EXHIBIT 1-e
MORGAN STANLEY
Global Medium-Term Notes, Series G and Series H
Global Units, Series G and Series H
EURO DISTRIBUTION AGREEMENT
January 25, 2006
Morgan Stanley & Co. International Limited
c/o Morgan Stanley & Co. International
Limited
25 Cabot Square
Canary Wharf London E14 4QA
United Kingdom
Dear Sirs:
Morgan Stanley, a Delaware corporation (the "Company"), confirms its
agreement with you with respect to the issue and sale from time to time by the
Company primarily outside the United States of up to $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 G and Series H, each due more than nine months from the date of issue
(the "Notes") and its Global Units, Series G and Series H (the "Units" and
together with the Notes, 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 result of the sale of
the Company's (i) Global Medium-Term Notes, Series F, to be sold primarily
inside the United States, (ii) Global Units, Series F, to be sold primarily
inside the United States, and (iii) the sale of certain of the Company's other
debt securities, warrants, common stock, preferred stock, purchase contracts
and units and of capital securities of certain Morgan Stanley Capital Trusts.
The Series G Notes are intended to be admitted to listing on the Official List
of the United Kingdom Financial Services Authority (the "UK Listing Authority")
in its capacity as United Kingdom competent authority for the purposes of
Directive 2003/71/EC (the "Prospectus Directive") and relevant implementing
measures in the United Kingdom, and to trading on the gilt edged and fixed
income market of the London Stock Exchange plc (the "London Stock Exchange") or
admitted to listing, trading and/or quotation by any other listing authority,
stock exchange and/or quotation system, if so required by Section 3(j) hereof.
Application may, in certain circumstances described in the Prospectus
Supplement (as defined below), be made to admit the Series G Units to the
Official List of the UK Listing Authority and to trading on the gilt edged and
fixed income market of the London Stock Exchange. The Series H Notes and the
Series H Units will not be listed on any stock exchange.
The Notes may be issued as senior indebtedness (the "Senior Notes") or as
subordinated indebtedness (the "Subordinated Notes") of the Company. The Senior
Notes will be issued, either alone or as part of a Unit, pursuant to the
provisions of an amended and restated senior indenture dated as of November 1,
2004, between the Company and JPMorgan Chase Bank, N.A. (formerly known as
JPMorgan Chase Bank), as trustee (the "Senior Debt Trustee") (as may be
supplemented or amended from time to time, the "Senior Debt Indenture"). The
Subordinated Notes will be issued pursuant to the provisions of a subordinated
indenture dated as of October 1, 2004, between the Company and J.P. Morgan
Trust Company, National Association, as trustee (the "Subordinated Debt
Trustee") (as may be supplemented or amended from time to time, the
"Subordinated Debt Indenture"). The Senior Debt Indenture and the Subordinated
Debt Indenture are sometimes hereinafter referred to individually as an
"Indenture" and collectively as the "Indentures," and the Senior Debt Trustee
and the Subordinated Debt Trustee are sometimes hereinafter referred to
individually as a "Trustee" and collectively as the "Trustees." Purchase
contracts ("Purchase Contracts") that require holders to satisfy their
obligations thereunder when such Purchase Contracts are issued are referred to
as "Pre-paid Purchase Contracts." Pre-paid Purchase Contracts that settle in
cash ("Cash-settled Pre-paid Purchase Contracts") generally will be issued
under an Indenture. Pre-paid Purchase Contracts that do not settle in cash
("Physically-settled Pre-paid Purchase Contracts") generally will be issued
under the Unit Agreement or the Unit Agreement Without Holders' Obligations
(each as defined below).
The Units will be issued either pursuant to the Unit Agreement dated as of
November 1, 2004, among the Company, JPMorgan Chase Bank, N.A. (formerly known
as JPMorgan Chase Bank), as Unit Agent, as Collateral Agent, as Trustee and
Paying Agent under the Indenture referred to therein, and as Warrant Agent
under the Warrant Agreement referred to therein, and the holders from time to
time of the Units described therein (as may be amended from time to time, the
"Unit Agreement") or, if the Units do not include Purchase Contracts (or
include only Pre-paid Purchase Contracts), pursuant to a Unit Agreement among
the Company and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase
Bank), as Unit Agent, as Trustee and Paying Agent under the Indenture referred
to therein, and as Warrant Agent under the Warrant Agreement referred to
therein, in the form of such agreement filed as an exhibit to the Registration
Statement referred to below (each such agreement, a "Unit Agreement Without
Holders' Obligations").(1) Units may include one or more (i) Senior Notes, (ii)
warrants ("Warrants") entitling the holders thereof to purchase or sell (a)
securities issued by the Company or by an entity not affiliated with the
Company (or securities issued by an entity affiliated with the Company in the
case of Series H Units), a basket of such securities, an index or indices of
such securities or any 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 not affiliated with the
Company (or securities issued by an entity affiliated with the Company in the
case of Series H Units), a basket of such securities, an index or indices of
such securities or any 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
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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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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 below and any Term Sheets (as defined
in Section 3(m) 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 has initially appointed (i) JPMorgan Chase Bank, N.A.
(formerly known as JPMorgan Chase Bank), London Branch, at its principal office
in London, as principal paying agent for the Senior Notes (in such capacity,
the "Senior Principal Paying Agent") and (ii) the Subordinated Debt Trustee
(acting through JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase
Bank), London Branch, at its principal office in London, as its sub-agent) as
principal paying agent for the Subordinated Notes (in such capacity, the
"Subordinated Principal Paying Agent"). References herein to the "Principal
Paying Agent" are to the Senior Principal Paying Agent (in the case of duties
relating to the Senior Notes) or to the Subordinated Principal Paying Agent (in
the case of duties relating to the Subordinated Notes).
The Notes will be issued in bearer form or in definitive registered form
without coupons (the "Registered Notes"), the Units will be issued in bearer
form or in definitive registered form (the "Registered Units") and the
securities included in a Unit will be in the form of such Unit. The Program
Securities issued in bearer form will be represented initially by, in the case
of the Notes, a temporary global Note and, in the case of the Units, a
temporary global Unit, each of which will be delivered to a common depositary
located outside the United States for Euroclear Bank S.A./N.V., as operator of
the Euroclear System (the "Euroclear Operator"), Clearstream Banking, societe
anonyme ("Clearstream"), or any other relevant clearing system. Beneficial
interests in a temporary global Note or a temporary global Unit will be
exchangeable for beneficial interests in, in the case of a temporary global
Note, a permanent global Note and, in the case of a temporary global Unit, a
permanent global Unit. Beneficial interests in a permanent global Note will be
exchangeable in whole, but not in part, for definitive Notes in bearer form,
with interest coupons attached, upon receipt of the Principal Paying Agent of
an initial request to so exchange by any holder of a beneficial interest in
such permanent global Note (such temporary global Note, permanent global Note
and definitive Notes in bearer form are collectively referred to as the "Bearer
Notes"), and Bearer Notes, if the applicable Pricing Supplement so specifies,
will be exchangeable in whole or in part for Registered Notes. Beneficial
interests in a permanent global Unit (including an interest in the securities
included in such Unit) will be exchangeable in whole, but not in part, for
definitive Units in bearer form upon receipt of the Unit Agent of an initial
request to so exchange by any holder of a beneficial
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interest in such permanent global Unit (such temporary global Unit, permanent
global Unit and definitive Units in bearer form are collectively referred to as
the "Bearer Units") and Bearer Units, if the applicable Pricing Supplement so
specifies, will be exchangeable in whole or in part for Registered Units. As
used in this Agreement, the term "Note" includes any temporary global Note or
permanent global Note issued pursuant to the Indentures and the term "Unit"
includes any temporary global Unit or permanent global Unit issued pursuant to
the Unit Agreement.
The Company hereby appoints you as its exclusive agent 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 Prospectus, any preliminary prospectus, the
Time
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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
necessary to make the statements therein, in the light of the
circumstances under which
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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 qualification,
except to the extent that the failure to be so qualified or be in
good standing
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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 and
Non-Pre-paid Purchase Contracts, the Unit Agreement and (ii) in the
case of Warrants, the Warrant Agreement. When such Units have been
delivered to and duly paid for by the purchasers thereof and (A) any
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid
Purchase Contracts included in such Units have been executed by the
Company and countersigned by the Unit Agent and (B) any Warrants
included in such Units have been executed by the Company and
countersigned by the Warrant Agent, such Units (including any such
Physically-settled Pre-paid Purchase Contracts, Non-Pre-paid Purchase
Contracts or Warrants contained therein) will be entitled to the
benefits of the
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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, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
8
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 Warrants) and 1(l), when made as of the
Commencement Date, or as of any date on which you
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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 agent
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 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
10
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."
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 G and Series H and Global Units, Series G and
Series H, Administrative
11
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 agent 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
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
12
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, (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 and (vi) of the issuance by any
non-United States regulatory authority of any request for information
relating to the Program Securities or suspension of the listing, trading
and/or quotation of any Program Securities then admitted to listing,
trading and/or quotation by any listing authority, stock exchange and/or
quotation system. The Company will use its best efforts to prevent the
issuance of any such stop order or notice of suspension of qualification
or listing and, if issued, to obtain as soon as possible the withdrawal
thereof. If the Basic Prospectus is amended or supplemented as a result of
the filing under the Exchange Act of any document incorporated by
reference in the Prospectus, you shall not be obligated to solicit offers
to purchase Program Securities so long as you are not reasonably satisfied
with such document.
(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 or made available to purchasers of the Program Securities, any event
occurs or condition exists as a result of which the Prospectus, as then
amended or supplemented, would include an untrue statement of a material
fact, or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances when the Prospectus (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
13
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 paragraph 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
the 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 the Agent
that purchases Program Securities pursuant to a Notes Terms Agreement or
Units Terms Agreement or solicits an offer to purchase Program Securities
that is accepted by the Company, prior to 10:00 a.m. New York City time on
the business day next succeeding the date of such Notes Terms Agreement or
Units Terms Agreement or the acceptance of such offer, as many copies of
the Prospectus, as then amended or supplemented (including the Time of
Sale Prospectus and the Prospectus Supplement relating to the Program
Securities to be purchased pursuant to
14
such Notes Terms Agreement or Units Terms Agreement or accepted offer), as
such Agent may reasonably request.
(h) 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.
(i) 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.
(j) 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, of the Warrant Agent and its counsel and of the Principal Paying
Agent and its counsel and any paying agents for the Program Securities
appointed by the Company 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 fees and expenses incurred with
respect to the admission of the Series G Notes (and the Series G Units, if
application for such admission is made) to the Official List of the UK
Listing Authority and to trading on the London Stock Exchange or to
listing, trading and/or quotation by any other listing authority, stock
exchange and/or quotation system if so required by Section 3(o) hereof,
(iv) all filing fees and the reasonable fees and disbursements of your
counsel, if any, 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
15
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 Note
Terms Agreement and any Unit 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.
(k) 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.
(l) During the period beginning on the date of any Notes Terms
Agreement or Units Terms Agreement relating to either Notes or Units, as
the case may be, and continuing to and including the Settlement Date with
respect to such Notes Terms Agreement or Units Terms Agreement, the
Company will not, without your prior consent, offer, sell, contract to
sell or otherwise dispose of (i) in the case of Notes, any debt securities
of the Company substantially similar to the Notes set forth in such Notes
Terms Agreement (other than (A) the Notes that are to be sold pursuant to
such Notes Terms Agreement, (B) Notes previously agreed to be sold by the
Company and (C) commercial paper issued in the ordinary course of
business) or (ii) in the case of Units, any securities substantially
similar to such Units (other than (A) the Units that are sold pursuant to
such Units Terms Agreement or (B) Units previously agreed to be sold by
the
16
Company), in each case, except as may otherwise be provided in the
applicable Notes Terms Agreement or Units Terms Agreement.
