marking Stub One and
returning it to JPMorgan Chase, through the
Principal Paying Agent, in the case of the
Notes, if necessary. Such delivery will be
made only against such acknowledgment of
receipt and evidence that instructions have
been given by the Agent, with respect to
Program Securities denominated in U.S.
dollars, for payment to the account of the
Company at JPMorgan Chase, New York, New
York (or, with respect to Program Securities
payable in a Specified Currency other than
U.S.
B-31
dollars, to an account maintained at a
bank selected by the Company, which bank
shall be located outside the United Kingdom
in the case of Program Securities payable in
a Specified Currency other than pounds
sterling that mature not later than five
years from and including the date of issue
thereof), in immediately available funds, of
an amount equal to the purchase price of
such Program Securities less the Agent's
commission (if any). In the event that the
instructions given by the Agent for payment
to the account of the Company are revoked,
the Company will as promptly as possible
wire transfer to the account of the Agent an
amount of immediately available funds equal
to the amount of such payment made.
The Principal Paying Agent and the Unit
Agent shall pay the Company the aggregate
net proceeds received by it in immediately
available funds via a transfer of funds to
the U.S. dollar account of the Company with
JPMorgan Chase in New York City (or, with
respect to Program Securities payable in a
Specified Currency other than U.S.
dollars, to an account maintained at a bank
selected by the Company which bank shall be
located outside the United Kingdom in the
case of Program Securities payable in a
Specified Currency other than pounds
sterling that mature not later than five
years including the date of issue thereof)
designated by the Company in writing.
FF. Unless the Agent purchased such Program
Securities as principal, the
B-32
Agent will deliver (with confirmation) such
Program Securities to the customer against
payment in immediately available funds.
The Agent will obtain the acknowledgment
of receipt of such Program Securities by
retaining Stub Two.
GG. In the case of all Program Securities,
JPMorgan Chase will send Stub Three to the
Company by first-class mail. Periodically,
JPMorgan Chase will also send to the Company
a statement setting forth, in the case of
the Notes, the principal amount of the Notes
outstanding as of that date under each
Indenture and, in the case of the Units, the
aggregate face amount of the Units
outstanding under the Unit Agreement and, in
each case, setting forth a brief description
of any sales of which the Company has
advised JPMorgan Chase that have not yet
been settled.
Settlement Procedures For sales by the Company of Registered Notes or
Timetable; Registered Notes and Registered Units: Registered Units to or
and Registered Units: through the Agent, "Settlement Procedures;
Registered Notes and Registered Units" "AA"
through "GG" set forth above shall be completed
on or before the respective times (London time)
set forth below:
Settlement Procedure;
Registered Notes and
Registered Units Time
------------------------- ----------------------
AA 2:00 P.M. on second day before
settlement date
B-33
BB 2:00 P.M. on second day before
settlement date
CC 3:00 P.M. on second day before
settlement date
DD-EE 2:15 P.M. on settlement date
FF 3:00 P.M. on settlement date
GG 5:00 P.M. on settlement date
B-34
Failure to Settle: Bearer Notes and Bearer Units. If the Agent
shall have advanced its own funds for payment
against subsequent receipt of funds from the
purchaser and if a purchaser shall fail to make
payment for a Note or a Unit, the Agent will
promptly notify, in the case of a Note, the
Company, the Principal Paying Agent, the
Depositary and the Euroclear Operator,
Clearstream and any other relevant clearing
system, and, in the case of the Unit, the
Company, the Unit Agent, the Depositary, and the
Euroclear Operator, Clearstream and any other
relevant clearing system, in each case by
telephone, promptly confirmed in writing (but no
later than the next Business Day). In such
event, the Company shall promptly instruct the
Principal Paying Agent, in the case of the Note,
and the Unit Agent, in the case of the Unit, to
cancel the purchaser's interest in the
appropriate Temporary Global Note representing
such Note or the appropriate Temporary Global
Unit representing such Unit. Upon (i)
confirmation from the Principal Paying Agent or
the Unit Agent in writing (which may be given by
telex or telecopy) that the Principal Paying
Agent or the Unit Agent has canceled such
purchaser's interest in such Temporary Global
Note or Temporary Global Unit, as the case may
be, and (ii) confirmation from the Agent in
writing (which may be given by telex or
telecopy) that the Agent has not received
payment from the purchaser for the Note or the
Unit, the Company will promptly pay to the Agent
an amount in immediately available funds equal
to the amount previously paid by the Agent in
respect of such Bearer Note or Bearer Unit. Such
payment will be made on the settlement date, if
possible, and in any event not later than 12
noon (New York City time) on the Business Day
following the settlement date. The Principal
Paying Agent or the Unit Agent,
B-35
as the case may be, and the Depositary will make
or cause to be made such revisions to such
Temporary Global Note or Temporary Global Unit
as are necessary to reflect the cancellation of
such portion of such Temporary Global Note or
Temporary Global Unit.
