EXHIBIT 1-d
MORGAN STANLEY
Global Medium Term Notes, Series F
Global Units, Series F
U.S. DISTRIBUTION AGREEMENT
January 25, 2006
Morgan Stanley DW Inc.
1585 Broadway
New York, New York 10036
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
Morgan Stanley, a Delaware corporation (the "Company"), confirms its
agreement with you with respect to the issue and sale from time to time by the
Company of up to $22,533,773,002.13 (or the equivalent thereof in one or more
currencies other than U.S. dollars) aggregate initial public offering price, as
such amount may be increased from time to time upon due authorization by the
Company, of its Global Medium Term Notes, Series F, due more than nine months
from the date of issue (the "Notes"), and its Global Units, Series F (the
"Units" and, together with the Notes and any other securities that may be
offered by post-effective amendment to the Registration Statement referred to
below, the "Program Securities"), in each case subject to reduction as a result
of the sale of the Company's (i) Global Medium Term Notes, Series G and Series
H, to be sold primarily outside of the United States, (ii) Global Units, Series
G and Series H, to be sold primarily outside of the United States, and (iii)
the sale of certain of the Company's other debt securities, warrants, common
stock, preferred stock, purchase contracts and units and of capital securities
of certain Morgan Stanley Capital Trusts.
The Notes may be issued as senior indebtedness (the "Series F Senior
Notes") or as subordinated indebtedness (the "Series F Subordinated Notes") of
the Company. The Series F Senior Notes will be issued, either alone or as part
of a Unit, pursuant to the provisions of a senior indenture dated as of November
1, 2004, between the Company and JPMorgan Chase Bank, N.A., (formerly known as
JPMorgan Chase Bank), as trustee (the "Senior Debt Trustee") (as may be
supplemented or amended from time to time, the "Senior Debt Indenture"). The
Series F Subordinated Notes will be issued pursuant to the provisions of a
subordinated indenture dated as of October 1, 2004, between the Company and J.P.
Morgan Trust Company, National
Association, as trustee (the "Subordinated Debt Trustee") (as may be
supplemented or amended from time to time, the "Subordinated Debt Indenture").
The Senior Debt Indenture and the Subordinated Debt Indenture are sometimes
hereinafter referred to individually as an "Indenture" and collectively as the
"Indentures," and the Senior Debt Trustee and the Subordinated Debt Trustee are
sometimes hereinafter referred to individually as a "Trustee" and collectively
as the "Trustees." Purchase contracts ("Purchase Contracts") that require
holders to satisfy their obligations thereunder when such Purchase Contracts are
issued are referred to as "Pre-paid Purchase Contracts." Pre-paid Purchase
Contracts that settle in cash ("Cash-settled Pre-paid Purchase Contracts")
generally will be issued under an Indenture. Pre-paid Purchase Contracts that do
not settle in cash ("Physically-settled Pre-paid Purchase Contracts") generally
will be issued under the Unit Agreement or the Unit Agreement Without Holders'
Obligations (each as defined below).
The Units will be issued either pursuant to the Unit Agreement dated as
of November 1, 2004, among the Company, JPMorgan Chase Bank, N.A. (formerly
known as JPMorgan Chase Bank), as Unit Agent, as Collateral Agent, as Trustee
and Paying Agent under the Indenture referred to therein, and as Warrant Agent
under the Warrant Agreement referred to therein, and the holders from time to
time of the Units described therein (as may be amended from time to time, the
"Unit Agreement") or, if the Units do not include Purchase Contracts (or include
only Pre-paid Purchase Contracts), pursuant to a Unit Agreement among the
Company and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank),
as Unit Agent, as Trustee and Paying Agent under the Indenture referred to
therein, and as Warrant Agent under the Warrant Agreement referred to therein,
in the form of such agreement filed as an exhibit to the Registration Statement
referred to below (each such agreement, a "Unit Agreement Without Holders's
Obligations").(1) Units may include one or more (i) Series F Senior Notes, (ii)
warrants ("Warrants") entitling the holders thereof to purchase or sell (a)
securities issued by the Company or by an entity affiliated or not affiliated
with the Company, a basket of such securities, an index or indices of such
securities or any other property, (b) currencies, (c) commodities or (d) any
combination of the foregoing, (iii) Purchase Contracts, including Pre-paid
Purchase Contracts, requiring the holders thereof to purchase or sell (a)
securities issued by the Company or by an entity affiliated or not affiliated
with the Company, a basket of such securities, an index or indices of such
securities or any other property, (b) currencies, (c) commodities or (d) any
combination of the foregoing or (iv) any combination thereof. The applicable
supplement to the Prospectus referred to below 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 the Prospectus referred to
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(1)The Unit Agreement Without Holders' Obligations shall include
additional provisions to allow for the issuance of Pre-Paid Purchase Contracts
that are not issued under the indentures.
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below and any Term Sheets (as defined in Section 3(n) below) referred to below.
The Warrants will have the exercise prices, exercise dates, expiration dates and
other terms as set forth in the Prospectus and any Term Sheets. The Purchase
Contracts will have the closing dates, purchase or sale prices and other terms
as set forth in the Prospectus and any Term Sheets. Program Securities other
than Notes and Units or any combination thereof, whether issued alone or as part
of a Unit, will have the terms as set forth the Prospectus and any Term Sheets.
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 as amended at the Commencement
Date (as hereinafter defined), including the documents incorporated therein by
reference and the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430B of the Securities
Act, as amended (the "Securities Act"), 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, supplements to the
prospectus relating to the Program Securities included in the Registration
Statement that will describe certain terms of the Program Securities. The
prospectus covering the Program Securities in the form first used to confirm
each sale of Program Securities (or in the form first made available to the
agents by the Company to meet requests of purchasers pursuant to Rule 173 under
the Securities Act) is hereinafter referred to as the "Basic Prospectus." The
Basic Prospectus, as supplemented by a prospectus supplement and/or one or more
product supplements and/or pricing supplements setting forth the terms of the
Program Securities, in the form first used to confirm each sale of Program
Securities (or in the form first made available to the agents by the Company to
meet requests of purchasers pursuant to Rule 173 under the Securities Act), is
hereinafter referred to as the "Prospectus". The term "preliminary prospectus"
means any preliminary form of the Prospectus. The term "free writing
prospectus" has the meaning set forth in Rule 405 under the Securities Act. The
term "Time of Sale" in respect of Program Securities means any time at or prior
to the confirmation of any sales of any such Program Security. The term "Time
of Sale Prospectus" means the Basic Prospectus, each preliminary prospectus
and/or Term Sheet, if any, and each free writing prospectus, if any, that has
been prepared by or on behalf of the Company relating to such Program
Securities as of such Time of Sale. The term "broadly available road show"
means a "bona fide electronic road show" as defined in Rule 433(h)(5) under the
Securities Act that has been made available without restriction to any person.
As used herein, the terms "Registration Statement," "Basic Prospectus,"
"Prospectus," "preliminary prospectus," and "Time of Sale Prospectus" shall
include the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein with respect to the
Registration Statement, the Basic
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Prospectus, any preliminary prospectus, the Time of Sale Prospectus or free
writing prospectus shall include all documents subsequently filed by the Company
with the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), that are deemed to be incorporated by reference therein.
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 issued 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. If the Registration Statement is an automatic shelf
registration statement as defined in Rule 405 under the Securities Act, the
Company is a well-known seasoned issuer (as defined in Rule 405 under the
Securities Act) eligible to use the Registration Statement as an automatic
shelf registration statement and the Company has not received notice that
the Commission objects to the use of the Registration Statement as an
automatic shelf registration statement.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Time of Sale Prospectus
or the Prospectus complied or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and regulations of
the Commission thereunder, (ii) each part of the Registration Statement,
when such part became effective, did not contain and each such part, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement 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 required to
be stated therein or necessary to make the statements therein not
misleading, (iv) the Registration Statement and the Prospectus comply and,
as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder, (v) the Time of Sale Prospectus, as then
amended or supplemented by the Company, if applicable, at each Time of Sale
of Program Securities in connection with the offering thereof when the
Prospectus is not yet available to prospective purchasers and at each date
on which the Company issues and delivers Program Securities, 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, (vi) each broadly
available road show, if any, when considered together with the applicable
Time of Sale Prospectus, does not contain any untrue statement of a
material fact or omit to state a material fact
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necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and (vii) 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 paragraph do not apply
to (A) statements or omissions in the Registration Statement, the Time of
Sale Prospectus, or the Prospectus based upon information relating to you
furnished to the Company in writing by you expressly for use therein or (B)
those parts of the Registration Statement that constitute the Statements of
Eligibility (Forms 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 (iv) and (vii) 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 is not an "ineligible issuer" in connection with the
offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any
free writing prospectus that the Company is required to file pursuant to
Rule 433(d) under the Securities Act has been, or will be, filed with the
Commission in accordance with the requirements of the Securities Act and
the applicable rules and regulations of the Commission thereunder. Each
free writing prospectus that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act or that was prepared by or
behalf of or used or referred to by the Company complies or will comply in
all material respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder. Except for
any free writing prospectuses and electronic road shows each furnished to
you before first use, the Company has not prepared, used or referred to,
and will not, without your prior consent, prepare, use or refer to, any
free writing prospectus.
(d) 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 the Time of Sale Prospectus, if
applicable, and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole.
(e) Each 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 the Time of Sale Prospectus, if applicable, 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
5
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; all of the issued
shares of capital stock of each consolidated subsidiary of the Company have
been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims.
(f) 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.
(g) 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, and is a valid and binding agreement of, the Company,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and
equitable principles of general applicability.
(h) 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, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and equitable principles of general applicability.
(i) 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, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and
equitable principles of general applicability.
(j) The forms of Units under the Unit Agreement, including the forms
of Warrants, Physically-settled Pre-paid Purchase Contracts and
Non-Pre-paid Purchase Contracts, have been duly authorized and established
in conformity with the provisions of (i) in the case of such Units,
Physically-settled Pre-paid Purchase Contracts, Non-Pre-paid Purchase
Contracts, the Unit Agreement and (ii) in the case of Warrants, the Warrant
Agreement. When such Units have been delivered to and duly paid for by the
purchasers thereof and (A) any Physically-settled Pre-paid Purchase
Contracts and Non-Pre-paid Purchase Contracts included in such Units have
been executed by the Company and countersigned by the Unit Agent and (B)
any Warrants included in such Units have been executed by the Company and
countersigned by the Warrant Agent, such Units (including any such
Physically-settled Pre-paid Purchase Contracts, Non-Pre-paid
6
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, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and equitable principles of general applicability.
(k) 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, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and equitable principles of general
applicability.