(m) 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.
(n) The Company will indemnify and hold you harmless against any
documentary, stamp or similar transfer or issue tax, including any
interest and penalties, on the issue of the Program Securities in
accordance with the terms of this Agreement, on the execution and delivery
of this Agreement, any Written Notes Terms Agreement or Written Units
Terms Agreement and on the exchange of any temporary global Notes for
definitive Notes or permanent global Notes, of any temporary global Units
for definitive Units or permanent global Units, of any permanent global
bearer Notes for definitive bearer Notes or of any permanent global bearer
Units for definitive bearer Units, that are or may be required to be paid
under the laws of the United Kingdom, the United States or any political
subdivision or taxing authority thereof or therein.
(o) In connection with any application to admit the Series G Notes or
Series G Units to the Official List of the UK Listing Authority and to
trading on the gilt edged and fixed income market of the London Stock
Exchange, the Company will furnish from time to time any and all
documents, instruments, information and undertakings and publish all
advertisements or other material that may be necessary in order to effect
such listing and trading and will maintain such listing and trading until,
(i) in the case of the Notes, none of the Series G Notes is outstanding,
either as part of a Unit or otherwise, or until such time as payment of
principal, premium, if any, and interest in respect of all the Series G
Notes, whether issued alone or as part of a Unit, has been duly provided
for, whichever is earlier and (ii) in the case of the Units, none of the
Series G Units is outstanding; provided, however, that if the Company can
no longer reasonably maintain such listing and trading, including, but not
limited to, in circumstances where obtaining or the maintenance of such
listing would require preparation of financial statements in accordance
with accounting standards other than U.S. GAAP or where the proposed
European Union Transparency Obligations Directive (the "Directive") is
implemented in a manner that, in the Company's opinion, is burdensome, it
will consider obtaining and maintaining the quotation for, or listing and
trading of, the Series G Notes and Series G Units by such other listing
authority, stock exchange and/or quotation system (in the case of a
delisting in response to the Directive, outside the European Union) as you
shall reasonably request. However, if such an alternative listing is not
available to the Company or is, in the Company's opinion, burdensome, an
alternative listing for the Series G Notes and Series G Units need not be
considered by the Company. In addition, for so long as the Series G Notes
and Series G Units are admitted to listing, trading and/or quotation by a
listing authority, stock exchange and/or quotation system, and such
listing authority, stock exchange and/or quotation system so requires, the
Company will maintain in London, or in such other place as the Series G
Notes and Series G Units are
17
listed (if the Series G Notes and Series G Units are no longer listed on
the London Stock Exchange), a paying agent in respect of the Series G
Notes or Series G Units, as required.
(p) In respect of any Notes which have a maturity of less than one
year where either (a) the issue proceeds of such Notes are received by the
Company in the United Kingdom or (b) the activity of issuing such Notes is
carried on from an establishment maintained by the Company in the United
Kingdom, the Company will issue such Notes only if the following
conditions apply (or the Notes can otherwise be issued without
contravention of Section 19 of the Financial Services and Markets Act 2000
(the "FSMA")): (i) you represent, warrant and agree in the terms relating
to the Notes set out in Section 7(b)(i); and (ii) the redemption value of
each such Note is not less than (pound)100,000 (or an amount of equivalent
value denominated wholly or partly in a currency other than sterling), and
no part of any Note may be transferred unless the redemption value of that
part is not less than (pound)100,000 (or such an equivalent amount).
4. Conditions of the Obligations of the Agents. Your obligation to solicit
offers to purchase Program Securities as agent 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 such a change in national or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would in your view be likely
to prejudice materially the success of the offering and distribution
of the Program Securities or dealings in the Program Securities in
the secondary market; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review
18
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 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
19
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 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
20
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;
(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
21
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; 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) in
the Registration Statement, as then amended or supplemented,
under Item 15, (3) in "Item 3. Legal Proceedings" of the most
recent annual report on Form 10-K incorporated by reference in
the Prospectus and the Time of Sale Prospectus, if applicable,
and (4) in "Item 1. Legal Proceedings" of Part II of the
quarterly reports on Form 10-Q, if any, filed since such annual
report and incorporated by reference in the Prospectus 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;
22
(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 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
23
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 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
24
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 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.
25
(e) On the Commencement Date and on each Settlement Date, the Company
shall have furnished to you such appropriate further information,
certificates and documents as you may reasonably request.
(f) On the Commencement Date, application to admit the Series G Notes
issued by the Company during the twelve months following the date of the
approval of such application to listing on the Official List of the UK
Listing Authority and to trading on the London Stock Exchange shall have
been made and, prior to the issuance of the first Series G Note offered
pursuant to this Agreement, such admission to listing and to trading shall
have been granted, subject to official notice of issuance.
5. Additional Agreements of the Company. (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 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
26
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 either 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 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,
27
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
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
28
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) above that were offered and
sold to the public through you exceeds the amount of any damages that you
have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for
in this Section 6 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law
or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6 and the representations, warranties and other statements of the
Company, its officers and you 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 or any person
controlling you, 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. Offering Restrictions. You hereby represent to the Company and agree
with respect to the Program Securities that:
(a) (i) you have not (A) offered, sold or delivered and will not
offer, sell or deliver during the Restricted Period (as defined below)
Bearer Notes (whether offered alone or as part of a Unit) (including any
Note that is exchangeable for Bearer Notes) directly or indirectly in the
United States (as defined below) or to or for the account of any United
States person (as defined below), other than to a Qualifying Foreign Branch
(as defined below) or to certain other persons as provided under United
States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(1)(iii)(B) and (C);
and (B) delivered and will not deliver within the United States definitive
Bearer Notes that are sold during the Restricted Period;
29
(ii) you have, and throughout the Restricted Period will have, in
effect procedures reasonably designed to ensure that your employees or
agents who are directly engaged in selling Bearer Notes (whether
offered alone or as part of a Unit) are aware that such Bearer Notes
may not be offered or sold during the Restricted Period to a person
who is within the United States or to a United States person, except
as permitted by Section 7(a)(i)(A) above;
(iii) if you are a United States person, you are acquiring the
Bearer Notes (whether offered alone or as part of a Unit) for purposes
of resale in connection with their original issuance and if you retain
Bearer Notes for your own account, you will only do so in accordance
with the requirements of United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(6);
(iv) if you transfer to any affiliate Bearer Notes (whether
offered alone or as part of a Unit) for the purpose of offering or
selling such Bearer Notes during the Restricted Period, you will
either (A) obtain from such affiliate for the benefit of the Company
the representations and agreements contained in clauses (i), (ii) and
(iii) above or (B) repeat and confirm the representations and
agreements contained in clauses (i), (ii) and (iii) above on such
affiliate's behalf and obtain from such affiliate the authority to so
obligate it;
(v) you will obtain for the benefit of the Company the
representations and agreements contained in clauses (i), (ii), (iii)
and (iv) above from any person other than your affiliate with whom you
enter into a written contract, within the meaning of United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(4), for the offer or
sale during the Restricted Period of Bearer Notes (whether offered
alone or as part of a Unit); and
(vi) you will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Bearer Notes
(whether offered alone or as part of a Unit) may be offered, sold,
resold or delivered.
For purposes of this Section 7(a), an offer or sale will be considered to
be made in the United States if the offeror or seller of such Notes (whether
offered alone or as part of a Unit) has an address within the United States for
the offeree or purchaser of such Notes with respect to the offer or sale. As
used in this Section 7(a), "United States person" means a citizen or resident of
the United States, a corporation or partnership (including an entity treated as
a corporation or partnership for United States federal income tax purposes)
created or organized in or under the laws of the United States, any State
thereof or the District of Columbia, an estate the income of which is subject to
United States federal income taxation regardless of its source or a trust if
both (x) a court within the United States is able to exercise primary
supervision over the administration of the trust and (y) one or more United
States persons have the authority to control all substantial decisions of the
trust; "United States" means the United States (including the States and the
District of Columbia), its territories, its possessions and any other areas
subject to its jurisdiction; "Qualifying Foreign Branch" means a branch of a
United States financial institution, as defined in the applicable United States
Treasury Regulations, located outside the
30
United States that is purchasing for its own account or for resale and that has
agreed, as a condition to purchase, to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended (the "Code"), and the regulations thereunder; and "Restricted Period"
with respect to each issuance means the period which begins on the earlier of
the date on which the Company receives the proceeds of the sale of Notes with
respect to such issuance or the first date on which the Notes are offered to
persons other than you, and which ends 40 days after the date on which the
Company receives the proceeds of the sale of such Notes; provided that with
respect to a Note held as part of an unsold allotment or subscription, any offer
or sale of such Note by the Company or you shall be deemed to be during the
Restricted Period.
(b) With respect to Notes and Warrants to be offered or sold in the
United Kingdom:
(i) in relation to any Notes which have a maturity of less than
one year, (x) you are a person whose ordinary activities involve you
in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of your business and (y) you have
not offered or sold and will not offer or sell any Notes other than to
persons:
(A) whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or as
agent) for the purposes of their businesses; or
(B) who it is reasonable to expect will acquire, hold,
manage or dispose of investments (as principal or agent) for the
purposes of their businesses
where the issue of the Notes would otherwise constitute a
contravention of Section 19 of the FSMA by the Company;
(ii) you have only communicated or caused to be communicated and
will only communicate or cause to be communicated an invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the FSMA) received by you in connection with the issue
or sale of any Notes or Warrants in circumstances in which Section
21(1) of the FSMA does not apply to the Company; and
(iii) you have complied and will comply with all applicable
provisions of the FSMA with respect to anything done by you in
relation to any Notes or Warrants in, from or otherwise involving the
United Kingdom.
(c) You will not purchase, deliver, offer or sell any Program
Securities or possess or distribute offering material in relation to such
Program Securities in any jurisdiction if such purchase, delivery, offer or
sale or the possession or distribution of such offering material would not
be in compliance with any applicable law or regulation or if any consent,
approval or permission is needed for such purchase, delivery, offer or sale
or the possession or distribution by you or for or on behalf of the Company
unless
31
such consent, approval or permission has been previously obtained. Without
prejudice to the provisions of this Section 7 above and subject to the
obligations of the Company set forth in Section 3 of this Agreement, the
Company shall have no responsibility for, and you will obtain, any consent,
approval or permission required by you for the subscription, offer, sale or
delivery by you of Program Securities, or the possession or distribution of
any offering materials, under the laws and regulations in force in any
jurisdiction to which you are subject or in or from which you make any
subscription, offer, sale or delivery.
(d) You will not offer or sell any Program Securities, directly or
indirectly, in Japan or to, or for the benefit of, any resident of Japan
(which term as used herein means any person resident in Japan including any
corporation or other entity organized under the laws of Japan) or to others
for the re-offering or re-sale, directly or indirectly, in Japan or to a
resident of Japan except pursuant to an exemption from the registration
requirements of, and otherwise in compliance with, the Securities and
Exchange Law of Japan and other relevant laws and regulations of Japan.
(e) The Agent and the Company represents and agrees that Program
Securities will be issued outside the Republic of France, that it will not
offer or sell any Program Securities in the Republic of France and will not
distribute or cause to be distributed in the Republic of France the
Prospectus or any other offering material relating to Program Securities,
except to qualified investors (investisseurs qualifies) as defined in and
in accordance with Articles L.411-2 and D.411-1 of the Code Monetaire et
Financier.
