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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
May 6, 1996
MORGAN STANLEY GROUP INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-9085 13-2838811
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification
incorporation) Number)
1585 BROADWAY, NEW YORK, NEW YORK 10036
(Address of principal executive offices including zip code)
(212) 761-4000
(Registrant's telephone number
including area code)
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ITEM 5. OTHER EVENTS
Attached and incorporated herein by reference as Exhibit 1-a
is the Form of Underwriting Agreement for Debt Securities, as Exhibits 1-b and
1-c, respectively, are the Form of U.S. Distribution Agreement and the Form of
Euro Distribution Agreement, as Exhibits 3-0 and 4-a the Restated Certificate
of Incorporation of the Company, as Exhibits 4-b and 4-c, respectively, are
the Form of Second Supplemental Senior Indenture and the Form of Second
Supplemental Subordinated Indenture, as Exhibits 4-d through 4-dd the Forms of
Notes and as Exhibits 8-a, 8-b, 23-a and 23-b, respectively, the Opinions re
Tax Matters of Shearman & Sterling and the consents relating thereto, all in
connection with the issuance from time to time by Morgan Stanley Group Inc. of
Global Medium-Term Notes, Series C, D and E.
ITEM 7(C). EXHIBITS
1-a. Form of Underwriting Agreement for Debt Securities.
1-b. Form of U.S. Distribution Agreement.
1-c Form of Euro Distribution Agreement.
3-0. Restated Certificate of Incorporation of the Company, as amemded.
4-a Restated Certificate of Incorporation of the Company, as amended.
4-b. Form of Second Supplemental Senior Indenture.
4-c. Form of Second Supplemental Subordinated Indenture.
4-d. Form of Fixed Rate Senior Note.
4-e. Form of Fixed Rate Subordinated Note.
4-f. Form of Principal Exchange Rate Linked Security (PERLS) Note.
4-g. Form of Reverse PERLS Note.
4-h. Form of Multicurrency PERLS Note.
4-i. Form of Fixed Rate Amortizing Senior Note.
4-j. Form of Floating Rate Senior Note.
4-k. Form of Floating Rate Subordinated Note.
4-l. Form of Senior Variable Rate Renewable Note.
4-m. Form of Subordinated Variable Rate Renewable Note.
4-n. Form of Senior Dollarized Yield Curve Note (Bond Basis).
4-o. Form of Senior Dollarized Yield Curve Note (Money Market Basis).
4-p. Form of Senior Dollarized Bull Note.
4-q. Form of Floating/Fixed Rate Senior Note.
4-r. Form of S&P Indexed (BULL) Note.
4-s. Form of S&P Indexed (BEAR) Note.
4-t. Form of Temporary Global Fixed Rate Senior Bearer Note.
4-u. Form of Permanent Global Fixed Rate Senior Bearer Note.
4-v. Form of Euro Fixed Rate Senior Bearer Note.
4-w. Form of Euro Fixed Rate Senior Registered Note.
4-x. Form of Euro Fixed Rate Subordinated Registered Note.
4-y. Form of Temporary Global Floating Rate Senior Bearer Note.
4-z. Form of Permanent Global Floating Rate Senior Bearer Note.
4-aa. Form of Permanent Global Senior Bull Note.
4-bb. Form of Definitive Floating Rate Senior Bearer Note.
4-cc. Form of Temporary Global Senior ECU Puttable Floating Rate Note.
4-dd. Form of Permanent Global Senior ECU Puttable Floating Rate Note.
8-a. Opinion re Tax Matters of Shearman & Sterling
8-b. Opinion re Tax Matters of Shearman & Sterling
23-a. Consent of Shearman & Sterling (see the third
paragraph of Exhibit 8-a).
23-b. Consent of Shearman & Sterling (see the third
paragraph of Exhibit 8-b).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
MORGAN STANLEY GROUP INC.
(Registrant)
Date: May 6, 1996 By: /s/ Patricia A. Kurtz
_________________________
Patricia A. Kurtz
Assistant Secretary
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
1-a. Form of Underwriting Agreement for Debt Securities.
1-b. Form of U.S. Distribution Agreement.
1-c Form of Euro Distribution Agreement.
3-0. Restated Certificate of Incorporation of the Company, as amemded.
4-a Restated Certificate of Incorporation of the Company, as amended.
4-b. Form of Second Supplemental Senior Indenture.
4-c. Form of Second Supplemental Subordinated Indenture.
4-d. Form of Fixed Rate Senior Note.
4-e. Form of Fixed Rate Subordinated Note.
4-f. Form of Principal Exchange Rate Linked Security (PERLS) Note.
4-g. Form of Reverse PERLS Note.
4-h. Form of Multicurrency PERLS Note.
4-i. Form of Fixed Rate Amortizing Senior Note.
4-j. Form of Floating Rate Senior Note.
4-k. Form of Floating Rate Subordinated Note.
4-l. Form of Senior Variable Rate Renewable Note.
4-m. Form of Subordinated Variable Rate Renewable Note.
4-n. Form of Senior Dollarized Yield Curve Note (Bond Basis).
4-o. Form of Senior Dollarized Yield Curve Note (Money Market Basis).
4-p. Form of Senior Dollarized Bull Note.
4-q. Form of Floating/Fixed Rate Senior Note.
4-r. Form of S&P Indexed (BULL) Note.
4-s. Form of S&P Indexed (BEAR) Note.
4-t. Form of Temporary Global Fixed Rate Senior Bearer Note.
4-u. Form of Permanent Global Fixed Rate Senior Bearer Note.
4-v. Form of Euro Fixed Rate Senior Bearer Note.
4-w. Form of Euro Fixed Rate Senior Registered Note.
4-x. Form of Euro Fixed Rate Subordinated Registered Note.
4-y. Form of Temporary Global Floating Rate Senior Bearer Note.
4-z. Form of Permanent Global Floating Rate Senior Bearer Note.
4-aa. Form of Permanent Global Senior Bull Note.
4-bb. Form of Definitive Floating Rate Senior Bearer Note.
4-cc. Form of Temporary Global Senior ECU Puttable Floating Rate Note.
4-dd. Form of Permanent Global Senior ECU Puttable Floating Rate Note.
8-a. Opinion re Tax Matters of Shearman & Sterling
8-b. Opinion re Tax Matters of Shearman & Sterling
23-a. Consent of Shearman & Sterling (see the third paragraph of
Exhibit 8-a).
23-b. Consent of Shearman & Sterling (see the third paragraph of
Exhibit 8-b).
UNDERWRITING AGREEMENT
, 199_
MORGAN STANLEY GROUP INC.
1585 Broadway
New York, New York 10036
Dear Sirs:
We (the "Underwriter") understand that Morgan Stanley Group
Inc., a Delaware corporation (the "Company"), proposes to issue and sell $
aggregate principal amount of % Notes Due (the "Offered Securities").
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriter
agrees to purchase the aggregate principal amount of the Offered Securities at
a purchase price of , plus accrued interest, if any, from
to the date of payment (the "Purchase Price").
The Underwriter will pay for the Offered Securities upon
delivery thereof at the offices of Davis Polk & Wardwell, 450 Lexington
Avenue, New York, New York at 10:00 a.m. (New York time) on 199_, or at
such other time, not later than 5:00 p.m. (New York time) on 199_, as
shall be designated by us. The time and date of such payment and delivery
are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated , 1996, and the Prospectus Supplement dated
, 199_, including the following:
Terms of Offered Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: _________________,
commencing ____________ (Interest accrues from ____________)
Form and Denomination:
Ranking:
Capitalized terms used above and not defined herein shall have
the meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the
document entitled Morgan Stanley Group Inc. Underwriting Agreement
Standard Provisions (Debt Securities and Warrants to Purchase Debt
Securities) dated , 1996 (the "Standard Provisions"), a copy of which is
attached hereto, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if
such provisions had been set forth in full herein, except that (i) if any
term defined in such document is otherwise defined herein, the definition
set forth herein shall control, (ii) all references in such document to a
type of security that is not a [Debt Security] shall not be deemed to be a
part of this Agreement and (iii) all references in such document to a type
of agreement that has not been entered into in connection with the
transactions contemplated hereby shall not be deemed to be a part of this
Agreement.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
By:_______________________________
Name:
Title:
Accepted:
MORGAN STANLEY GROUP INC.
By:_______________________________
Name:
Title:
MORGAN STANLEY GROUP INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES AND WARRANTS
TO PURCHASE DEBT SECURITIES)
May 1, 1996
From time to time, Morgan Stanley Group Inc., a Delaware
corporation (the "Company"), may enter into one or more underwriting
agreements that provide for the sale of designated securities to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein referred to as this Agreement.
Terms defined in the Underwriting Agreement are used herein as therein
defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement including a
prospectus relating to the Debt Securities and Debt Warrants and has filed
with, or transmitted for filing to, or shall promptly hereafter file with
or transmit for filing to, the Commission a prospectus supplement (the
"Prospectus Supplement") specifically relating to the Offered Securities
and the Debt Warrant Securities, if any, pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"). The term
Registration Statement means the registration statement as amended to the
date of this Agreement. The term Basic Prospectus means the prospectus
included in the Registration Statement. The term Prospectus means the
Basic Prospectus together with the Prospectus Supplement. The term
preliminary prospectus means a preliminary prospectus supplement
specifically relating to the Offered Securities and the Debt Warrant
Securities, if any, together with the Basic Prospectus. As used herein,
the terms "Basic Prospectus," "Prospectus" and "preliminary prospectus"
shall include in each case the documents, if any, incorporated by reference
therein. The terms "supplement," "amendment" and "amend" as used herein
shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Basic Prospectus by
the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act").
The term Contract Securities means the Offered Securities, if
any, to be purchased pursuant to the delayed delivery contracts substantially
in the form of Schedule I hereto, with such changes therein as the Company may
approve (the "Delayed Delivery Contracts"). The term "Underwriters'
Securities" means the Offered Securities other than Contract Securities.
1. Representations and Warranties. The Company represents and
warrants to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b)(i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such part
became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (iii)
the Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply, in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set
forth in this Section 1(b) do not apply (A) to statements or omissions in
the Registration Statement or the Prospectus based upon information
concerning any Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein or (B) to those
parts of the Registration Statement that constitute the Statements of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), of the trustees referred to in the
Registration Statement.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) Each of the Senior Debt Indenture dated as of April 15,
1989, as supplemented by a First Supplemental Senior Indenture dated as of
May 15, 1991 (as so supplemented, the "Senior Debt Indenture"), and the
Subordinated Debt Indenture dated as of April 15, 1989, as supplemented by
a First Supplemental Subordinated Indenture dated as of May 15, 1991 (as so
supplemented, the "Subordinated Debt Indenture"), has been duly qualified
under the Trust Indenture Act and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(g) The Debt Warrant Agreement, if any, has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting creditors' rights generally and (ii) is subject to general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(h) The Offered Securities and the Debt Warrant Securities
have been duly authorized and, when executed and authenticated in
accordance with the provisions of the relevant Indenture and the Debt
Warrant Agreement, as the case may be, and delivered to and paid for (A) by
the Underwriters in accordance with the terms of the Underwriting
Agreement, in the case of the Underwriters' Securities, or by institutional
investors in accordance with the terms of the Delayed Delivery Contracts,
in the case of Contract Securities, and (B) upon exercise of Debt Warrants
pursuant to the Debt Warrant Agreement, in the case of the Debt Warrant
Securities, will be entitled to the benefits of the relevant Indenture and
the Debt Warrant Agreement, as the case may be, and will be valid and
legally binding obligations of the Company, in each case enforceable in
accordance with their respective terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of equity, regardless
of whether such enforceability is considered in a proceeding in equity or
at law.
(i) The Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and binding
agreements of the Company, enforceable in accordance with their respective
terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Senior Debt Indenture, the Subordinated Debt Indenture, the Offered
Securities, any Debt Warrant Securities, any Delayed Delivery Contracts and
the Debt Warrant Agreement, if any, 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 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 Senior Debt Indenture, the Subordinated Debt
Indenture, the Offered Securities, any Debt Warrant Securities, any Delayed
Delivery Contract or the Debt Warrant Agreement, if any, 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 Offered Securities; provided,
however, that no representation is made as to whether the purchase of the
Debt Securities or Debt Warrants 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) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto effected
subsequent to the date of the Underwriting Agreement).
(l) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement that are not described, filed or
incorporated as required.
(m) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state,
local and other governmental authorities, all self-regulatory organizations
and all courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business in the manner described in
the Prospectus, except to the extent that the failure to obtain or file would
not have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole.
(n) 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.
(o) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the Government of
Cuba or with any person or affiliate located in Cuba.
2. Delayed Delivery Contracts. If the Prospectus provides for
sales of Offered Securities pursuant to Delayed Delivery Contracts, the
Company hereby authorizes the Underwriters to solicit offers to purchase
Contract Securities on the terms and subject to the conditions set forth in
the Prospectus pursuant to Delayed Delivery Contracts. Delayed Delivery
Contracts may be entered into only with institutional investors approved by
the Company of the types set forth in the Prospectus. On the Closing Date,
the Company will pay to the Manager as compensation for the accounts of the
Underwriters the commission set forth in the Underwriting Agreement in respect
of the Contract Securities. The Underwriters will not have any responsibility
in respect of the validity or the performance of any Delayed Delivery
Contracts.
If the Company executes and delivers Delayed Delivery Contracts
with institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; and such reduction shall be applied to the commitment
of each Underwriter pro rata in proportion to the amount of Offered Securities
set forth opposite such Underwriter's name in the Underwriting Agreement,
except to the extent that the Manager determines that such reduction shall be
applied in other proportions and so advises the Company; provided, however,
that the total amount of Offered Securities to be purchased by all
Underwriters shall be the aggregate amount set forth above, less the aggregate
amount of Contract Securities.
3. Public Offering. The Company is advised by the Manager
that the Underwriters propose to make a public offering of their respective
portions of the Underwriters' Securities as soon after this Agreement has been
entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Underwriters' Securities are set forth in the
Prospectus.
4. Purchase and Delivery. Except as otherwise provided in
this Section 4, payment for the Underwriters' Securities shall be made to the
Company in immediately available funds at the time and place set forth in the
Underwriting Agreement, upon delivery to the Manager for the respective
accounts of the several Underwriters of the Underwriters' Securities
registered in such names and in such denominations as the Manager shall
request in writing not less than two full business days prior to the date of
delivery, with any transfer taxes payable in connection with the transfer of
the Underwriters' Securities to the Underwriters duly paid.
Delivery on the Closing Date of any Underwriters' Securities
that are (i) Debt Securities in bearer form shall be effected by delivery of a
single temporary global Debt Security without coupons (the "Global Debt
Security") evidencing the Offered Securities that are Debt Securities in
bearer form and (ii) Debt Warrants in bearer form shall be effected only by
delivery of a single permanent global Debt Warrant (the "Global Debt Warrant")
evidencing the Offered Securities that are Debt Warrants in bearer form, in
each case to a common depositary for Morgan Guaranty Trust Company of New
York, Brussels office, as operator of the Euro-clear System ("Euro-clear"),
and for Cedel Bank, Societe Anonyme ("Cedel") for credit to the respective
accounts at Euro-clear or Cedel of each Underwriter or to such other accounts
as such Underwriter may direct. Any Global Debt Security or Global Debt
Warrant shall be delivered to the Manager not later than the Closing Date,
against payment of funds to the Company in the net amount due to the Company
for such Global Debt Security or Global Debt Warrant, as the case may be, by
the method and in the form set forth herein. The Company shall cause
definitive Debt Securities in bearer form to be prepared and delivered in
exchange for such Global Debt Security in such manner and at such time as may
be provided in or pursuant to the Senior Debt Indenture or the Subordinated
Debt Indenture, as the case may be; provided, however, that the Global Debt
Security shall be exchangeable for definitive Debt Securities in bearer form
only on or after the date specified for such purpose in the Prospectus. Debt
Warrants in bearer form shall be evidenced only by a Global Debt Warrant until
their expiration.
5. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by
any "nationally recognized statistical rating organization,"
as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto effected subsequent to the
execution and delivery of the Underwriting Agreement), that, in
the judgment of the Manager, is material and adverse and that
makes it, in the judgment of the Manager, impracticable to
market the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
(b) the Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clause (i) above
and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the
Closing 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 the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing Date an
opinion of Jonathan M. Clark, General Counsel and Secretary of the
Company, or of other counsel satisfactory to the Agent and who is an
officer of the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Delaware, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole;
(ii) each of Morgan Stanley & Co. Incorporated and Morgan
Stanley International Incorporated (the "Material Subsidiaries") has
been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole;
(iii) each of the Company and its Material Subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates
and permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals,
to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus,
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;
(iv) each of the Senior Debt Indenture and the Subordinated
Debt Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws
affecting creditors' rights generally and (b) is subject to
general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
(v) the Debt Warrant Agreement, if any, has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its
terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (b) is
subject to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
(vi) the Offered Securities and the Debt Warrant Securities
have been duly authorized and, when executed and authenticated in
accordance with the provisions of the relevant Indenture and the
Debt Warrant Agreement, as the case may be, and delivered to and
paid for (A) by the Underwriters in accordance with the terms of
the Underwriting Agreement, in the case of the Underwriters'
Securities, or by institutional investors in accordance with the
terms of the Delayed Delivery Contracts, in the case of the
Contract Securities, and (B) upon exercise of Debt Warrants
pursuant to the Debt Warrant Agreement, in the case of the Debt
Warrant Securities, will be entitled to the benefits of the
relevant Indenture and the Debt Warrant Agreement, as the case may
be, and will be valid and binding obligations of the Company, in
each case enforceable in accordance with their respective terms
except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium
and other similar laws affecting creditors' rights generally and
(b) is subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in
equity or at law;
(vii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(viii) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid
and binding agreements of the Company enforceable in accordance
with their respective terms except as (a) the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting
creditors' rights generally and (b) is subject to general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(ix) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the
Underwriting Agreement, the Senior Debt Indenture, the
Subordinated Debt Indenture, the Offered Securities, any Debt
Warrant Securities, any Delayed Delivery Contracts and the Debt
Warrant Agreement, if any, will not contravene any provisions 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, to the
best of such counsel's knowledge, any judgment, order or decree of
any governmental body, agency or court having jurisdiction over
the Company or any of its subsidiaries, and no consent, approval
or authorization or order of or qualification with any
governmental body or agency is required for the performance by the
Company of its obligations under the Underwriting Agreement, the
Senior Debt Indenture, the Subordinated Debt Indenture, the
Offered Securities, any Debt Warrant Securities, any Delayed
Delivery Contract or the Debt Warrant Agreement, if any, 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
Offered Securities; provided, however, that such counsel need not
express an opinion as to whether the purchase of the Debt
Securities or Debt Warrants 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;
(x) the statements (1) in the Prospectus under the captions
"Description of Debt Securities," "Description of Debt Warrants,"
"Underwriters" and "Plan of Distribution," (2) in the Registration
Statement under Item 15, (3) in "Item 3 - Legal Proceedings" of
the Company's most recent annual report on Form 10-K incorporated
by reference in the Prospectus and (4) in "Item 1 - Legal
Proceedings" of Part II of the Company's quarterly reports on Form
10-Q, if any, filed since such annual report, in each case insofar
as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(xi) 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 and are
not so described or of any statutes, regulations, contracts or
other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated by
reference as required; and
(xii) such counsel (1) is of the opinion that each document,
if any, filed pursuant to the Exchange Act and incorporated by
reference in the Registration Statement and the Prospectus (except
as to financial statements and schedules included therein as to
which such counsel need not express any opinion) complied when so
filed as to form in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission
thereunder, (2) believes that each part of the Registration
Statement (except as to financial statements and schedules
included therein, as to which such counsel need not express any
belief, and except for that part of the Registration Statement
that constitutes Forms T-1), on the date such part became
effective did not, and the Registration Statement (except as to
financial statements and schedules included therein, as to which
such counsel need not express any belief, and except for the part
of the Registration Statement that constitutes Forms T-1) as of
the date such opinion is delivered does 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, (3) is of the opinion that the
Registration Statement and Prospectus (except as to financial
statements and schedules included therein, as to which such
counsel need not express any opinion) comply as to form in all
material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder and (4) believes that
the Prospectus (except as to financial statements and schedules
included therein as to which such counsel need not express any
belief) as of the date such opinion is delivered does not contain
any untrue statement of a material fact or omit 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.
(d) The Manager shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, special counsel for the
Underwriters, dated the Closing Date, covering the matters
referred to in subparagraphs (iv), (v), (vi), (vii), (viii), (x)
(but only as to statements in the Prospectus under "Description of
Debt Securities," "Description of Debt Warrants" and "Plan of
Distribution"), and (xii)(2), (3) and (4) of paragraph (c) above.
With respect to subparagraph (xii) of Paragraph (c) above,
Jonathan M. Clark or such other counsel for the Company may state
that his opinion and belief are based upon his participation, or
the participation of someone under his supervision, in the
preparation of the Registration Statement and Prospectus and
documents incorporated therein by reference and review and
discussion of the contents thereof, but are without independent
check or verification, except as specified. With respect to
clauses (2), (3) and (4) of subparagraph (xii) of paragraph (c)
above, Davis Polk & Wardwell may state that their opinion and
belief are based upon their participation in the preparation of
the Registration Statement and Prospectus (but not including
documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents
incorporated therein by reference), but are without independent
check or verification, except as specified.
(e) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory
to the Manager, from the Company's independent auditors,
containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Prospectus.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Manager, without charge, a conformed copy
of the Registration Statement (including exhibits and all amendments
thereto) and for delivery to each other Underwriter a conformed copy
of the Registration Statement (without exhibits thereto) and, during
the period mentioned in paragraph (c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement
as the Manager may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities,
to furnish to the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement
to which the Manager reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for
the Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading, or if in the
opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare
and furnish, at its own expense, to the Underwriters and to the
dealers (whose names and addresses the Manager will furnish to the
Company) to which Offered Securities may have been sold by the
Manager on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus,
satisfactory in all respects to the Manager, so that the statements
in the Prospectus as so amended or supplemented will not, in the
light of the circumstances existing when the Prospectus is delivered
to a purchaser, be misleading or so that the Prospectus, as so
amended or supplemented, will comply with law and to cause such
amendments or supplements to be filed promptly with the Commission.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or blue sky laws of such jurisdictions
as the Manager shall reasonably request and to maintain such
qualifications for as long as the Manager shall reasonably request.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning
statement covering a twelve month period beginning on the first day
of the first full fiscal quarter after the date of the Underwriting
Agreement, which earning statement shall satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of
the Commission thereunder. If such fiscal quarter is the last fiscal
quarter of the Company's fiscal year, such earning statement shall
be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available
not later than 45 days after the close of the period covered thereby.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company or warrants to purchase debt
securities of the Company substantially similar to the Offered
Securities (other than (i) the Offered Securities and (ii) commercial
paper issued in the ordinary course of business), without the prior
written consent of the Manager.