(l) The execution and delivery by the Company of this Agreement, the
Notes and Pre-paid Purchase Contracts (whether issued alone or as part of a
Unit), the Units (including any Purchase Contracts and Warrants included
therein), the Indentures, the Unit Agreement, any Unit Agreement Without
Holders' Obligations, the Warrant Agreement and any applicable Written
Notes Terms Agreement or Written Units Terms Agreement and the performance
by the Company of its obligations under this Agreement, the Notes, the
Pre-paid Purchase Contracts, the Units (including any Purchase Contracts or
Warrants included therein), the Indentures, the Unit Agreement, any Unit
Agreement Without Holders' Obligations, the Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will not
contravene any provision of applicable law or the certificate of
incorporation or by laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its consolidated subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any of its consolidated
subsidiaries, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the 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 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.
(m) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise,
7
or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus and
the Time of Sale Prospectus, if applicable.
(n) 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 (i) other than proceedings accurately
described in all material respects in the Prospectus and the Time of Sale
Prospectus, if applicable, and proceedings that would not have a material
adverse effect on the Company and its consolidated subsidiaries, taken as a
whole, or on the power or ability of the Company to perform its obligations
under this Agreement, the Indenture or the Program Securities or to
consummate the transactions contemplated by the Prospectus or (ii) that are
required to be described in the Registration Statement or the Prospectus
and are not so described and there are no 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.
(o) 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.
(p) Each of the Company and its consolidated subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self
regulatory organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its business in
the manner described in the Prospectus and the Time of Sale Prospectus, if
applicable, 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.
(q) 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.
(r) 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.
Notwithstanding the foregoing, it is understood and agreed that the
representations and warranties set forth in Section 1(b)(iii), 1(b)(iv),
1(b)(v), 1(b)(vi) and 1(b)(vii), 1(i) (except as to due authorization of the
Notes and Cash-settled Pre-paid Purchase Contracts), 1(j) (except as to due
authorization of the Units, Warrants, Physically-settled Pre-paid Purchase
Contracts and Non-Pre-paid Purchase Contracts), 1(k) (except as to due
authorization of the Units and
8
Warrants) and 1(l), when made as of the Commencement Date, or as of any date on
which you solicit offers to purchase Program Securities, with respect to any
Program Securities the payments of principal or interest on which, or any other
payments with respect to which, will be determined by reference to one or more
currency exchange rates, commodity prices, securities of entities affiliated or
unaffiliated with the Company, baskets of such securities, equity indices or
other factors, shall be deemed not to address the application of the Commodity
Exchange Act, as amended, or the rules, regulations or interpretations of the
Commodity Futures Trading Commission.
2. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. In connection with your actions as agents
hereunder, you agree to use reasonable efforts to solicit offers to
purchase Program Securities upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct
you to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Program Securities. Upon receipt of at
least one business day's prior notice from the Company, you will forthwith
suspend solicitations of offers to purchase Program Securities from the
Company until such time as the Company has advised you that such
solicitation may be resumed. While such solicitation is suspended, the
Company shall not be required to deliver any certificates, opinions or
letters in accordance with Sections 5(a), 5(b) and 5(c); provided, however,
that if the Registration Statement or Prospectus is amended or supplemented
during the period of suspension (other than by an amendment or supplement
providing solely for (i) in the case of Notes issued alone or as part of a
Unit, a change in the interest rates, redemption provisions, amortization
schedules or maturities offered on the Notes, (ii) in the case of Units, a
change in the exercise price, exercise date or period or expiration of an
underlying Warrant or a change in the settlement date or purchase or sale
price of an underlying Purchase Contract or (iii) for a change you deem to
be immaterial), you shall not be required to resume soliciting offers to
purchase Program Securities until the Company has delivered such
certificates, opinions and letters as you may request.
The Company agrees to pay to you, as consideration for the sale of
each Program Security resulting from a solicitation made or an offer to
purchase received by you, a commission in the form of a discount from the
purchase price of such Program Security equal to between .125% and .750%
(depending upon such Note's maturity or, in the case of Units, any
underlying Note's maturity or the terms of the Units and of the securities
comprised by such Units) of the principal amount of such Note 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
9
considered by the Company. The Company shall have the sole right to accept
offers to purchase Program Securities and may reject any offer in whole or
in part. You shall have the right to reject any offer to purchase Program
Securities that you consider to be unacceptable, and any such rejection
shall not be deemed a breach of your agreements contained herein. The
procedural details relating to the issue and delivery of Program Securities
sold by you as agent and the payment therefor shall be as set forth in the
Administrative Procedures (as hereinafter defined).
(b) Purchases as Principals. Each sale of Program Securities to you as
principals shall be made in accordance with the terms of this Agreement. In
connection with each such sale, the Company will enter into a Notes Terms
Agreement or Units Terms Agreement that will provide for the sale of such
Program Securities to and the purchase thereof by you. Each Notes Terms
Agreement or Units Terms Agreement will take the form of either (i) a
written agreement between you and the Company, which may be substantially
in the form of Exhibit A or Exhibit A-1 (as applicable) hereto (in the case
of Notes, a "Written Notes Terms Agreement," and in the case of Units, a
"Written Units Terms Agreement"), or (ii) an oral agreement between you and
the Company confirmed in writing by you to the Company.
Your commitment to purchase Program Securities as principal pursuant
to a Notes Terms Agreement or Units Terms Agreement shall be deemed to have
been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein
set forth. Each (i) Notes Terms Agreement shall specify the principal
amount of Notes to be purchased by you pursuant thereto, the maturity date
of such Notes, the price to be paid to the Company for such Notes, the
interest rate and interest rate formula, if any, applicable to such Notes
and any other terms of such Notes and (ii) Units Terms Agreement shall
specify (a) the information set forth in (i) above with respect to any
Notes issued as part of a Unit, (b) with respect to any Warrants issued as
part of a Unit, the exercise price, the exercise date or period, the
expiration date and any other terms of such Warrants and (c) with respect
to any Purchase Contracts issued as part of a Unit, the settlement date,
the purchase or sale price or any other terms of such Purchase Contracts.
Each such Notes Terms Agreement or Units Terms 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."
10
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 Time of Sale Prospectus and
Prospectus relating to such Notes or Units.
(c) Administrative Procedures. You and the Company agree to perform
the respective duties and obligations specifically provided to be performed
in the Global Medium Term Notes, Series F, and Global Units, Series F,
Administrative Procedures (attached hereto as Exhibit B) (the
"Administrative Procedures"), as amended from time to time. The
Administrative Procedures may be amended only by written agreement of the
Company and you.
(d) Delivery. The documents required to be delivered by Section 4 of
this Agreement as a condition precedent to your obligation to begin
soliciting offers to purchase Program Securities as agents of the Company
shall be delivered at the office of Sidley Austin LLP, 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."
(e) Free Writing Prospectuses. In connection with your actions
hereunder, you represent and agree that, unless you obtain the prior
consent of the Company, you will not make any offer relating to the Program
Securities that would constitute an "issuer free writing prospectus," as
defined in Rule 433(h) under the Securities Act, or that would otherwise
constitute a free writing prospectus required to be filed with the
Commission.
3. Agreements. The Company agrees with you that:
(a) The Company will furnish to you a copy of each proposed free
writing prospectus to be prepared by or on behalf of, used by, or referred
to by the Company relating to the offering of the Program Securities and
the Company will not use or refer to any proposed free writing prospectus
to which you reasonably object.
(b) The Company will not take any action that would result in you or
the Company being required to file with the Commission pursuant to Rule
433(d) under the Securities Act a free writing prospectus prepared by you
or on your behalf that you otherwise would not have been required to file
thereunder.
(c) If the Time of Sale Prospectus is being used to solicit offers to
buy Program Securities at a time when the Prospectus is not yet available
to prospective purchasers and any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the
circumstances, not misleading, or if any event shall occur or condition
exist as a result of which the Time of Sale Prospectus conflicts with the
11
information contained in the Registration Statement then on file, or if, in
the opinion of your counsel, it is necessary to amend or supplement the
Time of Sale Prospectus to comply with applicable law, the Company will
forthwith prepare, file with the Commission and furnish, at the Company's
own expense, to you and to any dealer upon request, either amendments or
supplements to the Time of Sale Prospectus so that the statements in the
Time of Sale Prospectus as so amended or supplemented will not, in the
light of the circumstances when delivered to a prospective purchaser, be
misleading or so that the Time of Sale Prospectus, as amended or
supplemented, will no longer conflict with the Registration Statement, or
so that the Time of Sale Prospectus, as amended or supplemented, will
comply with applicable law.
(d) 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 Time of Sale
Prospectus or prospectus supplement (including any product supplement or
pricing 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 supplement to the Basic Prospectus relating to the Program
Securities (including any product supplement or pricing supplement) to be
filed with or transmitted for filing to the Commission in accordance with
Rule 424(b) under the Securities Act. The Company will promptly advise you
(i) of the filing of any amendment or supplement to the Basic Prospectus,
(ii) of the filing and effectiveness of any amendment to the Registration
Statement, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Basic
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Program
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or notice of suspension of
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof. If the Basic Prospectus is amended or supplemented as a result of
the filing under the Exchange Act of any document incorporated by reference
in the Prospectus, you shall not be obligated to solicit offers to purchase
Program Securities so long as you are not reasonably satisfied with such
document.
(e) If, at any time when the Prospectus (or in lieu thereof the notice
referred to in Rule 173(a) under the Securities Act) relating to the
Program Securities is required to be delivered under the Securities Act,
any event occurs or condition exists as a result of which the Prospectus,
as then amended or supplemented, would include an untrue statement of a
material fact, or omit to state any material fact necessary to make the
12
statements therein, in the light of the circumstances when the Prospectus
(or in lieu thereof the notice referred to in Rule 173(a) under the
Securities Act), 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, 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
Section 3(i) and Sections 5(a), 5(b) and 5(c) in connection with the
preparation and filing of such amendment or supplement are satisfactory in
all respects to you, upon the filing with the Commission of such amendment
or supplement to the Prospectus or upon the effectiveness of an amendment
to the Registration Statement, you will resume the solicitation of offers
to purchase Program Securities hereunder. Notwithstanding any other
provision of this Section 3(e), until the distribution of any Program
Securities you may own as principal has been completed, if any event
described above in this Section 3(e) 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 Section 3(i) 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.
(f) 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 a period of at least
twelve months 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.
(g) 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
13
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
Time of Sale Prospectus and 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.
(h) The Company will endeavor to qualify the Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(i) 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, any Time of Sale Prospectus, 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.