(f) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State (the "Relevant
Implementation Date") you have not made and will not make an offer of Notes
to the public in that Relevant Member State except that you may, with
effect from and including the Relevant Implementation Date, make an offer
of Notes to the public in that Relevant Member State:
(i) in (or in Germany, where the offer starts within) the period
beginning on the date of publication of a prospectus in relation to
those Notes which has been approved by the competent authority in that
Relevant Member State or, where appropriate, approved in another
Relevant Member State and notified to the competent authority in that
Relevant Member State, all in accordance with the Prospectus Directive
and ending on the date which is 12 months after the date of such
publication;
(ii) at any time to legal entities which are authorized or
regulated to operate in the financial markets or, if not so authorized
or regulated, whose corporate purpose is solely to invest in
securities;
(iii) at any time to any legal entity which has two or more of
(1) an average of at least 250 employees during the last financial
year; (2) a total balance
32
sheet of more than (euro)43,000,000 and (3) an annual net turnover of
more than (euro)50,000,000, as shown in its last annual or
consolidated accounts; or
(iv) at any time in any other circumstances which do not require
the publication by the Issuer of a prospectus pursuant to Article 3 of
the Prospectus Directive.
For the purposes of this Section 7(f), the expression an "offer of Notes to
the public" in relation to any Notes in any Relevant Member State means the
communication in any form and by any means of sufficient information on the
terms of the offer and the Notes to be offered so as to enable an investor
to decide to purchase or subscribe the Notes, as the same may be varied in
that Member State by any measure implementing the Prospectus Directive in
that Member State and the expression Prospectus Directive includes any
relevant implementing measure in each Relevant Member State.
8. Position of the Agent. In acting under this Agreement and in connection
with the sale of any Program Securities by the Company (other than Program
Securities sold to you pursuant to a Notes Terms Agreement or Units Terms
Agreement, as the case may be), you are acting solely as agent of the Company
and do not assume any obligation towards or relationship of agency or trust with
any purchaser of Program Securities. You shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Program Securities has been solicited by you and accepted by the Company, but
you shall not have any liability to the Company in the event any such purchase
is not consummated for any reason. If the Company shall default in its
obligations to deliver Program Securities to a purchaser whose offer it has
accepted, the Company shall hold you harmless against any loss, claim, damage or
liability arising from or as a result of such default and shall, in particular,
pay to you the commission you would have received had such sale been
consummated.
9. Termination. This Agreement may be terminated at any time either by the
Company or by you upon the giving of written notice of such termination to the
other parties hereto, but without prejudice to any rights, obligations or
liabilities of the other parties hereto accrued or incurred prior to such
termination. The termination of this Agreement shall not require termination of
any Notes Terms Agreement or Units Terms Agreement, and the termination of any
such Notes Terms Agreement or Units Terms Agreement shall not require
termination of this Agreement. If this Agreement is terminated, the provisions
of the third paragraph of Section 2(a), the last sentence of Section 3(e) and
Sections 3(f), 3(h), 3(j), 3(k), 6, 7, 8, 10, 11 and 13 shall survive; provided
that if at the time of termination an offer to purchase Program Securities has
been accepted by the Company but the time of delivery to the purchaser or its
agent of such Program Securities has not occurred, the provisions of Sections 1,
2(b), 2(c), 3(d), 3(g), 3(h), 3(f), 3(i), 4 and 5 shall also survive until such
delivery has been made.
10. Notices. All communications hereunder will be in writing and effective
only on receipt, and (a) if sent to Morgan Stanley & Co. International Limited,
will be mailed, delivered or telefaxed and confirmed to Morgan Stanley & Co.
International Limited, 25 Cabot Square, Canary Wharf, London E14 4QA, United
Kingdom, to the attention of Global Capital Markets - Head of Transaction
Management Group (Telephone No.: +44-20-7677-7799; Telecopy No.:
+44-20-7677-7999) and (b) if sent to the Company, will be mailed, delivered or
telefaxed and
33
confirmed to Morgan Stanley, 1221 Avenue of the Americas, New York, New York
10020, Attention: Treasurer (Telecopy No.: 212-762-7337) (or to such other
address as the Company may designate).
11. Successors. This Agreement and any Notes Terms Agreement or Units Terms
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors and controlling
persons referred to in Section 6 and the purchasers of Notes and Units (to the
extent expressly provided in Section 4), and no other person will have any right
or obligation hereunder.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York.
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.
34
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
MORGAN STANLEY
By:
-----------------------------------
Name: Jai Sooklal
Title: Assistant Treasurer
The foregoing Agreement is
hereby confirmed and accepted as
of the date first above written.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:
---------------------------------
Name:
Title:
EXHIBIT A
MORGAN STANLEY
GLOBAL MEDIUM-TERM NOTES, SERIES G AND SERIES H
NOTES TERMS AGREEMENT
_____________, 200_
Morgan Stanley
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated January 25, 2006
(the "Euro Distribution Agreement")
--------------------------------------------------------
The undersigned agrees to purchase your Global Medium-Term Notes, Series
G/H, [specific designation] 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 Payment Index Maturity:
upon Acceleration:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Interest Alternate Rate Event Spread:
Payments:
Specified Currency: Denominated Currency (if any): Initial Interest Rate:
Original Issue Date: Indexed Currency or Currencies (if Initial Interest Reset Date:
any):
A-1
All Notes Fixed Rate Notes Floating Rate Notes
- ------------------------------ ------------------------------------- ---------------------------------
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if any): Interest Reset Period:
Interest Payment Period: Reference Dealers: Maximum Interest Rate:
Maturity Date: Face Amount (if any): Minimum Interest Rate:
Optional Repayment Date(s): Fixed Amount of each Indexed Calculation Agent:
Currency (if any):
Optional Redemption Date(s): Aggregate Fixed Amount of each Reporting Service:
Indexed Currency (if any):
Initial Redemption Date: Index Currency:
Initial Redemption Designated CMT Telerate Page:
Percentage:
Annual Redemption Designated CMT Maturity Index:
Percentage Reduction:
Ranking:
Series:
Minimum Denominations:
Other Terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and 10 through
14 of the Euro Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is also subject to termination on the terms incorporated by
reference herein. If this Agreement is so terminated, the provisions of Sections
3(j), 6, 10, 11 and 13 of the Euro Distribution Agreement shall survive for the
purposes of this Agreement.
A-2
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the Euro Distribution Agreement will be required:
________________.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:
---------------------------------
Name:
Title:
Accepted:
MORGAN STANLEY
By:
--------------------------------
Name: Jai Sookal
Title: Assistant Treasurer
A-3
EXHIBIT A-1
MORGAN STANLEY
GLOBAL UNITS, SERIES G AND SERIES H
UNITS TERMS AGREEMENT
_______________, 200_
Morgan Stanley
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated January 25, 2006
(the "Euro Distribution Agreement")
---------------------------------------------------------
The undersigned agrees to purchase your Global Units, Series G/H,
[specified designation] 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.
Warrants Issued as Part of a Purchase Contracts Issued
All Units: Unit: as Part of a Unit:
- ------------------------- ------------------------------------- --------------------------------------
Settlement Date and Time: Price: Price:
Number (Face Amount): Designation of the Series of Designation of the Series of
Warrants: [Call] [Put] Warrants Purchase Contracts: [Purchase][Sale]
Purchase Contracts
Purchase Price: Warrant Property: Aggregate Number of Purchase
Contracts:
Specified Currency: Aggregate Number of Warrants: Purchase Contract Property:
Severability: Date(s) upon which Warrants Quantity per Purchase
A-1-1
Warrants Issued as Part of a Purchase Contracts Issued
All Units: Unit: as Part of a Unit:
- ------------------------- ------------------------------------- --------------------------------------
may be exercised: Contract
Other Terms: Currency in which exercise payments [Purchase] [Sale] Price:
shall be made:
Exchange Rate (or method of Settlement Date:
calculation:
Expiration Date: Payment Location:
Form of Settlement: Method of Settlement:
[Call Price:](1)
[Formula for determining Cash Currency of Settlement Payment:
Settlement Value:](2)
[Amount of Warrant Property Salable Contract Fees, if any:
per Warrant:](3)
[Put Price for such specified amount Corporation Acceleration:
of Warrant Property per Warrant:](1)
[Method of delivery of any Warrant Holders' Acceleration:
Property to be delivered for sale
upon exercise of Warrants:](2)
Other Terms: Redemption Provisions:
Other Terms:
- -----------------------------
(1) Applicable to Call Warrants
(2) Applicable to Put Warrants
(3) Applicable to Put Warrants only if such Put Warrants contemplate that
the holder deliver Warrant Property to settle Put Warrants
A-1-2
All Notes Issued as Part of a Fixed Rate Notes Issued as Floating Rate Notes Issued as Part
Unit: Part of a Unit: of a Unit:
- ----------------------------- ---------------------------------- ----------------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Payment Index Maturity:
upon Acceleration:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Interest Alternate Rate Event Spread:
Payments:
Specified Currency: Denominated Currency (if any): Initial Interest Rate:
Original Issue Date: Indexed Currency or Currencies (if Initial Interest Reset Date:
any):
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if any): Interest Reset Period:
Interest Payment Period: Reference Dealers: Maximum Interest Rate:
Maturity Date: Face Amount (if any): Minimum Interest Rate:
Optional Repayment Date(s): Fixed Amount of each Indexed Calculation Agent:
Currency (if any):
Optional Redemption Date(s): Aggregate Fixed Amount of each Reporting Service:
Indexed Currency (if any):
Initial Redemption Date: Index Currency:
Initial Redemption Percentage: Designated CMT Telerate Page:
Annual Redemption Percentage Designated CMT Maturity Index:
Reduction:
Ranking:
A-1-3
All Notes Issued as Part of a Fixed Rate Notes Issued as Floating Rate Notes Issued as Part
Unit: Part of a Unit: of a Unit:
- ----------------------------- ---------------------------------- ----------------------------------
Series:
Minimum Denominations:
Other Terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and 10 through
14 of the Euro Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.(4)
This Agreement is also subject to termination on the terms incorporated by
reference herein. If this Agreement is terminated, the provisions of Sections
3(j), 6, 10, 11 and 13 of the Euro Distribution Agreement shall survive for the
purposes of this Agreement.
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the Euro Distribution Agreement will be required:
___________.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:
------------------------------
Name:
Title:
Accepted:
MORGAN STANLEY
By:
----------------------------------
Name: Jai Sookal
Title: Assistant Treasurer
- -----------------------------
(4) In the case of Physically-settled Pre-paid Purchase Contracts issued
under a Unit Agreement Without Holders' Obligations, additional representations
and warranties will be added with respect to such Physically-settled Pre-paid
Purchase Contracts and the opinions of counsel delivered pursuant to Sections
4(b)(i) and 4(b)(ii) will cover such additional representations and warranties,
as appropriate.