If a purchaser shall fail to make payment for
the Note or Unit for any reason other than a
default by the Agent in the performance of its
obligations hereunder and under the Distribution
Agreement, then the Company will reimburse the
Agent on an equitable basis for the Agent's loss
of the use of funds during the period when they
were credited to the account of the Company, the
Principal Paying Agent or the Unit Agent, as
applicable.
Immediately upon such cancellation, the
Principal Paying Agent or the Unit Agent, as the
case may be, will make appropriate entries in
its records to reflect the fact that a
settlement did not occur with respect to such
Note or Unit.
Registered Notes and Registered Units. If a
purchaser fails to accept delivery of and make
payment for any Registered Note or Registered
Unit, the Agent will notify the Company and
JPMorgan Chase, as Registrar of the Registered
Notes or as Unit Agent, by telephone and return
such Note or Unit to JPMorgan Chase through the
Principal Paying Agent, in the case of the Notes
or the Unit Agent, in the case of the Units, if
necessary. Upon receipt of such notice, the
Company will immediately wire transfer to the
account of the Agent an amount equal to the
amount previously credited to the Company's
account in respect of such Note or Unit. Such
wire
B-36
transfer will be made on the settlement date, if
possible, and in any event not later than the
Business Day following the settlement date. If
the failure shall have occurred for any reason
other than a default by the Agent in the
performance of its obligations hereunder and
under the Distribution Agreement, then the
Company will reimburse the Agent on an equitable
basis for its loss of the use of the funds
during the period when they were credited to the
account of the Company or JPMorgan Chase.
Immediately upon receipt of the Registered Note
or Registered Unit in respect of which such
failure occurred, JPMorgan Chase will mark such
Note or Unit "canceled," make appropriate
entries in JPMorgan Chase's records and send
such Note or Unit to the Company.
Cancellation of Issuance: If any Program Securities of a particular series
in respect of which information has been
supplied under "Settlement Procedures" above is
not to be issued on a given issue date, the
Issuer shall promptly notify the Principal
Paying Agent and the Trustee and shall promptly
confirm such notification in writing. Upon
receipt of such notice, neither the Principal
Paying Agent nor the Trustee shall thereafter
issue or release the relevant Program Securities
but shall, if applicable, cancel and, unless
otherwise instructed by the Issuer in writing,
dispose of them in accordance with their
customary procedures.
Notice of Issuance to the The Sponsoring Member Firm will provide
UK Listing Authority and the information with respect to the issuance of each
London Stock Exchange: Series G Note and Series G Unit to the UK
Listing Authority and the London Stock Exchange
or any other stock exchange or quotation system,
as appropriate, and will advise the Company in
writing as to the effectiveness of the
B-37
listing of such Series G Note and Series G
Unit by the close of business on the related
settlement date.
Listing: The Sponsoring Member Firm will, on a regular
basis, provide the UK Listing Authority and the
London Stock Exchange or any other stock
exchange or listing authority or quotation
system, as appropriate, with such information
regarding Series G Notes and Series G Units
issued and outstanding as such exchange or
listing authority may require.