(j) 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 securities of the Company or in the rating outlook for the Company
by any "nationally recognized statistical rating organization," as such
term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(k) Whether or not any sale of Program Securities is consummated or
this Agreement or any Notes Terms Agreement or Units Terms Agreement is
terminated, the Company will pay or cause to be paid all expenses incident
to the performance of its obligations under this Agreement and any Notes
Terms Agreement or Units Terms Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants, of the Trustees and their counsel, of the Unit Agent and its
counsel, and of the Warrant Agent and its counsel, in connection with the
registration and delivery of the Program Securities under the Securities
Act and all other fees or expenses in connection with the preparation and
filing of the Registration Statement, the Prospectus, any preliminary
prospectus, the Time of Sale Prospectus, any free writing prospectus
prepared by or on behalf of, used by, or referred to by the Company and
amendments and supplements to any of the foregoing, including the filing
fees payable to the Commission relating to the Securities (within the time
required by Rule 456(b)(1), if applicable), all printing costs associated
therewith, and the mailing and delivering of copies thereof to you and the
dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Program Securities to
you, including any transfer or other taxes payable thereon, (iii) the cost
of printing or producing any Blue Sky or legal investment memorandum in
connection with the offer and sale of the Program Securities under state
securities laws and all expenses in connection with the qualification of
the Program Securities for offer and sale under state
14
securities laws as provided in Section 3(h) hereof, including filing fees
and the reasonable fees and disbursements of your counsel in connection
with such qualification and in connection with the Blue Sky or legal
investment memorandum, (iv) all filing fees and the reasonable fees and
disbursements of your counsel incurred in connection with the review and
qualification of the offering of the Program Securities by the National
Association of Securities Dealers, Inc., (v) any fees charged by the rating
agencies for the rating of the Program Securities, (vi) all fees and
expenses in connection with the preparation and filing of any registration
statement on Form 8-A relating to any Program Securities and all costs and
expenses incident to listing the Program Securities on any national
securities exchanges and foreign stock exchanges, (vii) the cost of the
preparation, issuance and delivery of the Program Securities, (viii) the
costs and charges of any trustee, transfer agent, registrar or depositary,
(ix) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering of the Program Securities, including, without
limitation, expenses associated with the preparation or dissemination of
any electronic road show, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and officers of
the Company and any such consultants, and the cost of any aircraft
chartered in connection with the road show, (x) the document production
charges and expenses associated with printing this Agreement, the
Indentures, the Unit Agreement, any Unit Agreement Without Holders'
Obligations, the Warrant Agreement, any Notes Terms Agreement and any Units
Terms Agreement, (xi) the fees and disbursements of your counsel incurred
in connection with the offering and sale of the Program Securities,
including any opinions to be rendered by such counsel hereunder, (xii) any
out of pocket expenses incurred by you (provided that any advertising
expenses incurred by you shall have been approved by the Company) and
(xiii) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise
made in this Section. It is understood, however, that except as provided in
this Section and Section 6 entitled "Indemnification and Contribution," you
will pay all of your costs and expenses, including fees and disbursements
of your counsel, transfer taxes payable on resale of any of the Program
Securities by you and any advertising expenses connected with any offers
you may make.
(l) If the third anniversary of the initial effective date of the
Registration Statement occurs during an offering of Program Securities
before all of the Program Securities then being offered have been sold by
you, prior to the third anniversary the Company will file a new shelf
registration statement and take any other action necessary to permit the
public offering of the Program Securities to continue without interruption;
references herein to the Registration Statement shall include the new
registration statement declared effective by the Commission.
(m) 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
15
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.
(n) Unless otherwise notified by you, the Company will prepare a final
term sheet (a "Term Sheet") relating to each offering of the Program
Securities, containing only information that describes the final terms of
the Program Securities or the offering, in a form consented to by you, and
will file such Term Sheet within the period required by Rule 433(d)(5)(ii)
under the Securities Act following the date the final terms have been
established for the offering of the Program Securities.
4. Conditions of the Obligations of the Agents. Your obligation to solicit
offers to purchase Program Securities as agents of the Company, your obligation
to purchase Program Securities as principals pursuant to any Notes Terms
Agreement or Units Terms Agreement and the obligation of any other purchaser to
purchase Program Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of your obligation to solicit
offers to purchase Program Securities, at the time of such solicitation, and, in
the case of your or any other purchaser's obligation to purchase Program
Securities, at the time the Company accepts the offer to purchase such Program
Securities and at the time of issuance and delivery) and (in each case) to the
following additional conditions precedent when and as specified:
(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 consolidated subsidiaries, taken as a whole, from that set
forth in the Time of Sale Prospectus 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 Time of Sale Prospectus;
(ii) there shall not have occurred any (A) suspension or material
limitation of trading generally on or by, as the case may be, any of
the New York Stock Exchange, the American Stock Exchange, the Nasdaq
National Market, the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (B) suspension of
trading of any securities of the Company on any exchange or in any
over the counter market, (C) material disruption in securities
settlement, payment or clearance services in the United
16
States or, in the event of a global offering, in any relevant foreign
jurisdiction, (D) declaration of any moratorium on commercial banking
activities by Federal or New York State authorities or (E) any
outbreak or escalation of hostilities or any change in financial
markets (or, if the relevant Program Securities are denominated in a
currency other than U.S. dollars, any change in currency exchange
rates or controls) or any calamity or crisis that, in your judgment,
is material and adverse and which, singly or together with any other
event specified in this clause (E), makes it, in your judgment,
impracticable or inadvisable to proceed with the offer, sale or
delivery of the Program Securities on the terms and in the manner
contemplated in the Prospectus or the Time of Sale Prospectus; 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 securities of the Company by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed to you in writing by the Company prior to such solicitation or, in the
case of a purchase of Program Securities, before the offer to purchase such
Program Securities was made or (B) unless in each case described in (ii) above,
the relevant event shall have occurred and been known to you prior to such
solicitation or, in the case of a purchase of Program Securities, before the
offer to purchase such Program Securities was made.
(b) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date,
you shall have received:
(i) The opinion, dated as of such date, of Davis Polk & Wardwell,
special 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 the Time of Sale
Prospectus, if applicable, 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
17
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 the
Time of Sale Prospectus, if applicable, and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(C) each of the Company and its Material Subsidiaries has
all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local and
other governmental authorities, all self regulatory organizations
and all courts and other tribunals, to own, lease, license and
use its properties and assets and to conduct its business in the
manner described in the Prospectus, as amended or supplemented,
and the Time of Sale Prospectus, if applicable, 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, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally
and equitable principles of general applicability;
(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, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally
and equitable principles of general applicability;
(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
18
by the relevant Trustee or its duly appointed agent in accordance
with the provisions of the relevant Indenture and delivered to
and duly paid for by the purchasers thereof on the date of such
opinion, such Notes and the Cash-settled Pre-paid Purchase
Contracts would be entitled to the benefits of such Indenture and
would be valid and binding obligations of the Company,
enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and equitable principles of general
applicability;
(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, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally
and equitable principles of general applicability;
(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, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and
equitable principles of general applicability;
19
(J) the execution and delivery by the Company of the Notes
and Cash-settled Pre-paid Purchase Contracts (whether issued
alone or as part of a Unit), the Units (including any Purchase
Contract or Warrant included therein), the Indentures, the Unit
Agreement, any Unit Agreement Without Holders' Obligations, the
Warrant Agreement and any applicable Written Notes Terms
Agreement or Written Units Terms Agreement and the performance by
the Company of its obligations under this Agreement, the Notes,
the Units, the Indentures, the Unit Agreement, any Unit Agreement
Without Holders' Obligations, the Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will
not contravene any provision of applicable law or the certificate
of incorporation or by laws of the Company or, to the best of
such counsel's knowledge, any agreement or other instrument
binding upon the Company or any of its subsidiaries that is
material to the Company and its consolidated subsidiaries, taken
as a whole, or, to the best of such counsel's knowledge, any
judgment, order or decree of any U.S. governmental body, agency
or court having jurisdiction over the Company or any of its
consolidated subsidiaries, and no consent, approval,
authorization or order of or qualification with any U.S.
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, the Notes,
the Cash-settled Pre-paid Purchase Contracts, the Units
(including any Purchase Contracts or Warrants included therein),
the Indentures, the Unit Agreement, any Unit Agreement Without
Holders' Obligations, the Warrant Agreement and any applicable
Notes Terms Agreement or Units Terms Agreement, except such as
may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Program
Securities; provided, however, that no opinion is expressed on
whether the purchase of the Program Securities constitutes a
"prohibited transaction" under Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, or Section
4975 of the Internal Revenue Code of 1986, as amended;
(K) the statements relating to legal matters, documents or
proceedings included in (1) the Prospectus, as then amended or
supplemented, and the Time of Sale Prospectus, if applicable,
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) the Registration
Statement, as then amended or supplemented, under Item 15, (3)
"Item 3. Legal Proceedings" of the most recent annual report on
Form 10-K incorporated by reference in the Prospectus and the
Time of Sale Prospectus, if applicable, and (4) "Item 1. Legal
Proceedings" of Part II of the quarterly reports on Form 10-Q, if
any, filed since such
20
annual report and incorporated by reference in the Prospectus and
the Time of Sale Prospectus, if applicable, in each case fairly
summarize in all material respects such matters, documents or
proceedings;
(L) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which
the Company or any of its consolidated subsidiaries is a party or
to which any of the properties of the Company or any of its
consolidated subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus, as
then amended or supplemented, and are not so described or of any
U.S. federal or state statutes, regulations, contracts or other
documents governed by U.S. federal or state law that are required
to be described in the Registration Statement or the Prospectus,
as then amended or 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) (1) in the opinion of such counsel (A) each document
filed pursuant to the Exchange Act and incorporated by reference
in the Registration Statement and the Prospectus, as then amended
or supplemented, and the Time of Sale Prospectus, if applicable
(except for the financial statements and financial schedules and
other financial and statistical data included therein, as to
which such counsel need not express any opinion), appeared on its
face to be appropriately responsive as of its filing date in all
material respects to the requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder and
(B) the Registration Statement and the Prospectus, as then
amended or supplemented, if applicable (except for the financial
statements and financial schedules and other financial and
statistical data included therein and except for those parts of
the Registration Statement that constitute the Forms T-1, as to
which such counsel need not express any opinion), appear on their
face to be appropriately responsive in all material respects to
the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder, and (2) nothing has
come to the attention of such counsel that causes such counsel to
believe that (A) any part of the Registration Statement, as then
amended, if applicable, when such part became effective (except
for the financial statements and financial schedules and other
financial and statistical data included therein and except for
those parts of the Registration Statement that constitute Forms
T-1, as to which such counsel need not express any belief)
contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (B) the
Registration Statement or the Prospectus (except for the
financial statements and financial schedules and other financial
and statistical data included therein and except for those parts
of the Registration Statement that constitute Forms T-1, as to
which such counsel need not express any belief) as of the date
the opinion is delivered, contained any untrue statement of a
material fact or omitted to state a
21
material fact required to be stated therein or necessary to make
the statements therein not misleading, (C) the Time of Sale
Prospectus (except for the financial statements and financial
schedules and other financial and statistical data included
therein, as to which such counsel need not express any belief),
if any, as amended or supplemented, if applicable, as of the date
the 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 or (D)
the Prospectus (except for the financial statements and financial
schedules and other financial and statistical data included
therein, as to which such counsel need not express any belief),
as amended or supplemented, if applicable, as of the date the
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 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 1(B), 2(B)
(with respect to the Prospectus only) and 2(C) 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 Sidley Austin LLP,
your special counsel, covering the matters in subparagraphs (D), (E),
(F), (G), (H), (I) and (K) (with respect to statements in the
Prospectus and the Time of Sale Prospectus, if applicable, 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 4(b)(i)(N)(2)(A),
4(b)(i)(N)(2)(B), 4(b)(i)(N)(2)(C) and 4(b)(i)(N)(2)(D) 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 Sections
4(b)(i)(G) (except as to due authorization of the Notes and Cash-settled
Pre-paid Purchase Contracts), 4(b)(i)(H) (except
22
as to due authorization of the Units, Warrants, Physically-settled Pre-paid
Purchase Contracts and Non-Pre-paid Purchase Contracts), 4(b)(i)(I) (except as
to due authorization of the Units and Warrants), 4(b)(i)(J), 4(b)(i)(K)(1) and
4(b)(i)(N)(2)(B), 4(b)(i)(N)(2)(C) and 4(b)(i)(N)(2)(D), 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 Section 4(b)(i)(N) above, if such opinion is given by
counsel who is also an officer of the Company, such counsel may state that his
or her opinions and beliefs are based upon his or her participation, or the
participation of someone under his or her supervision, in the preparation of the
Registration Statement, the Time of Sale Prospectus and the Prospectus and any
amendments or supplements thereto and review and discussion of the contents
thereof, but are without independent check or verification, except as specified.