A-1-4
EXHIBIT B
MORGAN STANLEY
GLOBAL MEDIUM TERM NOTES, SERIES G AND SERIES H
GLOBAL UNITS, SERIES G AND SERIES H
ADMINISTRATIVE PROCEDURES
-------------------------
Explained below are the administrative procedures and specific terms of the
offering of (i) Global Medium-Term Notes, Series G (the "Series G Notes"), (ii)
Global Medium Term Notes, Series H (the "Series H Notes" and together with the
Series G Notes, the "Notes"), (iii) Global Units, Series G (the "Series G
Units") and (iv) Global Units, Series H (the "Series H Units" and together with
the Series G Units, the "Units", and the Units together with the Notes, the
"Program Securities"), on a continuous basis by Morgan Stanley (the "Company")
pursuant to the Euro Distribution Agreement dated January 25, 2006 (as may be
amended from time to time, the "Distribution Agreement") between the Company and
Morgan Stanley & Co. International Limited (the "Agent"). The Notes may be
issued, either alone or as part of a Unit, in registered form without coupons
("Registered Notes"), in bearer form with or without coupons ("Bearer Notes") or
in any combination of Registered Notes and Bearer Notes. The Units may be issued
in registered form ("Registered Units"), in bearer form ("Bearer Units") or in
any combination of Registered Units and Bearer Units. The securities comprised
by a Unit will be issued in the same form as such Unit. Bearer Notes and Bearer
Units initially will be represented by, in the case of Bearer Notes, a Temporary
Global Note and, in the case of Bearer Units, a Temporary Global Unit. Such
Temporary Global Note and Temporary Global Unit will subsequently be represented
by, in the case of the Temporary Global Note, a Permanent Global Note and, in
the case of the Temporary Global Unit, a Permanent Global Unit. Interests in a
Permanent Global Note may be exchanged, in whole, for individual definitive
Bearer Notes with or without coupons attached. Definitive Bearer Notes may be
exchanged, if the applicable Pricing Supplement so specifies, in whole or in
part, for Registered Notes. Interests in a Permanent Global Unit may be
exchanged, in whole, for individual definitive Bearer Units. Definitive Bearer
Units may be exchanged, if the applicable Pricing Supplement so specifies, in
whole or in part, for Registered Units.
The Notes may be issued as senior indebtedness (the "Senior Notes") or
subordinated indebtedness (the "Subordinated Notes") of the Company, and as used
herein the term "Notes" includes the Senior Notes and the Subordinated Notes.
The Senior Notes will be issued, either alone or as part of a Unit, pursuant to
the provisions of an amended and restated senior indenture dated November 1,
2004 (as may be supplemented or amended from time to time, the "Senior Debt
Indenture"), between the Company and JPMorgan Chase Bank, N.A. (formerly known
as JPMorgan Chase Bank), as trustee (the "Senior Debt Trustee"). The
Subordinated Notes will be issued pursuant to the provisions of a subordinated
indenture, dated as of October 1, 2004 (as
B-1
may be supplemented or amended from time to time, the "Subordinated Debt
Indenture"), between the Company and J.P. Morgan Trust Company, National
Association, as trustee. The Senior Debt Indenture and the Subordinated Debt
Indenture are sometimes hereinafter referred to individually as an "Indenture"
and collectively as the "Indentures." Purchase contracts ("Purchase Contracts")
that require holders to satisfy their obligations thereunder when such Purchase
Contracts are issued are referred to as "Pre-paid Purchase Contracts." Pre-paid
Purchase Contracts that settle in cash ("Cash-settled Pre-paid Purchase
Contracts") generally will be issued under the Indentures. Pre-paid Purchase
Contracts that do not settle in cash ("Physically-settled Pre-paid Purchase
Contracts") generally will be issued under the Unit Agreement or the Unit
Agreement Without Holders' Obligations (each as defined below).
Unless otherwise specified in 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 the Warrant Agreement
referred to therein, in the form of such agreement filed as an exhibit to the
Registration Statement (each such agreement, a "Unit Agreement Without Holders'
Obligations").(1) Units may include one or more (i) Series G & H Senior Notes,
(ii) warrants ("Warrants") entitling the holders thereof to purchase or sell (a)
securities issued by the Company or by an entity not affiliated with the Company
(or securities issued by an entity affiliated with the Company in the case of
Series H Units), a basket of such securities, an index or indices of such
securities or any other property, (b) currencies, (c) commodities or (d) any
combination of the foregoing, (iii) purchase contracts ("Purchase Contracts"),
including Pre-paid Purchase Contracts, requiring the holders thereof to purchase
or sell (a) securities issued by the Company or by an entity not affiliated with
the Company (or securities issued by an entity affiliated with the Company in
the case of Series H Units), a basket of such securities, an index or indices of
such securities or any other property, (b) currencies, (c) commodities or (d)
any combination of the foregoing, (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.
- -----------------------------
(1) The Unit Agreement Without Holders' Obligations shall include
provisions to allow for the issuance of Pre-paid Purchase Contracts that are not
issued under the Indentures.
B-2
In the Distribution Agreement, the Agent has agreed to use reasonable
efforts to solicit purchases of the Notes and the Units, and the administrative
procedures explained below will govern the issuance and settlement of any Notes
or Units sold through the Agent, as agent of the Company. The Agent, as
principal, may also purchase Notes or Units for its own account, and the Company
and the Agent will enter into a terms agreement (in the case of Notes, a "Notes
Terms Agreement" and, in the case of Units, a "Units Terms Agreement"), as
contemplated by the Distribution Agreement. The administrative procedures
explained below will govern the issuance and settlement of any Notes or Units
purchased by the Agent, as principal, unless otherwise specified in the
applicable Notes Terms Agreement or Units Terms Agreement.
JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank),
("JPMorgan Chase") has initially been appointed the (i) Calculation Agent and
Principal Paying Agent for the Senior Notes (and any Cash-settled Pre-Paid
Purchase Contracts), (ii) the Unit Agent for the Units and Purchase Contracts
(other than Cash-settled Pre-Paid Purchase Contracts), (iii) the Warrant Agent
for the Warrants and (iv) the Registrar for the Senior Registered Notes, and
will perform the duties specified herein. J.P. Morgan Trust Company, National
Association (acting through JPMorgan Chase at its corporate trust office in
London as its sub-agent) has initially been appointed the (x) Calculation Agent
and Principal Paying Agent for the Subordinated Notes and (y) the Registrar for
the Subordinated Registered Notes, and will perform the duties specified herein.
As used herein, the term "Principal Paying Agent" shall mean (i) JPMorgan Chase
acting through its London office in connection with the authentication and
delivery of the Senior Notes and (ii) J.P. Morgan Trust Company, National
Association (acting through JPMorgan Chase at its corporate trust office in
London as its sub-agent) in connection with the authentication and delivery of
the Subordinated Notes, in each case whether issued alone or as part of a Unit,
(and any Cash-settled Pre-Paid Purchase Contracts) pursuant to the terms of the
Indentures, and the term "Unit Agent" shall mean JPMorgan Chase acting through
its London office in connection with the completion and delivery of the Units
(including, as applicable, countersigning and delivering any Warrants, as
Warrant Agent, and countersigning, executing and delivering any Purchase
Contracts (other than Cash-settled Pre-Paid Purchase Contracts), as Unit Agent,
includable in such Unit), pursuant to the terms of the Unit Agreements. "Warrant
Agent" shall mean JPMorgan Chase acting through its London office. The Series G
Notes are intended to be, and the Series G Units, in certain circumstances
described in the Prospectus Supplement (as such term is defined in the
Distribution Agreement), may be, admitted to the Official List of the United
Kingdom Financial Services Authority (the "UK Listing Authority") in its
capacity as the United Kingdom competent authority for the purposes of Directive
2003/71/EC (the "Prospectus Directive") and relevant implementing measures in
the United Kingdom, and to trading on the gilt edged and fixed income market of
the London Stock Exchange plc (the "London Stock Exchange"). Series H Notes and
the Series H Units will not be listed on any stock exchange. The Company has
appointed Morgan Stanley & Co. International Limited as the authorized adviser
for purposes of applications to admit the Series G Notes and the Series G Units,
if it is determined that Series G Units are to be so admitted, to the Official
List of the UK Listing Authority and to trading on the gilt edged and fixed
income market of the London Stock Exchange.
Each Bearer Note and each Bearer Unit (including each security comprised by
such Bearer Unit) initially will be represented by, in the case of a Bearer
Note, a Temporary Global Note and, in the case of a Bearer Unit, a Temporary
Global Unit, each of which will be delivered
B-3
to a common depositary located outside the United States (the "Depositary") for
Euroclear Bank S.A./N.V., as operator of the Euroclear System (the "Euroclear
Operator"), Clearstream Banking, societe anonyme ("Clearstream"), and/or any
other relevant clearing system (including Euroclear France). Such Temporary
Global Note and Temporary Global Unit will subsequently be represented by, in
the case of the Temporary Global Note, a Permanent Global Note and, in the case
of the Temporary Global Unit, a Permanent Global Unit. Upon the first request by
any beneficial owner to exchange any interest in a Permanent Global Note to a
definitive Bearer Note, or if any Note represented by such Permanent Global Note
is accelerated following an event of default with respect to such Note or if
either the Euroclear Operator, Clearstream or any other relevant clearing system
is closed for business for a continuous period of fourteen days (other than by
reason of public holidays) or announces an intention to cease business
permanently or in fact does so, then all (and not less than all) interests in
such Permanent Global Note shall be exchanged for definitive Bearer Notes;
provided that, if the applicable Pricing Supplement so specifies, nothing herein
shall prevent the further exchange of definitive Bearer Notes for Registered
Notes. Upon the first request by any beneficial owner to exchange any interest
in a Permanent Global Unit to a definitive Bearer Unit, or if any Note comprised
by such Permanent Global Note is accelerated following an event of default with
respect to such Note or if either the Euroclear Operator, Clearstream or any
other relevant clearing system is closed for business for a continuous period of
fourteen days (other than by reason of public holidays) or announces an
intention to cease business permanently or in fact does so, then all (and not
less than all) interests in such Permanent Global Unit shall be exchanged for
definitive Bearer Units; provided that, if the applicable Pricing Supplement so
specifies, nothing herein shall prevent the further exchange of definitive
Bearer Units for Registered Units.
Unless otherwise defined herein, terms defined in the Indentures, the Unit
Agreement, the Unit Agreement Without Holders' Obligations, the Warrant
Agreement, the Notes, the Units, the Warrants, the Purchase Contracts or any
Prospectus Supplement relating to the Notes and Units shall be used herein as
therein defined.
The Company will advise the Agent in writing of the employees of the
Company with whom the Agent is to communicate regarding offers to purchase Notes
and Units and the related settlement details.
B-4
ADMINISTRATIVE PROCEDURES FOR
BEARER NOTES, REGISTERED NOTES,
BEARER UNITS AND REGISTERED UNITS
Issuance: Bearer Notes. Each Bearer Note, whether issued
alone or as part of a Unit, will be dated as of
its Original Issue Date. Each Bearer Note will
bear an Original Issue Date, which will be (i)
with respect to a Temporary Global Note (or any
portion thereof), the date of its original issue
as specified in such Temporary Global Note or (ii)
with respect to any Permanent Global Note or any
definitive Bearer Note (or any portion thereof)
issued subsequently upon transfer or exchange of a
Bearer Note or in lieu of a destroyed, lost or
stolen Bearer Note (a "Replacement Bearer Note"),
the Original Issue Date of the predecessor Bearer
Note, regardless of the date of authentication of
such subsequently issued Bearer Note.
Registered Notes. Each Registered Note, whether
issued alone or as part of a Unit, will be dated
as of the date of its authentication by JPMorgan
Chase. Each Registered Note will also bear an
Original Issue Date, which will be (i) with
respect to an original Registered Note (an
"Original Registered Note") (or any portion
thereof), its original issuance date (which will
be the settlement date) and (ii) with respect to
any Registered Note (or portion thereof) issued
subsequently upon transfer or exchange of a
Registered Note or in lieu of a destroyed, lost or
stolen Registered Note or upon exchange of a
Bearer Note (a "Replacement Registered Note"), the
original issuance date of the predecessor
Registered Note or Bearer Note, as the case may
be, regardless of the date of authentication of
such subsequently issued Registered Note.