(g) Whether or not any sale of Offered Securities is
consummated, to pay all expenses incident to the performance of
its obligations under this Agreement, including: (i) the
preparation and filing of the Registration Statement and the
Prospectus and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Offered Securities,
(iii) the fees and disbursements of the Company's counsel and
accountants and of the Trustees and their counsel, (iv) the
qualification of the Offered Securities under securities or blue
sky laws in accordance with the provisions of Section 6(d),
including filing fees and the fees and disbursements of counsel
for the Underwriters in connection therewith and in connection
with the preparation of any blue sky or Legal Investment
Memoranda, (v) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto and of the Prospectus and any
amendments or supplements thereto, (vi) the printing and delivery
to the Underwriters of copies of any blue sky or Legal Investment
Memoranda, (vii) any fees charged by rating agencies for the
rating of the Offered Securities, (viii) any expenses incurred by
the Company in connection with a "road show" presentation to
potential investors, (ix) all document production charges of
counsel to the Underwriters (but not including their fees for
professional services in connection with the preparation of this
Agreement) and (x) any filing fees in connection with any review
of the offering of the Offered Securities by the National
Association of Securities Dealers, Inc.
7. Covenants of the Underwriters.
(A) Each of the several Underwriters represents and agrees
with the Company that:
(a) except to the extent permitted under U.S. Treas. Reg.
Section 1.163-5(c)(2)(i)(D) (the "D Rules"), (i) it has not
offered or sold, and during the restricted period will not offer
or sell, Debt Securities in bearer form (including any Debt
Security in global form that is exchangeable for Debt Securities
in bearer form) to a person who is within the United States or its
possessions or to a United States person and (ii) it has not
delivered and will not deliver within the United States or its
possessions definitive Debt Securities in bearer form that are
sold during the restricted period;
(b) it has, and throughout the restricted period will have, in
effect procedures reasonably designed to ensure that its employees or
agents who are directly engaged in selling Debt Securities in bearer
form are aware that such Debt Securities may not be offered or sold
during the restricted period to a person who is within the United
States or its possessions or to a United States person, except as
permitted by the D Rules;
(c) if it is a United States person, it is acquiring the Debt
Securities in bearer form for purposes of resale in connection with
their original issuance and if it retains Debt Securities in bearer
form for its own account, it will only do so in accordance with the
requirements of U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt Securities in bearer
form for the purpose of offering or selling such Debt Securities
during the restricted period, it will either (i) obtain from such
affiliate for the benefit of the Company the representations and
agreements contained in clauses (a), (b) and (c) or (ii) repeat and
confirm the representations and agreements contained in clauses (a),
(b) and (c) on such affiliate's behalf and obtain from such affiliate
the authority to so obligate it;
(e) it will obtain for the benefit of the Company the
representations and agreements contained in clauses (a), (b), (c) and
(d) from any person other than its affiliate with whom it enters into
a written contract, as defined in U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(4) for the offer or sale during the restricted
period of Debt Securities in bearer form; and
(f) it 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 Debt Securities
may be offered, sold, resold or delivered.
The restricted period is defined at U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(7). All other terms used in the preceding paragraph have
the meaning given to them by the U.S. Internal Revenue Code and regulations
thereunder, including the D Rules.
(B) Each of the several Underwriters represents and agrees
with the Company that:
(a) except to the extent permitted under the D Rules, (i) it
has not offered or sold Debt Warrants in bearer form to a person who
is within the United States or its possessions or to a United States
person and (ii) it will not offer or sell Debt Warrants in bearer
form at any time to a person who is within the United States or its
possessions or to a United States person;
(b) it has in effect procedures reasonably designed to ensure
that its employees or agents who are directly engaged in selling Debt
Warrants in bearer form are aware that such Debt Warrants may not be
offered or sold at any time to a person who is within the United
States or its possessions or to a United States person, except as
permitted by the D Rules;
(c) if it is a United States person, it is acquiring the Debt
Warrants in bearer form for purposes of resale in connection with
their original issuance and if it retains Debt Warrants in bearer
form for its own account, it will only do so in accordance with the
requirements of U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt Warrants in bearer
form for the purpose of offering or selling such Debt Warrants, it
will either (i) obtain from such affiliate for the benefit of the
Company the representations and agreements contained in clauses
(a), (b) and (c) or (ii) repeat and confirm the representations
and agreements contained in clauses (a), (b) and (c) on such
affiliate's behalf and obtain from such affiliate the authority to
so obligate it;
(e) it will obtain for the benefit of the Company the
representations and agreements contained in clauses (a), (b), (c) and
(d) from any person other than its affiliate with whom it enters into
a written contract, as defined in U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(4) for the offer or sale of Debt Warrants in
bearer form; and
(f) it 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 Debt Warrants may
be offered, sold, resold or delivered.
Terms used in the preceding paragraph have the meaning given to them by the
U.S. Internal Revenue Code and regulations thereunder, including the D Rules.
8. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or allegedly untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus
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 allegedly untrue statement or omission
based upon information relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Manager expressly for use
therein; provided, however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages
or liabilities purchased Offered Securities, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented
if the Company shall have furnished any amendments or supplements thereto)
was not sent or given by or on behalf of such Underwriter to such person,
if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Offered Securities to such person, and if
the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities.
Each Underwriter agrees, 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 each Underwriter, but only with reference to information relating
to such Underwriter furnished to the Company by such Underwriter in writing
through the Manager expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
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 of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager,
in the case of parties indemnified pursuant to the second preceding paragraph,
and by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. 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 third sentence 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.
To the extent the indemnification provided for in the first or
second paragraph in this Section 8 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, 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 the Underwriters
on the other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (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 (i) above but also the relative fault of the Company on
the one hand and the Underwriters 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 the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company and of the
Underwriters shall be determined by reference to, among other things, whether
the untrue or allegedly 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 the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph 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 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or allegedly 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
Underwriters' respective obligations to contribute pursuant to this Section 8
are several in proportion to the respective principal amounts of Offered
Securities purchased by each of such Underwriters and not joint. The remedies
provided for in this Section 8 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.
9. Termination. This Agreement shall be subject to
termination by notice given by the Manager to the Company, if (a) after the
execution and delivery of the Underwriting Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on
or by, as the case may be, any of the New York Stock Exchange, the American
Stock Exchange, the National Association of Securities Dealers, Inc., the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall
have been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together with
any other such event, makes it, in the judgment of the Manager, impracticable
to market the Offered Securities on the terms and in the manner contemplated
in the Prospectus.
10. Defaulting Underwriters. If on the Closing Date any one
or more of the Underwriters shall fail or refuse to purchase Offered
Securities that it has or they have agreed to purchase on such date, and the
aggregate amount of Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate amount of the Offered Securities to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the amount of Underwriters' Securities set forth opposite
their respective names above bears to the aggregate amount of Underwriters'
Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Offered Securities that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to
this Section 10 by an amount in excess of one-ninth of such amount of Offered
Securities without the written consent of such Underwriter. If on the Closing
Date any Underwriter or Underwriters shall fail or refuse to purchase Offered
Securities and the aggregate amount of Offered Securities with respect to
which such default occurs is more than one-tenth of the aggregate amount of
Offered Securities to be purchased on such date, and arrangements satisfactory
to the Manager and the Company for the purchase of such Offered Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either the Manager or the Company shall have the
right to postpone the Closing Date but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and
in the Prospectus or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its obligations
under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Offered Securities.
11. Representations and Indemnities to Survive. The
respective indemnity and contribution agreements and the representations,
warranties and other statements of the Company, its officers and the
Underwriters set forth in this Agreement will remain in full force and effect,
regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of any Underwriter or any person controlling any
Underwriter 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 Offered Securities.
12. Successors. This 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 8, and no
other person will have any right or obligation hereunder.
13. Counterparts. The Underwriting 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.
14. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
15. 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.
Schedule I
DELAYED DELIVERY CONTRACT
________, 19__
Dear Sirs:
The undersigned hereby agrees to purchase from Morgan Stanley
Group Inc., a Delaware corporation (the "Company"), and the Company agrees to
sell to the undersigned the Company's securities described in Schedule A
annexed hereto (the "Securities"), offered by the Company's Prospectus dated
, 19__ and Prospectus Supplement dated , 19__, receipt
of copies of which are hereby acknowledged, at a purchase price stated in
Schedule A and on the further terms and conditions set forth in this
agreement. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company Securities in
the principal amount and numbers on the delivery dates set forth in Schedule
A. Each such date on which Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or official bank check in immediately available funds at the office
of , New York, N.Y., at 10:00 A.M. (New York
time) on the Delivery Date, upon delivery to the undersigned of the Securities
to be purchased by the undersigned on the Delivery Date, in such denominations
and registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Securities on the Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company shall
have sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Securities as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by
any purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
If this agreement is acceptable to the Company, it is requested
that the Company sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at its address set forth below.
This will become a binding agreement, as of the date first above written,
between the Company and the undersigned when such counterpart is so mailed or
delivered.
This agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Yours very truly,
___________________________
(Purchaser)
By: _______________________
___________________________
(Title)
___________________________
___________________________
(Address)
Accepted:
Morgan Stanley Group Inc.
By: ________________________
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of
the Purchaser with whom details of delivery on the Delivery Date may be
discussed is as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
________________ _______________ _________________
________________ _______________ _________________
________________ _______________ _________________
SCHEDULE A
Securities:
Principal amounts or Numbers to be Purchased:
Purchase Price:
Delivery Dates:
EXECUTION COPY
MORGAN STANLEY GROUP INC.
$4,286,270,654
Global Medium-Term Notes, Series C
Due More than 9 Months from Date of Issue
U.S. DISTRIBUTION AGREEMENT
May 1, 1996
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
Morgan Stanley Group Inc., a Delaware corporation (the
"Company"), confirms its agreement with you with respect to the issue and sale
from time to time by the Company of up to $4,286,270,654 (or the equivalent
thereof in one or more foreign currencies or composite currencies) aggregate
initial public offering price of its Global Medium-Term Notes, Series C, due
more than 9 months from date of issue (the "Notes"), subject to reduction as a
result of the sale of the Company's Global Medium-Term Notes, Series D and
Series E, to be sold primarily outside the United States, and the sale of
certain of the Company's other debt securities, warrants to purchase debt
securities and preferred stock.
The Notes may be issued as senior indebtedness (the "Series C
Senior Notes") or as subordinated indebtedness (the "Series C Subordinated
Notes") of the Company. The Series C Senior Notes will be issued pursuant to
the provisions of a senior indenture dated as of April 15, 1989, as
supplemented by a first supplemental senior indenture dated as of May 15, 1991
and a second supplemental senior indenture dated as of April 15, 1996 (as so
supplemented and as may be further supplemented or amended from time to time,
the "Senior Debt Indenture"), between the Company and Chemical Bank, as
trustee (the "Senior Debt Trustee"). The Series C Subordinated Notes will be
issued pursuant to the provisions of a subordinated indenture dated as of
April 15, 1989, as supplemented by a first supplemental subordinated indenture
dated as of May 15, 1991 and a second supplemental subordinated indenture
dated as of April 15, 1996 (as so supplemented and as may be further
supplemented or amended from time to time, the "Subordinated Debt Indenture"),
between the Company and The First National Bank of Chicago, as trustee (the
"Subordinated Debt Trustee"). 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." The Notes
will have the maturities, interest rates, redemption provisions, if any, and
other terms as set forth in supplements to the Basic Prospectus referred to
below.
The Company hereby appoints you as its exclusive agent for the
purpose of soliciting and receiving offers to purchase Notes 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 Notes 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
Notes as principal pursuant to the terms of a terms agreement relating to such
sale (a "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 Notes. Such registration statement, including the
exhibits thereto, as amended at the Commencement Date (as hereinafter
defined), is hereinafter referred to as the "Registration Statement." The
Company proposes to file with the Commission from time to time, pursuant to
Rule 424 under the Securities Act of 1933, as amended (the "Securities Act"),
supplements to the prospectus included in the Registration Statement that will
describe certain terms of the Notes. The prospectus in the form in which it
appears in the Registration Statement is hereinafter referred to as the "Basic
Prospectus." The term "Prospectus" means the Basic Prospectus together with
the prospectus supplement or supplements (each a "Prospectus Supplement")
specifically relating to Notes, as filed with, or transmitted for filing to,
the Commission pursuant to Rule 424. As used herein, the terms "Basic
Prospectus" and "Prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement," "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated
by reference in the Prospectus that are filed subsequent to the date of the
Basic Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
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 Notes, as of each date on which the
Company accepts an offer to purchase Notes (including any purchase by you as
principal pursuant to a Terms Agreement), as of each date the Company issues
and delivers Notes and as of each date the Registration Statement or the Basic
Prospectus is amended or supplemented, as follows (it being understood that
such representations, warranties and agreements shall be deemed to relate to
the Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated by reference in the
Prospectus complied or will comply when so filed in all material respects
with the Exchange Act and the applicable rules and regulations of the
Commission thereunder, (ii) each part of the Registration Statement, when
such part became effective, did not contain and each such part, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (iii)
the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that (1) the representations and warranties
set forth in this Section 1(b) do not apply (A) to statements or omissions
in the Registration Statement or the Prospectus based upon information
relating to you furnished to the Company in writing by you expressly for
use therein or (B) to those parts of the Registration Statement that
constitute the Statements of Eligibility (Form T-1) under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the
Trustees and (2) the representations and warranties set forth in clauses
(iii) and (iv) above, when made as of the Commencement Date or as of any
date on which you solicit offers to purchase Notes or on which the Company
accepts an offer to purchase Notes, shall be deemed not to cover
information concerning an offering of particular Notes to the extent such
information will be set forth in a supplement to the Basic Prospectus.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(e) Each of this Agreement and any applicable Written Terms
Agreement (as hereinafter defined) has been duly authorized, executed and
delivered by the Company.
(f) Each Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is subject
to general principles of equity regardless of whether such enforceability is
considered at a proceeding in equity or at law.
(g) The forms of Notes have been duly authorized and
established in conformity with the provisions of the relevant Indenture and,
when the Notes 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 will be entitled to the benefits of such
Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity regardless of whether such enforceability is considered at a proceeding
in equity or at law.
(h) The execution and delivery by the Company of this
Agreement, the Notes, the Indentures and any applicable Written Terms
Agreement and the performance by the Company of its obligations under this
Agreement, the Notes, the Indentures and any applicable 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 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 subsidiary, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the Notes,
the Indentures and any applicable 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 Notes; provided, however, that no
representation is made or warranty given as to whether the purchase of the
Notes 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.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(j) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement that are not described, filed or
incorporated as required.
(k) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state,
local and other governmental authorities, all self-regulatory organizations
and all courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business in the manner described in
the Prospectus, except to the extent that the failure to obtain or file would
not have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(l) 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.
(m) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida) relating to doing
business with the Government of Cuba or with any person or affiliate located
in Cuba.
Notwithstanding the foregoing, it is understood and agreed that
the representations and warranties set forth in Section 1(b)(iii) and (iv),
(g) (except as to due authorization of the Notes) and (h), when made as of the
Commencement Date, or as of any date on which you solicit offers to purchase
Notes, with respect to any Notes the payments of principal or interest on
which will be determined by reference to one or more currency exchange rates,
commodity prices, securities of entities 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 Agent; Purchases as Principal.
(a) Solicitations as Agent. In connection with your actions
as agent hereunder, you agree to use reasonable efforts to solicit offers to
purchase Notes 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 Notes. Upon receipt of at least one
business day's prior notice from the Company, you will forthwith suspend
solicitations of offers to purchase Notes 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 a change in the interest rates,
redemption provisions, amortization schedules or maturities offered on the
Notes or for a change you deem to be immaterial), you shall not be required to
resume soliciting offers to purchase Notes 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 Note 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 Note equal to between .125% and .750% (depending
upon such Note's maturity) of the principal amount of such Note (provided
that the commission for Notes 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.
You shall communicate to the Company, orally or in writing,
each offer to purchase Notes 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 Notes and may reject any offer in whole or in part.
You shall have the right to reject any offer to purchase Notes that you
consider to be unacceptable, and any such rejection shall not be deemed a
breach of your agreements contained herein. The procedural details relating
to the issue and delivery of Notes sold by you as agent and the payment
therefor shall be as set forth in the Administrative Procedures (as
hereinafter defined).
(b) Purchases as Principal. Each sale of Notes to you as
principal shall be made in accordance with the terms of this Agreement. In
connection with each such sale, the Company will enter into a Terms Agreement
that will provide for the sale of such Notes to and the purchase thereof by
you. Each 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 hereto (a "Written Terms Agreement"), or (ii) an oral agreement
between you and the Company confirmed in writing by you to the Company.
Your commitment to purchase Notes as principal pursuant to a
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 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. Each such
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 Terms Agreement may also
specify certain provisions relating to the reoffering of such Notes by you.
Each Terms Agreement shall specify the time and place of
delivery of and payment for such Notes. Unless otherwise specified in a Terms
Agreement, the procedural details relating to the issue and delivery of Notes
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
Notes to be purchased by you as principal pursuant to a Terms Agreement is
referred to herein as a "Settlement Date."
Unless otherwise specified in a Terms Agreement, if you are
purchasing Notes as principal you may resell such Notes to other dealers. Any
such sales may be at a discount, which shall not exceed the amount set forth
in the Prospectus Supplement relating to such Notes.
(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 Administrative Procedures (attached
hereto as Exhibit B) (the "Administrative Procedures"), as amended from time
to time. The Administrative Procedures may be amended only by written
agreement of the Company and you.
(d) Delivery. The documents required to be delivered by
Section 4 of this Agreement as a condition precedent to your obligation to
begin soliciting offers to purchase Notes as agent of the Company shall be
delivered at the office of Davis Polk & Wardwell, your counsel, not later than
4:00 p.m., New York 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 Notes and (ii) the first date on which the
Company accepts any offer by you to purchase Notes as principal. The date of
delivery of such documents is referred to herein as the "Commencement Date."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes
pursuant to this Agreement or any Terms Agreement, the Company will not file
any Prospectus Supplement relating to the Notes or any amendment to the
Registration Statement unless the Company has previously furnished to you a
copy thereof for your review and will not file any such proposed supplement or
amendment to which you reasonably object; provided, however, that the
foregoing requirement shall not apply to any of the Company's periodic filings
with the Commission required to be filed pursuant to Section 13(a), 13(c),
13(f), 14 or 15(d) of the Exchange Act, copies of which filings the Company
will cause to be delivered to you promptly after being transmitted for filing
with the Commission. Subject to the foregoing sentence, the Company will
promptly cause each Prospectus Supplement to be filed with or transmitted for
filing to the Commission in accordance with Rule 424(b) under the Securities
Act. The Company will promptly advise you (i) of the filing of any amendment
or supplement to the Basic Prospectus, (ii) of the filing and effectiveness of
any amendment to the Registration Statement, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Basic Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best efforts to prevent
the issuance of any such stop order or notice of suspension of qualification
and, if issued, to obtain as soon as possible the withdrawal thereof. If the
Basic Prospectus is amended or supplemented as a result of the filing under
the Exchange Act of any document incorporated by reference in the Prospectus,
you shall not be obligated to solicit offers to purchase Notes so long as you
are not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Notes
is required to be delivered under the Securities Act, any event occurs or
condition exists as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact, or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances when the Prospectus, as then amended or
supplemented, is delivered to a purchaser, not misleading, or if, in your
opinion or in the opinion of the Company, it is necessary at any time to
amend or supplement the Prospectus, as then amended or supplemented, to
comply with applicable law, the Company will immediately notify you by
telephone (with confirmation in writing) to suspend solicitation of offers
to purchase Notes and, if so notified by the Company, you shall forthwith
suspend such solicitation and cease using the Prospectus, as then amended
or supplemented. If the Company shall decide to amend or supplement the
Registration Statement or Prospectus, as then amended or supplemented, it
shall so advise you promptly by telephone (with confirmation in writing)
and, at its expense, shall prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, satisfactory in all respects
to you, that will correct such statement or omission or effect such
compliance and will supply such amended or supplemented Prospectus to you
in such quantities as you may reasonably request. If any documents,
certificates, opinions and letters furnished to you pursuant to paragraph
(f) below and Sections 5(a), 5(b) and 5(c) in connection with the
preparation and filing of such amendment or supplement are satisfactory in
all respects to you, upon the filing with the Commission of such amendment
or supplement to the Prospectus or upon the effectiveness of an amendment
to the Registration Statement, you will resume the solicitation of offers
to purchase Notes hereunder. Notwithstanding any other provision of this
Section 3(b), until the distribution of any Notes you may own as principal
has been completed, if any event described above in this paragraph (b)
occurs, the Company will, at its own expense, forthwith prepare and cause
to be filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to you, will supply such amended or
supplemented Prospectus to you in such quantities as you may reasonably
request and shall furnish to you pursuant to paragraph (f) below and
Sections 5(a), 5(b) and 5(c) such documents, certificates, opinions and
letters as you may request in connection with the preparation and filing of
such amendment or supplement.
(c) The Company will make generally available to its security
holders and to you as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering twelve month periods
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each sale of
Notes. If such fiscal quarter is the last fiscal quarter of the Company's
fiscal year, such earning statement shall be made available not later than 90
days after the close of the period covered thereby and in all other cases
shall be made available not later than 45 days after the close of the period
covered thereby.
(d) The Company will furnish to you, without charge, 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.
(e) The Company will endeavor to qualify the Notes for offer
and sale under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to maintain such qualifications for as long as
you shall reasonably request.
(f) During the term of this Agreement, the Company shall
furnish to you such relevant documents and certificates of officers of the
Company relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indentures, the Notes, this Agreement, the Administrative
Procedures, any Terms Agreement and the performance by the Company of its
obligations hereunder or thereunder as you may from time to time reasonably
request.