With respect to Section 4(b)(i)(N) above, Sidley Austin LLP and, if Davis Polk &
Wardwell is giving such opinion, Davis Polk & Wardwell may state that their
opinions and beliefs are based upon their participation in the preparation of
the Registration Statement, the Time of Sale Prospectus, the Prospectus, the
preliminary prospectus supplement, if any, any identified free writing
prospectuses (but not including documents incorporated therein by reference) and
upon review and discussion of the contents of the Registration Statement, the
Time of Sale Prospectus and the Prospectus (including documents incorporated
therein by reference), but are without independent check or verification, except
as specified, and (ii) need express no opinion or belief as to the conveyance of
the Time of Sale Prospectus or the information contained therein to investors.
(iii) The opinion, dated as of such date, of Davis Polk &
Wardwell, special counsel to the Company, to the effect that the
statements set forth under the caption "United States Federal
Taxation" in the Basic Prospectus and 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 Davis Polk & Wardwell described in Section 4(b)(iii)
and in Section 4(b)(i), if such opinion is given by Davis Polk & Wardwell,
shall be rendered to you at the request of the Company and shall so state
therein.
(c) On the Commencement Date and, if called for by any Notes
Terms Agreement or Units Terms Agreement, on the corresponding
Settlement Date, you shall have received a certificate, dated the
Commencement Date or such Settlement Date, as the case may be, and
signed by an executive officer of the Company to the effect set forth
in Section 4(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
23
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 public accountants 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
Registration Statement, the Time of Sale Prospectus and the
Prospectus, as then amended or supplemented; provided that each letter
so furnished shall use a "cut-off date" no more than three business
days prior to the date of such letter.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to you such appropriate further
information, certificates and documents as you may reasonably request.
5. Additional Agreements of the Company. (a) Each time the
Registration Statement or Prospectus is amended or supplemented (other than
by an amendment or supplement providing solely for (i) in the case of
Notes, a change in the interest rates, redemption provisions, amortization
schedules or maturities offered on the Notes issued alone or as part of a
Unit, (ii) in the case of Units, (x) a change in the exercise price,
exercise date or period or expiration of an underlying Warrant or (y) a
change in the settlement date or purchase or sale price of an underlying
Purchase Contract or (iii) a change you deem to be immaterial), the Company
will deliver or cause to be delivered forthwith to you a certificate signed
by an executive officer of the Company, dated the date of such amendment or
supplement, as the case may be, in form reasonably satisfactory to you, of
the same tenor as the certificate referred to in Section 4(c) relating to
the Registration Statement or the Prospectus as amended or supplemented to
the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a) (other than any amendment or supplement to the
Registration Statement or Prospectus caused by the filing of a Current
Report on Form 8-K unless you shall reasonably request based on
disclosure included or omitted from such Report), the Company will
furnish or cause to be furnished forthwith to you a written opinion of
counsel for the Company. Any such opinion shall be dated the date of
such amendment or supplement, as the case may be, shall be in a form
satisfactory to you and 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
24
deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented to the time of delivery of such letter).
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is
incorporated by reference in the Prospectus, the Company shall cause
its independent auditors forthwith to furnish you with a letter, dated
the date of such amendment or supplement, as the case may be, in form
satisfactory to you, of the same tenor as the letter referred to in
Section 4(d), with regard to the amended or supplemental financial
information included or incorporated by reference in the Registration
Statement or the Prospectus as amended or supplemented to the date of
such letter; provided that each letter so furnished shall use a
"cut-off date" no more than three business days prior to the date of
such letter.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless you and each person, if any, who controls you
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act and each of your affiliates within the meaning of Rule
405 under the Securities 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, any preliminary prospectus, the Time of Sale Prospectus,
any issuer free writing prospectus as defined in Rule 433(h) under the
Securities Act, any Company information that the Company has filed, or is
required to file, pursuant to Rule 433(d) under the Securities Act, or the
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission
based upon information relating to you furnished to the Company in writing
by you expressly for use therein.
(b) You agree, severally and not jointly, 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, any preliminary
prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus 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 Section 6(a) or 6(b), 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
25
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 Section 6(a), and by the Company,
in the case of parties indemnified pursuant to Section 6(b). 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 be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement
of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that
are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section
6(a) or 6(b) 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
6(d)(i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred
to in clause 6(d)(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
26
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 as set forth in the Prospectus. 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. Your obligations to contribute pursuant to this
Section 6 are several in proportion to the respective principal
amounts of Program Securities you have purchased in any offering of
Program Securities hereunder, and not joint.
(e) The Company and you agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in
Section 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in
Section 6(d) 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 Section 6(d) 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 contained 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, any
person controlling you or any of your affiliates or by or on behalf of
the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Program
Securities.
7. Position of the Agent. In acting under this Agreement and in connection
with the sale of any Program Securities by the Company (other than Program
Securities sold to you pursuant to a Notes Terms Agreement or Units Terms
Agreement, as the case may be), you are acting solely as agent of the Company
and do not assume any obligation towards or relationship
27
of agency or trust with any purchaser of Program Securities. You shall make
reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Program Securities has been solicited by you
and accepted by the Company, but you shall not have any liability to the Company
in the event any such purchase is not consummated for any reason. If the Company
shall default in its obligations to deliver Program Securities to a purchaser
whose offer it has accepted, the Company shall hold you harmless against any
loss, claim, damage or liability arising from or as a result of such default and
shall, in particular, pay to you the commission you would have received had such
sale been consummated.
8. Offering Restrictions. If any Program Securities are to be offered
outside the United States, you will not offer or sell any such Program
Securities in any jurisdiction if such offer or sale would not be in compliance
with any applicable law or regulation or if any consent, approval or permission
is needed for such offer or sale by you or for or on behalf of the Company
unless such consent, approval or permission has been previously obtained.
Subject to the obligations of the Company set forth in Section 3 of this
Agreement, the Company shall have no responsibility for, and you will obtain,
any consent, approval or permission required by you for the subscription, offer,
sale or delivery by you of Program Securities, or the distribution of any
offering materials, under the laws and regulations in force in any jurisdiction
to which you are subject or in or from which you make any subscription, offer,
sale or delivery.
9. Termination. This Agreement may be terminated at any time either by the
Company or by you upon the giving of written notice of such termination 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(e) and
Sections 3(f), 3(k), 6, 7, 10, 11 and 13 shall survive; provided that if at the
time of termination an offer to purchase Program Securities has been accepted by
the Company but the time of delivery to the purchaser or its agent of such
Program Securities has not occurred, the provisions of Sections 1, 2(b), 2(c),
3(d), 3(g), 3(h), 3(i), 3(j), 3(m), 4 and 5 shall also survive until such
delivery has been made.
10. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to you, will be mailed, delivered or telefaxed and
confirmed to you at 1585 Broadway, New York, New York 10036, Attention: Manager,
Continuously Offered Products (telefax number: 212 761-0781), with a copy to
1585 Broadway, 34th Floor, New York, New York 10036, Attention: Peter Cooper,
Investment Banking Information Center (telefax number: 212 761 0260) or, if sent
to the Company, will be mailed, delivered or telefaxed and confirmed to the
Company at 1221 Avenue of the Americas, New York, New York 10020, Attention:
Treasurer; Facsimile No.: 212-762-7337.
11. Successors. This Agreement and any Notes Terms Agreement or Units Terms
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors and controlling
persons referred to in Section 6 and the purchasers of Notes and Units (to the
extent expressly provided in Section 4), and no other person will have any right
or obligation hereunder.
28
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
29
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 DW INC.
By: ------------------------------------
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
By: ------------------------------------
Name: Michael Fusco
Title: Executive Director
EXHIBIT A
MORGAN STANLEY
GLOBAL MEDIUM-TERM NOTES, SERIES F
NOTES TERMS AGREEMENT
___________________, 200_
Morgan Stanley
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement dated January 25, 2006
(the "U.S. Distribution Agreement")
-----------------------------------
The undersigned agrees to purchase your Global Medium-Term Notes, Series
F, [specified designation] (the "Notes") having the terms set forth below. The
offering of the Notes will be made pursuant to a Prospectus dated January 25,
2006, as amended by a Prospectus Supplement dated January 25, 2006[,] [and]
[Pricing Supplement No. [ ] which we expect to be dated on or about [ ]][,]
[and] [a free writing prospectus which we expect to be dated on or about [ ]][,]
[and] [a Term Sheet which we expect to be dated on or about [ ]] (collectively,
the "Time of Sale Prospectus"). The Notes are expected to have the terms set
forth below, but the final terms of the Notes will be those set forth in the
Time of Sale Prospectus.