Bearer Units. Each Bearer Unit (whether in
temporary, permanent or definitive form) will be
deemed to be dated as of the Original Issue Date
of the Bearer Note comprised by such Unit or, if
there is no such underlying Bearer Note, the date
of the other securities comprised thereby in
accordance with the procedures described above.
Registered Units. Each Registered Unit will be
deemed to be dated as of the Original Issue Date
of the Registered Note comprised by such Unit or,
if there is no such underlying Registered Note, as
of the date of the other securities comprised
thereby in accordance with the procedures
B-5
described above.
Denominations: Bearer Notes. Unless otherwise specified in any
applicable free writing prospectus, Term Sheet and
Pricing Supplement, Bearer Notes, whether issued
alone or as part of a Unit, will be issued only in
denominations of $1,000 (or, in the case of Bearer
Notes not denominated in U.S. dollars, the
equivalent thereof in the Specified Currency,
rounded to the nearest 1,000 units of the
Specified Currency) or any amount in excess
thereof which is an integral multiple of $1,000
(or, in the case of Bearer Notes not denominated
in U.S. dollars, 1,000 units of the Specified
Currency).
Registered Notes. Unless otherwise specified in
any applicable free writing prospectus, Term Sheet
and Pricing Supplement, Registered Notes will be
issued, either alone or as part of a Unit, only in
denominations of $1,000 (or, in the case of
Registered Notes not denominated in U.S. dollars,
the equivalent thereof in the Specified Currency,
rounded to the nearest 1,000 units of the
Specified Currency) or any amount in excess
thereof which is an integral multiple of $1,000
(or, in the case of Registered Notes not
denominated in U.S. dollars, 1,000 units of the
Specified Currency).
Bearer Units. Unless otherwise specified in any
applicable free writing prospectus, Term Sheet and
Pricing Supplement, Bearer Units will be issued
only in denominations of a single Unit and any
integral multiple thereof, with face amounts in
denominations as indicated in any applicable free
writing prospectus, Term Sheet and Pricing
Supplement, generally corresponding to the
denominations of any Notes or other securities
comprised by such Units.
Registered Units. Unless otherwise specified in
any applicable free writing prospectus, Term Sheet
and Pricing Supplement, Registered Units will be
issued only in denominations of a single Unit and
any integral multiple thereof, with face amounts
in denominations as indicated in the applicable
Pricing Supplement, generally corresponding to the
denominations of any Notes or other securities
comprised by such Units.
Global Notes and Definitive
Bearer and Registered Notes: Until Final Certification (as defined below) with
respect to an issuance of Bearer Notes has
occurred, such Notes, together with all other
Bearer Notes that have the same terms (other than
their respective principal amounts) (all such
Notes herein
B-6
referred to collectively as a "Note Tranche"),
will be represented by a single Temporary Global
Note in bearer form without interest coupons. The
Company shall execute, and upon Company
instructions the Principal Paying Agent shall
complete and authenticate, such Temporary Global
Note upon the same conditions and in substantially
the same manner, and with the same effect, as an
individual definitive Bearer Note. On or prior to
the settlement date (which will normally be the
Original Issue Date) with respect to such Notes,
the Principal Paying Agent shall deposit the
Temporary Global Note with the Depositary in the
manner specified below under "Settlement
Procedures; Bearer Notes and Bearer Units". The
interest of each beneficial owner of Notes
represented by such Temporary Global Note will be
credited to the appropriate account with the
Euroclear Operator, Clearstream or any other
relevant clearing system.
On or after the date (the "Exchange Date") that is
the 40th day following the date on which the
Company receives the proceeds of the sale of a
Temporary Global Note (the "Closing Date"), or if
such Note is held by the Agent as part of an
unsold allotment or subscription more than 40 days
after the Closing Date for such Note, on or after
the day after the date such Note is sold by the
Agent, all as notified by the Agent in writing to
JPMorgan Chase, the interest of the beneficial
owners of the Notes represented by the Temporary
Global Note shall be canceled and such interests
shall thereafter be represented by a Permanent
Global Note in bearer form without interest
coupons held in London by the Depositary; provided
that Final Certification (as described below) has
occurred. The interest of each beneficial owner of
Notes represented by such Permanent Global Note
will be credited to the appropriate account with
the Euroclear Operator, Clearstream or any other
relevant clearing system.
If the beneficial owner of an interest in a
Permanent Global Note requests, at any time, upon
30 days' written notice to the Principal Paying
Agent given by such beneficial owner through
either the Euroclear Operator, Clearstream or any
other relevant clearing system, as the case may
be, or if any Note represented by such Permanent
Global Note is accelerated following an event of
default with respect to such Note or if either the
Euroclear Operator, Clearstream or any other
relevant clearing system is closed for business
for a continuous period of fourteen days (other
than by reason of public holidays) or announces an
intention to cease business permanently or in fact
does so, such Permanent Global Note
B-7
shall be exchanged for one or more definitive
Bearer Notes with coupons attached, if
appropriate, or, if the applicable Pricing
Supplement so specifies, one or more Registered
Notes in authorized denominations equal in
aggregate principal amount to such beneficial
interest; provided that any such exchange of an
interest in a Permanent Global Note for a
definitive Bearer Note shall result in the
exchange of all (and not less than all) interests
in such Permanent Global Note for definitive
Bearer Notes; provided further, that, if the
applicable Pricing Supplement so specifies,
nothing herein shall prevent the further exchange
of definitive Bearer Notes for Registered Notes.
To effect such exchange, the interest of such
beneficial owner in such Permanent Global Note
shall be canceled and one or more definitive
Bearer Notes or Registered Notes, as the case may
be, shall be issued to such beneficial owner,
through the Euroclear Operator, Clearstream or any
other relevant clearing system, as the case may
be.
In all events, Bearer Notes and coupons will be
delivered by the Principal Paying Agent only
outside the United States.
Global Units and Definitive
Bearer and Registered Units: Until Final Certification (as defined below) has
occurred with respect to an issuance of Bearer
Notes included in an issuance of Bearer Units,
such Units, together with all other Bearer Units
that include securities that have the same terms
(other than their respective number and face
amounts) (all such Units herein referred to
collectively as a "Unit Tranche"), will be
represented by a single Temporary Global Unit in
bearer form (which form shall include the
corresponding temporary global forms of each
security comprised by such Unit). The Company
shall execute, and upon Company instructions,
JPMorgan Chase, as Unit Agent, shall complete,
such Temporary Global Unit (including, as
applicable, authenticating any Temporary Global
Note or Cash-settled Pre-paid Purchase Contracts,
as Principal Paying Agent, countersigning and
delivering any Warrants, as Warrant Agent, and
countersigning, executing and delivering any
Purchase Contracts (other than Cash-settled
Pre-paid Purchase Contracts), as Unit Agent,
includable in such Unit) upon the same conditions
and in substantially the same manner, and with the
same effect, as an individual definitive Bearer
Unit. On or prior to the settlement date (which
will normally be the Original Issue Date of the
Note comprised by a Unit or, if there is no such
underlying Note, the date of the other securities
comprised thereby) with respect to such Units, the
Unit Agent shall deposit the Temporary Global Unit
(with the
B-8
corresponding temporary global forms of each
security comprised by such Unit) with the
Depositary in the manner specified below under
"Settlement Procedures; Bearer Notes and Bearer
Units." The interest of each beneficial owner of
Units represented by such Temporary Global Unit
will be credited to the appropriate account with
the Euroclear Operator, Clearstream or any other
relevant clearing system.
On or after the Exchange Date of any Temporary
Global Note comprised by a Temporary Global Unit,
the interest of the beneficial owners of the Units
represented by the Temporary Global Unit shall be
canceled and such interests shall thereafter be
represented by a Permanent Global Unit in bearer
form (with the corresponding permanent global
forms of each security comprised by such Unit)
held in London by the Depositary; provided that
Final Certification (as described below) of any
Notes comprised by such Unit has occurred. The
interest of each beneficial owner of Units
represented by such Permanent Global Unit will be
credited to the appropriate account with the
Euroclear Operator, Clearstream or any other
relevant clearing system.
If the beneficial owner of an interest in a
Permanent Global Unit requests, at any time, upon
30 days' written notice to the Unit Agent given by
such beneficial owner through either the Euroclear
Operator, Clearstream or any other relevant
clearing system, as the case may be, or if any
Note comprised by such Permanent Global Note is
accelerated following an event of default with
respect to such Note or if either the Euroclear
Operator, Clearstream or any other relevant
clearing system is closed for business for a
continuous period of fourteen days (other than by
reason of public holidays) or announces an
intention to cease business permanently or in fact
does so, such Permanent Global Unit shall be
exchanged for one or more definitive Bearer Units
or, if any applicable free writing prospectus,
Term Sheet and Pricing Supplement so specifies,
one or more Registered Units in authorized
denominations equal in aggregate number and
aggregate face amount to such beneficial interest;
provided that any such exchange in any interest in
a Permanent Global Unit for a definitive Bearer
Unit shall result in the exchange of all (and not
less than all) interests in such Permanent Global
Unit for definitive Bearer Units; provided
further, that, if any applicable free writing
prospectus, Term Sheet and Pricing Supplement so
specifies, nothing herein shall prevent the
further exchange of definitive Bearer Units for
Registered Units. To effect such exchange, the
interest of such beneficial owner in such
Permanent
B-9
Global Unit shall be canceled and one or more
definitive Bearer Units or Registered Units, as
the case may be, shall be issued to such
beneficial owner, through the Euroclear Operator,
Clearstream or any other relevant clearing system,
as the case may be.
In all events, Bearer Units will be delivered by
the Unit Agent only outside the United States.
Notes or Units Purchased by
U.S. Persons: All Notes (whether issued alone or as part of a
Unit) purchased in connection with their original
issuance by or on behalf of a United States person
(as defined in the Distribution Agreement) (other
than a branch of a United States financial
institution (as defined in the applicable United
States Treasury Regulation) located outside the
United States purchasing for its own account or
for resale (a "Qualifying Foreign Branch") or
other permitted U.S. purchasers as provided in the
Prospectus Supplement that satisfies the
conditions for receiving Bearer Notes as described
under "Final Certification" below) will be issued
only as Registered Notes and any Units comprising
such Notes will be issued only as Registered
Units.
Final Certification: Final Certification with respect to a Temporary
Global Note (whether issued alone or as part of a
Unit) shall mean the delivery by the Euroclear
Operator, Clearstream or any other relevant
clearing system, as the case may be, to the
Principal Paying Agent of a signed certificate
(each a "Clearance System Certificate") in the
form set forth in Appendix 1 hereto with respect
to the Notes being exchanged, dated no earlier
than the Exchange Date for such Notes, to the
effect that the Euroclear Operator, Clearstream or
any other relevant clearing system, as the case
may be, has received certificates in writing, by
tested telex or by electronic transmission from
the account holders appearing on its records as
entitled to such Notes ("Ownership Certificates")
in the form set forth in Appendix 2 hereto with
respect to each of such Notes, which Ownership
Certificates shall be dated no earlier than ten
days before the Exchange Date.
Preparation of Pricing
Supplement: If any offer to purchase a Program Security is
accepted by or on behalf of the Company, the
Company will prepare a free writing prospectus
and/or Term Sheet, if applicable, and a pricing
supplement (a "Pricing Supplement") reflecting the
terms of such Program Security. The Company (i)
will
B-10
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 and (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 Pricing
Supplement to the Agent as the Agent shall
request. 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
Program Security.
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 (i) the delivery
of an authenticated Temporary Global Note or a
Temporary Global Unit (including each security
comprised by such Unit) to the Depositary in the
manner described in "Settlement Procedures; Bearer
Notes and Bearer Units" below or (ii) the delivery
of an authenticated Registered Note or a
Registered Unit (including each security comprised
by such Unit) to the Agent shall constitute
"settlement" with respect to such Note or Unit.