B-38
APPENDIX 1
[FORM OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR, CLEARSTREAM AND/OR ANY OTHER RELEVANT
CLEARING SYSTEM]
CERTIFICATE
---------------
Morgan Stanley
Notes, Series G/H
Represented by Temporary Global [Fixed/Floating] Rate
Senior Bearer Note No. __
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in Appendix 2 to Exhibit B to the Euro Distribution
Agreement relating to such Notes, as of the date hereof, __________ principal
amount of the above-captioned Securities (i) is owned by persons that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or other entity created or organized in or under the laws of the
United States or any political subdivision thereof, an estate the income of
which is subject to United States federal income taxation regardless of its
source or a trust if both (a) a court within the United States is able to
exercise primary supervision over the administration of the trust and (b) one or
more United States persons have the authority to control all substantial
decisions of the trust ("United States persons"), (ii) is owned by United States
persons that are (a) foreign branches of United States financial institutions
(as defined in the applicable U.S. Treasury Regulations) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States persons who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution has agreed, on its own behalf or
through its agent, that we may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
U.S. Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) is owned by United States or foreign financial institutions for
purposes of resale during the restricted period (as defined in the applicable
U.S. Treasury Regulations), and such United States or foreign financial
institutions described in clause (iii) above (whether or not also described in
clause (i) or (ii)) have certified
that they have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions. Any such certification by electronic transmission satisfies the
requirements set forth in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(3)(ii). We will retain all certifications from our Member
Organizations for the period specified in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(3)(i).
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, seeking to collect principal or interest with respect
to) any portion of the temporary global Security representing the
above-captioned Securities excepted in the above-referenced certificates of
Member Organizations and (ii) that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith (or, if relevant, with respect to which principal or
interest is being requested) are no longer true and cannot be relied upon as of
the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
Dated: ___________, 20__
[To be dated no earlier than [insert
date of Interest Payment Date prior
to Exchange Date] [insert date of
Redemption Date prior to
Exchange Date] [insert Exchange
Date]]
2
[EUROCLEAR BANK S.A./N.V.,
as Operator of the Euroclear System]
[CLEARSTREAM BANKING,
SOCIETE ANONYME]
[OTHER]
By:
-------------------------------------------
Name:
Title:
3
APPENDIX 2
[FORM OF CERTIFICATE TO BE GIVEN BY
AN ACCOUNT HOLDER OF EUROCLEAR, CLEARSTREAM AND/OR
ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
--------------
Morgan Stanley
Notes, Series G/H
Represented by Temporary Global [Fixed/Floating] Rate
Senior Bearer Note No. __
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or other entity created or organized in or
under the laws of the United States or any political subdivision thereof, an
estate the income of which is subject to United States Federal income taxation
regardless of its source, or a trust if both (a) a court within the United
States is able to exercise primary supervision over the administration of the
trust and (b) one or more United States persons have the authority to control
all substantial decisions of the trust ("United States persons"), (ii) is owned
by United States persons that are (a) foreign branches of United States
financial institutions (as defined in the applicable U.S. Treasury Regulations)
("financial institutions") purchasing for their own account or for resale, or
(b) United States persons who acquired the Securities through foreign branches
of United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution hereby agrees, on its own
behalf or through its agent, that you may advise the Issuer or the Issuer's
agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the U.S. Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in the applicable U.S. Treasury Regulations), and in addition if the owner of
the Securities is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)) such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Securities
held by you for our account in accordance with your Operating Procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certification excepts and does not relate to [U.S.$] _________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand exchange for and delivery of
definitive Securities (or, if relevant, exercise of any rights or collection of
any principal or interest) cannot be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
2
Dated: ___________, 20__
[To be dated no earlier than the
10th day before [insert date of
Interest Payment Date prior to
Exchange Date] [insert date of
Redemption Date prior to
Exchange Date] [insert Exchange
Date]]
[NAME OF ACCOUNT HOLDER]
By:
--------------------------------------------
(Authorized Signatory)
Name:
Title:
3
APPENDIX 3
FORM OF COMPANY'S NOTICE TO PRINCIPAL PAYING AGENT
--------------------------------------------------
To: JPMorgan Chase Bank, N.A.