All Notes Fixed Rate Notes Floating Rate Notes
- --------------------------------- ------------------------------- -------------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Price to Public: If yes, state issue price: Index Currency:
Settlement Date and Time: Amortization Schedule: Spread (Plus or Minus):
Place of Delivery: Applicability of Annual Spread Multiplier:
Interest Payments:
Specified Currency: Denominated Currency (if any): Alternate Rate Event Spread:
Original Issue Date: Indexed Currency or Initial Interest Rate:
Currencies (if any):
Interest Accrual Date: Payment Currency (if any): Initial Interest Reset Date:
Interest Payment Dates: Exchange Rate Agent (if any): Interest Reset Dates:
Interest Payment Period: Reference Dealers: Interest Reset Period:
A-1
All Notes Fixed Rate Notes Floating Rate Notes
- --------------------------------- ------------------------------- -------------------------------
Maturity Date: Face Amount (if any): Maximum Interest Rate:
Optional Repayment Date(s): Fixed Amount of each Indexed Minimum Interest Rate:
Currency (if any):
Optional Redemption Date(s): Aggregate Fixed Amount of Calculation Agent:
each Indexed Currency (if
any):
Initial Redemption Date: Applicability of Issuer's Reporting Service:
Option to Extend Original
Maturity Date:
Initial Redemption Percentage: If yes, state Final Maturity Variable Rate Renewable Notes:
Date:
Annual Redemption Percentage Redemption Dates:
Reduction:
Ranking: Redemption Percentage:
Minimum Denominations: Initial Maturity Date:
Other Provisions: Final Maturity Date:
Applicability of Issuer's
Option to Reset Spread or
Spread Multiplier:
The provisions of Sections 1, 2(b) and 2(c), 3 through 6, 8 and 10
through 14 of the U.S. Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is also subject to termination on the terms incorporated
by reference herein. If this Agreement is terminated, the provisions of Sections
3(k), 6, 10, 11 and 13 of the U.S. Distribution Agreement shall survive for the
purposes of this Agreement.
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the U.S. Distribution Agreement will be required:
___________.
A-2
MORGAN STANLEY DW INC.
By:
---------------------------------------
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
By:
---------------------------------------
Name: Michael Fusco
Title: Executive Director
Accepted:
MORGAN STANLEY
By: ------------------------------------
Name: Jai Sooklal
Title: Assistant Treasurer
A-3
EXHIBIT A-1
MORGAN STANLEY
GLOBAL UNITS, SERIES F
UNITS TERMS AGREEMENT
___________________, 200_
Morgan Stanley
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement dated January 25, 2006
(the "U.S. Distribution Agreement")
-----------------------------------
The undersigned agrees to purchase your Global Units, Series F,
[specified designation] (the "Units") having the terms set forth below. The
offering of the Units will be made pursuant to a Prospectus dated January 25,
2006, as amended by a Prospectus Supplement dated January 25, 2006[,] [and]
[Pricing Supplement No. [ ] which we expect to be dated on or about [ ]][,]
[and] [a free writing prospectus which we expect to be dated on or about [ ]][,]
[and] [a Term Sheet which we expect to be dated on or about [ ]] (collectively,
the "Time of Sale Prospectus"). The Units are expected to have the terms set
forth below, but the final terms of the Units will be those set forth in the
Time of Sale Prospectus.
All Units: Warrants Issued as Part of a Purchase Contracts Issued as
Unit: Part of a Unit:
- --------------------------------- ------------------------------- -------------------------------
Settlement Date and Time: Designation of the Series of Designation of the Series of
Warrants: [Call] [Put] Purchase Contracts:
Warrants [Purchase][Sale] Purchase
Contracts
Number (Face Amount): Warrant Property: Aggregate Number of Purchase
Contracts:
Purchase Price: Aggregate Number of Warrants: Purchase Contract Property:
Specified Currency: Date(s) upon which Warrants Quantity per Purchase
may be exercised: Contract:
Severability: Currency in which exercise [Purchase] [Sale] Price:
payments shall be made:
Other Terms: Exchange Rate (or method of Settlement Date:
calculation:
A-1-1
All Units: Warrants Issued as Part of a Purchase Contracts Issued as
Unit: Part of a Unit:
- --------------------------------- ------------------------------- -------------------------------
Expiration Date: Payment Location:
Form of Settlement:
[Call Price:](1)
Method of Settlement:
[Formula for determining Cash Currency of Settlement
Settlement Value:] Payment:
[Amount of Warrant Property Contract Fees, if any:
Salable per Warrant:](2)
[Put Price for such specified Corporation Acceleration:
amount of Warrant Property
per Warrant:](3)
[Method of delivery of any Holders' Acceleration:
Warrant Property to be
delivered for sale upon
exercise of Warrants:](3)
Other Terms: Redemption Provisions:
Other Terms:
All Notes Issued as Part of a Fixed Rate Notes Issued as Floating Rate Notes Issued as
Unit: Part 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: Index Currency:
Settlement Date and Time: Amortization Schedule: Spread (Plus or Minus):
Place of Delivery: Applicability of Annual Spread Multiplier:
Interest Payments:
Specified Currency: Denominated Currency (if any): Alternate Rate Event Spread:
Original Issue Date: Indexed Currency or Initial Interest Rate:
Currencies (if any):
Interest Accrual Date: Payment Currency (if any): Initial Interest Reset Date:
Maturity Date: Exchange Rate Agent (if any): Interest Reset Dates:
- -----------------------------
(1) Applicable to Call Warrants
(2) Applicable to Put Warrants
(3) Applicable to Put Warrants only if such Put Warrants contemplate that the
holder deliver Warrant Property to settle Put Warrants
A-1-2
All Notes Issued as Part of a Fixed Rate Notes Issued as Floating Rate Notes Issued as
Unit: Part of a Unit: Part of a Unit:
- --------------------------------- ------------------------------- -------------------------------
Interest Payment Date(s): Reference Dealers: Interest Reset Period:
Interest Payment Period: Face Amount (if any): Maximum Interest Rate:
Optional Repayment Date(s): Fixed Amount of each Indexed Minimum Interest Rate:
Currency (if any):
Optional Redemption Date(s): Aggregate Fixed Amount of Calculation Agent:
each Indexed Currency (if
any):
Initial Redemption Date: Applicability of Issuer's Reporting Service:
Option to Extend Original
Maturity Date:
Initial Redemption Percentage: If yes, state Final Maturity Variable Rate Renewable Notes:
Date:
Annual Redemption Percentage Redemption Dates:
Reduction:
Ranking: Redemption Percentage:
Series: Initial Maturity Date:
Minimum Denominations: Final Maturity Date:
Other Terms: Applicability of Issuer's
Option to Reset Spread or
Spread Multiplier:
The provisions of Sections 1, 2(b) and 2(c), 3 through 6, 8 and 10
through 14 of the U.S. Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.(5)
This Agreement is also subject to termination on the terms incorporated
by reference herein. If this Agreement is terminated, the provisions of Sections
3(k), 6, 10, 11 and 13 of the U.S. Distribution Agreement shall survive for the
purposes of this Agreement.
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the U.S. Distribution Agreement will be required:
___________.
- ------------------------
(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-1-3
MORGAN STANLEY DW INC.
By:
---------------------------------------
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
By: -------------------------------------
Name: Michael Fusco
Title: Executive Director
Accepted:
MORGAN STANLEY
By:
---------------------------------
Name: Jai Sookal
Title: Assistant Treasurer
A-1-4
EXHIBIT B
MORGAN STANLEY
GLOBAL MEDIUM-TERM NOTES, SERIES F
GLOBAL UNITS, SERIES F
ADMINISTRATIVE PROCEDURES
----------------------
Explained below are the administrative procedures and specific terms of
the offering of Global Medium Term Notes, Series F (the "Notes") and Global
Units, Series F (the "Units"), on a continuous basis by Morgan Stanley (the
"Company") pursuant to the U.S. Distribution Agreement dated January 25, 2006
(as may be amended from time to time, the "Distribution Agreement") among the
Company, Morgan Stanley DW Inc. and Morgan Stanley & Co. Incorporated
(collectively or individually the "Agent" as the context requires). The Notes
may be issued as senior indebtedness (the "Senior Notes") or subordinated
indebtedness (the "Subordinated Notes") of the Company, and as used herein the
term "Notes" includes the Senior Notes and the Subordinated Notes. The Senior
Notes will be issued, either alone or as part of a Unit, pursuant to the
provisions of a senior indenture dated as of November 1, 2004 (as may be
supplemented or amended from time to time, the "Senior Debt Indenture"), between
the Company and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase
Bank), ("JPMorgan Chase"), as trustee. The Subordinated Notes will be issued
pursuant to the provisions of a subordinated indenture, dated as of October 1,
2004 (as may be supplemented or amended from time to time, the "Subordinated
Debt Indenture"), between the Company and J.P. Morgan Trust Company, National
Association ("JPMorgan Trust"), as trustee. The Senior Debt Indenture and the
Subordinated Debt Indenture are sometimes hereinafter referred to individually
as an "Indenture" and collectively as the "Indentures." Purchase contracts
("Purchase Contracts") that require holders to satisfy their obligations
thereunder when such Purchase Contracts are issued are referred to as "Pre-paid
Purchase Contracts." Pre-paid Purchase Contracts that settle in cash
("Cash-settled Pre-paid Purchase Contracts") generally will be issued under the
Indentures. Pre-paid Purchase Contracts that do not settle in cash
("Physically-settled Pre-paid Purchase Contracts") generally will be issued
under the Unit Agreement or the Unit Agreement Without Holders' Obligations
(each as defined below).
Unless otherwise specified in any applicable free writing prospectus,
Term Sheet or Pricing Supplement, the Units will be issued (i) pursuant to the
Unit Agreement dated as of November 1, 2004, among the Company, JPMorgan Chase
Bank, N.A. (formerly known as JPMorgan 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
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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").(6) Units may include one or more (i)
Series F Senior Notes, (ii) warrants ("Warrants") entitling the holders thereof
to purchase or sell (a) securities issued by the Company or by an entity
affiliated or not affiliated with the Company, a basket of such securities, an
index or indices of such securities or any other property, (b) currencies, (c)
commodities or (d) any combination of the foregoing, (iii) Purchase Contracts,
including Pre-paid Purchase Contracts, requiring the holders thereof to purchase
or sell (a) securities issued by the Company or by an entity affiliated or not
affiliated with the Company, a basket of such securities, an index or indices of
such securities or any other property, (b) currencies, (c) commodities or (d)
any combination of the foregoing or (iv) any combination thereof. The applicable
Term Sheet, if applicable, and Pricing Supplement will specify whether or not
any Notes, Warrants and Purchase Contracts comprised by a Unit may or may not be
separated from the Unit. Warrants issued as part of a Unit will be issued
pursuant to the Warrant Agreement dated as of November 1, 2004, between the
Company and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank),
as Warrant Agent (as may be amended from time to time, the "Warrant Agreement").
Purchase Contracts, other than Pre-paid Purchase Contracts, entered into by the
Company and the holders thereof will be governed by the Unit Agreement.
In the Distribution Agreement, the Agent has agreed to use reasonable
efforts to solicit purchases of the Notes and the Units, and the administrative
procedures explained below will govern the issuance and settlement of any Notes
or Units sold through the Agent, as agent of the Company. The Agent, as
principal, may also purchase Notes and Units for its own account, and the
Company and the Agent will enter into a terms agreement (in the case of Notes, a
"Notes Terms Agreement," and in the case of Units, a "Units Terms Agreement"),
as contemplated by the Distribution Agreement. The administrative procedures
explained below will govern the issuance and settlement of any Notes or Units
purchased by the Agent, as principal, unless otherwise specified in the
applicable Notes Terms Agreement or Units Terms Agreement.