All offers accepted by the Company will be settled
on the fifth Business Day next succeeding the date
of acceptance pursuant to the timetable for
settlement set forth below, unless the Company and
the purchaser agree to settlement on another day,
which shall be no earlier than the next Business
Day.
Settlement Procedures;
Bearer Notes and Bearer
Units: Procedures with regard to each Bearer Note or
Bearer Unit sold by the Company to or through the
Agent (unless otherwise specified pursuant to a
Notes Terms Agreement or a Units Terms Agreement)
shall be as follows:
A. In the case of a Bearer Note (whether issued
alone or as part of a Unit), the Agent will
advise the Company by
B-11
telephone that such Note is initially a Bearer
Note and of the following settlement
information:
1. Principal amount.
2. Maturity Date.
3. Interest Payment Date(s).
4. In the case of a Fixed Rate Bearer Note,
the Interest Rate and whether such Note is
an Amortizing Note, and, if so, the
amortization schedule, or, in the case of
a Floating Rate Bearer Note, the Initial
Interest Rate (if known at such time),
Interest Payment Period, Calculation
Agent, Base Rate, Index Maturity, Index
Currency, Interest Reset Period, Initial
Interest Reset Date, Interest Reset Dates,
Spread or Spread Multiplier (if any),
Minimum Interest Rate (if any), Maximum
Interest Rate (if any) and the Alternate
Rate Event Spread (if any).
5. Redemption or repayment provisions, if
any.
6. Ranking.
7. Settlement date and time (Original Issue
Date).
8. Interest Accrual Date.
9. Price.
10. Agent's commission, if any, determined as
provided in the Distribution Agreement.
11. Specified Currency.
12. Whether the Note is an Original Issue
Discount Note (an "OID Note"), and if it
is an OID Note, the applicability of
Modified Payment upon Acceleration (and,
if so, the Issue Price).
13. Agent's account number at the Euroclear
Operator, Clearstream or any other
relevant clearing system.
14. Whether such Note is a Series G Note or a
Series H Note.
B-12
15. Any other applicable provisions.
B. In the case of a Bearer Unit, the Agent will
advise the Company by telephone that such Unit
is initially a Bearer Unit, of the information
set forth in Settlement Procedures; Bearer
Notes and Bearer Units "A" above with respect
to Bearer Notes that constitute a part of such
Bearer Unit and of the following information:
1. Settlement date and time.
2. Face Amount.
3. Agent's commission, if any, determined as
provided in the Distribution Agreement.
4. Designation of the Securities comprised by
such Units:
a. Notes (See "Settlement Procedures;
Bearer Notes and Bearer Units" "A");
b. Warrants, if any; and
c. Purchase Contracts, if any.
5. Whether, and the terms under which, the
Securities comprised by such Unit will be
separately tradeable.
6. Any other provisions applicable to the
Unit (other than those provisions
applicable to the securities comprised by
such Unit).
7. If the Bearer Unit comprises Bearer
Warrants:
a. Designation of the Series of Warrants:
[Call] [Put] Warrants;
b. Warrant Property;
c. Aggregate Number of Warrants;
d. Price to Public;
e. Warrant Exercise Price;
f. Dates upon which Warrants may be
exercised;
B-13
g. Expiration Date;
h. Form;
i. Currency in which exercise payments
shall be made;
j. Minimum number of Warrants exercisable
by any holder on any day;
k. Maximum number of Warrants exercisable
on any day: [In the aggregate] [By any
beneficial owner];
l. Formula for determining Cash
Settlement Value;
m. Exchange Rate (or method of
calculation);
n. Whether the Company or the holder is
the writer of the Warrant; and
o. Any other applicable provisions.
8. If the Bearer Unit comprises Bearer
Purchase Contracts:
a. Purchase Contract Property;
b. Price to Public;
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
f. Method of Computing Settlement Amount;
g. Currency of Settlement Payment;
h. Authorized Number of Purchase
Contracts;
i. [Purchase] [Sale] Price of Purchase
Contract Property;
j. Contract Fees;
k. Corporation Acceleration;
B-14
l. Holders' Acceleration;
m. Redemption Provisions; and
n. Any other applicable provisions.
C. The Company will advise JPMorgan Chase as the
Principal Paying Agent for the Notes or as the
Unit Agent for the Units by telephone or
electronic transmission (confirmed in writing
at any time on the same date) of the
information set forth in "Settlement
Procedures; Bearer Notes and Bearer Units" "A"
or "B", above, as applicable, and shall give
the Principal Paying Agent or the Unit Agent,
as the case may be, written instructions
(substantially in the form set out in Appendix
3 and Appendix 4, as applicable) to prepare a
Temporary Global Note for each Note Tranche or
a Temporary Global Unit (with the
corresponding temporary global forms of each
security comprised by such Unit) for each Unit
Tranche, as the case may be, which the Company
has agreed to sell. The Company will send a
copy of such instructions to the Agent and the
relevant Trustee, such instructions to contain
a representation as to the aggregate principal
amount of Program Securities permitted to be
issued hereunder after such issuance.
The Principal Paying Agent or the Unit Agent
shall telephone each of the Euroclear
Operator, Clearstream or any other relevant
clearing system with a request for a security
code for each Note Tranche or Unit Tranche
(and, if applicable, a security code for each
security comprised by the Units of such Unit
Tranche) agreed to be issued and shall notify
the Company and the Agent of such security
code or codes as soon as practicable.
D. In accordance with instructions received from
the Company, (i) the Principal Paying Agent
shall authenticate and deliver a Temporary
Global Note or Cash-settled Pre-paid Purchase
Contract for each Note Tranche or Unit
Tranche, as applicable, which the Company has
agreed to sell and (ii) the Unit Agent shall
prepare a Temporary Global Unit for each Unit
Tranche which the Company has agreed to sell
(including, as applicable, by countersigning
and delivering any Warrants includable in such
Unit, by countersigning, executing and
delivering any Purchase
B-15
Contracts (other than Cash-settled Pre-Paid
Purchase Contracts) includable in such Unit
and by obtaining from the Principal Paying
Agent any Notes or Cash-settled Pre-paid
Purchase Contracts to be included in such
Units, authenticated in accordance with clause
(i) above). The settlement of each of the Note
Tranche and the Unit Tranche is to occur on
the relevant settlement date. All such
Temporary Global Notes and all such Temporary
Global Units (including all of the securities
included in such Units) will then be delivered
to the Depositary. The Principal Paying Agent
or the Unit Agent, as the case may be, will
also give instructions to the Euroclear
Operator, Clearstream or any other relevant
clearing system to credit the Notes or Units
represented by such Temporary Global Note or
Temporary Global Unit delivered to such
Depositary to, in the case of the Notes, the
Principal Paying Agent's distribution account
and, in the case of the Units, the Unit
Agent's distribution account, at the Euroclear
Operator, Clearstream or any other relevant
clearing system. At settlement of any Note
Tranche, the Principal Paying Agent will
instruct the Euroclear Operator, Clearstream
or any other relevant clearing system to
debit, on the settlement date, from the
distribution account of the Principal Paying
Agent the principal amount of Notes of each
Note Tranche, with respect to which the Agent
has solicited an offer to purchase and to
credit, on the settlement date, such principal
amount to the account of the Agent with the
Euroclear Operator, Clearstream or any other
relevant clearing system against payment of
the purchase payment price of such Notes. At
settlement of any Unit Tranche, the Unit Agent
will instruct the Euroclear Operator,
Clearstream or any other relevant clearing
system to debit, on the settlement date, from
the distribution account of the Unit Agent the
number and face amount of Units of each Unit
Tranche, with respect to which the Agent has
solicited an offer to purchase and to credit,
on the settlement date, such number and face
amount to the account of the Agent with the
Euroclear Operator, Clearstream or any other
relevant clearing system against payment of
the purchase payment price of such Units. In
the case of the Notes and the Units, the Agent
shall give corresponding instructions to the
Euroclear Operator, Clearstream or any other
relevant clearing system.
B-16
E. The Euroclear Operator, Clearstream and any
other relevant clearing system shall debit and
credit accounts in accordance with
instructions received from the Principal
Paying Agent and the Agent, in the case of
Notes and the Unit Agent and the Agent, in the
case of Units.
Each of the Principal Paying Agent and the
Unit Agent shall pay the Company the aggregate
net proceeds received by it in immediately
available funds via a transfer of funds to the
U.S. dollar account of the Company with a bank
in New York City (or, with respect to Notes
and Units payable in a Specified Currency
other than U.S. dollars, to an account
maintained at a bank selected by the Company,
which bank shall be located outside the United
Kingdom in the case of Notes and Units payable
in a Specified Currency other than pounds
sterling that mature not later than five years
from and including the date of issue thereof)
designed by the Company in writing.
Settlement Procedures For sales by the Company of Bearer Notes or of
Timetable; Bearer Notes Bearer Units to or through the Agent, "Settlement
and Bearer Units: Procedures; Bearer Notes and Bearer Units" "A"
through "E" above shall be completed on or before
the respective times set forth below:
Settlement
Procedure;
Bearer Notes
and Bearer Units Time
---------------- --------------------------------
A 12:00 P.M. (NYC time) three days before
settlement date
B 12:00 P.M. (NYC time) three days before
settlement date
C 9:00 A.M. (London time) two days before
settlement date
D 3:45 P.M. (London time) one day before
settlement date
E 5:00 P.M. (NYC time) on settlement date
Settlement Procedures; Settlement Procedures with regard to each
Registered Notes and Registered Note and Registered Unit sold by the
Company to or through the
B-17
Registered Units: Agent (unless otherwise specified pursuant to a
Notes Terms Agreement or a Units Terms Agreement)
shall be as follows:
AA. In the case of a Registered Note (whether
issued alone or as part of a Unit), the Agent
will advise the Company by telephone that such
Note is a Registered Note and of the following
settlement information:
1. Name in which such Note is to be
registered ("Registered Note Owner").
2. Address of the Registered Note Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Note Owner (if available).
4. Principal amount.
5. Maturity Date.
6. Interest Payment Date(s).
7. In the case of a Fixed Rate Registered
Note, the Interest Rate, whether such Note
is an Amortizing Note and, if so, the
amortization schedule, or, in the case of
a Floating Rate Registered Note, the
Initial Interest Rate (if known at such
time), Interest Payment Dates, Interest
Payment Period, Calculation Agent, Base
Rate, Index Maturity, Index Currency,
Interest Reset Period, Initial Interest
Reset Date, Interest Reset Dates, Spread
or Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum Interest
Rate (if any) and the Alternate Rate Event
Spread (if any).
8. Redemption or repayment provisions (if
any).
9. Ranking.
10. Settlement date and time (Original Issue
Date).
11. Interest Accrual Date.
12. Price.
B-18
13. Agent's commission (if any) determined as
provided in the Distribution Agreement.
14. Denominations.
15. Specified Currency.
16. Whether the Note is an OID Note, and if it
is an OID Note, and the applicability of
Modified Payment upon Acceleration (and if
so, the Issue Price).
17. Whether such Note is a Series G Note or a
Series H Note.
18. Any other applicable provisions.
BB. In the case of a Registered Unit, the Agent
will advise the Company by telephone that such
Unit is a Registered Unit, of the information
set forth in "Settlement Procedures;
Registered Notes and Registered Units" "A"
above with respect to any Registered Notes
that constitute a part of such Registered Unit
and of the following information:
1. Name in which such Unit is to be
registered ("Registered Unit Owner").