(g) The Company shall notify you promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate the
direction of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Terms Agreement, including: (i) the preparation
and filing of the Registration Statement and the Prospectus and all amendments
and supplements thereto, (ii) the preparation, issuance and delivery of the
Notes, (iii) the fees and disbursements of the Company's counsel and
accountants and of the Trustees and their counsel, (iv) the qualification of
the Notes under securities or Blue Sky laws in accordance with the provisions
of Section 3(e), including filing fees and the fees and disbursements of your
counsel in connection therewith and in connection with the preparation of any
Blue Sky or Legal Investment Memoranda, (v) the printing and delivery to you
in quantities as hereinabove stated of copies of the Registration Statement
and all amendments thereto and of the Prospectus and any amendments or
supplements thereto, (vi) the printing and delivery to you of copies of the
Indentures and any Blue Sky or Legal Investment Memoranda, (vii) any fees
charged by rating agencies for the rating of the Notes, (viii) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc., (ix) the fees and disbursements of
your counsel incurred in connection with the offering and sale of the Notes,
including any opinions to be rendered by such counsel hereunder, and (x) any
out-of-pocket expenses incurred by you; provided that any advertising expenses
incurred by you shall have been approved by the Company.
(i) During the period beginning on the date of any Terms
Agreement and continuing to and including the Settlement Date with respect to
such Terms Agreement, the Company will not, without your prior consent, offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company substantially similar to such Notes (other than (i) the Notes that are
to be sold pursuant to such Terms Agreement, (ii) Notes previously agreed to
be sold by the Company and (iii) commercial paper issued in the ordinary
course of business), except as may otherwise be provided in such Terms
Agreement.
4. Conditions of the Obligations of the Agent. Your
obligation to solicit offers to purchase Notes as agent of the Company, your
obligation to purchase Notes as principal pursuant to any Terms Agreement and
the obligation of any other purchaser to purchase Notes 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 Notes, at the time of such
solicitation, and, in the case of your or any other purchaser's obligation to
purchase Notes, at the time the Company accepts the offer to purchase such
Notes and at the time of issuance and delivery) and (in each case) to the
following additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may
be:
(i) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus, as amended or supplemented at the time of
such solicitation or at the time such offer to purchase was made,
that, in your judgment, is material and adverse and that makes it, in
your judgment, impracticable to market the Notes on the terms and in
the manner contemplated by the Prospectus, as so amended or
supplemented;
(ii) there shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may
be, any of the New York Stock Exchange, the American Stock Exchange,
the National Association of Securities Dealers, Inc., the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (B) suspension of trading of any securities
of the Company on any exchange or in any over-the-counter market, (C)
declaration of a general moratorium on commercial banking activities
in New York by either Federal or New York State authorities or (D)
any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in your judgment, is material
and adverse and, in the case of any of the events described in
clauses (ii)(A) through (D), such event, singly or together with any
other such event, makes it, in your judgment, impracticable to market
the Notes on the terms and in the manner contemplated by the
Prospectus, as amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed to you in writing by the Company prior to such solicitation or, in
the case of a purchase of Notes, before the offer to purchase such Notes 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 Notes, before the offer to purchase such Notes was
made.
(b) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of Jonathan M. Clark,
General Counsel and Secretary of the Company, or of other counsel
satisfactory to the Agent and who is an officer of the Company, to
the effect that:
(A) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the State of Delaware, has the corporate power and authority
to own its property and to conduct its business as described
in the Prospectus, as amended or supplemented, and is duly
qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such
qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a
material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole;
(B) each of Morgan Stanley & Co. Incorporated and
Morgan Stanley International Incorporated (each a "Material
Subsidiary") has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its
business as described in the Prospectus, as amended or
supplemented, and is duly qualified to transact business and
is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole;
(C) each of the Company and its Material Subsidiaries
has all necessary consents, authorizations, approvals,
orders, certificates and permits of and from, and has made
all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to
conduct its business in the manner described in the
Prospectus, as amended or supplemented, except to the extent
that the failure to obtain or file would not have a material
adverse effect on the Company and its consolidated
subsidiaries, taken as a whole;
(D) each of this Agreement and any applicable Written
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 has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms except
as (i) the enforceability thereof may be limited by bankruptcy,
insolvency reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is
subject to general principles of equity regardless of whether
such enforceability is considered at a proceeding in equity or
at law.
(F) the forms of Notes have been duly authorized and
established in conformity with the provisions of the
relevant Indenture and, if the Notes 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, the
Notes would be entitled to the benefits of such Indenture
and would be valid and binding obligations of the Company,
enforceable in accordance with their respective terms except
as (i) the enforceability thereof may be limited by
bankruptcy, insolvency reorganization, liquidation,
moratorium and other similar laws affecting creditors'
rights generally and (ii) is subject to general principles
of equity regardless of whether such enforceability is
considered at a proceeding in equity or at law.
(G) the execution and delivery by the Company of the
Notes, the Indentures and any applicable Written Terms
Agreement and the performance by the Company of its obligations
under this Agreement, the Notes, the Indentures and any
applicable Terms Agreement will not contravene any provision of
applicable law or the certificate of incorporation or by-laws
of the Company or, to the best of such counsel's knowledge, any
agreement or other instrument binding upon the Company or any
of its subsidiaries that is material to the Company and its
consolidated subsidiaries, taken as a whole, or, to the best of
such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval,
authorization or order of or qualification with any
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, the Notes,
the Indentures and any applicable 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
Notes; provided, however, that no opinion is expressed on
whether the purchase of the Notes 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;
(H) the statements (1) in the Prospectus, as then
amended or supplemented, under the captions "Description of
Notes" (in the Prospectus Supplement), "Description of Debt
Securities" (in the Basic Prospectus) and "Plan of
Distribution" (in the Prospectus Supplement and 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 Company's most recent annual
report on Form 10-K incorporated by reference in the
Prospectus and (4) in "Item 1 - Legal Proceedings" of Part
II of the Company's quarterly reports on Form 10-Q, if any,
filed since such annual report, in each case insofar as such
statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present
the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the
matters referred to therein;
(I) 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; and
(J) such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus as then amended or
supplemented (except as to financial statements and schedules
included therein as to which such counsel need not express any
opinion), complied when so filed as to form in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (2) has no reason to
believe that any part of the Registration Statement (except as
to financial statements and schedules as to which such counsel
need not express any belief and except for that part of the
Registration Statement that constitutes the Forms T-1
heretofore referred to), as then amended, if applicable, when
such part became effective contained, and the Registration
Statement (except as to financial statements and schedules
included therein, as to which such counsel need not express any
belief, and except for the part of the Registration Statement
that constitutes the form T-1) as of the date such opinion is
delivered, contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, (3) is of the opinion that the Registration
Statement and Prospectus, as then amended or supplemented, if
applicable (except for financial statements and schedules
included therein as to which such counsel need not express any
opinion), comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder and (4) has no reason to believe that the
Prospectus, as then amended or supplemented, if applicable
(except for financial statements and schedules as to which such
counsel need not express any belief) as of the date such
opinion is delivered contains any untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that in the case of an opinion delivered on the
Commencement Date or pursuant to Section 5(b), the opinion and
belief set forth in clauses (3) and (4) above shall be deemed
not to cover information concerning an offering of particular
Notes to the extent such information will be set forth in a
supplement to the Basic Prospectus.
(ii) The opinion, dated as of such date, of Davis Polk &
Wardwell, your special counsel, covering the matters in subparagraphs
(D), (E), (F) and (H) (with respect to statements in the Prospectus,
as then amended or supplemented, under the captions "Description of
Notes" (in the Prospectus Supplement), "Description of Debt
Securities" (in the Basic Prospectus) and "Plan of Distribution" (in
the Prospectus Supplement and in the Basic Prospectus)) and clauses
(2), (3) and (4) of subparagraph (J) in paragraph (b)(i) above.
Notwithstanding the foregoing, the opinions described in
subparagraphs (F) (except as to due authorization of the Notes), (G),
(H)(1) and (J)(3) and (4) of paragraph (b)(i) above, when contained
in an opinion delivered on the Commencement Date or pursuant to
Section 5(b), shall be deemed not to address the application of the
Commodity Exchange Act, as amended, or the rules, regulations or
interpretations of the Commodity Futures Trading Commission to Notes
the payments of principal or interest on which will be determined by
reference to one or more currency exchange rates, commodity prices,
securities of entities unaffiliated with the Company, baskets of such
securities, equity indices or other factors.
With respect to subparagraph (J) of paragraph (b)(i) above,
Jonathan M. Clark or such other counsel for the Company may state
that his opinion and belief are based upon his participation, or the
participation of someone under his supervision, in the preparation of
the Registration Statement and Prospectus and any amendments or
supplements thereto and documents incorporated therein by reference
and review and discussion of the contents thereof, but are without
independent check or verification, except as specified. With respect
to clauses (2), (3) and (4) of subparagraph (J) of paragraph (b)(i)
above, Davis Polk & Wardwell may state that their opinion and belief
are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or
supplements thereto (but not including documents incorporated therein
by reference) and review and discussion of the contents thereof
(including documents incorporated therein by reference), but are
without independent check or verification, except as specified.
(iii) The opinion, dated as of such date, of Shearman &
Sterling, special counsel to the Company, to the effect that the
statements set forth under the caption "United States Federal
Taxation" in the Prospectus Supplement and under the caption
"Limitations on Issuance of Bearer Debt Securities and Bearer Debt
Warrants" 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 Shearman & Sterling, described in paragraph
(b)(iii) above 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 Terms
Agreement, on the corresponding Settlement Date, you shall have received a
certificate, dated the Commencement Date or such Settlement Date, as the case
may be, and signed by an executive officer of the Company to the effect set
forth in subparagraph (a)(iii) above and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of such date and that the Company has complied with all of
the agreements and satisfied all of the conditions on its part to be performed
or satisfied on or before such date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any
Terms Agreement, on the corresponding Settlement Date, the Company's
independent auditors shall have furnished to you a letter or letters, dated
as of the Commencement Date or such Settlement Date, as the case may be, in
form and substance satisfactory to you containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference
into the Prospectus, as then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to you such appropriate further information,
certificates and documents as you may reasonably request.
5. Additional Agreements of the Company. (a) Each time the
Registration Statement or Prospectus is amended or supplemented (other than by
an amendment or supplement providing solely for a change in the interest
rates, redemption provisions, amortization schedules or maturities offered on
the Notes or for 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), 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 opinion
referred to in Section 4(b)(i), but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such opinion. In lieu of such opinion, counsel last furnishing
such an opinion to you may furnish to you a letter to the effect that you may
rely on such last opinion to the same extent as though it were dated the date
of such letter (except that statements in such last opinion will be deemed to
relate to the Registration Statement and the Prospectus as amended or
supplemented to the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Prospectus, the Company shall cause its independent auditors
forthwith to furnish you with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to you, of the same tenor
as the letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or incorporated by reference in
the Registration Statement or the Prospectus as amended or supplemented to the
date of such letter.
6. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless you and each person, if any, who controls you
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by you or any such controlling person in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof or the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to you
furnished to the Company in writing by you expressly for use therein.
(b) You agree to indemnify and hold harmless the Company,
its directors, its officers who sign the Registration Statement and each
person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Company to you, but only
with reference to information relating to you furnished to the Company in
writing by you expressly for use in the Registration Statement or the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by you, in the
case of parties indemnified pursuant to paragraph (a) above, and by the
Company, in the case of parties indemnified pursuant to paragraph (b) above.
The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there 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
paragraph (a) or (b) of this Section 6 is unavailable to an indemnified party
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein in connection with any offering of Notes, 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 Notes or (ii) if the allocation provided by clause
(i) is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and you on the other
hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and you on the other hand in connection with the offering of such
Notes shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of such Notes (before deducting expenses)
received by the Company bear to the total discounts and commissions received
by you in respect thereof. The relative fault of the Company on the one hand
and of you on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by you and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company and you agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, you shall not be required to contribute any
amount in excess of the amount by which the total price at which the Notes
referred to in paragraph (d) above that were offered and sold to the public
through you exceeds the amount of any damages that you have otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 6, representations, warranties and other statements of the
Company, its officers and you set forth in or made pursuant to this Agreement
or any Terms Agreement will remain in full force and effect regardless of (i)
any termination of this Agreement or any such Terms Agreement, (ii) any
investigation made by or on behalf of you or any person controlling you or by
or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Notes.
7. Position of the Agent. In acting under this Agreement and
in connection with the sale of any Notes by the Company (other than Notes sold
to you pursuant to a Terms Agreement), 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 Notes. You shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes 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 Notes to a purchaser whose offer it has accepted, the
Company shall hold you harmless against any loss, claim, damage or liability
arising from or as a result of such default and shall, in particular, pay to
you the commission you would have received had such sale been consummated.
8. 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 party hereto, but without prejudice to any rights,
obligations or liabilities of either party hereto accrued or incurred prior
to such termination. The termination of this Agreement shall not require
termination of any Terms Agreement, and the termination of any such Terms
Agreement shall not require termination of this Agreement. If this Agreement
is terminated, the provisions of the third paragraph of Section 2(a), the last
sentence of Section 3(b) and Sections 3(c), 3(h), 6, 7, 9, 11 and 13 shall
survive; provided that if at the time of termination an offer to purchase
Notes has been accepted by the Company but the time of delivery to the
purchaser or its agent of such Notes has not occurred, the provisions of
Sections 2(b), 2(c), 3(a), 3(b), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall also
survive until such delivery has been made.
9. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to you, will be mailed, delivered
or telefaxed and confirmed to you at 1585 Broadway, New York, New York 10036,
Attention: Manager, Credit Department (telefax number: 212-703-4575), with a
copy to 1221 Avenue of the Americas, New York, New York 10020, Attention:
Managing Director, Debt Syndicate (telefax number: 212-764-7490) or, if sent
to the Company, will be mailed, delivered or telefaxed and confirmed to the
Company at 1585 Broadway, New York, New York 10036, Attention: Secretary.
10. Successors. This Agreement and any 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 (to the extent expressly
provided in Section 4), and no other person will have any right or obligation
hereunder.
11. 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.
12. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the of the State of New
York.
13. 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.
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 GROUP INC.
By ______________________
Name: Philip N. Duff
Title: Chief Financial Officer
and Treasurer
The foregoing Agreement
is hereby confirmed
and accepted as of the
date first above written.
MORGAN STANLEY & CO. INCORPORATED
By ______________________________
Name:
Title:
EXHIBIT A
MORGAN STANLEY GROUP INC.
MEDIUM-TERM NOTES, SERIES C
TERMS AGREEMENT
_______________, 19__
Morgan Stanley Group Inc.
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement
dated [ ], 1996
(the "U.S. Distribution Agreement")
The undersigned agrees to purchase your Global Medium-Term
Notes, Series C, having the following terms:
Floating
Fixed Rate Rate
All Notes: Notes: Notes:
- ----------------------- ----------------------- -------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Index Maturity:
Modified Payment upon
Acceleration: Index Currency:
Price to Public: If yes, state issue Spread (Plus or
price: Minus):
Settlement Date and Amortization Spread
Time: Schedule: Multiplier:
Place of Delivery: Applicability of Alternate Rate
Annual Interest Event Spread:
Payments:
Specified Currency: Denominated Currency Initial Interest
(if any): Rate:
Original Issue Indexed Currency or Initial Interest
Date: Currencies (if any): Reset Date:
Interest Accrual Payment Currency (if Interest Reset
Date: any): Dates:
Maturity Date: Exchange Rate Agent Interest Reset
(if any): Period:
Initial Accrual Reference Dealers: Maximum Interest
Period OID: Rate:
Total Amount of Face Amount (if any): Minimum Interest
OID: Rate:
Original Yield to Fixed Amount of each Interest Payment
Maturity: Indexed Currency (if Date(s):
any):
Optional Repayment Aggregate Fixed Interest Payment
Date(s): Amount of each Period:
Indexed Currency (if
any):
Optional Redemption Applicability of Calculation
Date(s): Issuer's Option to Agent:
Extend Original
Maturity Date:
Initial Redemption If yes, state Final Reporting
Date: Maturity Date: Service:
Initial Redemption Variable Rate
Percentage: Renewable Notes:
-------------------
Annual Redemption Redemption Dates:
Percentage
Reduction:
Ranking: Redemption
Percentage:
Other Provisions: Initial Maturity
Date:
Final Maturity
Date:
Applicability of
Issuer's Option
to reset Spread
or Spread
Multiplier:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6
and 9 through 13 of the U.S. Distribution Agreement and the related
definitions are incorporated by reference herein and shall be deemed to
have the same force and effect as if set forth in full herein.
This Agreement is subject to termination on the terms
incorporated by reference herein. If this Agreement is so terminated, the
provisions of Sections 3(h), 6, 9, 11, and 13 of the U.S. Distribution
Agreement shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the U.S. Distribution Agreement will be
required: ________________
MORGAN STANLEY & CO. INCORPORATED
By ______________________________
Title:
Accepted:
MORGAN STANLEY GROUP INC.
By ______________________________
Title:
EXECUTION COPY
MORGAN STANLEY GROUP INC.
$4,286,270,654
Global Medium-Term Notes, Series D and Series E
Due More than 9 Months from Date of Issue
EURO DISTRIBUTION AGREEMENT
May , 1996
Morgan Stanley & Co. International Limited
Morgan Stanley Bank AG
Morgan Stanley S.A.
Bank Morgan Stanley AG
c/o Morgan Stanley & Co. International
Limited
25 Cabot Square
Canary Wharf London E14 4QA
England
Dear Sirs:
Morgan Stanley Group Inc., 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
$4,286,270,654 (or the equivalent thereof in one or more foreign currencies or
composite currencies) aggregate initial public offering price of its Global
Medium-Term Notes, Series D (the "Series D Notes") and its Global Medium-Term
Notes, Series E (the "Series E Notes" and together with the Series D Notes,
the "Notes"), due more than 9 months from date of issue, subject to reduction
as a result of the sale of the Company's Global Medium-Term Notes, Series C,
to be sold inside the United States, and the sale of certain of the Company's
other debt securities, warrants to purchase debt securities and preferred
stock. The Series D Notes are intended to be listed on the London Stock
Exchange Limited (the "London Stock Exchange") or on another stock exchange or
exchanges, if so required by Section 3(i) hereof. The Series E Notes 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 pursuant to the provisions of a
senior indenture dated as of April 15, 1989, as supplemented by a first
supplemental senior indenture dated as of May 15, 1991 and a second
supplemental senior indenture dated as of April 15, 1996 (as so supplemented
and as may be further supplemented or amended from time to time, the "Senior
Debt Indenture"), between the Company and Chemical Bank, as trustee (the
"Senior Debt Trustee"). The Subordinated Notes will be issued pursuant to the
provisions of a subordinated indenture dated as of April 15, 1989, as
supplemented by a first supplemental subordinated indenture dated as of May
15, 1991 and a second supplemental subordinated indenture dated as of April
15, 1996 (as so supplemented and as may be further supplemented or amended
from time to time, the "Subordinated Debt Indenture"), between the Company and
The First National Bank of Chicago, as trustee (the "Subordinated Debt
Trustee"). 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." The Notes will have the
maturities, interest rates, redemption provisions, if any, and other terms as
set forth in supplements to the Basic Prospectus referred to below. The
Company has initially appointed Chemical Bank, London Branch, at its principal
office in London, as principal paying agent (the "Principal Paying Agent") for
the Notes.
The Notes will be issued in bearer form or in definitive
registered form without coupons (the "Registered Notes"). The Notes issued in
bearer form will be represented initially by a temporary global Note delivered
to a common depositary outside the United States for the operator of the
Euroclear System (the "Euroclear Operator") and Cedel Bank, societe anonyme
("Cedel"). Beneficial interests in a temporary global Note will be
exchangeable for beneficial interests in a permanent global Note. 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"), or for Registered
Notes. As used in this Agreement, the term "Note" includes any temporary
global Note or permanent global Note issued pursuant to the Indentures.
The Company hereby appoints you as its exclusive agents for the
purpose of soliciting and receiving offers to purchase Notes 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 Notes 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
Notes as principal pursuant to the terms of a terms agreement relating to such
sale (a "Terms Agreement") in accordance with the provisions of Section 2(b)
hereof. Notes denominated or payable in Deutsche Marks may only be offered
and sold by the Company through Morgan Stanley Bank AG, the Deutsche Mark
arranger, on an agency or principal basis. Morgan Stanley Bank AG agrees to
notify the German Central Bank at the end of each month about the amounts,
dates of issue and other terms of all Notes denominated or payable in Deutsche
Marks offered and sold by Morgan Stanley Bank AG during the month in question.
Notes denominated or payable in French Francs may only be offered and sold by
the Company through Morgan Stanley S.A. on an agency or principal basis, and
Morgan Stanley S.A. agrees to notify the French Tresor prior to the issuance
of any such Notes. Notes denominated, payable in or indexed to Swiss Francs
may only be offered and sold by the Company through Bank Morgan Stanley AG on
an agency or principal basis, and Bank Morgan Stanley AG agrees to notify the
Swiss National Bank prior to the issuance of any such Notes.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a
prospectus, relating to the Notes. Such registration statement, including the
exhibits thereto, as amended at the Commencement Date (as hereinafter
defined), is hereinafter referred to as the "Registration Statement." The
Company proposes to file with the Commission from time to time, pursuant to
Rule 424 under the Securities Act of 1933, as amended (the "Securities Act"),
supplements to the prospectus included in the Registration Statement that will
describe certain terms of the Notes. The prospectus in the form in which it
appears in the Registration Statement is hereinafter referred to as the "Basic
Prospectus." The term "Prospectus" means the Basic Prospectus together with
the prospectus supplement or supplements (each a "Prospectus Supplement")
specifically relating to Notes, as filed with, or transmitted for filing to,
the Commission pursuant to Rule 424. As used herein, the terms "Basic
Prospectus" and "Prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement," "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated
by reference in the Prospectus that are filed subsequent to the date of the
Basic Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
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 Notes, as of each date on which the
Company accepts an offer to purchase Notes (including any purchase by you as
principal pursuant to a Terms Agreement), as of each date the Company issues
and delivers Notes and as of each date the Registration Statement or the Basic
Prospectus is amended or supplemented, as follows (it being understood that
such representations, warranties and agreements shall be deemed to relate to
the Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated by reference in the
Prospectus complied or will comply when so filed in all material respects
with the Exchange Act and the applicable rules and regulations of the
Commission thereunder, (ii) each part of the Registration Statement, when
such part became effective, did not contain and each such part, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (iii)
the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that (1) the representations and warranties
set forth in this Section 1(b) do not apply (A) to statements or omissions
in the Registration Statement or the Prospectus based upon information
relating to you furnished to the Company in writing by you expressly for
use therein or (B) to those parts of the Registration Statement that
constitute the Statements of Eligibility (Form T-1) under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the
Trustees and (2) the representations and warranties set forth in clauses
(iii) and (iv) above, when made as of the Commencement Date or as of any
date on which you solicit offers to purchase Notes or on which the Company
accepts an offer to purchase Notes, shall be deemed not to cover
information concerning an offering of particular Notes to the extent such
information will be set forth in a supplement to the Basic Prospectus.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(e) Each of this Agreement and any applicable Written Terms
Agreement (as hereinafter defined) has been duly authorized, executed and
delivered by the Company.