London Office
Attention: ________________________
________________________
and with a copy to:
[JPMorgan Chase Bank, N.A., as Senior Debt Trustee]
[J.P. Morgan Trust Company, National Association,
as Subordinated Debt Trustee]
Re: Euro Distribution Agreement
dated [_____ __], 2005
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete, authenticate
and issue a Temporary Global Note in accordance with the terms of the [Notes
Terms Agreement dated _______,] Administrative Procedures and Euro Distribution
Agreement and to give instructions to the Euroclear Operator, Clearstream and/or
any other relevant clearing system in order for you to:(1)
Credit account of [Name of Agent] with [Euroclear/Clearstream/Other](2) with the
following Bearer Notes:
- ----------------------
(1) Separate instructions are to be sent in respect of each offer accepted
by the Company. Repeat this information (numbering consecutively) if Bearer
Notes of more than one Note Tranche are to be issued to an Agent.
(2) Delete as appropriate.
All Notes: Fixed Rate Notes: Floating Rate Notes:
- ------------------------------------ ----------------------------------- ---------------------------------
Principal Amount: Interest Rate: Base Rate:
- ------------------------------------- ----------------------------------- ---------------------------------
Purchase Price: Applicability of Modified Payment Index Maturity:
upon Acceleration:
- ------------------------------------- ----------------------------------- ---------------------------------
Price to Public: If yes, state issue price: Spread (Plus or Minus):
- ------------------------------------- ----------------------------------- ---------------------------------
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
- ------------------------------------- ----------------------------------- ---------------------------------
Place of Delivery: Applicability of Annual Interest Alternate Rate Event Spread:
Payments:
- ------------------------------------- ----------------------------------- ---------------------------------
Specified Currency: Denominated Currency (if any): Initial Interest Rate:
- ------------------------------------- ----------------------------------- ---------------------------------
Original Issue Date: Indexed Currency or Currencies Initial Interest Reset Date:
(if any):
- ------------------------------------- ----------------------------------- ---------------------------------
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
- ------------------------------------- ----------------------------------- ---------------------------------
Interest Payment Date(s): Exchange Rate Agent (if any): Interest Reset Period:
- ------------------------------------- ----------------------------------- ---------------------------------
Maturity Date: Reference Dealers: Maximum Interest Rate:
- ------------------------------------- ----------------------------------- ---------------------------------
Optional Redemption Date(s): Face Amount: Minimum Interest Rate:
- ------------------------------------- ----------------------------------- ---------------------------------
Initial Redemption Date: Fixed Amount of each Indexed Interest Payment Period:
Currency (if any):
- ------------------------------------- ----------------------------------- ---------------------------------
Initial Redemption Percentage: Aggregate Fixed Amount of each Calculation Agent:
Indexed Currency (if any):
- ------------------------------------- ----------------------------------- ---------------------------------
Annual Redemption Percentage Indexed Currency (if any): Reporting Service:
Reduction:
- ------------------------------------- ----------------------------------- ---------------------------------
Ranking: Index Currency:
- ------------------------------------- ----------------------------------- ---------------------------------
Series: Designated CMT Telerate Page:
- ------------------------------------- ----------------------------------- ---------------------------------
Minimum Denominations: Designated CMT
Maturity Index:
- ------------------------------------- ----------------------------------- ---------------------------------
Other Provisions:
2
against payment of
[__________________].
Date:
MORGAN STANLEY
By:
-------------------------------------
APPENDIX 4
FORM OF COMPANY'S NOTICE TO UNIT AGENT
--------------------------------------
To: JPMorgan Chase Bank, N.A.
Attention: __________________
__________________
Re: Euro Distribution Agreement
dated [__________], 2005
___________________________
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete and issue a
Temporary Global Unit in accordance with the terms of the [Units Terms Agreement
dated _______________] Administrative Procedures and Euro Distribution Agreement
and to give instructions to the Euroclear Operator, Clearstream and/or any other
relevant clearing system in order for you to: (1)
Credit account of [Name of Agent] with
[Euroclear/Clearstream/Other](2) with the following Bearer Units:
- -----------------------
(1) Separate instructions are to be sent in respect of each offer accepted
by the Company. Repeat this information (numbering consecutively) if Bearer
Units of more than one Unit Tranche are to be issued to an Agent.