JPMorgan Chase will be the Registrar, Calculation Agent, Authenticating
Agent and Paying Agent for the Senior Notes (and any Cash-settled Pre-paid
Purchase Contracts), the Unit Agent for the Units and Purchase Contracts (other
than Cash-settled Pre-paid Purchase Contracts) and Warrant Agent for the
Warrants, and in each case, will perform the duties specified herein. JPMorgan
Trust will be the Registrar, Calculation Agent, Authenticating Agent and Paying
Agent for the Subordinated Notes (and any Cash-settled Pre-paid Purchase
Contracts) and in each case, will perform the duties specified herein.
References herein to "JPMorgan" are to JPMorgan Chase (in the case of duties
relating to the Senior Notes) or to JPMorgan Trust (in the case of duties
relating to the Subordinated Notes).
Each Note and each Unit will be represented by either (i) in the case of
the Notes, a Global Note and, in the case of the Units, a Global Unit (each as
defined below) delivered to JPMorgan, as agent for The Depository Trust Company
("DTC"), and recorded in the book entry system maintained by DTC (in the case of
a Note, a "Book-Entry Note" and, in the case of a Unit, a "Book-Entry Unit") or
(ii) a certificate delivered to the holder thereof or a person
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- --------------------------
(6) 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.
designated by such holder (in the case of a Note, a "Certificated Note" and, in
the case of a Unit, a "Certificated Unit"). Each Note, Warrant or Purchase
Contract which may be included in any Unit will be issued in the corresponding
global or certificated form. Except as set forth in the Indentures, in the case
of Notes or Cash-settled Pre-paid Purchase Contracts, the Unit Agreement or a
Unit Agreement Without Holders' Obligations, as applicable, in the case of Units
and all other Purchase Contracts, or the Warrant Agreement, in the case of the
Warrants, an owner of a Book Entry Note or Book-Entry Unit (or of any Note,
Warrant or Purchase Contract included in such Book-Entry Unit), as the case may
be, will not be entitled to receive a Certificated Note (including with respect
to a Book-Entry Note included in a Book-Entry Unit) or a Certificated Unit (or
certificated Warrants or Purchase Contracts, as applicable).
Book Entry Notes and Book-Entry Units, which may be payable in either
U.S. dollars or other specified currencies, will be issued in accordance with
the administrative procedures set forth in Part I hereof as they may
subsequently be amended as the result of changes in DTC's operating procedures.
Certificated Notes and Certificated Units will be issued in accordance with the
administrative procedures set forth in Part II hereof.
Unless otherwise defined herein, terms defined in the Indentures, the
Unit Agreement, the Unit Agreement Without Holders' Obligations, the Warrant
Agreement, the Notes, the Units, the Warrants, the Purchase Contracts or any
Prospectus Supplement relating to the Notes and Units shall be used herein as
therein defined. The Company will advise the Agent in writing of the employees
of the Company with whom the Agent is to communicate regarding offers to
purchase Notes and Units and the related settlement details.
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.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK ENTRY NOTES
AND BOOK-ENTRY UNITS
In connection with the qualification of the Book Entry Notes and
Book-Entry Units for eligibility in the book entry system maintained by DTC,
JPMorgan will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations under
DTC's Operational Arrangements dated February 20, 2002, as amended from time to
time, including by the Blanket Issuer Letter of Representations from the Company
to DTC, dated as of August 25, 2003, its obligations under a Medium-Term Note
Certificate Agreement between JPMorgan Chase and DTC dated as of November 13,
2001, and its obligations as a participant in DTC, including DTC's Same-Day
Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under "Settlement"
below) for one or more Book Entry Notes, or one or more
Book-Entry Units, the Company will issue, in the case of
the Notes, a single global Note in fully registered form
without coupons (a "Global Note") representing up to
U.S. $500,000,000 principal amount of all such Notes
that have
B-3
the same Original Issue Date, Maturity Date and other
terms and, in the case of a Unit, a single global unit
in fully registered form (a "Global Unit"), representing
up to U.S. $500,000,000 face amount of all such Units
that have the same Original Issue Date and that
otherwise comprise the same securities and have the same
terms. Each Global Note, whether issued alone or as part
of a Unit, will be dated and issued as of the date of
its authentication by JPMorgan and each Global Unit will
be dated and issued as of the date of the issuances of
the other securities comprised by such Unit. Each Global
Note, whether alone or as part of a Unit, will bear an
"Interest Accrual Date," which will be (i) with respect
to an original Global Note (or any portion thereof), its
original issuance date and (ii) with respect to any
Global Note (or any portion thereof) issued subsequently
upon exchange of a Global Note, or in lieu of a
destroyed, lost or stolen Global Note, the most recent
Interest Payment Date to which interest has been paid or
duly provided for on the predecessor Global Note or
Notes (or if no such payment or provision has been made,
the original issuance date of the predecessor Global
Note), regardless of the date of authentication of such
subsequently issued Global Note. Book Entry Notes and
Book-Entry Units may be payable in either U.S. dollars
or other specified currencies. No Global Note or Global
Unit will represent, any Certificated Note or
Certificated Unit, as the case may be.
Denominations: Book Entry Notes and Book-Entry Units will be issued in
(i) in the case of Book-Entry Notes, principal amounts
of U.S. $1,000 or any amount in excess thereof that is
an integral multiple of U.S. $1,000 or, if such
Book-Entry Notes are issued in a currency other than
U.S. dollars, principal amounts of such currency in
denominations of the equivalent of U.S. $1,000 (rounded
to an integral multiple of 1,000 units of such
currency), unless otherwise indicated in any applicable
free writing prospectus, Term Sheet and Pricing
Supplement and (ii) in the case of Book-Entry Units,
denominations of a single unit and any integral multiple
thereof with face amounts of U.S. $1,000 or any amount
in excess thereof that is an integral multiple of U.S.
$1,000 or, if such Book-Entry Units are issued in a
currency other than U.S. dollars, face amounts of such
currency in denominations of the equivalent of U.S.
$1,000 (rounded to an integral multiple of 1,000 units
of such currency), unless otherwise indicated in any
applicable free writing prospectus, Term Sheet and
Pricing Supplement.
B-4
Global Notes and Global Units will be denominated in, in
the case of Global Notes, principal amounts not in
excess of U.S.$500,000,000 and, in the case of Global
Units, face amounts not in excess of U.S. $500,000,000.
If one or more Book Entry Notes having an aggregate
principal amount in excess of U.S. $500,000,000, or one
or more Book-Entry Units having an aggregate face
amount, in excess of $500,000,000 would, but for the
preceding sentence, be represented by a single Global
Note or Global Unit, as the case may be, then one Global
Note will be issued to represent each U.S. $500,000,000
principal amount of such Book Entry Note or Notes and
one Global Unit will be issued to represent each
U.S.$500,000,000 face amount of such Book-Entry Unit or
Units and an additional Global Note or Global Unit, will
be issued to represent any remaining principal amount of
such Book Entry Note or Notes or face amount of such
Book-Entry Unit or Units. In such a case, each of the
Global Notes or Global Units representing such Book
Entry Note or Notes or such Book-Entry Unit or Units, as
the case may be, shall be assigned the same CUSIP
number.
Preparation of Pricing
Supplement: If any order to purchase a
Book-Entry Note or Book-Entry Unit is accepted by or on
behalf of the Company, the Company will prepare a free
writing prospectus and/or Term Sheet, if applicable, and
a pricing supplement (a "Pricing Supplement") reflecting
the terms of such Note or Unit. The Company (i) will
arrange to file with the Commission an electronic format
document, in the manner prescribed by the EDGAR Filer
Manual, of such Term Sheet and Pricing Supplement in
accordance with, in the case of any free writing
prospectus and/or Term Sheet, Rule 433 under the
Securities Act and, in the case of the Pricing
Supplement, the applicable paragraph of Rule 424(b)
under the Securities Act, (ii) will, with respect to
each of the free writing prospectus and/or Term Sheet,
if applicable, and the Pricing Supplement, as soon as
possible and in any event not later than the date on
which the applicable document is filed with the
Commission, deliver the number of copies of such
document to the Agent as the Agent shall request and
(iii) will, on the Agent's behalf, promptly file five
copies of such Pricing Supplement with the National
Association of Securities Dealers, Inc. (the "NASD").
The Agent will cause the free writing prospectus and/or
Term Sheet, if applicable, and the Pricing Supplement to
be delivered, or otherwise made available, to the
purchaser of the Note or Unit.
B-5
In each instance that a Pricing Supplement is prepared,
the Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated free writing
prospectus, Term Sheets, Pricing Supplements, and the
Prospectuses to which they are attached (other than
those retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book Entry Note or a Book-Entry
Unit and, in the case of the Note, the authentication
and issuance of the Global Note representing such Note
or, in the case of the Unit, the completion and issuance
of the Global Unit representing such Unit (and of each
security comprised by such Unit) shall constitute
"settlement" with respect to such Note or Unit, as the
case may be. All orders accepted by the Company will be
settled on the fifth Business Day pursuant to the
timetable for settlement set forth below unless the
Company and the purchaser agree to settlement on another
day, which shall be no earlier than the next Business
Day.
Settlement Procedures: Settlement Procedures with regard to each Book Entry
Note and each Book-Entry Unit sold by the Company to or
through the Agent (unless otherwise specified pursuant
to a Notes Terms Agreement or a Units Terms Agreement),
shall be as follows:
A. In the case of a Book-Entry Note (whether issued
alone or as part of a Unit), the Agent will advise
the Company by telephone that such Note is a Book
Entry Note and of the following settlement
information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book Entry Note, the
Interest Rate, whether such Note will pay
interest annually or semiannually and whether
such Note is an Amortizing Note, and, if so, the
amortization schedule, or, in the case of a
Floating Rate Book Entry Note, the Initial
Interest Rate (if known at such time), Interest
Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index Maturity,
Index Currency, Interest Reset Period, Initial
Interest Reset Date, Interest Reset Dates,
Spread or Spread
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Multiplier (if any), Minimum Interest Rate (if
any), Maximum Interest Rate (if any) and the
Alternate Rate Event Spread (if any).
4. Redemption or repayment provisions, if any.
5. Ranking.
6. Settlement date and time (Original Issue Date).
7. Interest Accrual Date.
8. Price.
9. Agent's commission, if any, determined as
provided in the Distribution Agreement.
10. Specified Currency.
11. Whether the Note is an Original Issue Discount
Note (an "OID Note"), and if it is an OID Note,
the applicability of Modified Payment upon
Acceleration (and, if so, the Issue Price).
12. Whether the Note is a Renewable Note, and if it
is a Renewable Note, the Initial Maturity Date,
the Final Maturity Date, the Election Dates and
the Maturity Extension Dates.
13. Whether the Company has the option to reset the
Spread or Spread Multiplier of the Note.