(f) Each Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is subject
to general principles of equity, regardless of whether such enforceability is
considered at proceedings in equity or at law.
(g) The forms of Notes have been duly authorized and
established in conformity with the provisions of the relevant Indenture and,
when the Notes 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 will be entitled to the benefits of such
Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered at proceedings
in equity or at law.
(h) The execution and delivery by the Company of this
Agreement, the Notes, the Indentures and any applicable Written Terms
Agreement and the performance by the Company of its obligations under this
Agreement, the Notes, the Indentures and any applicable 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 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 subsidiary, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the Notes,
the Indentures and any applicable Terms Agreement; provided, however, that no
representation is made or warranty given as to whether the purchase of the
Notes 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.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(j) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement that are not described, filed or
incorporated as required.
(k) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state,
local and other governmental authorities, all self-regulatory organizations
and all courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business in the manner described in
the Prospectus, except to the extent that the failure to obtain or file would
not have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(l) 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) and (iv),
(g) (except as to due authorization of the Notes) and (h), when made as of the
Commencement Date, or as of any date on which you solicit offers to purchase
Notes, with respect to any Notes the payments of principal or interest on
which will be determined by reference to one or more currency exchange rates,
commodity prices, securities of entities unaffiliated with the Company,
baskets of such securities, equity indices or other factors, shall be deemed
not to address the application of the Commodity Exchange Act, as amended, or
the rules, regulations or interpretations of the Commodity Futures Trading
Commission.
2. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. In connection with your actions
as agents hereunder, you agree to use reasonable efforts to solicit offers to
purchase Notes 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 Notes. Upon receipt of at least one
business day's prior notice from the Company, you will forthwith suspend
solicitations of offers to purchase Notes 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 a change in the interest rates,
redemption provisions, amortization schedules or maturities offered on the
Notes or for a change you deem to be immaterial), you shall not be required to
resume soliciting offers to purchase Notes 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 Note 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 Note equal to between .125% and .750% (depending
upon such Note's maturity) of the principal amount of such Note (provided
that the commission for Notes 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.
You shall communicate to the Company, orally or in writing,
each offer to purchase Notes 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 Notes and may reject any offer in whole or in part.
You shall have the right to reject any offer to purchase Notes that you
consider to be unacceptable, and any such rejection shall not be deemed a
breach of your agreements contained herein. The procedural details relating
to the issue and delivery of Notes sold by you as agent and the payment
therefor shall be as set forth in the Administrative Procedures (as
hereinafter defined).
(b) Purchases as Principal. Each sale of Notes to you as
principal shall be made in accordance with the terms of this Agreement. In
connection with each such sale, the Company will enter into a Terms Agreement
that will provide for the sale of such Notes to and the purchase thereof by
you. Each 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 hereto (a "Written Terms Agreement"), or (ii) an oral agreement
between you and the Company confirmed in writing by you to the Company.
Your commitment to purchase Notes as principal pursuant to a
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 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. Each such
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 Terms Agreement may also
specify certain provisions relating to the reoffering of such Notes by you.
Each Terms Agreement shall specify the time and place of
delivery of and payment for such Notes. Unless otherwise specified in a Terms
Agreement, the procedural details relating to the issue and delivery of Notes
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
Notes to be purchased by you as principal pursuant to a Terms Agreement is
referred to herein as a "Settlement Date."
Unless otherwise specified in a Terms Agreement, if you are
purchasing Notes as principal you may resell such Notes to other dealers. Any
such sales may be at a discount, which shall not exceed the amount set forth
in the Prospectus Supplement relating to such Notes.
(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 D and Series E,
Administrative Procedures (attached hereto as Exhibit B) (the "Administrative
Procedures"), as amended from time to time. The Administrative Procedures may
be amended only by written agreement of the Company and you.
(d) Delivery. The documents required to be delivered by
Section 4 of this Agreement as a condition precedent to your obligation to
begin soliciting offers to purchase Notes as agent of the Company shall be
delivered at the office of Davis Polk & Wardwell, your counsel, not later than
4:00 p.m., New York 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 Notes and (ii) the first date on which the
Company accepts any offer by you to purchase Notes as principal. The date of
delivery of such documents is referred to herein as the "Commencement Date."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes
pursuant to this Agreement or any Terms Agreement, the Company will not file
any Prospectus Supplement relating to the Notes or any amendment to the
Registration Statement unless the Company has previously furnished to you a
copy thereof for your review and will not file any such proposed supplement or
amendment to which you reasonably object; provided, however, that the
foregoing requirement shall not apply to any of the Company's periodic filings
with the Commission required to be filed pursuant to Section 13(a), 13(c),
13(f), 14 or 15(d) of the Exchange Act, copies of which filings the Company
will cause to be delivered to you promptly after being transmitted for filing
with the Commission. Subject to the foregoing sentence, the Company will
promptly cause each Prospectus Supplement to be filed with or transmitted for
filing to the Commission in accordance with Rule 424(b) under the Securities
Act. The Company will promptly advise you (i) of the filing of any amendment
or supplement to the Basic Prospectus, (ii) of the filing and effectiveness of
any amendment to the Registration Statement, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Basic Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes
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 Notes or
suspension of the listing of the Notes on any stock exchange on which the
Notes are then listed. 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 Notes so
long as you are not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act or made available to
purchasers of the Notes, any event occurs or condition exists as a result of
which the Prospectus, as then amended or supplemented, would include an untrue
statement of a material fact, or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances when the
Prospectus, as then amended or supplemented, is delivered to a purchaser, not
misleading, or if, in your opinion or in the opinion of the Company, it is
necessary at any time to amend or supplement the Prospectus, as then amended
or supplemented, to comply with applicable law, the Company will immediately
notify you by telephone (with confirmation in writing) to suspend solicitation
of offers to purchase Notes and, if so notified by the Company, you shall
forthwith suspend such solicitation and cease using the Prospectus, as then
amended or supplemented. If the Company shall decide to amend or supplement
the Registration Statement or Prospectus, as then amended or supplemented, it
shall so advise you promptly by telephone (with confirmation in writing) and,
at its expense, shall prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, satisfactory in all respects to
you, that will correct such statement or omission or effect such compliance
and will supply such amended or supplemented Prospectus to you in such
quantities as you may reasonably request. If any documents, certificates,
opinions and letters furnished to you pursuant to paragraph (e) below and
Sections 5(a), 5(b) and 5(c) in connection with the preparation and filing of
such amendment or supplement are satisfactory in all respects to you, upon the
filing with the Commission of such amendment or supplement to the Prospectus
or upon the effectiveness of an amendment to the Registration Statement, you
will resume the solicitation of offers to purchase Notes hereunder.
Notwithstanding any other provision of this Section 3(b), until the
distribution of any Notes you may own as principal has been completed, if any
event described above in this paragraph (b) occurs, the Company will, at its
own expense, forthwith prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, satisfactory in all respects to
you, will supply such amended or supplemented Prospectus to you in such
quantities as you may reasonably request and shall furnish to you pursuant to
paragraph (e) below and Sections 5(a), 5(b) and 5(c) such documents,
certificates, opinions and letters as you may request in connection with the
preparation and filing of such amendment or supplement.
(c) The Company will make generally available to its security
holders and to you as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering twelve month periods
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each sale of
Notes. If such fiscal quarter is the last fiscal quarter of the Company's
fiscal year, such earning statement shall be made available not later than 90
days after the close of the period covered thereby and in all other cases
shall be made available not later than 45 days after the close of the period
covered thereby.
(d) The Company will furnish to you, without charge, 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.
(e) During the term of this Agreement, the Company shall
furnish to you such relevant documents and certificates of officers of the
Company relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indentures, the Notes, this Agreement, the Administrative
Procedures, any Terms Agreement and the performance by the Company of its
obligations hereunder or thereunder as you may from time to time reasonably
request.
(f) The Company shall notify you promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate the
direction of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(g) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Terms Agreement, including: (i) the preparation
and filing of the Registration Statement and the Prospectus and all amendments
and supplements thereto, (ii) the preparation, issuance and delivery of the
Notes, (iii) the fees and disbursements of the Company's counsel and
accountants, the Trustees and their counsel and the Principal Paying Agent and
its counsel and any paying agents for the Notes appointed by the Company, (iv)
the fees and expenses incurred with respect to listing the Series D Notes on
the London Stock Exchange or on another stock exchange or exchanges if so
required by Section 3(i), (v) the printing and delivery to you in quantities
as hereinabove stated of copies of the Registration Statement and all
amendments thereto and of the Prospectus and any amendments or supplements
thereto, (vi) the printing and delivery to you of copies of the Indentures,
(vii) any fees charged by rating agencies for the rating of the Notes, (viii)
the fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc., (ix) the fees and
disbursements of your counsel incurred in connection with the offering and
sale of the Notes, including any opinions to be rendered by such counsel
hereunder, and (x) any out-of-pocket expenses incurred by you; provided that
any advertising expenses incurred by you shall have been approved by the
Company.
(h) During the period beginning on the date of any Terms
Agreement and continuing to and including the Settlement Date with respect to
such Terms Agreement, the Company will not, without your prior consent, offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company substantially similar to such Notes (other than (i) the Notes that are
to be sold pursuant to such Terms Agreement, (ii) Notes previously agreed to
be sold by the Company and (iii) commercial paper issued in the ordinary
course of business), except as may otherwise be provided in such Terms
Agreement.
(i) The Company will indemnify and hold you harmless against
any documentary, stamp or similar transfer or issue tax, including any
interest and penalties, on the issue of the Notes in accordance with the terms
of this Agreement, on the execution and delivery of this Agreement and on the
exchange of any temporary global Notes for definitive Notes or permanent
global Notes, or of any permanent global bearer Notes for definitive bearer
Notes, that are or may be required to be paid under the laws of the United
Kingdom, the United States or any political subdivision or taxing authority
thereof or therein.
(j) In connection with the application to list the Series D
Notes on the London Stock Exchange, the Company will furnish from time to
time any and all documents, instruments, information and undertakings and
publish all advertisements or other material that may be necessary in order
to effect such listing and will maintain such listing until none of the
Series D Notes is outstanding or until such time as payment of principal,
premium, if any, and interest in respect of all the Series D Notes has been
duly provided for, whichever is earlier; provided, however, that if the
Company can no longer reasonably maintain such listing, it will use its
best efforts to obtain and maintain the quotation for, or listing of, the
Series D Notes on such other stock exchange or exchanges as you shall
reasonably request. In addition, for so long as the Series D Notes are
listed on a stock exchange and such exchange so requires, the Company will
maintain in London, or in such other place as the Series D Notes are listed
(if the Series D Notes are no longer listed on the London Stock Exchange),
a paying agent in respect of the Series D Notes.
4. Conditions of the Obligations of the Agents. Your
obligation to solicit offers to purchase Notes as agent of the Company, your
obligation to purchase Notes as principal pursuant to any Terms Agreement and
the obligation of any other purchaser to purchase Notes 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 Notes, at the time of such
solicitation, and, in the case of your or any other purchaser's obligation to
purchase Notes, at the time the Company accepts the offer to purchase such
Notes and at the time of issuance and delivery) and (in each case) to the
following additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may
be:
(i) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus, as amended or supplemented at the time of
such solicitation or at the time such offer to purchase was made,
that, in your judgment, is material and adverse and that makes it, in
your judgment, impracticable to market the Notes on the terms and in
the manner contemplated by the Prospectus, as so amended or
supplemented;
(ii) there shall not have occurred such a change in national
or international financial, political or economic conditions or
currency exchange rates or exchange controls as would in your view
be likely to prejudice materially the success of the offering and
distribution of the Notes or dealings in the Notes in the
secondary market; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed to you in writing by the Company prior to such solicitation or, in
the case of a purchase of Notes, before the offer to purchase such Notes 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 Notes, before the offer to purchase such Notes was
made.
(b) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of Jonathan M. Clark,
General Counsel and Secretary of the Company, or of other counsel
satisfactory to the Agent and who is an officer of the Company, to
the effect that:
(A) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the State of Delaware, has the corporate power and authority
to own its property and to conduct its business as described
in the Prospectus, as amended or supplemented, and is duly
qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such
qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a
material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole;
(B) each of Morgan Stanley & Co. Incorporated and
Morgan Stanley International Incorporated (each a "Material
Subsidiary") has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its
business as described in the Prospectus, as amended or
supplemented, and is duly qualified to transact business and
is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole;
(C) each of the Company and its Material Subsidiaries
has all necessary consents, authorizations, approvals,
orders, certificates and permits of and from, and has made
all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to
conduct its business in the manner described in the
Prospectus, as amended or supplemented, except to the extent
that the failure to obtain or file would not have a material
adverse effect on the Company and its consolidated
subsidiaries, taken as a whole;
(D) each of this Agreement and any applicable Written
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 has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms except
as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of whether
such enforceability is considered at proceedings in equity or
at law;
(F) the forms of Notes have been duly authorized and
established in conformity with the provisions of the
relevant Indenture and, if the Notes 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, the
Notes would be entitled to the benefits of such Indenture
and would be valid and binding obligations of the Company,
enforceable in accordance with their respective terms except
as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors'
rights generally and (ii) and is subject to general
principles of equity, regardless of whether such
enforceability is considered at proceedings in equity or at
law;
(G) the execution and delivery by the Company of the
Notes, the Indentures and any applicable Written Terms
Agreement and the performance by the Company of its obligations
under this Agreement, the Notes, the Indentures and any
applicable Terms Agreement will not contravene any provision of
applicable law or the certificate of incorporation or by-laws
of the Company or, to the best of such counsel's knowledge, any
agreement or other instrument binding upon the Company or any
of its subsidiaries that is material to the Company and its
consolidated subsidiaries, taken as a whole, or, to the best of
such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval,
authorization or order of or qualification with any
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, the Notes,
the Indentures and any applicable Terms Agreement;
provided, however, that no opinion is expressed on whether the
purchase of the Notes 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;
(H) the statements (1) in the Prospectus, as then
amended or supplemented, under the captions "Description of
Notes" (in the Prospectus Supplement), "Description of Debt
Securities" (in the Basic Prospectus) and "Plan of
Distribution" (in the Prospectus Supplement and 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 Company's most recent annual
report on Form 10-K incorporated by reference in the
Prospectus and (4) in "Item 1 - Legal Proceedings" of Part
II of the Company's quarterly reports on Form 10-Q, if any,
filed since such annual report, in each case insofar as such
statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present
the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the
matters referred to therein;
(I) 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; and
(J) such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement
Prospectus, as then amended or supplemented (except as to
financial statements and schedules included therein as to which
such counsel need not express any opinion), complied when so
filed as to form in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission
thereunder, (2) has no reason to believe that (except for
financial statements and schedules as to which such counsel
need not express any belief and except for that part of the
Registration Statement that constitutes the Forms T-1
heretofore referred to) any part of the Registration Statement,
as then amended, if applicable, when such part became effective
contained, and the Registration Statement (except as to
financial statements and schedules included therein, as to
which such counsel need not express any belief and except for
the part of the Registration Statement that constitutes the
Form T-1) as of the date such opinion is delivered, contains
any untrue statement of a material fact or omitted or omits to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (3) is
of the opinion that the Registration Statement and Prospectus,
as then amended or supplemented, if applicable (except as to
financial statements and schedules included therein as to which
such counsel need not express any opinion), comply as to form
in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder
and (4) has no reason to believe that the Prospectus, as then
amended or supplemented, if applicable (except for financial
statements and schedules as to which such counsel need not
express any belief), as of the date such opinion is delivered
contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; provided that in the case of an
opinion delivered on the Commencement Date or pursuant to
Section 5(b), the opinion and belief set forth in clauses (3)
and (4) above shall be deemed not to cover information
concerning an offering of particular Notes to the extent such
information will be set forth in a supplement to the Basic
Prospectus.
(ii) The opinion, dated as of such date, of Davis Polk &
Wardwell, your special counsel, covering the matters in subparagraphs
(D), (E), (F) and (H) (with respect to statements in the Prospectus,
as then amended or supplemented, under the captions "Description of
Notes" (in the Prospectus Supplement), "Description of Debt
Securities" (in the Basic Prospectus) and "Plan of Distribution" (in
the Prospectus Supplement and in the Basic Prospectus)) and clauses
(2), (3) and (4) of subparagraph (J) in paragraph (b)(i) above.
Notwithstanding the foregoing, the opinions described in
subparagraphs (F) (except as to due authorization of the Notes), (G),
(H)(1) and (J)(3) and (4) of paragraph (b)(i) above, when contained
in an opinion delivered on the Commencement Date or pursuant to
Section 5(b), shall be deemed not to address the application of the
Commodity Exchange Act, as amended, or the rules, regulations or
interpretations of the Commodity Futures Trading Commission to Notes
the payments of principal or interest on which will be determined by
reference to one or more currency exchange rates, commodity prices,
securities of entities unaffiliated with the Company, baskets of such
securities, equity indices or other factors.
With respect to subparagraph (J) of paragraph (b)(i) above,
Jonathan M. Clark or such other counsel for the Company may state
that his opinion and belief are based upon his participation, or the
participation of someone under his supervision, in the preparation of
the Registration Statement and Prospectus and any amendments or
supplements thereto and documents incorporated therein by reference
and review and discussion of the contents thereof, but are without
independent check or verification, except as specified. With respect
to clauses (2), (3) and (4) of subparagraph (J) of paragraph (b)(i)
above, Davis Polk & Wardwell may state that their opinion and belief
are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or
supplements thereto (but not including documents incorporated therein
by reference) and review and discussion of the contents thereof
(including documents incorporated therein by reference), but are
without independent check or verification, except as specified.
(iii) The opinion, dated as of such date, of Shearman & Sterling,
special counsel to the Company, to the effect that the statements set
forth under the captions "United States Federal Taxation--Foreign
Holders" and "United States Federal Taxation--United States Holders"
in the Prospectus Supplement and under the caption "Limitations on
Issuance of Bearer Debt Securities and Bearer Debt Warrants" 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 Shearman & Sterling, described in paragraph
(b)(iii) above 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 Terms
Agreement, on the corresponding Settlement Date, you shall have received a
certificate, dated the Commencement Date or such Settlement Date, as the case
may be, and signed by an executive officer of the Company to the effect set
forth in subparagraph (a)(iii) above and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of such date and that the Company has complied with all of
the agreements and satisfied all of the conditions on its part to be performed
or satisfied on or before such date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any
Terms Agreement, on the corresponding Settlement Date, the Company's
independent auditors shall have furnished to you a letter or letters, dated
as of the Commencement Date or such Settlement Date, as the case may be, in
form and substance satisfactory to you containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference
into the Prospectus, as then amended or supplemented.
(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 list the Series D
Notes on the London Stock Exchange shall have been made and, prior to the
issuance of the first Series D Note, such listing 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 a change in the interest
rates, redemption provisions, amortization schedules or maturities offered on
the Notes or for 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), 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 opinion
referred to in Section 4(b)(i), but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such opinion. In lieu of such opinion, counsel last furnishing
such an opinion to you may furnish to you a letter to the effect that you may
rely on such last opinion to the same extent as though it were dated the date
of such letter (except that statements in such last opinion will be deemed to
relate to the Registration Statement and the Prospectus as amended or
supplemented to the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Prospectus, the Company shall cause its independent auditors
forthwith to furnish you with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to you, of the same tenor
as the letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or incorporated by reference in
the Registration Statement or the Prospectus as amended or supplemented to the
date of such letter.
6. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless you and each person, if any, who controls you
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by you or any such controlling person in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof or the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to you
furnished to the Company in writing by you expressly for use therein.
(b) You agree to indemnify and hold harmless the Company,
its directors, its officers who sign the Registration Statement and each
person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Company to you, but only
with reference to information relating to you furnished to the Company in
writing by you expressly for use in the Registration Statement or the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by you, in the
case of parties indemnified pursuant to paragraph (a) above, and by the
Company, in the case of parties indemnified pursuant to paragraph (b) above.
The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there 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
paragraph (a) or (b) of this Section 6 is unavailable to an indemnified party
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein in connection with any offering of Notes, 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 Notes or (ii) if the allocation provided by clause
(i) is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and you on the other
hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and you on the other hand in connection with the offering of such
Notes shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of such Notes (before deducting expenses)
received by the Company bear to the total discounts and commissions received
by you in respect thereof. The relative fault of the Company on the one hand
and of you on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by you and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company and you agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, you shall not be required to contribute any
amount in excess of the amount by which the total price at which the Notes
referred to in paragraph (d) above that were offered and sold to the public
through you exceeds the amount of any damages that you have otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 6, representations, warranties and other statements of the
Company, its officers and you set forth in or made pursuant to this Agreement
or any Terms Agreement will remain in full force and effect regardless of (i)
any termination of this Agreement or any such Terms Agreement, (ii) any
investigation made by or on behalf of you or any person controlling you or by
or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Notes.
7. Offering Restrictions. You hereby represent to the Company
and agree with respect to the Notes that:
(a)(1) you have not (i) offered or sold and during the
Restricted Period (as defined below) will not offer or sell Bearer
Notes (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 (ii)
delivered and will not deliver within the United States definitive
Bearer Notes that are sold during the Restricted Period;
(2) 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
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)(1)(i)
above;
(3) if you are a United States person, you are acquiring the
Bearer Notes 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);
(4) if you transfer to any affiliate Bearer Notes for the
purpose of offering or selling such Bearer Notes during the
Restricted Period, you will either (i) obtain from such affiliate for
the benefit of the Company the representations and agreements
contained in clauses (1), (2) and (3) or (ii) repeat and confirm the
representations and agreements contained in clauses (1), (2) and (3)
on such affiliate's behalf and obtain from such affiliate the
authority to so obligate it; and
(5) you will obtain for the benefit of the Company the
representations and agreements contained in clauses (1), (2), (3) and
(4) 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.