(2) Delete as appropriate.
Warrants Purchase Contracts
All Units: Issued as Part of a Unit: Issued as Part of a Unit:
- ---------- ------------------------- -------------------------
Principal Amount: Price: Price:
- ----------------------------------- ----------------------------------- -----------------------------------
Purchase Price: Specified Currency or Composite Settlement Date and Time:
Currency:
- ----------------------------------- ----------------------------------- -----------------------------------
Price to Public: Exercise Date: Buy or Sell:
- ----------------------------------- ----------------------------------- -----------------------------------
Place of Delivery: Warrant Property: Purchase Contract Property:
- ----------------------------------- ----------------------------------- -----------------------------------
Specified Currency: Permitted Payment: Purchase or Sale Price:
- ----------------------------------- ----------------------------------- -----------------------------------
Original Issue Date: Exercise Price:
- ----------------------------------- ----------------------------------- -----------------------------------
Expiration Date: Specified Currency or Composite
Currency:
- ----------------------------------- ----------------------------------- -----------------------------------
Put or Call: Permitted Payment:
- ----------------------------------- ----------------------------------- -----------------------------------
- ----------------------------------- ----------------------------------- -----------------------------------
- ----------------------------------- ----------------------------------- -----------------------------------
- ----------------------------------- ----------------------------------- -----------------------------------
=================================== =================================== ===================================
2
Fixed Rate Notes Issued as Part Floating Rate Notes Issued as
All Notes Issued as Part of a Unit: of a Unit: Part of a Unit:
- -------------------------------------- ---------------------------------- ---------------------------------
Principal Amount: Interest Rate: Base Rate:
- -------------------------------------- ---------------------------------- ---------------------------------
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
- -------------------------------------- ---------------------------------- ---------------------------------
Price to Public: If yes, state issue price: Spread (Plus or Minus):
- -------------------------------------- ---------------------------------- ---------------------------------
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
- -------------------------------------- ---------------------------------- ---------------------------------
Place of Delivery: Applicability of Annual Interest Alternate Rate Event Spread:
Payments:
- -------------------------------------- ---------------------------------- ---------------------------------
Specified Currency: Denominated Currency (if any): Initial Interest Rate:
- -------------------------------------- ---------------------------------- ---------------------------------
Original Issue Date: Indexed Currency or Currencies Initial Interest Reset Date:
(if any):
- -------------------------------------- ---------------------------------- ---------------------------------
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
- -------------------------------------- ---------------------------------- ---------------------------------
Interest Payment Date(s): Exchange Rate Agent (if any): Interest Reset Period:
- -------------------------------------- ---------------------------------- ---------------------------------
Maturity Date: Reference Dealers: Maximum Interest Rate:
- -------------------------------------- ---------------------------------- ---------------------------------
Optional Repayment Date(s): Face Amount: Minimum Interest Rate:
- -------------------------------------- ---------------------------------- ---------------------------------
Optional Redemption Date(s): Fixed Amount of each Indexed Interest Payment Period:
Currency (if any):
- -------------------------------------- ---------------------------------- ---------------------------------
Initial Redemption Date: Aggregate Fixed Amount of each Calculation Agent:
Indexed Currency (if any):
- -------------------------------------- ---------------------------------- ---------------------------------
Initial Redemption Percentage: Indexed Currency (if any): Reporting Service:
- -------------------------------------- ---------------------------------- ---------------------------------
Annual Redemption Percentage Index Currency:
Reduction:
3
Fixed Rate Notes Issued as Part Floating Rate Notes Issued as
All Notes Issued as Part of a Unit: of a Unit: Part of a Unit:
- -------------------------------------- ---------------------------------- ---------------------------------
Ranking: Designated CMT Telerate Page:
- -------------------------------------- ---------------------------------- ---------------------------------
Series: Designated CMT Maturity Index:
- -------------------------------------- ---------------------------------- ---------------------------------
Minimum Denominations:
- -------------------------------------- ---------------------------------- ---------------------------------
Other Provisions:
====================================== ================================== =================================
against payment of [___________________].
Date:
MORGAN STANLEY
By:
-------------------------------------
4