14. Whether the Note is an Optionally Exchangeable
Note, a Mandatorily Exchangeable Note, or any
form of exchangeable Note.
15. Any other applicable provisions.
B. In the case of a Book-Entry Unit, the Agent will
advise the Company by telephone that such Unit is a
Book-Entry Unit, of the information set forth in
Settlement Procedures "A" above with respect to any
Book-Entry Notes that constitute a part of such
Book-Entry Unit and of the following information:
1. Settlement date and time.
2. Face Amount.
3. Agent's commission, if any, determined as
provided in the Distribution Agreement.
B-7
4. Designation of the Securities comprised by such
Units:
a. Notes (See Settlement Procedures "A");
b. Warrants, if any; and
c. Purchase Contracts, if any.
5. Whether, and the terms under which, the
Securities comprised by such Unit will be
separately tradeable.
6. Any other provisions applicable to the Unit
(other than those provisions applicable to the
securities comprised by such Unit).
7. If the Book-Entry Unit comprises Book-Entry
Warrants:
a. Designation of the Series of Warrants:
[Call][Put] Warrants;
b. Warrant Property;
c. Aggregate Number of Warrants;
d. Price to Public;
e. Warrant Exercise Price;
f. Dates upon which Warrants may be exercised;
g. Expiration Date;
h. Form;
i. Currency in which exercise payments shall be
made;
j. Minimum number of Warrants exercisable by
any holder on any day;
k. Maximum number of Warrants exercisable on
any day: [In the aggregate] [By any
beneficial owner];
l. Formula for determining Cash Settlement
Value;
m. Exchange Rate (or method of calculation);
B-8
n. Whether the Company or the holder is the
writer of the Warrant; and
o. Any other applicable provisions.
8. If the Book-Entry Unit comprises Book-Entry
Purchase Contracts:
a. Designation of the Series of Purchase
Contracts: [Purchase][Sale] Purchase
Contracts;
b. Purchase Contract Property;
c. Aggregate Number of Purchase Contracts;
d. Price to Public;
e. Settlement Date;
f. [Purchase/Sale] Price of Purchase Contract
Property;
g. Form; and
h. Any other applicable provisions.
C. The Company will advise JPMorgan by telephone or
electronic transmission (confirmed in writing at any
time on the same date) of the information set forth
in "Settlement Procedures" "A" and "B" above, as
applicable, such advice to contain a representation
as to the aggregate principal amount of Program
Securities permitted to be issued hereunder after
such issuance. JPMorgan will then assign a CUSIP
number to the Global Note representing a Note,
whether issued alone or as part of a Unit, and will
notify the Company and the Agent of such CUSIP
number(s) by telephone as soon as practicable,
except that for Optionally Exchangeable and
Mandatorily Exchangeable Notes the Agent will obtain
a CUSIP number for the Global Note representing such
Note and will notify the Company and JPMorgan of
such CUSIP number(s) by telephone as soon as
practicable. The Agent will obtain a CUSIP number
for (i) the Global Unit representing a Unit, (ii)
the Warrant, if any, issued as part of a Unit and
(iii) the Purchase Contract, if any, issued as part
of a Unit and, in each case will notify the Company
and JPMorgan of such CUSIP number(s) by telephone as
soon as practicable.
B-9
D. JPMorgan will enter a pending deposit message
through DTC's Participant Terminal System, providing
the following settlement information to DTC, the
Agent and Standard & Poor's Corporation:
1. The information set forth in "Settlement
Procedure" "A" and "B" above, as applicable.
2. The Initial Interest Payment Date for the Notes,
whether issued alone or as part of a Unit, the
number of days by which such date succeeds the
related DTC Record Date and, if known, amount of
interest payable on such Initial Interest
Payment Date.
3. The CUSIP number of the Global Note (whether
issued alone or as part of a Unit), Global Unit,
Warrant issued as part of a Unit and Purchase
Contract issued as part of a Unit, as
applicable.
4. Whether the Global Note or Global Unit will
represent any other Book Entry Note or
Book-Entry Unit, as the case may be (to the
extent known at such time).
5. Whether any Note, issued alone or as part of a
Unit, is an Amortizing Note (by an appropriate
notation in the comments field of DTC's
Participant Terminal System).
6. The number of Participant accounts to be
maintained by DTC on behalf of the Agent and
JPMorgan.
E. JPMorgan will, as applicable, authenticate, complete
and deliver the Global Note representing the Note
and will complete the Global Unit representing the
Unit (including, as applicable, by authenticating,
completing and delivering any Global Note or
Cash-settled Pre-paid Purchase Contracts, by
countersigning and delivering any Warrants and by
countersigning, executing and delivering any
Purchase Contracts (other than Cash-settled Pre-paid
Purchase Contracts) includable in such Unit).
F. DTC will credit such Note or Unit to JPMorgan's
participant account at DTC.
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G. JPMorgan will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit the Note or Unit, as the case may be, to
JPMorgan's participant account and credit such Note
or Unit to the Agent's participant account and (ii)
debit the Agent's settlement account and credit
JPMorgan's settlement account for an amount equal to
the price of such Note or Unit, as the case may be,
less the Agent's commission, if any. The entry of
such a deliver order shall constitute a
representation and warranty by JPMorgan to DTC that
(a) the Global Note representing a Book Entry Note
has been issued and authenticated or a Global Unit
representing a Book-Entry Unit has been completed
and issued and (b) JPMorgan is holding such Global
Note or Global Unit pursuant to the Medium-Term Note
Certificate Agreement between JPMorgan and DTC.
H. Unless the Agent is the end purchaser of a Note or
Unit, the Agent will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note or Unit to
the Agent's participant account and credit such Note
or Unit to the participant accounts of the
Participants with respect to such Note or Unit and
(ii) to debit the settlement accounts of such
Participants and credit the settlement account of
the Agent for an amount equal to the price of such
Note or Unit.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and
"H" will be settled in accordance with SDFS
operating procedures in effect on the settlement
date.
J. JPMorgan will credit to the account of the Company
maintained at JPMorgan Chase, New York, New York, in
funds available for immediate use in the amount
transferred to JPMorgan in accordance with
"Settlement Procedure" "G".
K. Unless the Agent is the end purchaser of the Note or
Unit, the Agent will confirm the purchase of such
Note or Unit to the purchaser either by transmitting
to the Participants with respect to such Note or
Unit a confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
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L. Monthly, JPMorgan will send to the Company a
statement setting forth the principal amount of
Notes outstanding as of that date under the
Indentures or, in the case of Units, the aggregate
face amount of Units outstanding as of that date,
under the Unit Agreement, and setting forth a brief
description of any sales of which the Company has
advised JPMorgan that have not yet been settled.
Settlement Procedures
Timetable: For sales by the Company of Book Entry Notes or
Book-Entry Units to or through the Agent (unless
otherwise specified pursuant to a Notes Terms Agreement
or a Units Terms Agreement) for settlement on the first
Business Day after the sale date, Settlement Procedures
"A" through "K" set forth above shall be completed as
soon as possible but not later than the respective times
in New York City set forth below:
Settlement
----------
Procedure Time
--------------
A 11:00 A.M. on the sale date
B 11:00 A.M. on the sale date
C 12:00 Noon on the sale date
D 2:00 P.M. on the sale date
E 9:00 A.M. on the settlement date
F 10:00 A.M. on the settlement date
G-H 2:00 P.M. on the settlement date
I 4:45 P.M. on the settlement date
J-K 5:00 P.M. on the settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A", "B", "C"
and "D" shall be completed as soon as practicable but no
later than 11:00 A.M., 11:00 A.M., 12 Noon and 2:00
P.M., respectively, on the first Business Day after the
sale date. If the Initial Interest Rate for a Floating
Rate Book Entry Note, whether issued alone or as part of
a Unit, has not been determined at the time that
"Settlement Procedure" "A" is completed, "Settlement
Procedure" "C" and "D" shall be completed as soon as
such rate has been determined but no later than 12 Noon
and 2:00 P.M., respectively, on the first Business Day
before the settlement date. "Settlement Procedure" "I"
is subject to
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extension in accordance with any extension of Fedwire
closing deadlines and in the other events specified in
the SDFS operating procedures in effect on the
settlement date.
If settlement of a Book Entry Note or a Book-Entry Unit
is rescheduled or canceled, JPMorgan, after receiving
notice from the Company or the Agent, will deliver to
DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than
2:00 P.M. on the Business Day immediately preceding the
scheduled settlement date.
Failure to Settle: If JPMorgan fails to enter an SDFS deliver order with
respect to a Book Entry Note or a Book-Entry Unit
pursuant to "Settlement Procedure" "G", JPMorgan may
deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal message
instructing DTC to debit such Note or Unit to JPMorgan's
participant account, provided that JPMorgan's
participant account contains a principal amount of the
Global Note representing such Note or a face amount of
the Global Unit representing such Unit that is at least
equal to the principal amount or face amount to be
debited. If a withdrawal message is processed with
respect to all the Book Entry Notes represented by a
Global Note or all of the Book-Entry Units represented
by a Global Unit, JPMorgan will mark such Global Note or
Global Unit "canceled," make appropriate entries in
JPMorgan's records and send such canceled Global Note or
Global Unit to the Company. The CUSIP number assigned to
such Global Note, Global Unit, Warrant included in such
Unit, or Purchase Contract included in such Unit, shall,
in accordance with the procedures of the CUSIP Service
Bureau of Standard & Poor's Corporation, be canceled and
not immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all, of
the Book Entry Notes represented by a Global Note or
with respect to one or more, but not all, of the
Book-Entry Units represented by a Global Unit, JPMorgan
will exchange such Global Note or Global Unit, as the
case may be, for two Global Notes or for two Global
Units, as the case may be, one of which shall represent
such Book Entry Note or Notes or such Book-Entry Unit or
Units and shall be canceled immediately after issuance
and the other of which shall represent the remaining
Book Entry Notes or Book-Entry Units previously
represented by the surrendered Global Note or Global
Unit and shall bear the CUSIP number of
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the surrendered Global Note, Global Unit, Warrant
included in such Unit, or Purchase Contract included in
such Unit.
If the purchase price for any Book Entry Note or
Book-Entry Unit is not timely paid to the Participants
with respect to such Note or Unit by the beneficial
purchaser thereof (or a person, including an indirect
participant in DTC, acting on behalf of such purchaser),
such Participants and, in turn, the Agent may enter SDFS
deliver orders through DTC's Participant Terminal System
reversing the orders entered pursuant to Settlement
Procedures "G" and "H", respectively. Thereafter,
JPMorgan will deliver the withdrawal message and take
the related actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book Entry Note or Book-Entry
Unit, DTC may take any actions in accordance with its
SDFS operating procedures then in effect.