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 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, partnership or other entity created or organized in or under
the laws of the United States or any political subdivision thereof, or an
estate or trust the income of which is subject to United States federal
income taxation regardless of its source, "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 United States Treasury Regulations
Section 1.165-12(c)(1)(v), located outside the United States that is
purchasing for its own account or for resale and that has agreed, as a
condition to purchase, to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of
1986, as amended (the "Code"), and the regulations thereunder; and
"Restricted Period" with respect to each issuance means the period which
begins on the earlier of the date on which the Company receives the
proceeds of the sale of Notes with respect to such issuance or the first
date on which the Notes are offered to persons other than you, and which
ends 40 days after the date on which the Company receives the proceeds of
the sale of such Notes; provided that with respect to a Note held as part
of an unsold allotment or subscription, any offer or sale of such Note by
the Company or you shall be deemed to be during the Restricted Period.
(b) (1) In relation to Notes which have a maturity of one year or
more and which are to be listed on the London Stock Exchange, you have not
offered or sold and will not offer or sell any Notes to persons in the United
Kingdom prior to admission of such Notes to listing in accordance with Part IV
of the Financial Services Act 1986 (the "Act"), except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Act; (2)
in relation to Notes which have a maturity of one year or more and which are
not to be listed on the London Stock Exchange, you have not offered or sold
and, prior to the expiry of the period of six months from the date of issue of
such Notes, will not offer or sell any such Notes to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995; (3)
you have complied with and will comply with all applicable provisions of the
Act with respect to anything done by you in relation to the Notes in, from or
otherwise involving the United Kingdom; and (4) you have only issued or passed
on and will only issue or pass on in the United Kingdom any document received
by you in connection with the issue of the Notes, other than any document
which consists of or any part of listing particulars, supplementary listing
particulars or any other document required or permitted to be published by the
listing rules under Part IV of the Act, to a person who is of a kind described
in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1995 or is a person to whom such document
may otherwise lawfully be issued or passed on.
(c) You will not offer or sell any Notes in any jurisdiction if such
offer or sale would not be in compliance with any applicable law or regulation
or if any consent, approval or permission is needed for such offer or sale by
you or for or on behalf of the Company unless such consent, approval or
permission has been previously obtained. 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 Notes 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 Notes, 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) You will not offer and sell any Notes in the Federal Republic of
Germany other than in compliance with the provisions of the German Sales
Prospectus Act (Wertpapier-Verkaufsprospektgesetz) of December 13, 1990, as
amended, and of any other laws applicable in the Federal Republic of Germany
governing the issue, offering and sale of securities.
(f) You will not offer and sell any Notes denominated or payable in
or indexed to Swiss Francs other than in compliance with Swiss law and the
regulations of the Swiss National Bank in effect from time to time.
(g) You will not offer and sell any Notes denominated or payable in
or indexed to French Francs ("French Franc Notes") other than in compliance
with French law, including, without limitation, the marche de l'eurofranc from
time to time of the Comite des Emissions de Bourse ("French EuroFranc
Regulations"). Unless otherwise authorized pursuant to French law, including,
without limitation, the French EuroFranc Regulations, you agree that French
Franc Notes will be issued outside the Republic of France and that, in
connection with their initial distribution, you will not offer or sell,
directly or indirectly, any French Franc Notes to the public in the Republic
of France, and will not distribute or cause to be distributed to the public
in the Republic of France the Prospectus or any other offering material
relating to French Franc Notes.
8. Position of the Agent. In acting under this Agreement and
in connection with the sale of any Notes by the Company (other than Notes sold
to you pursuant to a Terms Agreement), 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 Notes. You shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes 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 Notes 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 Terms Agreement, and the termination of any such
Terms Agreement shall not require termination of this Agreement. If this
Agreement is terminated, the provisions of the third paragraph of Section
2(a), the last sentence of Section 3(b) and Sections 3(c), 3(g), 6, 7, 8, 10,
12 and 14 shall survive; provided that if at the time of termination an offer
to purchase Notes has been accepted by the Company but the time of delivery to
the purchaser or its agent of such Notes has not occurred, the provisions of
Sections 2(b), 2(c), 3(a), 3(b), 3(e), 3(f), 3(h), 4 and 5 shall also survive
until such delivery has been made.
10. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to Morgan Stanley & Co.
International Limited, will be mailed, delivered or telefaxed and confirmed to
(a) Morgan Stanley & Co. International Limited at 25 Cabot Square, Canary
Wharf, London E14 4QA, England, to the attention of Capital Markets - Debt
Syndicate (Telephone No.: 011-44-71-425-7750; Telecopy No.:
011-44-71-425-7999), (b) Morgan Stanley Bank AG, Rahmhofstrasse 2-4, 60313
Frankfurt am Main, Federal Republic of Germany to the attention of Ron Lenihan
(Telephone No.: 011-49-69-152-060; Telecopy No.: 011-49-69-597-6627), (c)
Morgan Stanley S.A., 25 rue Balzac, 75008 Paris, France to the attention of
Debt Capital Markets (Telephone No.: 011-33-1-5377-7879 or 7300; Telecopy
No.: 011-33-1-5377-7899) or (d) Bank Morgan Stanley AG, Bahnhofstrasse 92-3rd
Floor, Ch-8023, Zurich, Switzerland, to the attention of John Webley
(Telephone No. 011-41-1-220-9111; Telecopy No. 011-41-1-220-9800) or, if sent
to the Company, will be mailed, delivered or telefaxed and confirmed to the
Company at 1585 Broadway, New York, New York 10036, Attention: Secretary.
11. Successors. This Agreement and any 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 (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.
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 GROUP INC.
By:____________________________________
Name: Philip N. Duff
Title: Chief Financial Officer
and Treasurer
The foregoing Agreement
is hereby confirmed
and accepted as of the
date first above written.
MORGAN STANLEY & CO. INTERNATIONAL
LIMITED
By:____________________________________
Title:
MORGAN STANLEY BANK AG
By:____________________________________
Title:
By:____________________________________
Title:
MORGAN STANLEY S.A.
By:____________________________________
Title:
By:____________________________________
Title:
BANK MORGAN STANLEY AG
By:____________________________________
Title:
By:____________________________________
Title:
EXHIBIT A
MORGAN STANLEY GROUP INC.
GLOBAL MEDIUM-TERM NOTES, SERIES D AND SERIES E
TERMS AGREEMENT
________________, 19 __
Morgan Stanley Group Inc.
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated March 29,
1996 (the "Euro Distribution Agreement")
The undersigned agrees to purchase your Global Medium-Term
Notes, Series [D/E], having the following terms:
Floating
Fixed Rate Rate
All Notes: Notes: Notes:
- ----------------------- -------------------- ------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Index Maturity:
Modified Payment
upon Acceleration:
Price to Public: If yes, state Spread (Plus or
issue price: Minus):
Settlement Date Amortization Spread
and Time: Schedule: Multiplier:
Place of Applicability of Alternate Rate
Delivery: Annual Interest Event Spread:
Payments:
Specified Denominated Initial Interest
Currency: Currency (if any): Rate:
Original Issue Indexed Currency Initial Interest
Date: or Currencies (if Reset Date:
any):
Interest Accrual Payment Currency Interest Reset
Date: (if any): Dates:
Interest Payment Exchange Rate Interest Reset
Date(s): Agent (if any): Period:
Maturity Date: Reference Dealers: Maximum Interest
Rate:
Initial Accrual Face Amount (if Minimum Interest
Period OID: any): Rate:
Total Amount of Fixed Amount of Interest Payment
OID: each Indexed Period:
Currency (if any):
Original Yield to Aggregate Fixed Calculation
Maturity: Amount of each Agent:
Indexed Currency
(if any):
Optional Reporting
Repayment Service:
Date(s):
Optional Index Currency:
Redemption
Date(s):
Initial
Redemption Date:
Initial
Redemption
Percentage:
Annual Redemption
Percentage
Reduction:
Ranking:
Series:
Minimum
Denominations:
Other Terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6
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 subject to termination on the terms
incorporated by reference herein. If this Agreement is so terminated, the
provisions of Sections 3(g), 6, 10, 12, and 14 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 _______________________________
Title:
[MORGAN STANLEY BANK AG]
By _______________________________
Title:
[MORGAN STANLEY S.A.]
By _______________________________
Title:
[BANK MORGAN STANLEY AG]
By _______________________________
Title:
Accepted:
MORGAN STANLEY GROUP INC.
By _________________________
Title:
EXHIBIT 3.0
RESTATED CERTIFICATE OF INCORPORATION
OF
MORGAN STANLEY GROUP INC.
Pursuant to Section 245 of the
General Corporation Law of the State of Delaware
Morgan Stanley Group Inc., a corporation duly organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation") and originally incorporated in the State of Delaware on
July 10, 1975 under the name Morgan Stanley Holdings Incorporated, does
hereby certify as follows:
FIRST: That the Certificate of Incorporation of the
Corporation was filed in the office of the Secretary of State of the State of
Delaware, and a certified copy thereof was recorded in the office of the
Recorder of Kent County, Delaware, on the 10th day of July, 1975.
SECOND: That the Restated Certificate of Incorporation was
filed in the office of the Secretary of State of the State of Delaware, and a
certified copy thereof was recorded in the office of the Recorder of Kent
County, Delaware, on the 30th day of October, 1989.
THIRD: That Certificates of Amendment to the Restated
Certificate of Incorporation were filed in the office of the Secretary of State
of the State of Delaware, and certified copies thereof were recorded in the
office of the Recorder of Kent County, Delaware, on the 8th day of May, 1991,
and the 21st day of May, 1992.
FOURTH: That Certificates of Stock Designation were filed in
the office of the Secretary of State of the State of Delaware, and certified
copies thereof were recorded in the office of the Recorder of Kent County,
Delaware, on the 19th day of September, 1990, the 24th day of May, 1991, the
29th day of August, 1991, the 15th day of November, 1991, the 20th day of
March, 1992, and the 6th day of May, 1992.
FIFTH: That a Certificate of Retirement of Stock was filed in
the office of the Secretary of State of the State of Delaware and a certified
copy thereof was recorded in the office of the Recorder of Kent County,
Delaware, on the 20th day of June, 1992.
2
SIXTH: That this Restated Certificate of Incorporation
restates and integrates and does not further amend the provisions of the
Corporation's Restated Certificate of Incorporation as heretofore amended or
supplemented, and that there is no discrepancy between those provisions and the
provisions of this Restated Certificate of Incorporation, and that the Restated
Certificate of Incorporation is hereby restated to read in its entirety as
follows:
ARTICLE I
NAME
The name of the Corporation is:
MORGAN STANLEY GROUP INC.
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The registered office of the Corporation in the State of
Delaware is located at 32 Loockerman Sq., Ste. L-100, City of Dover, County of
Kent. The name of the registered agent of the Corporation at such address is
United States Corporation Company.
ARTICLE III
CORPORATE PURPOSE
The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may now or hereafter be organized under the
General Corporation Law of Delaware.
ARTICLE IV
CAPITAL STOCK
SECTION 1. Shares and Classes Authorized. The total number
of shares of all classes of capital stock which the Corporation shall have
authority to issue is 330,000,000 shares, which shall include:
(a) 30,000,000 shares of preferred stock of no par value
each (hereinafter referred to as "Preferred Stock"); and
3
(b) 300,000,000 shares of common stock of the par value
of $1.00 each (hereinafter referred to as "Common Stock");
such classes of Preferred Stock and Common Stock being sometimes hereinafter
collectively referred to as "capital stock".
SECTION 2. Preferences, Rights, Limitations and Restrictions
of Capital Stock. The designations and the powers, preferences and rights, and
the qualifications, limitations or restrictions thereof, in respect of the
classes of the capital stock, and the authority with respect thereto expressly
vested in the Board of Directors of the Corporation, are as follows:
PART I -- PREFERRED STOCK (a) The Preferred Stock may be
issued either as a class without series or, if so determined by the Board of
Directors of the Corporation, from time to time in one or more series and with
such designation for such class or each such series as shall be stated and
expressed in the resolution or resolutions providing for the issue of such
class or each such series adopted by the Board of Directors. The Board of
Directors in any such resolution or resolutions is expressly authorized to
state and express for such class or each such series:
(i) Voting rights, if any, including, without limitation, the
authority to confer multiple votes per share, voting rights as to
specified matters or issues or, subject to the provisions of this
Restated Certificate of Incorporation, voting rights to be exercised
either together with holders of Common Stock as a single class, or
independently as a separate class;
(ii) The rate per annum and the times at and conditions upon
which the holders of shares of such class or series shall be entitled
to receive dividends, the conditions and dates upon which such
dividends shall be payable and whether such dividends shall be
cumulative or noncumulative, and, if cumulative, the terms upon which
such dividends shall be cumulative;
(iii) Redemption, repurchase, retirement and sinking fund
rights, preferences and limitations, if any, the amount payable on
shares of such class or series in the event of such redemption,
repurchase or retirement, the terms and conditions of any sinking
fund, the manner of creating such fund or funds and whether any of the
foregoing shall be cumulative or noncumulative;
4
(iv) The rights to which the holders of the shares of such
class or series shall be entitled upon any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
(v) The terms, if any, upon which the shares of such class or
series shall be convertible into, or exchangeable for, shares of stock
of any other class or classes or of any other series of the same or
any other class or classes, including the price or prices or the rate
or rates of conversion or exchange and the terms of adjustment, if
any; and
(vi) Any other designations, preferences and relative,
participating, optional or other special rights and qualifications,
limitations or restrictions thereof so far as they are not
inconsistent with the provisions of this Restated Certificate of
Incorporation and to the full extent now or hereafter permitted by the
laws of the State of Delaware.
(b) All shares of the Preferred Stock, if issued as a
class without series, or all shares of the Preferred Stock of any one series,
if issued in series, shall be identical to each other in all respects and shall
entitle the holders thereof to the same rights and privileges, except that
shares of any one series issued at different times may differ as to the dates
from which dividends thereon, if cumulative, shall be cumulative.
5
Subpart A: ESOP Convertible Preferred Stock*
1. Designation and Issuance.
(A) The shares of such series shall be designated ESOP
CONVERTIBLE PREFERRED STOCK (hereinafter referred to as the "ESOP Preferred
Stock") and such series shall consist of 3,902,438 shares. Such number of
shares may be increased or decreased from time to time by resolution of the
Pricing Committee of this Board of Directors (the "Pricing Committee"), but no
such increase shall result in such series consisting of more than 4,000,000
shares, and no decrease shall reduce the number of shares of ESOP Preferred
Stock to a number less than that of shares of ESOP Preferred Stock then
outstanding plus the number of shares issuable upon exercise of any rights,
options or warrants or upon conversion of outstanding securities issued by the
Corporation relating to such shares. Any shares of ESOP Preferred Stock
redeemed or purchased by the Corporation shall remain issued and outstanding
for all purposes (except that as long as such shares are held by the
Corporation or its nominee, no dividends shall be paid on such shares and they
shall neither be entitled to vote nor counted for quorum purposes) and may
thereafter be transferred by the Corporation from time to time to a trustee or
trustees referred to in paragraph (B) of this Section 1 (whereupon the voting
and dividend rights of such shares shall be restored); provided that the
Corporation may provide at the time of or at any time after such redemption or
purchase that any such shares then held by the Corporation or its nominee shall
be retired, and such shares shall then be restored to the status of authorized
but unissued shares of preferred stock of the Corporation.
(B) Shares of ESOP Preferred Stock shall be issued only to a
trustee or trustees acting on behalf of an employee stock ownership trust or
plan or other employee benefit plan (a "Plan") of the Corporation. In the
event of any sale, transfer or other disposition (hereinafter a "transfer") of
shares of ESOP Preferred Stock to any person (including, without limitation,
any participant in the Plan) other than (x) any trustee or trustees of the Plan
or (y) any pledgee of such shares acquiring such shares as security for any
loan or
- --------------------
* Terms defined in this Subpart A are so defined for purposes of this
Subpart alone.
6
loans made to the Plan or to any trustee or trustees acting on behalf of the
Plan, the shares of ESOP Preferred Stock so transferred, upon such transfer and
without any further action by the Corporation or the holder, shall be
automatically converted into shares of Common Stock at the Conversion Price (as
hereinafter defined) and on the terms otherwise provided for the conversion of
shares of ESOP Preferred Stock into shares of Common Stock pursuant to Section
5 hereof and no such transferee shall have any of the voting powers,
preferences and relative, participating, optional or special rights ascribed to
shares of ESOP Preferred Stock hereunder, but, rather, only the powers and
rights pertaining to the Common Stock into which such shares of ESOP Preferred
Stock shall be so converted; provided, however, that in the event of a
foreclosure or other realization upon shares of ESOP Preferred Stock pledged as
security for any loan or loans made to the Plan or to the trustee or the
trustees acting on behalf of the Plan, the pledged shares so foreclosed or
otherwise realized upon shall be converted automatically into shares of Common
Stock at the Conversion Price and on the terms otherwise provided for
conversions of shares of ESOP Preferred Stock into shares of Common Stock
pursuant to Section 5 hereof. In the event of such a conversion, such
transferee shall be treated for all purposes as the record holder of the shares
of Common Stock into which the ESOP Preferred Stock shall have been converted
as of the date of such conversion. Certificates representing shares of ESOP
Preferred Stock shall be legended to reflect such restrictions on transfer.
Notwithstanding the foregoing provisions of this Section 1, shares of ESOP
Preferred Stock (i) may be converted into shares of Common Stock as provided by
Section 5 hereof and the shares of Common Stock issued upon such conversion may
be transferred by the holder thereof as permitted by law and (ii) shall be
redeemable by the Corporation upon the terms and conditions provided by
Sections 6, 7 and 8 hereof.
2. Dividends and Distributions.
(A) (1) Subject to the provisions for adjustment
hereinafter set forth, the holders of shares of ESOP Preferred Stock (other
than the Corporation or its nominee) shall be entitled to receive, when and as
declared by the Board of Directors out of funds legally available therefor,
cash dividends ("Preferred Dividends") payable in accordance with either of the
following elections, as the Board of Directors shall elect from time to time in
its absolute discretion:
7
(i) in an amount per share initially equal to $2.78 per
share per annum, and no more (such amount, as adjusted from time to
time pursuant to the terms hereof, including during any period in
which a Semiannual Payment Election (as defined below) shall be in
effect, the "Annual Dividend Rate"), payable annually in arrears on
December 31 (or such later date not more than four business days
thereafter as the Board of Directors may from time to time elect in
its absolute discretion; such date, the "Annual Payment Date") of each
year (such election, the "Annual Payment Election") beginning on the
Annual Payment Date occurring immediately after the effective date of
such Annual Payment Election; or
(ii) in an amount per share initially equal to $2.78 per share
per annum, and no more (such amount, as adjusted from time to time
pursuant to the terms hereof, including during any period in which an
Annual Payment Election is in effect, the "Semiannual Dividend Rate";
and the Semiannual Dividend Rate and the Annual Dividend Rate, as in
effect at any time, are each hereinafter referred to as the "Preferred
Dividend Rate"), semiannually in arrears, one-half on each June 30 and
December 31 (or, in either case, such later date not more than four
business days after either of such dates as the Board of Directors may
from time to time elect in its absolute discretion; such dates, the
"Semiannual Payment Dates") of each year (such election, the
"Semiannual Payment Election"), beginning on the Semiannual Payment
Date occurring immediately after the effective date of such Semiannual
Payment Election;
provided that any Semiannual Payment Election shall be made effective only
during the period beginning on January 5 and ending on June 29 in each year.
The Board of Directors shall give prompt notice to the holders of the ESOP
Preferred Stock of any Semiannual Payment Election or Annual Payment Election
and any election to alter any Dividend Payment Date pursuant to this Section
2(A)(1). Each Annual Payment Date or Semiannual Payment Date, as applicable,
is hereinafter referred to as a "Dividend Payment Date", and each payment of a
Preferred Dividend shall be made to holders of record at the opening of
business on such Dividend Payment Date.
(2) Preferred Dividends shall begin to accrue on
outstanding shares of ESOP Preferred Stock from the date of issuance of such
shares, except that with respect to any shares of ESOP Preferred Stock redeemed
or purchased by the Corporation and then reissued, Preferred Dividends shall
8
accrue on such shares from their date of reissuance. Preferred Dividends shall
accrue on a daily basis, whether or not the Corporation shall then have
earnings or surplus (computed on the basis of a 360-day year of twelve 30-day
months in case of any period less than one year) based on the Preferred
Dividend Rate in effect on such date; provided that if a Semiannual Payment
Election or an Annual Payment Election becomes effective on or after such date
and before the immediately succeeding Dividend Payment Date, payments in
respect of dividends on the ESOP Preferred Stock made on or after the effective
date of such Semiannual Payment Election or Annual Payment Election and on or
before such Dividend Payment Date shall be computed using the Preferred
Dividend Rate in effect on the date of such payment. Accrued but unpaid
Preferred Dividends shall cumulate as of the Dividend Payment Date on which
they first become payable, but no interest shall accrue on accumulated but
unpaid Preferred Dividends.
(B) So long as any shares of ESOP Preferred Stock shall be
outstanding, no dividend shall be declared or paid or set apart for payment on
any other series of stock ranking on a parity with the ESOP Preferred Stock as
to dividends, unless there shall also be or have been declared and paid or set
apart for payment on the ESOP Preferred Stock, like dividends for all dividend
payment periods of the ESOP Preferred Stock ending on or before the dividend
payment date of such parity stock, ratably in proportion to the respective
amounts of dividends (1) accumulated and unpaid or payable on such parity
stock, on the one hand, and (2) accumulated and unpaid through the dividend
payment period or periods of the ESOP Preferred Stock next preceding such
dividend payment date, on the other hand. If full cumulative dividends on the
ESOP Preferred Stock have not been declared and paid or set apart for payment
when due, the Corporation shall not declare or pay or set apart for payment any
dividends or make any other distributions on, or make any payment on account of
the purchase, redemption or other retirement of, any other class of stock or
series thereof of the Corporation ranking, as to dividends or upon dissolution,
junior to the ESOP Preferred Stock until full cumulative dividends on the ESOP
Preferred Stock shall have been paid or declared and set apart; provided,
however, that the foregoing shall not apply to (i) any dividend or distribution
payable solely in any shares of, or options, warrants or rights to subscribe
for or purchase shares of, any stock ranking, as to dividends and upon
dissolution, junior to the ESOP Preferred Stock or (ii) the acquisition of
shares of any stock ranking, as to dividends and upon dissolution, junior to
the ESOP Preferred Stock in
9
exchange solely for or by conversion solely into shares of any other stock
ranking junior to the ESOP Preferred Stock as to dividends and upon
dissolution.