2. Address of the Registered Unit Owner.
3. Taxpayer identification number of the
Registered Unit Owner (if available).
4. Denominations.
5. Settlement date and time.
6. Number of Units (and Face Amount).
7. Agent's commission, if any, determined as
provided in the Distribution Agreement.
8. Designation of the Securities comprised by
such Units:
a. Notes, if any (See "Settlement
Procedures; Registered Notes and
Registered Units" "A");
B-19
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 Registered Unit comprises
Registered 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. Currency in which exercise payments
shall be made;
i. Minimum number of Warrants exercisable
by any holder on any day;
j. Maximum number of Warrants exercisable
on any day: [In the aggregate] [By any
beneficial owner];
k. Formula for determining Cash
Settlement Value;
l. Exchange Rate (or method of
calculation);
m. Whether the Company or the holder is
the writer of the warrant; and
B-20
n. Any other applicable provisions.
12. If the Registered Unit comprises
Registered Purchase Contracts:
a. Purchase Contract Property;
b. Price to Public;
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
f. Method of Computing Settlement Amount;
g. Currency of Settlement Payment;
h. Authorized Number of Purchase
Contracts;
i. [Purchase] [Sale] Price of Purchase
Contract Property;
j. Contract Fees;
k. Corporation Acceleration;
l. Holders' Acceleration;
m. Redemption Provisions; and
n. Any other applicable provisions.
CC. The Company will advise JPMorgan Chase as
Principal Paying Agent for the Notes or as
Unit Agent for the Units, by telephone or
electronic transmission (confirmed in writing
at any time on the same date) of the
information set forth in "Settlement
Procedures; Registered Notes and Registered
Units" "AA" and "BB" above, as applicable,
such advice to contain a representation as to
the aggregate principal amount of Program
Securities permitted to be issued hereunder
after such issuance.
DD. The Company will have delivered to JPMorgan
Chase as Principal Paying Agent for the Notes,
or as Unit Agent for the Units, a pre-printed
four-ply packet for such Note or such Unit, as
the case may be, which
B-21
packet will contain the following documents in
forms that have been approved by the Company,
the Agent and JPMorgan Chase, as Principal
Paying Agent for the Notes, or as Unit Agent
for the Units:
1. Note or Unit, as the case may be, with
customer confirmation.
2. Stub One - For JPMorgan Chase.
3. Stub Two - For the Agent.
4. Stub Three - For the Company.
EE. JPMorgan Chase will (i) authenticate and
deliver any Note (whether issued alone or as
part of a Unit) or Cash-settled Pre-Paid
Purchase Contract through the Principal Paying
Agent, if necessary, with the confirmation and
Stubs One and Two to the Agent, and (ii)
complete and deliver any Unit (including by
countersigning and delivering any Warrant
includable in such Unit, by countersigning,
executing and delivering any Purchase Contract
(other than Cash-settled Pre-paid Purchase
Contracts) includable in such Unit and by
obtaining from the Principal Paying Agent any
Notes or Cash-settled Pre-paid Purchase
Contracts to be included in such Units,
authenticated in accordance with clause (i)
above) with the confirmation and Stubs One and
Two to the Agent. The Agent will acknowledge
receipt of the Note or the Unit, as the case
may be, by stamping or otherwise marking Stub
One and returning it to JPMorgan Chase,
through the Principal Paying Agent, in the
case of the Notes, if necessary. Such delivery
will be made only against such acknowledgment
of receipt and evidence that instructions have
been given by the Agent, with respect to
Program Securities denominated in U.S.
dollars, for payment to the account of the
Company at JPMorgan Chase, New York, New York
(or, with respect to Program Securities
payable in a Specified Currency other than
U.S. dollars, to an account maintained at a
bank selected by the Company, which bank shall
be located outside the United Kingdom in the
case of Program Securities payable in a
Specified Currency other than pounds sterling
that mature not later than five years from and
including the date of issue thereof), in
immediately available funds, of an amount
equal to
B-22
the purchase price of such Program Securities
less the Agent's commission (if any). In the
event that the instructions given by the Agent
for payment to the account of the Company are
revoked, the Company will as promptly as
possible wire transfer to the account of the
Agent an amount of immediately available funds
equal to the amount of such payment made.
The Principal Paying Agent and the Unit Agent
shall pay the Company the aggregate net
proceeds received by it in immediately
available funds via a transfer of funds to the
U.S. dollar account of the Company with
JPMorgan Chase in New York City (or, with
respect to Program Securities payable in a
Specified Currency other than U.S. dollars, to
an account maintained at a bank selected by
the Company which bank shall be located
outside the United Kingdom in the case of
Program Securities payable in a Specified
Currency other than pounds sterling that
mature not later than five years including the
date of issue thereof) designated by the
Company in writing.
FF. Unless the Agent purchased such Program
Securities as principal, the Agent will
deliver (with confirmation) such Program
Securities to the customer against payment in
immediately available funds. The Agent will
obtain the acknowledgment of receipt of such
Program Securities by retaining Stub Two.
GG. In the case of all Program Securities,
JPMorgan Chase will send Stub Three to the
Company by first-class mail. Periodically,
JPMorgan Chase will also send to the Company a
statement setting forth, in the case of the
Notes, the principal amount of the Notes
outstanding as of that date under each
Indenture and, in the case of the Units, the
aggregate face amount of the Units outstanding
under the Unit Agreement and, in each case,
setting forth a brief description of any sales
of which the Company has advised JPMorgan
Chase that have not yet been settled.
Settlement Procedures For sales by the Company of Registered Notes or
Timetable;Registered Registered Units to or through the Agent,
Notes and Registered "Settlement Procedures; Registered Notes and
Units: Registered Units" "AA" through "GG" set forth
above shall be completed on or before the
respective times (London time) set forth below:
B-23
Settlement
Procedure;
Registered Notes
and Registered
Units Time
------------------ ------------------------------
AA 2:00 P.M. on second day before settlement
date
BB 2:00 P.M. on second day before settlement
date
CC 3:00 P.M. on second day before settlement
date
DD-EE 2:15 P.M. on settlement date
FF 3:00 P.M. on settlement date
GG 5:00 P.M. on settlement date
Failure to Settle: Bearer Notes and Bearer Units. If the Agent shall
have advanced its own funds for payment against
subsequent receipt of funds from the purchaser and
if a purchaser shall fail to make payment for a
Note or a Unit, the Agent will promptly notify, in
the case of a Note, the Company, the Principal
Paying Agent, the Depositary and the Euroclear
Operator, Clearstream and any other relevant
clearing system, and, in the case of the Unit, the
Company, the Unit Agent, the Depositary, and the
Euroclear Operator, Clearstream and any other
relevant clearing system, in each case by
telephone, promptly confirmed in writing (but no
later than the next Business Day). In such event,
the Company shall promptly instruct the Principal
Paying Agent, in the case of the Note, and the
Unit Agent, in the case of the Unit, to cancel the
purchaser's interest in the appropriate Temporary
Global Note representing such Note or the
appropriate Temporary Global Unit representing
such Unit. Upon (i) confirmation from the
Principal Paying Agent or the Unit Agent in
writing (which may be given by telex or telecopy)
that the Principal Paying Agent or the Unit Agent
has canceled such purchaser's interest in such
Temporary Global Note or Temporary Global Unit, as
the case may be, and (ii) confirmation from the
Agent in writing (which may be given by telex or
telecopy) that the Agent has not received payment
from the purchaser for the Note or the Unit, the
Company will promptly pay to the Agent an amount
in immediately available funds equal to the amount
previously paid by the Agent in respect of such
Bearer Note or Bearer Unit. Such payment will be
made on the settlement date, if possible, and in
any event not later than 12 noon (New
B-24
York City time) on the Business Day following the
settlement date. The Principal Paying Agent or the
Unit Agent, as the case may be, and the Depositary
will make or cause to be made such revisions to
such Temporary Global Note or Temporary Global
Unit as are necessary to reflect the cancellation
of such portion of such Temporary Global Note or
Temporary Global Unit.
If a purchaser shall fail to make payment for the
Note or Unit for any reason other than a default
by the Agent in the performance of its obligations
hereunder and under the Distribution Agreement,
then the Company will reimburse the Agent on an
equitable basis for the Agent's loss of the use of
funds during the period when they were credited to
the account of the Company, the Principal Paying
Agent or the Unit Agent, as applicable.
Immediately upon such cancellation, the Principal
Paying Agent or the Unit Agent, as the case may
be, will make appropriate entries in its records
to reflect the fact that a settlement did not
occur with respect to such Note or Unit.
Registered Notes and Registered Units. If a
purchaser fails to accept delivery of and make
payment for any Registered Note or Registered
Unit, the Agent will notify the Company and
JPMorgan Chase, as Registrar of the Registered
Notes or as Unit Agent, by telephone and return
such Note or Unit to JPMorgan Chase through the
Principal Paying Agent, in the case of the Notes
or the Unit Agent, in the case of the Units, if
necessary. Upon receipt of such notice, the
Company will immediately wire transfer to the
account of the Agent an amount equal to the amount
previously credited to the Company's account in
respect of such Note or Unit. Such wire transfer
will be made on the settlement date, if possible,
and in any event not later than the Business Day
following the settlement date. If the failure
shall have occurred for any reason other than a
default by the Agent in the performance of its
obligations hereunder and under the Distribution
Agreement, then the Company will reimburse the
Agent on an equitable basis for its loss of the
use of the funds during the period when they were
credited to the account of the Company or JPMorgan
Chase. Immediately upon receipt of the Registered
Note or Registered Unit in respect of which such
failure occurred, JPMorgan Chase will mark such
Note or Unit "canceled," make appropriate entries
in JPMorgan Chase's records and send such Note or
Unit to the Company.
B-25
Cancellation of Issuance: If any Program Securities of a particular series
in respect of which information has been supplied
under "Settlement Procedures" above is not to be
issued on a given issue date, the Issuer shall
promptly notify the Principal Paying Agent and the
Trustee and shall promptly confirm such
notification in writing. Upon receipt of such
notice, neither the Principal Paying Agent nor the
Trustee shall thereafter issue or release the
relevant Program Securities but shall, if
applicable, cancel and, unless otherwise
instructed by the Issuer in writing, dispose of
them in accordance with their customary
procedures.
Notice of Issuance to the UK The Sponsoring Member Firm will provide
Listing Authority and the information with respect to the issuance of each
London Stock Exchange: Series G Note and Series G Unit to the UK Listing
Authority and the London Stock Exchange or any
other stock exchange or quotation system, as
appropriate, and will advise the Company in
writing as to the effectiveness of the listing of
such Series G Note and Series G Unit by the close
of business on the related settlement date.
Listing: The Sponsoring Member Firm will, on a regular
basis, provide the UK Listing Authority and the
London Stock Exchange or any other stock exchange
or listing authority or quotation system, as
appropriate, with such information regarding
Series G Notes and Series G Units issued and
outstanding as such exchange or listing authority
may require.