In the event of a failure to settle with respect to one
or more, but not all, of the Book Entry Notes or
Book-Entry Units to have been represented by a Global
Note or a Global Unit, as the case may be, JPMorgan will
provide, in accordance with Settlement Procedures "E"
and "G", for the authentication and issuance of a Global
Note representing the Book-Entry Notes to be represented
by such Global Note and for the issuance of a Global
Unit representing the Book-Entry Units to be represented
by such Global Unit and, in each case, will make
appropriate entries in its records.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES AND
CERTIFICATED UNITS
JPMorgan will serve as registrar in connection with the
Certificated Notes and the Certificated Units.
Issuance: Each Certificated Note will be dated and issued as of
the date of its authentication by JPMorgan and each
Certificated Unit will be deemed to be dated as of the
date of the underlying Certificated Note or, if there is
not such underlying Certificated Note on the date of the
other securities comprised thereby. Each Certificated
Note will bear an Original Issue Date, which will be (i)
with respect to an original Certificated Note (or any
portion thereof), its
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original issuance date (which will be the settlement
date) and (ii) with respect to any Certificated Note (or
portion thereof) issued subsequently upon transfer or
exchange of a Certificated Note or in lieu of a
destroyed, lost or stolen Certificated Note, the
original issuance date of the predecessor Certificated
Note, regardless of the date of authentication of such
subsequently issued Certificated Note.
Preparation of Pricing
Supplement: If any order to purchase a Certificated Note or a
Certificated Unit is accepted by or on behalf of the
Company, the Company will prepare a pricing supplement
(a "Pricing Supplement") reflecting the terms of such
Note or Unit. The Company (i) will arrange to file with
the Commission an electronic format document, in the
manner prescribed by the EDGAR Filer Manual, of such
Pricing Supplement and of any Term Sheet in accordance
with, in the case of the Pricing Supplement, the
applicable paragraph of Rule 424(b) under the Securities
Act and, in the case of any Term Sheet, Rule 433 under
the Securities Act, (ii) will, with respect to each of
the Term Sheet, if applicable, and the Pricing
Supplement, as soon as possible and in any event not
later than the date on which the applicable document is
filed with the Commission, deliver the number of copies
of such document to the Agent as the Agent shall request
and (iii) will, on the Agent's behalf, promptly file
five copies of such Pricing Supplement with the National
Association of Securities Dealers, Inc. (the "NASD").
The Agent will cause the Term Sheet, if applicable, and
the Pricing Supplement to be delivered, or otherwise
made available, to the purchaser of the Note or Unit.
In each instance that a Pricing Supplement is prepared,
the Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated free writing
prospectuses, Term Sheets, Pricing Supplements, and the
Prospectuses to which they are attached (other than
those retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated Note
or a Certificated Unit delivered to the Agent and the
Agent's delivery of such Note or Unit against receipt of
immediately available funds shall constitute
"settlement" with respect to such Note or Unit. All
offers accepted by the Company will be settled on or
before the fifth Business
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Day next succeeding the date of acceptance pursuant to
the timetable for settlement set forth below, unless the
Company and the purchaser agree to settlement on another
date.
Settlement Procedures: Settlement Procedures with regard to each Certificated
Note and each Certificated Unit sold by the Company to
or through the Agent (unless otherwise specified
pursuant to a Notes Terms Agreement or a Units Terms
Agreement) shall be as follows:
A. In the case of Certificated Notes (whether issued
alone or as part of a Unit), the Agent will advise
the Company by telephone that such Note is a
Certificated Note and of the following settlement
information:
1. Name in which such Note is to be registered
("Registered Note Owner").
2. Address of the Registered Note Owner and address
for payment of principal and interest.
3. Taxpayer identification number of the Registered
Note Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated Note,
the Interest Rate, whether such Note will pay
interest annually or semiannually and whether
such Note is an Amortizing Note and, if so, the
amortization schedule, or, in the case of a
Floating Rate Certificated Note, the Initial
Interest Rate (if known at such time), Interest
Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index Maturity,
Index Currency, Interest Reset Period, Initial
Interest Reset Date, Interest Reset Dates,
Spread or Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum Interest Rate
(if any) and the Alternate Rate Event Spread (if
any).
7. Redemption or repayment provisions, if any.
8. Ranking.
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9. Settlement date and time (Original Issue Date).
10. Interest Accrual Date.
11. Price.
12. Agent's commission, if any, determined as
provided in the Distribution Agreement.
13. Denominations.
14. Specified Currency.
15. Whether the Note is an OID Note, and if it is an
OID Note, the applicability of Modified Payment
upon Acceleration (and if so, the Issue Price).
16. Whether the Note is a Renewable Note, and if it
is a Renewable Note, the Initial Maturity Date,
the Final Maturity Date, the Election Dates and
the Maturity Extension Dates.
17. Whether the Company has the option to reset the
Spread or Spread Multiplier of the Note.
18. Whether the Note is an Optionally Exchangeable
Note, a Mandatorily Exchangeable Note, or any
form of exchangeable Note.
19. Any other applicable provisions.
B. In the case of a Certificated Unit, the Agent will
advise the Company by telephone that such Unit is a
Certificated Unit, of the information set forth in
Settlement Procedure "A" above with respect to
Certificated Notes that constitute a part of such
Certificated Unit and of the following information:
1. Name in which such Unit is to be registered
("Registered Unit Owner").
2. Address of the Registered Unit Owner.
3. Taxpayer identification number of the Registered
Unit Owner (if available).
4. Denominations.
5. Settlement date and time.
6. Face Amount.
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7. Agent's commission, if any, determined as
provided in the Distribution Agreement.
8. Designation of the Securities comprised by such
Units:
a. Notes, if any (See Settlement Procedures
"A");
b. Warrants, if any; and
c. Purchase Contracts, if any.
9. Whether, and the terms under which, the
Securities comprised by such Unit will be
separately tradeable.
10. Any other provisions applicable to the Unit
(other than those provisions applicable to the
securities comprised by such Unit).
11. If the Certificated Unit comprises Certificated
Warrants:
a. Designation of the Series of Warrants:
[Call][Put] Warrants;
b. Warrant Property;
c. Aggregate Number of Warrants;
d. Price to Public;
e. Warrant Exercise Price;
f. Dates upon which Warrants may be exercised;
g. Expiration Date;
h. Form;
i. Currency in which exercise payments shall be
made;
j. Minimum number of Warrants exercisable by
any holder on any day;
k. Maximum number of Warrants exercisable on
any day: [In the aggregate] [By any
beneficial owner];
l. Formula for determining Cash Settlement
Value;
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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.
12. If the Certificated Unit comprises Certificated
Purchase Contracts:
a. Designation of the Series of Purchase
Contracts: [Purchase][Sale] Purchase
Contracts;
b. Purchase Contract Property;
c. Aggregate Number of Purchase Contracts;
d. Price to Public;
e. Settlement Date;
f. [Purchase/Sale] Price of Purchase Contract
Property;
g. Form; and
h. Any other applicable provisions.
C. The Company will advise JPMorgan by telephone or
electronic transmission (confirmed in writing at any
time on the sale date) of the information set forth
in Settlement Procedure "A" and "B" above, as
applicable, such advice to contain a representation
as to the aggregate principal amount of Program
Securities permitted to be issued hereunder after
such issuance.
D. The Company will have delivered to JPMorgan a
pre-printed four-ply packet for each Note and Unit,
which packet will contain the following documents in
forms that have been approved by the Company, the
Agent, the Trustee and the Unit Agent, as
applicable:
1. Note or Unit, as the case may be, with customer
confirmation.
2. Stub One - For JPMorgan.
3. Stub Two - For the Agent.
4. Stub Three - For the Company.
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E. JPMorgan will (i) with respect to a Note or
Cash-settled Pre-paid Purchase Contract,
authenticate such Note or Cash-settled Pre-paid
Purchase Contract and deliver it (with the
confirmation) and Stubs One and Two to the Agent or
(ii) with respect to a Unit, complete and deliver
the Unit (including countersigning and delivering
the Warrant, if any, and countersigning, executing
and delivering the Purchase Contract (other than a
Cash-settled Pre-paid Purchase Contract, if any)
with the confirmation Stubs One and Two to the
Agent. The Agent will acknowledge receipt of the
Note or the Unit, as the case may be, by stamping or
otherwise marking Stub One and returning it to
JPMorgan. Such delivery will be made only against
such acknowledgment of receipt and evidence that
instructions have been given by the Agent for
payment to the account of the Company at JPMorgan
Chase, New York, New York, or to such other account
as the Company shall have specified to the Agent and
JPMorgan in funds available for immediate use, of an
amount equal to the price of such Note or Unit less
the Agent's commission, if any. In the event that
the instructions given by the Agent for payment to
the account of the Company are revoked, the Company
will as promptly as possible wire transfer to the
account of the Agent an amount of immediately
available funds equal to the amount of such payment
made.
F. Unless the Agent is the end purchaser of such Note
or Unit, the Agent will deliver such Note or Unit
(with confirmation) to the customer against payment
in immediately payable funds. The Agent will obtain
the acknowledgment of receipt of such Note or Unit
by retaining Stub Two.
G. JPMorgan will send Stub Three to the Company by
first-class mail. Periodically, JPMorgan will also
send to the Company a statement setting forth, in
the case of the Notes, the principal amount of the
Notes outstanding as of that date under each
Indenture and, in the case of the Units, the
aggregate face amount of the Units outstanding under
the Unit Agreement and, in each case, setting forth
a brief description of any sales of which the
Company has advised JPMorgan that have not yet been
settled.
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Settlement Procedures
Timetable: For sales by the Company of Certificated Notes or of
Certificated Units to or through the Agent (unless
otherwise specified pursuant to a Notes Terms Agreement
or a Units Terms Agreement), Settlement Procedures "A"
through "G" set forth above shall be completed on or
before the respective times in New York City set forth
below:
Settlement
----------
Procedure Time
--------------
A 2:00 P.M. on day before settlement date
B 2:00 P.M. on day before settlement date
C 3:00 P.M. on day before settlement date
D-E 2:15 P.M. on settlement date
F 3:00 P.M. on settlement date
G 5:00 P.M. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and make
payment for any Certificated Note or any Certificated
Unit, the Agent will notify the Company and JPMorgan by
telephone and return such Note or Unit to JPMorgan. Upon
receipt of such notice, the Company will immediately
wire transfer to the account of the Agent an amount
equal to the amount previously credited thereto in
respect to such Note or Unit. Such wire transfer will be
made on the settlement date, if possible, and in any
event not later than the Business Day following the
settlement date. If the failure shall have occurred for
any reason other than a default by the Agent in the
performance of its obligations hereunder and under the
Distribution Agreement, then the Company will reimburse
the Agent or JPMorgan, as appropriate, on an equitable
basis for its loss of the use of the funds during the
period when they were credited to the account of the
Company. Immediately upon receipt of the Certificated
Note or the Certificated Unit in respect of which such
failure occurred, JPMorgan will mark such note or Unit
"canceled," make appropriate entries in JPMorgan's
records and send such Note or Unit, as the case may be,
to the Company.
B-21