(C) Any dividend payment made on shares of ESOP Preferred
Stock shall first be credited against the earliest accumulated but unpaid
dividend due with respect to such shares.
3. Liquidation Preference.
(A) In the event of any dissolution or liquidation of the
Corporation, whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation (whether capital or surplus)
shall be made to or set apart for the holders of any series or class or classes
of stock of the Corporation ranking junior to ESOP Preferred Stock upon
dissolution or liquidation, the holders of ESOP Preferred Stock (other than the
Corporation or its nominee) shall be entitled to receive the Liquidation Price
(as hereinafter defined) per share in effect at the time of dissolution or
liquidation plus an amount equal to all dividends accrued (whether or not
accumulated) and unpaid on the ESOP Preferred Stock to the date of final
distribution to such holders; but such holders shall not be entitled to and
shall not otherwise receive any further payments. The Liquidation Price per
share that holders of ESOP Preferred Stock shall receive upon dissolution or
liquidation shall be $35.875, subject to adjustment as hereinafter provided.
If, upon any dissolution or liquidation of the Corporation, the assets of the
Corporation, or proceeds thereof, distributable among the holders of ESOP
Preferred Stock shall be insufficient to pay in full the preferential amount
aforesaid and liquidating payments on any other shares ranking, as to
dissolution or liquidation, on a parity with ESOP Preferred Stock, then such
assets, or the proceeds thereof, shall be distributed among the holders of ESOP
Preferred Stock and any such other shares ratably in accordance with the
respective amounts that would be payable on such shares of ESOP Preferred Stock
and any such other shares if all amounts payable thereon were paid in full.
For the purposes of this Section 3, neither a consolidation or merger of the
Corporation with or into one or more corporations, nor the sale, transfer,
lease or exchange (for cash, shares of equity stock, securities or other
consideration) of all or substantially all of the assets of the Corporation,
nor the distribution to the stockholders of the Corporation of all or
substantially all of the consideration for such sale, unless such consideration
(apart from assumption of liabilities) or the net proceeds
10
thereof consists substantially entirely of cash, shall be deemed to be a
dissolution or liquidation, voluntary or involuntary.
(B) Subject to the rights of the holders of shares of any
series or class or classes of stock ranking on a parity with or senior to ESOP
Preferred Stock upon dissolution or liquidation, upon any dissolution or
liquidation of the Corporation, after payment shall have been made in full to
the holders of ESOP Preferred Stock as provided in this Section 3, but not
prior thereto, any other series or class or classes of stock ranking junior to
ESOP Preferred Stock upon dissolution or liquidation shall, subject to the
respective terms and provisions (if any) applying thereto, be entitled to
receive any and all assets of the Corporation remaining to be paid or
distributed, and the holders of ESOP Preferred Stock shall not be entitled to
share therein.
4. Ranking and Voting of Shares.
(A) The Corporation's 9.36% Cumulative Preferred Stock, with
a liquidation value of $25.00 per share, the Corporation's 8.88% Cumulative
Preferred Stock, with a liquidation value of $200.00 per share, and the
Corporation's 8-3/4% Cumulative Preferred Stock, with a liquidation value of
$200.00 per share, shall rank on a parity with ESOP Preferred Stock as to
dividends and as to distribution of assets upon dissolution or liquidation.
Unless otherwise provided in the Restated Certificate of
Incorporation of the Corporation, as the same may be amended, or in a
Certificate of Designation of Rights and Preferences relating to any subsequent
series of preferred stock, the ESOP Preferred Stock shall rank on a parity with
all series of the Corporation's preferred stock as to dividends and as to the
distribution of assets upon dissolution or liquidation.
(B) The holders of shares of ESOP Preferred Stock (other
than the Corporation or its nominee) shall have the following voting rights:
(1) The holders of ESOP Preferred Stock shall be entitled
to vote on all matters submitted to a vote of the stockholders of the
Corporation, voting together with the holders of Common Stock as one class.
The holder of each share of ESOP Preferred Stock shall be entitled to a number
of votes equal to 1.35 times the number of shares of Common
11
Stock into which such share of ESOP Preferred Stock could be converted on the
record date for determining the stockholders entitled to vote; it being
understood that whenever the "Conversion Price" (as defined in Section 5
hereof) is adjusted as provided in Section 9 hereof, the number of votes of the
ESOP Preferred Stock shall also be correspondingly adjusted. Notwithstanding
the immediately preceding sentence, if the governing body of the New York Stock
Exchange or any other securities listing service or exchange (each, an
"Exchange") or any relevant governmental or regulatory entity (each such
entity, and each governing body of an Exchange, a "Regulating Entity") shall
have disapproved of such voting power or taken or threatened any action against
the Corporation or in respect of any of its securities in accordance with Rule
19c-4 promulgated under the Securities Exchange Act of 1934 (the "Exchange
Act"), or any other rule or listing standard of any Regulating Entity regarding
the voting power of securities, or if the Board of Directors determines in its
sole judgment that any Regulating Entity may so disapprove or take or threaten
any such action, the holder of each share of ESOP Preferred Stock shall be
entitled to a maximum number of votes permissible (consistent with continued
listing of the Corporation's securities on any such Exchange) in accordance
with the interpretations of any such rule or listing standard by such
Regulating Entity, as determined by the Board of Directors.
(2) Except as otherwise required by law or set forth herein,
holders of ESOP Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for the taking of any
corporate action, including the issuance of any preferred stock now or
hereafter authorized; provided, however, that the vote of at least 66-2/3% of
the outstanding shares of ESOP Preferred Stock, voting separately as a series,
shall be necessary to approve any alteration, amendment or repeal of any
provision of the Restated Certificate of Incorporation or any alteration,
amendment or repeal of any provision of the resolutions relating to the
designation, preferences and rights of ESOP Preferred Stock (including any such
alteration, amendment or repeal effected by any merger or consolidation in
which the Corporation is the surviving or resulting corporation, but not
including any alteration or amendment of rights expressly provided for in
Section (B)(1) above or in Section 2(A)(1)), if such amendment, alteration or
repeal would alter or change the powers, preferences, or special rights of the
ESOP Preferred Stock so as to affect them adversely.
12
5. Conversion into Common Stock.
(A) A holder of shares of ESOP Preferred Stock shall be
entitled, at any time prior to the close of business on the date fixed for
redemption of such shares pursuant to Section 6, 7 or 8 hereof, to cause any or
all of such shares to be converted into shares of Common Stock. The number of
shares of Common Stock into which each share of the ESOP Preferred Stock may be
converted shall be determined by dividing the Liquidation Price in effect at
the time of conversion by the Conversion Price (as hereinafter defined) in
effect at the time of conversion. The initial Conversion Price per share at
which shares of Common Stock shall be issuable upon conversion of any shares of
ESOP Preferred Stock shall be $35.875, subject to adjustment as hereinafter
provided; that is, a conversion rate initially equivalent to one share of
Common Stock for each share of ESOP Preferred Stock, which is subject to
adjustment as hereinafter provided.
(B) Any holder of shares of ESOP Preferred Stock desiring to
convert such shares into shares of Common Stock shall surrender, if
certificated, the certificate or certificates representing the shares of ESOP
Preferred Stock being converted, duly assigned or endorsed for transfer to the
Corporation (or accompanied by duly executed stock powers relating thereto), or
if uncertificated, a duly executed stock power relating thereto, at the
principal executive office of the Corporation or the offices of the transfer
agent for the ESOP Preferred Stock or such office or offices in the continental
United States of an agent for conversion as may from time to time be designated
by notice to the holders of the ESOP Preferred Stock by the Corporation or the
transfer agent for the ESOP Preferred Stock, accompanied by written notice of
conversion. Such notice of conversion shall specify (i) the number of shares
of ESOP Preferred Stock to be converted and the name or names in which such
holder wishes the Common Stock and any shares of ESOP Preferred Stock not to be
so converted to be issued, and (ii) the address to which such holder wishes
delivery to be made of a confirmation of such conversion, if uncertificated, or
any new certificates which may be issued upon such conversion, if certificated.
(C) Upon surrender, if certificated, of a certificate
representing a share or shares of ESOP Preferred Stock for conversion, or if
uncertificated, of a duly executed stock power relating thereto, the
Corporation shall issue and send by hand delivery (with receipt to be
acknowledged) or by first class mail, postage prepaid, to the
13
holder thereof or to such holder's designee, at the address designated by such
holder, if certificated, a certificate or certificates for, or if
uncertificated, confirmation of, the number of shares of Common Stock to which
such holder shall be entitled upon conversion. If there shall have been
surrendered shares of ESOP Preferred Stock only part of which are to be
converted, the Corporation shall issue and deliver to such holder or such
holder's designee, if certificated, a new certificate or certificates
representing the number of shares of ESOP Preferred Stock that shall not have
been converted, or if uncertificated, confirmation of the number of shares of
ESOP Preferred Stock that shall not have been converted.
(D) The issuance by the Corporation of shares of Common
Stock upon a conversion of shares of ESOP Preferred Stock into shares of Common
Stock made at the option of the holder thereof shall be effective as of the
earlier of (i) the delivery to such holder or such holder's designee of the
certificates representing the shares of Common Stock issued upon conversion
thereof, if certificated, or confirmation, if uncertificated, and (ii) the
commencement of business on the second business day after the surrender of the
certificate or certificates, if certificated, or a duly executed stock power,
if uncertificated, for the shares of ESOP Preferred Stock to be converted. On
and after the effective date of conversion, the person or persons entitled to
receive Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such shares of Common Stock, and no
allowance or adjustment shall be made in respect of dividends payable to
holders of Common Stock of record on any date prior to such effective date.
The Corporation shall not be obligated to pay any dividend that may have
accrued or have been declared but that is not payable to holders of shares of
ESOP Preferred Stock if the Dividend Payment Date for such dividend is on or
subsequent to the effective date of conversion of such shares.
(E) The Corporation shall not be obligated to deliver to
holders of ESOP Preferred Stock any fractional share or shares of Common Stock
issuable upon any conversion of such shares of ESOP Preferred Stock, but in
lieu thereof may make a cash payment in respect thereof in any manner permitted
by law.
(F) The Corporation shall at all times reserve and keep
available out of its authorized and unissued Common Stock or treasury Common
Stock, solely for issuance upon the conversion of shares of ESOP Preferred
Stock as herein
14
provided, such number of shares of Common Stock as shall from time to time be
issuable upon the conversion of all the shares of ESOP Preferred Stock then
outstanding.
6. Redemption at the Option of the Corporation.
(A) The ESOP Preferred Stock shall be redeemable, in whole or in
part, at the option of the Corporation at any time after September 19, 2000,
out of funds legally available therefor, at a redemption price per share equal
to 100% of the Liquidation Price plus an amount equal to all accrued (whether
or not accumulated) and unpaid dividends thereon to the date fixed for
redemption. Payment of the redemption price shall be made by the Corporation
in cash or shares of Common Stock, or a combination thereof, as permitted by
paragraph (E) of this Section 6. From and after the date fixed for redemption,
dividends on shares of ESOP Preferred Stock called for redemption will cease to
accrue and all rights of the holder in respect of such shares shall cease,
except the right to receive the redemption price. Upon payment of the
redemption price, such shares shall be deemed to have been transferred to the
Corporation, to be held as treasury shares or to be retired, in either case as
provided in Section 1(A). If less than all of the outstanding shares of ESOP
Preferred Stock are to be redeemed, the Corporation shall either redeem a
portion of the shares of each holder determined pro rata based on the number of
shares held by each holder or shall select the shares to be redeemed by lot, as
may be determined by the Board of Directors of the Corporation.
(B) Notice of redemption will be sent to the holders of ESOP
Preferred Stock at the address shown on the books of the Corporation or any
transfer agent for ESOP Preferred Stock by first class mail, postage prepaid,
mailed not less than twenty (20) days nor more than sixty (60) days prior to the
redemption date or in any other manner provided by law. Each notice shall
state: (i) the redemption date; (ii) the total number of shares of ESOP
Preferred Stock to be redeemed and, if fewer than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from such
holder; (iii) the redemption price; (iv) the place or places where
certificates, if certificated, for such shares are to be surrendered for
payment of the redemption price; (v) that dividends on the shares to be
redeemed will cease to accrue on such redemption date; (vi) whether such
redemption price should be paid in cash or in shares of Common Stock; and (vii)
the conversion rights of the shares to be redeemed, the period within which
conversion
15
rights may be exercised and the Conversion Price and number of shares of Common
Stock issuable upon conversion of a share of ESOP Preferred Stock at the time.
Upon surrender of the certificates, if certificated, for any shares so called
for redemption, or upon the date fixed for redemption, if uncertificated, such
shares, if not previously converted, shall be redeemed by the Corporation as of
the close of business on the date fixed for redemption and at the redemption
price set forth in this Section 6.
(C) The Corporation may, in its sole discretion and
notwithstanding anything to the contrary in paragraph (A) of this Section 6, at
any time within one year after either of the following events:
(i) there shall be a change in the federal tax law or
regulations of the United States of America or of an interpretation or
application of such law or regulations or of a determination by a
court of competent jurisdiction that in any case has the effect of
precluding the Corporation from claiming (other than for purposes of
calculating any alternative minimum tax) any of the tax deductions for
dividends paid on the ESOP Preferred Stock when such dividends are
used as provided under Section 404(k)(2) of the Internal Revenue Code
of 1986, as amended (the "Code"), as in effect on the date shares of
ESOP Preferred Stock are initially issued, or
(ii) the Corporation shall certify to the holders of the ESOP
Preferred Stock that the Corporation has determined in good faith that
the Plan either is not qualified as a "stock bonus plan" within the
meaning of Section 401(a) of the Code or is not an "employee stock
ownership plan" within the meaning of Section 4975(e)(7) of the Code,
elect either to (a) redeem, out of funds legally available therefor, any or all
of such ESOP Preferred Stock for cash or, if the Corporation so elects, in
shares of Common Stock, or a combination of such shares of Common Stock and
cash, as permitted by paragraph (E) of this Section 6, at a redemption price
equal to (x) if the relevant event is as provided in clause (i) above, the
Liquidation Price per share on the date fixed for redemption, plus an amount
equal to accrued (whether or not accumulated) and unpaid dividends thereon to
the date fixed for redemption or (y) if the relevant event is as provided in
clause (ii) above, an amount calculated on the basis of the redemption prices
provided in paragraph (D) of this Section 6 on the date fixed for redemption or
(b)
16
exchange any or all of such shares of ESOP Preferred Stock for securities of at
least equal value (as determined by an independent appraiser) that constitute
"qualifying employer securities" with respect to a holder of ESOP Preferred
Stock within the meaning of Section 409(1) of the Code and Section 407(d)(5) of
the Employment Retirement Income Security Act of 1974, as amended ("ERISA"), or
any successor provisions of law. If the Corporation elects to redeem any or
all of the ESOP Preferred Stock pursuant to clause (a) of the preceding
sentence, notice of such redemption shall be given as required in paragraph (B)
of this Section 6, and if the Corporation elects to exchange any or all of the
ESOP Preferred Stock for securities of at least equal value pursuant to clause
(b) of the preceding sentence, it will cause notice of such election to be sent
to the holders of ESOP Preferred Stock at the address shown on the books of the
Corporation or any transfer agent for ESOP Preferred Stock by first class mail,
postage prepaid, mailed not less than twenty (20) days nor more than sixty (60)
days prior to the date of exchange or in any other manner required by law.
Each notice shall state: (i) the exchange date; (ii) the total number of
shares of ESOP Preferred Stock to be exchanged and, if fewer than all the
shares held by such holder are to be exchanged, the number of shares held by
such holder to be exchanged; (iii) the exchange rate; (iv) the place or places
where certificates, if certificated, for such shares are to be surrendered for
exchange; and (v) that dividends on the shares to be exchanged will cease to
accrue on such exchange date.
(D) Notwithstanding anything to the contrary in paragraph (A)
of this Section 6, in the event that the Plan is, or contributions thereto are,
terminated, the Corporation may, in its sole discretion, call for redemption
any or all of the then outstanding ESOP Preferred Stock, upon notice as
required in paragraph (B) of this Section 6, out of funds legally available
therefor, at a redemption price per share equal to the following percentages of
the Liquidation Price in effect on the date fixed for redemption:
17
<TABLE>
<CAPTION>
During the Twelve-
Month Period Percentage of
Beginning September 19, Liquidation Price
----------------------- -----------------
<S> <C>
1991 106.98
1992 106.20
1993 105.43
1994 104.65
1995 103.88
1996 103.10
1997 102.33
1998 101.55
1999 100.78
2000 100.00
</TABLE>
and thereafter at 100%, plus, in each case, an amount equal to all accrued
(whether or not accumulated) and unpaid dividends thereon to the date fixed for
redemption. Payment of the redemption price shall be made by the Corporation
in cash or shares of Common Stock, or a combination thereof, as permitted by
paragraph (E) of this Section 6. From and after the date fixed for redemption,
dividends on shares of ESOP Preferred Stock called for redemption will cease to
accrue and all rights of the holder in respect of such shares shall cease,
except the right to receive the redemption price. Upon payment of the
redemption price, such shares shall be deemed to have been transferred to the
Corporation, to be held as treasury shares or to be retired, in either case as
provided in Section 1(A).
(E) The Corporation, at its option, may make payment of the
redemption price required upon redemption of shares of ESOP Preferred Stock
in cash or in shares of Common Stock, or in a combination of such shares and
cash, any such shares of Common Stock to be valued for such purpose at their
Fair Market Value (as defined in paragraph 9(H)(2)); provided, however, that in
calculating their Fair Market Value the Adjustment Period (as defined in
paragraph 9(H)(2)) shall be deemed to be the five (5) consecutive trading days
preceding the date of redemption.
7. Redemption at the Option of the Holder.
(A) Unless otherwise provided by law, shares of ESOP
Preferred Stock shall be redeemed by the Corporation at the option of the
holder, at any time and from time to time upon notice to the Corporation given
not less than five business days prior to the date fixed by the holder in such
notice, when and to the extent necessary for such holder to
18
provide for distributions required to be made under, or to satisfy an
investment election provided to participants in accordance with, the Plan or
any successor plan or when the holder elects to redeem shares of ESOP Preferred
Stock in connection with any Preferred Dividend (a "Dividend Redemption"), in
shares of Common Stock legally available therefor, at a redemption price equal
to the higher of (x) the Liquidation Price per share on the date fixed for
redemption and (y) the Fair Market Value (as defined in paragraph 9(H)(2)) of
the number of shares of Common Stock into which each share of ESOP Preferred
Stock is convertible at the time the notice of such redemption is given, plus
in either case an amount equal to accrued (whether or not accumulated) and
unpaid dividends thereon to the date fixed for redemption (such higher price on
any date, together with such accrued and unpaid dividends, the "Special
Redemption Price"). At the election of the Corporation, such redemption may
instead be made out of funds legally available therefor in cash or a
combination of Common Stock and cash. Any shares of Common Stock shall be
valued for the purposes of redemption pursuant to this paragraph (A) as
provided by paragraph (E) of Section 6. In the case of any Dividend
Redemption, such holder shall give the notice specified above on the fifth
business day after the related Dividend Payment Date and such redemption shall
be effective as to such number of shares of ESOP Preferred Stock as shall equal
(x) the aggregate amount of such Preferred Dividends paid with respect to
shares of ESOP Preferred Stock allocated or credited to the accounts of
participants in the Plan or any successor plan that are used to repay any loan
associated with such allocated or credited shares divided by (y) the Special
Redemption Price specified above in this paragraph (A).
(B) Unless otherwise provided by law, shares of ESOP
Preferred Stock shall be redeemed by the Corporation at the option of the
holder, at any time and from time to time upon notice to the Corporation given
not less than five business days prior to the date fixed by the holder in such
notice, upon certification by such holder to the Corporation of the following
events: (i) when and to the extent necessary for such holder to make any
payments of principal, interest or premium due and payable (whether voluntary,
scheduled, upon acceleration or otherwise) upon any obligations of the trust
established under the Plan in connection with the acquisition of ESOP Preferred
Stock or any indebtedness, expenses or costs incurred by the holder for the
benefit of the Plan; or (ii) when and if it shall be established to the
satisfaction of the holder that the Plan
19
has not initially been determined by the Internal Revenue Service to be
qualified as a "stock bonus plan" and an "employee stock ownership plan" within
the meaning of Section 401(a) or 4975(e)(7) of the Code, respectively, in
shares of Common Stock legally available therefor, at a redemption price equal
to the Liquidation Price plus an amount equal to accrued and unpaid dividends
thereon to the date fixed for redemption. At the election of the Corporation,
such redemption may instead be made out of funds legally available therefor in
cash or a combination of Common Stock and cash. Any shares of Common Stock
shall be valued for the purposes of redemption pursuant to this paragraph (B)
as provided by paragraph (E) of Section 6.