B-26
APPENDIX 1
[FORM OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR, CLEARSTREAM AND/OR ANY OTHER RELEVANT
CLEARING SYSTEM]
CERTIFICATE
---------------
Morgan Stanley
Notes, Series G/H
Represented by Temporary Global [Fixed/Floating] Rate
Senior Bearer Note No. __
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organizations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organizations") substantially to the effect
set forth in Appendix 2 to Exhibit B to the Euro Distribution Agreement relating
to such Notes, as of the date hereof, __________ principal amount of the
above-captioned Securities (i) is owned by persons that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or
other entity created or organized in or under the laws of the United States or
any political subdivision thereof, an estate the income of which is subject to
United States federal income taxation regardless of its source or a trust if
both (a) a court within the United States is able to exercise primary
supervision over the administration of the trust and (b) one or more United
States persons have the authority to control all substantial decisions of the
trust ("United States persons"), (ii) is owned by United States persons that are
(a) foreign branches of United States financial institutions (as defined in the
applicable U.S. Treasury Regulations) ("financial institutions") purchasing for
their own account or for resale, or (b) United States persons who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such United States financial
institution has agreed, on its own behalf or through its agent, that we may
advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in the applicable U.S. Treasury Regulations),
and such United States or foreign financial institutions described in clause
(iii) above (whether or not also described in clause (i) or (ii)) have certified
that they have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions. Any such certification by electronic transmission satisfies the
requirements set forth in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(3)(ii). We will retain all certifications from our Member
Organizations for the period specified in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(3)(i).
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, seeking to collect principal or interest with respect
to) any portion of the temporary global Security representing the
above-captioned Securities excepted in the above-referenced certificates of
Member Organizations and (ii) that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith (or, if relevant, with respect to which principal or
interest is being requested) are no longer true and cannot be relied upon as of
the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
Dated: ___________, 20__
[To be dated no earlier than [insert
date of Interest Payment Date prior
to Exchange Date] [insert date of
Redemption Date prior to Exchange
Date] [insert Exchange Date]]
2
[EUROCLEAR BANK S.A./N.V., as Operator of the
Euroclear System]
[CLEARSTREAM BANKING, SOCIETE ANONYME]
[OTHER]
By:
-----------------------------------------
Name:
Title:
3
APPENDIX 2
[FORM OF CERTIFICATE TO BE GIVEN BY
AN ACCOUNT HOLDER OF EUROCLEAR, CLEARSTREAM AND/OR
ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
--------------
Morgan Stanley
Notes, Series G/H
Represented by Temporary Global [Fixed/Floating] Rate
Senior Bearer Note No. __
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or other entity created or organized in or
under the laws of the United States or any political subdivision thereof, an
estate the income of which is subject to United States Federal income taxation
regardless of its source, or a trust if both (a) a court within the United
States is able to exercise primary supervision over the administration of the
trust and (b) one or more United States persons have the authority to control
all substantial decisions of the trust ("United States persons"), (ii) is owned
by United States persons that are (a) foreign branches of United States
financial institutions (as defined in the applicable U.S. Treasury Regulations)
("financial institutions") purchasing for their own account or for resale, or
(b) United States persons who acquired the Securities through foreign branches
of United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution hereby agrees, on its own
behalf or through its agent, that you may advise the Issuer or the Issuer's
agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the U.S. Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in the applicable U.S. Treasury Regulations), and in addition if the owner of
the Securities is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)) such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the Securities held
by you for our account in
accordance with your Operating Procedures if any applicable statement herein is
not correct on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
This certification excepts and does not relate to [U.S.$] _________ of such
interest in the above-captioned Securities in respect of which we are not able
to certify and as to which we understand exchange for and delivery of definitive
Securities (or, if relevant, exercise of any rights or collection of any
principal or interest) cannot be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
2
Dated: ___________, 20__
[To be dated no earlier than the
10th day before [insert date of
Interest Payment Date prior to
Exchange Date] [insert date of
Redemption Date prior to
Exchange Date] [insert Exchange
Date]]
[NAME OF ACCOUNT HOLDER]
By:
----------------------------------
(Authorized Signatory)
Name:
Title:
3
APPENDIX 3
FORM OF COMPANY'S NOTICE TO PRINCIPAL PAYING AGENT
To: JPMorgan Chase Bank, N.A.
London Office
Attention: ________________________
________________________
and with a copy to:
[JPMorgan Chase Bank, N.A., as Senior Debt Trustee]
[J.P. Morgan Trust Company, National Association,
as Subordinated Debt Trustee]
Re: Euro Distribution Agreement
dated January 25, 2006
----------------------
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete, authenticate
and issue a Temporary Global Note in accordance with the terms of the [Notes
Terms Agreement dated _______,] Administrative Procedures and Euro Distribution
Agreement and to give instructions to the Euroclear Operator, Clearstream
and/or any other relevant clearing system in order for you to:(1)
Credit account of [Name of Agent] with [Euroclear/Clearstream/Other](2) with
the following Bearer Notes:
- -----------------------------
(1) Separate instructions are to be sent in respect of each offer accepted
by the Company. Repeat this information (numbering consecutively) if Bearer
Units of more than one Units Tranche are to be issued to an Agent.
(2) Delete as appropriate.
======================================================================================================================
All Notes: Fixed Rate Notes: Floating Rate Notes:
- ----------------------------------------------------------------------------------------------------------------------
Principal Amount: Interest Rate: Base Rate:
- ----------------------------------------------------------------------------------------------------------------------
Purchase Price: Applicability of Modified Payment Index Maturity:
upon Acceleration:
- ----------------------------------------------------------------------------------------------------------------------
Price to Public: If yes, state issue price: Spread (Plus or Minus):
- ----------------------------------------------------------------------------------------------------------------------
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
- ----------------------------------------------------------------------------------------------------------------------
Place of Delivery: Applicability of Annual Interest Alternate Rate Event Spread:
Payments:
- ----------------------------------------------------------------------------------------------------------------------
Specified Currency: Denominated Currency (if any): Initial Interest Rate:
- ----------------------------------------------------------------------------------------------------------------------
Original Issue Date: Indexed Currency or Currencies (if Initial Interest Reset Date:
any):
- ----------------------------------------------------------------------------------------------------------------------
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
- ----------------------------------------------------------------------------------------------------------------------
Interest Payment Date(s): Exchange Rate Agent (if any): Interest Reset Period:
- ----------------------------------------------------------------------------------------------------------------------
Maturity Date: Reference Dealers: Maximum Interest Rate:
- ----------------------------------------------------------------------------------------------------------------------
Optional Redemption Date(s): Face Amount: Minimum Interest Rate:
- ----------------------------------------------------------------------------------------------------------------------
Initial Redemption Date: Fixed Amount of each Indexed Interest Payment Period:
Currency (if any):
- ----------------------------------------------------------------------------------------------------------------------
Initial Redemption Percentage: Aggregate Fixed Amount of each Calculation Agent:
Indexed Currency (if any):
- ----------------------------------------------------------------------------------------------------------------------
Annual Redemption Percentage Reduction: Indexed Currency (if any): Reporting Service:
- ----------------------------------------------------------------------------------------------------------------------
Ranking: Index Currency:
- ----------------------------------------------------------------------------------------------------------------------
Series: Designated CMT Telerate Page:
- ----------------------------------------------------------------------------------------------------------------------
Minimum Denominations: Designated CMT
Maturity Index:
- ----------------------------------------------------------------------------------------------------------------------
Other Provisions:
======================================================================================================================
2
======================================================================================================================
Other Provisions:
======================================================================================================================
3
against payment of
[ ].
-------------------------
Date:
MORGAN STANLEY
By:
------------------------------------
4
APPENDIX 4
FORM OF COMPANY'S NOTICE TO UNIT AGENT
To: JPMorgan Chase Bank, N.A.
Attention: __________________
__________________
Re: Euro Distribution Agreement
dated January 25, 2006
----------------------
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete and issue a
Temporary Global Unit in accordance with the terms of the [Units Terms Agreement
dated _______________] Administrative Procedures and Euro Distribution Agreement
and to give instructions to the Euroclear Operator, Clearstream and/or any other
relevant clearing system in order for you to:(1)
Credit account of [Name of Agent] with
[Euroclear/Clearstream/Other](2) with the following Bearer Units:
- -----------------------------
(1) Separate instructions are to be sent in respect of each offer accepted
by the Company. Repeat this information (numbering consecutively) if Bearer
Notes of more than one Note Tranche are to be issued to an Agent.
(2) Delete as appropriate.
======================================================================================================================
Warrants Purchase Contracts
All Units: Issued as Part of a Unit: Issued as Part of a Unit:
- ----------------------------------------------------------------------------------------------------------------------
Principal Amount: Price: Price:
- ----------------------------------------------------------------------------------------------------------------------
Purchase Price: Specified Currency or Composite Settlement Date and Time:
Currency:
- ----------------------------------------------------------------------------------------------------------------------
Price to Public: Exercise Date: Buy or Sell:
- ----------------------------------------------------------------------------------------------------------------------
Place of Delivery: Warrant Property: Purchase Contract Property:
- ----------------------------------------------------------------------------------------------------------------------
Specified Currency: Permitted Payment: Purchase or Sale Price:
- ----------------------------------------------------------------------------------------------------------------------
Original Issue Date: Exercise Price:
- ----------------------------------------------------------------------------------------------------------------------
Expiration Date: Specified Currency or Composite
Currency:
- ----------------------------------------------------------------------------------------------------------------------
Put or Call: Permitted Payment:
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
======================================================================================================================
2
======================================================================================================================
All Notes Issued as Part of a Unit: Fixed Rate Notes Issued as Part of a Floating Rate Notes Issued as Part
Unit: of a Unit:
- ----------------------------------------------------------------------------------------------------------------------
Principal Amount: Interest Rate: Base Rate:
- ----------------------------------------------------------------------------------------------------------------------
Purchase Price: Applicability of Modified Payment Index Maturity:
upon Acceleration:
- ----------------------------------------------------------------------------------------------------------------------
Price to Public: If yes, state issue price: Spread (Plus or Minus):
- ----------------------------------------------------------------------------------------------------------------------
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
- ----------------------------------------------------------------------------------------------------------------------
Place of Delivery: Applicability of Annual Interest Alternate Rate Event Spread:
Payments:
- ----------------------------------------------------------------------------------------------------------------------
Specified Currency: Denominated Currency (if any): Initial Interest Rate:
- ----------------------------------------------------------------------------------------------------------------------
Original Issue Date: Indexed Currency or Currencies (if Initial Interest Reset Date:
any):
- ----------------------------------------------------------------------------------------------------------------------
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
- ----------------------------------------------------------------------------------------------------------------------
Interest Payment Date(s): Exchange Rate Agent (if any): Interest Reset Period:
- ----------------------------------------------------------------------------------------------------------------------
Maturity Date: Reference Dealers: Maximum Interest Rate:
- ----------------------------------------------------------------------------------------------------------------------
Optional Repayment Date(s): Face Amount: Minimum Interest Rate:
- ----------------------------------------------------------------------------------------------------------------------
Optional Redemption Date(s): Fixed Amount of each Indexed Interest Payment Period:
Currency (if any):
- ----------------------------------------------------------------------------------------------------------------------
Initial Redemption Date: Aggregate Fixed Amount of each Calculation Agent:
Indexed Currency (if any):
- ----------------------------------------------------------------------------------------------------------------------
Initial Redemption Percentage: Indexed Currency (if any): Reporting Service:
- ----------------------------------------------------------------------------------------------------------------------
Annual Redemption Percentage Reduction: Index Currency:
- ----------------------------------------------------------------------------------------------------------------------
3
======================================================================================================================
All Notes Issued as Part of a Unit: Fixed Rate Notes Issued as Part of a Floating Rate Notes Issued as Part
Unit: of a Unit:
- ----------------------------------------------------------------------------------------------------------------------
Ranking: Designated CMT Telerate Page:
- ----------------------------------------------------------------------------------------------------------------------
Series: Designated CMT Maturity Index:
- ----------------------------------------------------------------------------------------------------------------------
Minimum Denominations:
- ----------------------------------------------------------------------------------------------------------------------
Other Provisions:
======================================================================================================================
against payment of
[ ].
-------------------------
Date:
MORGAN STANLEY
By:
-----------------------------------
4