8. Consolidation, Merger, etc.
(A) If the Corporation shall consummate any consolidation or merger
or similar transaction, however named, pursuant to which the outstanding shares
of Common Stock are by operation of law exchanged solely for or changed,
reclassified or converted solely into securities of any successor or resulting
company (including the Corporation) that constitute "qualifying employer
securities" with respect to a holder of ESOP Preferred Stock within the
meanings of Section 409(l) of the Code and Section 407(d)(5) of ERISA, or any
successor provision of law, and, if applicable, for a cash payment in lieu of
fractional shares, if any, then, in such event, the terms of such consolidation
or merger or similar transaction shall provide that the shares of ESOP
Preferred Stock of such holder shall be converted into or exchanged for and
shall become preferred securities of such successor or resulting company,
having in respect of such company insofar as possible (taking into account,
without limitation, any requirements relating to the listing of such preferred
securities on any national securities exchange or the qualification of such
preferred securities for trading in any over-the-counter market) the same
powers, preferences and relative, participating, optional or other special
rights (including the redemption rights provided by Sections 6, 7 and 8
hereof), and the qualifications, limitations or restrictions thereon, that the
ESOP Preferred Stock had immediately prior to such transaction; provided,
however, that after such transaction each security into which the ESOP
Preferred Stock is so converted or for which it is exchanged shall be
convertible, pursuant to the terms and conditions provided by Section 5 hereof,
into the number and kind of qualifying employer securities receivable by a
holder equivalent to the number of shares of Common Stock into which such
shares of ESOP
20
Preferred Stock could have been converted pursuant to Section 5 hereof
immediately prior to such transaction and provided further that if by virtue of
the structure of such transaction, a holder of Common Stock is required to make
an election with respect to the nature and kind of consideration to be received
in such transaction, which election cannot practicably be made by the holders
of the ESOP Preferred Stock, then such election shall be deemed to be solely
for "qualifying employer securities" (together, if applicable, with a cash
payment in lieu of fractional shares) with the effect provided above on the
basis of the number and kind of qualifying employer securities receivable by a
holder of the number of shares of Common Stock into which the shares of ESOP
Preferred Stock could have been converted pursuant to Section 5 hereof
immediately prior to such transaction (it being understood that if the kind or
amount of qualifying employer securities receivable in respect of each share of
Common Stock upon such transaction is not the same for each such share, then
the kind and amount of qualifying employer securities deemed to be receivable
in respect of each share of Common Stock for purposes of this proviso shall be
the kind and amount so receivable per share of Common Stock by a plurality of
such shares). The rights of the ESOP Preferred Stock as preferred equity of
such successor or resulting company shall successively be subject to
adjustments pursuant to Section 9 hereof after any such transaction as nearly
equivalent as practicable to the adjustments provided for by such Section prior
to such transaction. The Corporation shall not consummate any such merger,
consolidation or similar transaction unless all the terms of this paragraph (A)
are complied with.
(B) If the Corporation shall consummate any consolidation or
merger or similar transaction, however named, pursuant to which the outstanding
shares of Common Stock are by operation of law exchanged for or changed,
reclassified or converted into other shares or securities or cash or any other
property, or any combination thereof, other than any such consideration which
is constituted solely of qualifying employer securities that are common stock
or common equity (as referred to in paragraph (A) of this Section 8) and cash
payments, if applicable, in lieu of fractional shares or other interests,
outstanding shares of ESOP Preferred Stock shall, without any action on the
part of the Corporation or any holder thereof (but subject to paragraph (C) of
this Section 8), be automatically converted immediately prior to the
consummation of such merger, consolidation or similar transaction into shares
of Common Stock at the Conversion Price then in effect.
21
(C) If the Corporation shall enter into any agreement providing
for any consolidation or merger or similar transaction described in paragraph
(B) of this Section 8, then the Corporation shall as soon as practicable
thereafter (and in any event at least ten (10) business days before
consummation of such transaction) give notice of such agreement and the
material terms thereof to each holder of ESOP Preferred Stock and each such
holder shall have the right to elect, by written notice to the Corporation, to
receive, upon consummation of such transaction (if and when such transaction
is consummated), out of funds legally available therefor, from the Corporation
or the successor of the Corporation, in redemption of such ESOP Preferred
Stock, in lieu of any cash or other securities which such holder would
otherwise be entitled to receive under paragraph (B) of this Section 8, a cash
payment equal to the Liquidation Price per share on the date fixed for such
transaction, plus an amount equal to accrued (whether or not accumulated) and
unpaid dividends thereon to the date fixed for such transaction. No such
notice of redemption shall be effective unless given to the Corporation prior
to the close of business of the fifth business day prior to consummation of
such transaction, unless the Corporation or the successor of the Corporation
shall waive such prior notice, but any notice or redemption so given prior to
such time may be withdrawn by notice of withdrawal given to the Corporation
prior to the close of business on the fifth business day prior to consummation
of such transaction.
9. Anti-dilution Adjustments.
(A) (1) Subject to the provisions of paragraphs (E) and (F)
of this Section 9, in the event the Corporation shall, at any time or from time
to time while any of the shares of the ESOP Preferred Stock are outstanding,
(i) pay a dividend or make a distribution in respect of the Common Stock in
shares of Common Stock or (ii) subdivide the outstanding shares of Common Stock
into a greater number of shares, in each case whether by reclassification of
shares, recapitalization of the Corporation (excluding a recapitalization or
reclassification effected by a merger or consolidation to which Section 8
applies) or otherwise, then, in such event, the Board of Directors shall, to
the extent legally permissible, declare a dividend in respect of the ESOP
Preferred Stock in shares of ESOP Preferred Stock (a "Special Dividend") in
such a manner that a holder of ESOP Preferred Stock will become a holder of
that number of shares of ESOP Preferred Stock equal to the product of the
number of such shares held prior to such event times a fraction (the
22
"Section 9(A) Fraction"), the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock outstanding immediately before
such event. A Special Dividend declared pursuant to this Section 9(A)(1) shall
be effective, upon payment of such dividend or distribution in respect of the
Common Stock, as of the record date for the determination of stockholders
entitled to receive such dividend or distribution (on a retroactive basis), and
in the case of a subdivision shall become effective immediately as of the
effective date thereof. Concurrently with the declaration of the Special
Dividend pursuant to this paragraph 9(A)(1), the Conversion Price, the
Liquidation Price and the Preferred Dividend Rate of all shares of ESOP
Preferred Stock shall be adjusted by dividing the Conversion Price, the
Liquidation Price and the Preferred Dividend Rate, respectively, in effect
immediately before such event by the Section 9(A) Fraction.
(2) Subject to the provisions of paragraphs (E) and (F) of this
Section 9, in the event the Corporation shall, at any time or from time to time
while any of the shares of the ESOP Preferred Stock are outstanding, combine
the outstanding shares of Common Stock into a lesser number of shares, whether
by reclassification of shares, recapitalization of the Corporation (excluding a
recapitalization or reclassification effected by a merger, consolidation or
other transaction to which Section 8 applies) or otherwise, then, in such
event, the Conversion Price shall automatically be adjusted by dividing the
Conversion Price in effect immediately before such event by the Section 9(A)
Fraction and the Liquidation Price and the Preferred Dividend Rate will not be
adjusted. An adjustment to the Conversion Price made pursuant to this
paragraph 9(A)(2) shall be given effect immediately as of the effective date of
such combination.
(B) Subject to the provisions of paragraphs (E) and (F) of this
Section 9, in the event the Corporation shall, at any time or from time to time
while any of the shares of ESOP Preferred Stock are outstanding, issue to
holders of shares of Common Stock as a dividend or distribution, including by
way of a reclassification of shares or a recapitalization of the Corporation,
any right or warrant to purchase shares of Common Stock (but not including as a
right or warrant for this purpose any security convertible into or exchangeable
for shares of Common Stock) for a consideration having a Fair Market Value (as
hereinafter defined) per share less than the Fair Market Value of a share of
Common Stock on the date of issuance of such right or warrant (other than
pursuant to any
23
employee or director incentive, compensation or benefit plan or arrangement of
the Corporation or any subsidiary of the Corporation heretofore or hereafter
adopted), then, in such event, the Board of Directors shall, to the extent
legally permissible, declare a Special Dividend in such a manner that a holder
of ESOP Preferred Stock will become a holder of that number of shares of ESOP
Preferred Stock equal to the product of the number of such shares held prior to
such event times a fraction (the "Section 9(B) Fraction"), the numerator of
which is the number of shares of Common Stock outstanding immediately before
such issuance of rights or warrants plus the maximum number of shares of Common
Stock that could be acquired upon exercise in full of all such rights and
warrants and the denominator of which is the number of shares of Common Stock
outstanding immediately before such issuance of warrants or rights plus the
number of shares of Common Stock that could be purchased at the Fair Market
Value of a share of Common Stock at the time of such issuance for the maximum
aggregate consideration payable upon exercise in full of all such rights and
warrants. A Special Dividend declared pursuant to this Section 9(B) shall be
effective upon such issuance of rights or warrants. Concurrently with the
declaration of the Special Dividend pursuant to this Section 9(B), the
Conversion Price, the Liquidation Price and the Preferred Dividend Rate of all
shares of ESOP Preferred Stock shall be adjusted by dividing the Conversion
Price, the Liquidation Price and the Preferred Dividend Rate, respectively, in
effect immediately before such event by the Section 9(B) Fraction.
(C) (1) Subject to the provisions of paragraphs (E) and (F) of
this Section 9, in the event the Corporation shall, at any time or from time to
time while any of the shares of ESOP Preferred Stock are outstanding, issue,
sell or exchange shares of Common Stock (other than pursuant to (x) any right or
warrant to purchase or acquire shares of Common Stock (including as such a
right or warrant any security convertible into or exchangeable for shares of
Common Stock) or (y) any employee or director incentive, compensation or
benefit plan or arrangement of the Corporation or any subsidiary of the
Corporation heretofore or hereafter adopted) at a purchase price per share less
than the Fair Market Value of a share of Common Stock on the date of such
issuance, sale or exchange, then, in such event, the Board of Directors shall,
to the extent legally permissible, declare a Special Dividend in such a manner
that a holder of ESOP Preferred Stock will become the holder of that number of
shares of ESOP Preferred Stock equal to the product of the number of such
shares held prior to such event times a
24
fraction (the "Section 9(C)(1) Fraction"), the numerator of which is the number
of shares of Common Stock outstanding immediately before such issuance, sale or
exchange plus the number of shares of Common Stock so issued, sold or exchanged
and the denominator of which is the number of shares of Common Stock
outstanding immediately before such issuance, sale or exchange plus the number
of shares of Common Stock that could be purchased at the Fair Market Value of a
share of Common Stock at the time of such issuance, sale or exchange for the
maximum aggregate consideration paid therefor.
(2) Subject to the provisions of paragraphs (E) and (F) of this
Section 9, in the event that the Corporation shall, at any time or from time to
time while any ESOP Preferred Stock is outstanding, issue, sell or exchange any
right or warrant to purchase or acquire shares of Common Stock (including as
such a right or warrant any security convertible into or exchangeable for
shares of Common Stock other than pursuant to (x) any employee or director
incentive, compensation or benefit plan or arrangement of the Corporation or
any subsidiary of the Corporation heretofore or hereafter adopted and (y) any
dividend or distribution on shares of Common Stock contemplated in Section
9(A)(1)) for a consideration having a Fair Market Value, on the date of such
issuance, sale or exchange, less than the Non-Dilutive Amount (as hereinafter
defined), then, in such event, the Board of Directors shall, to the extent
legally permissible, declare a Special Dividend in such a manner that a holder
of ESOP Preferred Stock will become the holder of that number of shares of ESOP
Preferred Stock equal to the product of the number of such shares held prior to
such event times a fraction (the "Section 9(C)(2) Fraction"), the numerator of
which is the number of shares of Common Stock outstanding immediately before
such issuance of rights or warrants plus the maximum number of shares of Common
Stock that could be acquired upon exercise in full of all such rights and
warrants and the denominator of which is the number of shares of Common Stock
outstanding immediately before such issuance of rights or warrants plus the
number of shares of Common Stock that could be purchased at the Fair Market
Value of a share of Common Stock at the time of such issuance for the total of
(x) the maximum aggregate consideration payable at the time of the issuance,
sale or exchange of such right or warrant and (y) the maximum aggregate
consideration payable upon exercise in full of all such rights or warrants.
(3) A Special Dividend declared pursuant to this Section 9(C)
shall be effective upon the effective date of
25
such issuance, sale or exchange. Concurrently with the declaration of the
Special Dividend pursuant to this Section 9(C), the Conversion Price, the
Liquidation Price and the Preferred Dividend Rate of all shares of ESOP
Preferred Stock shall be adjusted by dividing the Conversion Price, the
Liquidation Price and the Preferred Dividend Rate, respectively, in effect
immediately before such event by the Section 9(C)(1) Fraction or Section
9(C)(2) Fraction, as the case may be.
(D) Subject to the provisions of paragraphs (E) and (F) of this
Section 9, in the event the Corporation shall, at any time or from time to time
while any of the shares of ESOP Preferred Stock are outstanding, make an
Extraordinary Distribution (as hereinafter defined) in respect of the Common
Stock, whether by dividend, distribution, reclassification of shares or
recapitalization of the Corporation (including capitalization or
reclassification effected by a merger or consolidation to which Section 8 does
not apply) or effect a Pro Rata Repurchase (as hereinafter defined) of Common
Stock, then, in such event, the Board of Directors shall, to the extent legally
permissible, declare a Special Dividend in such a manner that a holder of ESOP
Preferred Stock will become a holder of that number of shares of ESOP Preferred
Stock equal to the product of the number of such shares held prior to such
event times a fraction (the "Section 9(D) Fraction"), the numerator of which is
the product of (a) the number of shares of Common Stock outstanding immediately
before such Extraordinary Distribution or Pro Rata Repurchase minus, in the
case of Pro Rata Repurchase, the number of shares of Common Stock repurchased
by the Corporation multiplied by (b) the Fair Market Value of a share of Common
Stock on the day before the ex-dividend date with respect to an Extraordinary
Distribution that is paid in cash and on the distribution date with respect to
an Extraordinary Distribution that is paid other than in cash, or on the
applicable expiration date (including all extensions thereof) of any tender
offer that is a Pro Rata Repurchase or on the date of purchase with respect to
any Pro Rata Repurchase that is not a tender offer, as the case may be, and the
denominator of which is (i) the product of (x) the number of shares of Common
Stock outstanding immediately before such Extraordinary Distribution or Pro
Rata Repurchase multiplied by (y) the Fair Market Value of a share of Common
Stock on the day before the ex-dividend date with respect to an Extraordinary
Distribution that is paid in cash and on the distribution date with respect to
an Extraordinary Distribution that is paid other than in cash, or on the
applicable expiration date
26
(including all extensions thereof) of any tender offer that is a Pro Rata
Repurchase, or on the date of purchase with respect to any Pro Rata Repurchase
that is not a tender offer, as the case may be, minus (ii) the Fair Market
Value of the Extraordinary Distribution or the aggregate purchase price of the
Pro Rata Repurchase, as the case may be. The Corporation shall send each
holder of ESOP Preferred Stock (i) notice of its intent to make any
Extraordinary Distribution and (ii) notice of any offer by the Corporation to
make a Pro Rata Repurchase, in each case at the same time as, or as soon as
practicable after, such offer is first communicated to holders of Common Stock
or, in the case of an Extraordinary Distribution, the announcement of a record
date in accordance with the rules of any stock exchange on which the Common
Stock is listed or admitted to trading. Such notice shall indicate the
intended record date and the amount and nature of such dividend or
distribution, or the number of shares subject to such offer for a Pro Rata
Repurchase and the purchase price payable by the Corporation pursuant to such
offer, as well as the Conversion Price and the number of shares of Common Stock
into which a share of ESOP Preferred Stock may be converted at such time.
Concurrently with the Special Dividend paid pursuant to this Section 9(D), the
Conversion Price, the Liquidation Price and the Preferred Dividend Rate of all
shares of ESOP Preferred Stock shall be adjusted by dividing the Conversion
Price, the Liquidation Price and the Preferred Dividend Rate, respectively, in
effect immediately before such Extraordinary Distribution or Pro Rata
Repurchase by the Section 9(D) Fraction.
(E) Notwithstanding any other provision of this Section 9, the
Corporation shall not be required to make (i) any Special Dividend or any
adjustment of the Conversion Price, the Liquidation Price or the Preferred
Dividend Rate unless such Special Dividend or adjustment would require an
increase or decrease of at least one percent (1%) in the number of shares of
ESOP Preferred Stock outstanding, or, (ii) if no additional shares of ESOP
Preferred Stock are issued, any adjustment of the Conversion Price unless such
adjustment would require an increase or decrease of at least one percent (1%)
in the Conversion Price. Any lesser Special Dividend or adjustment shall be
carried forward and shall be made no later than the time of, and together with,
the next subsequent Special Dividend or adjustment which, together with any
Special Dividend or Dividends, adjustment or adjustments so carried forward,
shall amount to an increase or decrease of at least one percent (1%) of the
number of shares of ESOP Preferred Stock outstanding or, if no additional
shares of ESOP Preferred Stock are being issued,
27
an increase or decrease of at least one percent (1%) of the Conversion Price,
whichever the case may be.
(F) The Corporation and the Board of Directors shall each use its
best efforts to take all necessary steps or to take all actions as are
reasonably necessary or appropriate for declaration of any Special Dividend
provided in any of paragraphs (A), (B), (C) and (D) of this Section 9, but
shall not be required to call a special meeting of stockholders in order to
implement the provisions thereof. If for any reason the Board of Directors is
precluded from giving full effect to the Special Dividend provided in any of
such paragraphs, then no such Special Dividend shall be declared, but instead
the Conversion Price shall automatically be adjusted by dividing the Conversion
Price in effect immediately before the relevant event by the Section 9(A),
Section 9(B), Section 9(C) or Section 9(D) Fraction, as applicable, and the
Liquidation Price and the Preferred Dividend Rate will not be adjusted. An
adjustment to the Conversion Price made pursuant to this paragraph (F) shall be
given effect, (i) in the case of a payment of a dividend or distribution under
Section 9(A), upon payment thereof as of the record date for the determination
of holders entitled to receive such dividend or distribution (on a retroactive
basis), and, in the case of a subdivision under Section 9(A), immediately as of
the effective date thereof, (ii) in the case of Section 9(B), upon such
issuance of rights or warrants, (iii) in the case of Section 9(C), upon the
effective date of such issuance, sale or exchange and (iv) in the case of an
Extraordinary Dividend under Section 9(D), as of the record date for the
determination of holders entitled to receive such Extraordinary Dividend (on a
retroactive basis), and, in the case of a Pro Rata Repurchase under Section
9(D), upon the expiration date thereof (if such Pro Rata Repurchase is a tender
offer) or the effective date thereof (if such Pro Rata Repurchase is not a
tender offer). If subsequently the Board of Directors is able to give full
effect to the Special Dividend as provided in paragraph (A), (B), (C) or (D) of
this Section 9, then such Special Dividend will be declared and other
adjustments will be made in accordance with the provisions of such paragraph
and the adjustment in the Conversion Price as provided in this paragraph (F)
will automatically be reversed and nullified prospectively.
(G) If the Corporation shall make any dividend or distribution
on the Common Stock or issue any Common Stock, other capital stock or other
security of the Corporation or any rights or warrants to purchase or acquire
any such
28
security, which transaction does not result in an adjustment to the number of
shares of ESOP Preferred Stock outstanding or the Conversion Price pursuant to
the foregoing provisions of this Section 9, the Board of Directors of the
Corporation may, in its sole discretion, consider whether such action is of
such a nature that some type of equitable adjustment should be made in respect
of such transaction. If in such case the Board of Directors of the Corporation
determines that some type of adjustment should be made, an adjustment shall be
made effective as of such date as determined by the Board of Directors of the
Corporation. The determination of the Board of Directors of the Corporation as
to whether some type of adjustment should be made pursuant to the foregoing
provisions of this Section 9(G), and, if so, as to what adjustment should be
made and when, shall be final and binding on the Corporation and all
stockholders of the Corporation. The Corporation shall be entitled, but not
required, to make such additional adjustments, in addition to those required by
the foregoing provisions of this Section 9, as shall be necessary in order that
any dividend or distribution in shares of capital stock of the Corporation,
subdivision, reclassification or combination of shares of the Corporation or
any reclassification of the Corporation shall not be taxable to holders of the
Common Stock.
(H) For purposes hereof, the following definitions shall apply:
(1) "Extraordinary Distribution" shall mean any dividend or other
distribution to holders of Common Stock (effected while any of the shares of
ESOP Preferred Stock are outstanding) of (i) cash or (ii) any shares of capital
stock of the Corporation (other than shares of Common Stock), other securities
of the Corporation (other than securities of the type referred to in paragraph
(B) of this Section 9), evidences of indebtedness of the Corporation or any
other person or any other property (including shares of any subsidiary of the
Corporation), or any combination of the foregoing, where the aggregate amount
of such cash dividend or other distribution together with the amount of all
cash dividends and other distributions made during the preceding period of
twelve months, when combined with the aggregate amount of all Pro Rata
Repurchases (for this purpose, including only that portion of the aggregate
purchase price of such Pro Rata Repurchase that is in excess of the Fair Market
Value of the Common Stock repurchased as determined on the applicable
expiration date (including all extensions thereof) of any tender offer or
exchange offer that is a Pro Rata Repurchase, or the date of purchase with
respect to any
29
other Pro Rata Repurchase that is not a tender offer or exchange offer) made
during such period, exceeds twelve and one-half percent (12-1/2%) of the
aggregate Fair Market Value of all shares of Common Stock outstanding on the
day before the ex-dividend date with respect to such Extraordinary Distribution
that is paid in cash and on the distribution date with respect to an
Extraordinary Distribution that is paid other than in cash. The Fair Market
Value of an Extraordinary Distribution for purposes of paragraph (D) of this
Section 9 shall be the sum of the Fair Market Value of such Extraordinary
Distribution plus the aggregate amount of any cash dividends or other
distributions that are not Extraordinary Distributions made during such
twelve-month period and not previously included in the calculation of an
adjustment pursuant to paragraph (D) of this Section 9, but shall exclude the
aggregate amount of regular quarterly dividends declared by the Board of
Directors and paid by the Corporation in such twelve-month period.
(2) "Fair Market Value" shall mean, as to shares of Common Stock
or any other class of capital stock or securities of the Corporation or any
other issuer that are publicly traded, the average of the Current Market Prices
(as hereinafter defined) of such shares or securities for each day of the
Adjustment Period (as hereinafter defined). "Current Market Price" of publicly
traded shares of Common Stock or any other class of capital stock or other
security of the Corporation or any other issuer for a day shall mean the last
reported sales price, regular way, or, in case no sale takes place on such day,
the average of the reported closing bid and asked prices, regular way, in
either case as reported on the New York Stock Exchange Composite Tape or, if
such security is not listed or admitted to trading on the New York Stock
Exchange, on the principal national securities exchange on which such security
is listed or admitted to trading or, if not listed or admitted to trading on
any national securities exchange, on the National Association of Securities
Dealers Automated Quotation System ("NASDAQ") National Market System or, if
such security is not quoted on such National Market System, the average of the
closing bid and asked prices on such day in the over-the-counter market as
reported by NASDAQ or, if bid and asked prices for such security on such day
shall not have been reported through NASDAQ, the average of the bid and asked
prices for such day as furnished by any New York Stock Exchange member firm
regularly making a market in such security selected for such purpose by the
Board of Directors of the Corporation. "Adjustment Period" shall mean the
period of five consecutive trading days, selected by the Board of Directors of
the
30
Corporation, during the twenty (20) trading days preceding, and including, the
date as of which the Fair Market Value of a security is to be determined. The
"Fair Market Value" of any security that is not publicly traded or of any other
property shall mean the fair value thereof as determined by an independent
investment banking or appraisal firm experienced in the valuation of such
securities or property selected in good faith by the Board of Directors of the
Corporation, or, if no such investment banking or appraisal firm is in the good
faith judgment of the Board of Directors available to make such determination,
as determined in good faith by the Board of Directors of the Corporation.
(3) "Non-Dilutive Amount" in respect of an issuance, sale or
exchange by the Corporation of any right or warrant to purchase or acquire
shares of Common Stock (including any security convertible into or exchangeable
for shares of Common Stock) shall mean the difference between (i) the product of
the Fair Market Value of a share of Common Stock on the day preceding the first
public announcement of such issuance, sale or exchange multiplied by the
maximum number of shares of Common Stock that could be acquired on such date
upon the exercise in full of such rights or warrants (including upon the
conversion or exchange of all such convertible or exchangeable securities),
whether or not exercisable (or convertible or exchangeable) at such date, and
(ii) the aggregate amount payable pursuant to such right or warrant to purchase
or acquire such maximum number of shares of Common Stock; provided, however,
that in no event shall the Non-Dilutive Amount be less than zero. For purposes
of the foregoing sentence, in the case of a security convertible into or
exchangeable for shares of Common Stock, the amount payable pursuant to a right
or warrant to purchase or acquire shares of Common Stock shall be the Fair
Market Value of such security on the date of the issuance, sale or exchange of
such security by the Corporation.
(4) "Pro Rata Repurchase" shall mean any purchase of shares or
Common Stock by the Corporation or any subsidiary thereof, whether for cash,
shares of capital stock of the Corporation, other securities of the Corporation,
evidences of indebtedness of the Corporation or any other person or any other
property (including shares of a subsidiary of the Corporation), or any
combination thereof, effected while any of the shares of ESOP Preferred Stock
are outstanding, pursuant to any tender offer or exchange offer subject to
Section 13(e) of the Exchange Act, or any successor provision of law, or
pursuant to any other offer available to substantially all holders of Common
Stock;
31
provided, however, that no purchase of shares by the Corporation or any
subsidiary thereof made in open market transactions shall be deemed a Pro Rata
Repurchase. For purposes of this Section 9(H), shares shall be deemed to have
been purchased by the Corporation or any subsidiary thereof "in open market
transactions" if they have been purchased substantially in accordance with the
requirements of Rule 10b-18 as in effect under the Exchange Act on the date
shares of ESOP Preferred Stock are initially issued by the Corporation or on
such other terms and conditions as the Board of Directors of the Corporation
shall have determined are reasonably designed to prevent such purchases from
having a material effect on the trading market for the Common Stock.
(I) Whenever an adjustment increasing the number of shares of
ESOP Preferred Stock outstanding is required pursuant hereto, the Board of
Directors shall take action as is necessary so that a sufficient number of
shares of ESOP Preferred Stock are designated with respect to such increase
resulting from such adjustment. Whenever an adjustment to the Conversion
Price, the Liquidation Price or the Preferred Dividend Rate of the ESOP
Preferred Stock is required pursuant hereto, the Corporation shall forthwith
place on file with the transfer agent for the Common Stock and the ESOP
Preferred Stock, if there be one, and with the Treasurer of the Corporation, a
statement signed by the Treasurer or any Assistant Treasurer of the Corporation
stating the adjusted Conversion Price, Liquidation Price and Preferred Dividend
Rate determined as provided herein. Such statement shall set forth in
reasonable detail such facts as shall be necessary to show the reason and the
manner of computing such adjustments, including any determination of Fair
Market Value involved in such computation. Promptly after each adjustment to
the number of shares of ESOP Preferred Stock outstanding, the Conversion Price,
the Liquidation Price or the Preferred Dividend Rate, the Corporation shall
mail a notice thereof and of the then prevailing number of shares of ESOP
Preferred Stock outstanding, the Conversion Price, the Liquidation Price and
the Preferred Dividend Rate to each holder of shares of ESOP Preferred Stock.
10. Miscellaneous.
(A) All notices referred to herein shall be in writing, and
all notices hereunder shall be deemed to have been given upon the earlier of
receipt thereof or three (3) business days after the mailing thereof if sent by
registered mail (unless first-class mail shall be specifically permitted for
such notice under the terms hereof) with postage prepaid,
32
addressed: (i) if to the Corporation, to its office at 1251 Avenue of the
Americas, New York, New York 10020 (Attention: Secretary) or to the transfer
agent for the ESOP Preferred Stock, or other agent of the Corporation
designated as permitted hereof or (ii) if to any holder of the ESOP Preferred
Stock or Common Stock, as the case may be, to such holder at the address of
such holder as listed in the stock record books of the Corporation (which may
include the records of any transfer agent for Common Stock) or (iii) to such
other address as the Corporation or any such holder, as the case may be, shall
have designated by notice similarly given.
(B) The term "Common Stock" as used herein means the Corporation's
Common Stock, par value $1.00 per share, as the same exists at the date of
filing of this Certificate of Designation pursuant to Section 151 of the
General Corporation Law of the State of Delaware, or any other class of stock
resulting from successive changes or reclassifications of such Common Stock
consisting solely of changes in par value, or from par value to without par
value, or from without par value to par value. In the event that, at any time
as a result of an adjustment made pursuant to Section 9 hereof, the holder of
any shares of the ESOP Preferred Stock upon thereafter surrendering such shares
for conversion shall become entitled to receive any shares or other securities
of the Corporation other than shares of Common Stock, the anti-dilution
provisions contained in Section 9 hereof shall apply in a manner and on terms
as nearly equivalent as practicable to the provisions with respect to Common
Stock, and the provisions of Sections 1 through 8 and 10 hereof with respect to
the Common Stock shall apply on like or similar terms to any such other shares
or securities.
(C) The Corporation shall pay any and all stock transfer and
documentary stamp taxes that may be payable in respect of any issuance or
delivery of shares of ESOP Preferred Stock or shares of Common Stock or other
securities issued on account of ESOP Preferred Stock pursuant thereto or
certificates representing such shares or securities. The Corporation shall
not, however, be required to pay any such tax which may be payable in respect
of any transfer involved in the issuance or delivery of shares of ESOP
Preferred Stock or Common Stock or other securities in a name other than that
in which the shares of ESOP Preferred Stock with respect to which such shares
or other securities are issued or delivered were registered, or in respect of
any payment to any person with respect to any shares or securities other than a
payment
33
to the registered holder thereof, and shall not be required to make any such
issuance, delivery or payment unless and until the person otherwise entitled to
such issuance, delivery or payment has paid to the Corporation the amount of
any such tax or has established, to the satisfaction of the Corporation, that
such tax has been paid or is not payable.
(D) In the event that a holder of shares of ESOP Preferred Stock
shall not by written notice designate the name in which shares of Common Stock
to be issued upon conversion or exchange of such shares should be registered or
to whom payment upon redemption of shares of ESOP Preferred Stock should be
made or the address to which the certificate or certificates representing such
shares, or such payment, should be sent, the Corporation shall be entitled to
register such shares, and make such payment, in the name of the holder of such
ESOP Preferred Stock as shown on the records of the Corporation and to send the
certificate or certificates or other documentation representing such shares, or
such payment, to the address of such holder shown on the records of the
Corporation.
(E) The Corporation may appoint, and from time to time discharge
and change, a transfer agent for the ESOP Preferred Stock. Upon any such
appointment or discharge of a transfer agent, the Corporation shall send notice
thereof by first-class mail, postage prepaid, to each holder of record of ESOP
Preferred Stock.
34
Subpart B: 9.36% Cumulative Preferred Stock*
1. Designation and Amount; Fractional Shares. The designation
for such series of the Preferred Stock authorized by this resolution shall be
the 9.36% Cumulative Preferred Stock, without par value but with a stated value
of $25.00 per share (the "Cumulative Preferred Stock"). The maximum number of
shares of Cumulative Preferred Stock shall be 5,500,000. The Cumulative
Preferred Stock is issuable in whole shares only.
2. Dividends. Holders of shares of Cumulative Preferred Stock
will be entitled to receive, when and as declared by the Board out of assets of
the Corporation legally available for payment, cash dividends payable quarterly
at the rate of 9.36% per annum. Dividends on the Cumulative Preferred Stock,
calculated as a percentage of the stated value, will be payable quarterly on
February 28, May 30, August 30 and November 30, commencing August 30, 1991
(each a "dividend payment date"). Dividends on shares of the Cumulative
Preferred Stock will be cumulative from the date of initial issuance of such
shares of Cumulative Preferred Stock. Dividends will be payable, in arrears,
to holders of record as they appear on the stock books of the Corporation on
such record dates, not more than 60 days nor less than 10 days preceding the
payment dates thereof, as shall be fixed by the Board. The amount of dividends
payable for the initial dividend period or any period shorter than a full
dividend period shall be calculated on the basis of a 360-day year of twelve
30-day months. No dividends may be declared or paid or set apart for payment
on any Parity Preferred Stock (as defined in paragraph 9(b) below) with regard
to the payment of dividends unless there shall also be or have been declared
and paid or set apart for payment on the Cumulative Preferred Stock, like
dividends for all dividend payment periods of the Cumulative Preferred Stock
ending on or before the dividend payment date of such Parity Preferred Stock,
ratably in proportion to the respective amounts of dividends (x) accumulated
and unpaid or payable on such Parity Preferred Stock, on the one hand, and (y)
accumulated and unpaid through the dividend payment period or periods of the
Cumulative Preferred Stock next preceding such dividend payment date, on the
other hand.
- --------------------
* Terms defined in this Subpart B are so defined for purposes of this
Subpart alone.
35
Except as set forth in the preceding sentence, unless full
cumulative dividends on the Cumulative Preferred Stock have been paid, no
dividends (other than in Common Stock of the Corporation) may be paid or
declared and set aside for payment or other distribution made upon the Common
Stock or on any other stock of the Corporation ranking junior to or on a parity
with the Cumulative Preferred Stock as to dividends, nor may any Common Stock
or any other stock of the Corporation ranking junior to or on a parity with the
Cumulative Preferred Stock as to dividends be redeemed, purchased or otherwise
acquired for any consideration (or any payment be made to or available for a
sinking fund for the redemption of any shares of such stock; provided, however,
that any moneys theretofore deposited in any sinking fund with respect to any
preferred stock of the Corporation in compliance with the provisions of such
sinking fund may thereafter be applied to the purchase or redemption of such
preferred stock in accordance with the terms of such sinking fund regardless of
whether at the time of such application full cumulative dividends upon shares
of the Cumulative Preferred Stock outstanding to the last dividend payment date
shall have been paid or declared and set apart for payment) by the Corporation
(except by conversion into or exchange for stock of the Corporation ranking
junior to the Cumulative Preferred Stock as to dividends).
3. Liquidation Preference. The shares of Cumulative Preferred
Stock shall rank, as to liquidation, dissolution or winding up of the
Corporation, prior to the shares of Common Stock and any other class of stock
of the Corporation ranking junior to the Cumulative Preferred Stock as to
rights upon liquidation, dissolution or winding up of the Corporation, so that
in the event of any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Cumulative Preferred Stock
shall be entitled to receive out of the assets of the Corporation available for
distribution to its stockholders, whether from capital, surplus or earnings,
before any distribution is made to holders of shares of Common Stock or any
other such junior stock, an amount equal to $25.00 per share (the "Liquidation
Preference" of a share of Cumulative Preferred Stock) plus an amount equal to
all dividends (whether or not earned or declared) accrued and accumulated and
unpaid on the shares of Cumulative Preferred Stock to the date of final
distribution. The holders of the Cumulative Preferred Stock will not be
entitled to receive the Liquidation Preference until the liquidation preference
of any other class of stock of the Corporation ranking senior to the Cumulative
Preferred Stock as to rights upon
36
liquidation, dissolution or winding up shall have been paid (or a sum set aside
therefor sufficient to provide for payment) in full. After payment of the full
amount of the Liquidation Preference and such dividends, the holders of shares
of Cumulative Preferred Stock will not be entitled to any further participation
in any distribution of assets by the Corporation. If, upon any liquidation,
dissolution or winding up of the Corporation, the assets of the Corporation, or
proceeds thereof, distributable among the holders of shares of Parity Preferred
Stock shall be insufficient to pay in full the preferential amount aforesaid,
then such assets, or the proceeds thereof, shall be distributable among such
holders ratably in accordance with the respective amounts which would be
payable on such shares if all amounts payable thereon were paid in full. For
the purposes hereof, neither a consolidation or merger of the Corporation with
or into any other corporation, nor a merger of any other corporation with or
into the Corporation, nor a sale or transfer of all or any part of the
Corporation's assets for cash or securities shall be considered a liquidation,
dissolution or winding up of the Corporation.
4. Conversion. The Cumulative Preferred Stock is not
convertible into shares of any other class or series of stock of the
Corporation.
5. Voting Rights. The holders of shares of Cumulative
Preferred Stock shall have no voting rights whatsoever, except for any voting
rights to which they may be entitled under the laws of the State of Delaware,
and except as follows:
(a) Whenever, at any time or times, dividends payable on the
shares of Cumulative Preferred Stock or on any Parity Preferred Stock
with respect to payment of dividends shall be in arrears for an
aggregate number of days equal to six calendar quarters or more,
whether or not consecutive, the holders of the outstanding shares of
Cumulative Preferred Stock shall have the right, with holders of
shares of any one or more other class or series of stock upon which
like voting rights have been conferred and are exercisable (voting
together as a class), to elect two of the authorized number of members
of the Board of Directors of the Corporation at the Corporation's next
annual meeting of stockholders and at each subsequent annual meeting
of stockholders until such arrearages have been paid or set apart for
payment, at which time such right shall terminate, except as herein or
by law expressly provided, subject to revesting in the
37
event of each and every subsequent default of the character above
mentioned. Upon any termination of the right of the holders of shares
of Cumulative Preferred Stock as a class to vote for directors as
herein provided, the term of office of all directors then in office
elected by the holders of shares of Cumulative Preferred Stock shall
terminate immediately. Any director who shall have been so elected
pursuant to this paragraph may be removed at any time, either with or
without cause. Any vacancy thereby created may be filled, only by the
affirmative vote of the holders of shares of Cumulative Preferred
Stock voting separately as a class (together with the holders of
shares of any other class or series of stock upon which like voting
rights have been conferred and are exercisable). If the office of any
director elected by the holders of shares of Cumulative Preferred
Stock voting as a class becomes vacant for any reason other than
removal from office as aforesaid, the remaining director elected
pursuant to this paragraph may choose a successor who shall hold
office for the unexpired term in respect of which such vacancy
occurred. At elections for such directors, each holder of shares of
Cumulative Preferred Stock shall be entitled to one vote for each
share held (the holders of shares of any other class or series of
preferred stock having like voting rights being entitled to such
number of votes, if any, for each share of such stock held as may be
granted to them).
(b) So long as any shares of Cumulative Preferred Stock
remain outstanding, the consent of the holders of at least two-thirds
of the shares of Cumulative Preferred Stock outstanding at the time
and all other class or series of stock upon which like voting rights
have been conferred and are exercisable (voting together as a class)
given in person or by proxy, either in writing or at any meeting
called for the purpose, shall be necessary to permit, effect or
validate any one or more of the following:
(i) the issuance or increase of the authorized amount of
any class or series of shares ranking prior (as that term is
defined in paragraph 9(a) hereof) to the shares of the
Cumulative Preferred Stock; or
(ii) the amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Certificate of
38
Incorporation (including this resolution or any provision
hereof) that would materially and adversely affect any power,
preference, or special right of the shares of Cumulative
Preferred Stock or of the holders thereof;
provided, however, that any increase in the amount of authorized
Common Stock or authorized Preferred Stock or any increase or decrease
in the number of shares of any series of Preferred Stock or the
creation and issuance of other series of Common Stock or Preferred
Stock, in each case ranking on a parity with or junior to the shares
of Cumulative Preferred Stock with respect to the payment of dividends
and the distribution of assets upon liquidation, dissolution or
winding up, shall not be deemed to materially and adversely affect
such powers, preferences or special rights.
(c) The foregoing voting provisions shall not apply if, at or
prior to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding shares of
Cumulative Preferred Stock shall have been redeemed or called for
redemption and sufficient funds shall have been deposited in trust to
effect such redemption.
6. Redemption. The shares of the Cumulative Preferred Stock
may be redeemed at the option of the Corporation, as a whole, or from time to
time in part, at any time, upon not less than 30 days' prior notice mailed to
the holders of the shares to be redeemed at their addresses as shown on the
stock books of the Corporation; provided, however, that shares of the
Cumulative Preferred Stock shall not be redeemable prior to May 30, 1996.
Subject to the foregoing, on or after such date, shares of the Cumulative
Preferred Stock are redeemable at $25.00 per share together with an amount
equal to all dividends (whether or not earned or declared) accrued and
accumulated and unpaid to, but excluding, the date fixed for redemption.
If full cumulative dividends on the Cumulative Preferred Stock
have not been paid, the Cumulative Preferred Stock may not be redeemed in part
and the Corporation may not purchase or acquire any shares of the Cumulative
Preferred Stock otherwise than pursuant to a purchase or exchange offer made on
the same terms to all holders of the Cumulative Preferred Stock. If fewer than
all the outstanding shares of Cumulative Preferred Stock are to be redeemed,
the Corporation will select those to be redeemed by lot or a substantially
equivalent method.
39
If a notice of redemption has been given pursuant to this
paragraph 6 and if, on or before the date fixed for redemption, the funds
necessary for such redemption shall have been set aside by the Corporation,
separate and apart from its other funds, in trust for the pro rata benefit of
the holders of the shares of Cumulative Preferred Stock so called for
redemption, then, notwithstanding that any certificates for such shares have
not been surrendered for cancellation, on the redemption date dividends shall
cease to accrue on the shares to be redeemed, and at the close of business on
the redemption date the holders of such shares shall cease to be stockholders
with respect to such shares and shall have no interest in or claims against the
Corporation by virtue thereof and shall have no voting or other rights with
respect to such shares, except the right to receive the moneys payable upon
surrender (and endorsement, if required by the Corporation) of their
certificates, and the shares evidenced thereby shall no longer be outstanding.
Subject to applicable escheat laws, any moneys so set aside by the Corporation
and unclaimed at the end of two years from the redemption date shall revert to
the general funds of the Corporation, after which reversion the holders of such
shares so called for redemption shall look only to the general funds of the
Corporation for the payment of the amounts payable upon such redemption. Any
interest accrued on funds so deposited shall be paid to the Corporation from
time to time.
7. Authorization and Issuance of Other Securities. No
consent of the holders of the Cumulative Preferred Stock shall be required for
(a) the creation of any indebtedness of any kind of the Corporation, (b) the
creation, or increase or decrease in the amount, of any class or series of
stock of the Corporation not ranking prior as to dividends or upon liquidation,
dissolution or winding up to the Cumulative Preferred Stock or (c) any increase
or decrease in the amount of authorized Common Stock or any increase, decrease
or change in the par value thereof or in any other terms thereof.
8. Amendment of Resolution. Subject to the provisions of
paragraph 5, the Board reserves the right by subsequent amendment of this
resolution from time to time to increase or decrease the number of shares which
constitute the Cumulative Preferred Stock (but not below the number of shares
thereof then outstanding) and in other respects to amend this resolution within
the limitations provided by law, this resolution and the Certificate of
Incorporation.
9. Rank. For the purposes of this resolution, any stock of
any class or classes of the Corporation shall be deemed to rank:
40
(a) prior to shares of the Cumulative Preferred Stock, either
as to dividends or upon liquidation, dissolution or winding up, or
both, if the holders of stock of such class or classes shall be
entitled by the terms thereof to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as
the case may be, in preference or priority to the holders of shares of
the Cumulative Preferred Stock;
(b) on a parity with shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation, dissolution or
winding up, or both, whether or not the dividend rates, dividend
payment dates, or redemption or liquidation prices per share thereof
be different from those of the Cumulative Preferred Stock, if the
holders of stock of such class or classes shall be entitled by the
terms thereof to the receipt of dividends or of amounts distributed
upon liquidation, dissolution or winding up, as the case may be, in
proportion to their respective dividend rates or liquidation prices,
without preference or priority of one over the other as between the
holders of such stock and the holders of shares of Cumulative
Preferred Stock (the term "Parity Preferred Stock" being used to refer
to any stock on a parity with the shares of Cumulative Preferred
Stock, either as to dividends or upon liquidation, dissolution or
winding up, or both, as the context may require); and
(c) junior to shares of the Cumulative Preferred Stock,
either as to dividends or upon liquidation, dissolution or winding up,
or both, if such class shall be Common Stock or if the holders of the
Cumulative Preferred Stock shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or priority to the
holders of stock of such class or classes.
The Cumulative Preferred Stock shall rank prior, as to
dividends and upon liquidation, dissolution or winding up, to the Common Stock
and on a parity with the Corporation's ESOP Convertible Preferred Stock, with a
liquidation value of $35.875 per share, the Corporation's 8.88% Cumulative
Preferred Stock, with a liquidation value of $200.00 per share, and the
Corporation's 8-3/4% Cumulative Preferred Stock, with a liquidation value of
$200.00 per share.
41
Subpart C: 8.88% Cumulative Preferred Stock*
1. Designation and Amount; Fractional Shares. The
designation for such series of the Preferred Stock authorized by this
resolution shall be the 8.88% Cumulative Preferred Stock, without par value,
with a stated value of $200.00 per share (the "Cumulative Preferred Stock").
The stated value per share of Cumulative Preferred Stock shall not for any
purpose be considered to be a determination by the Board or the Committee with
respect to the capital and surplus of the Corporation. The maximum number of
shares of Cumulative Preferred Stock shall be 975,000. The Cumulative
Preferred Stock is issuable in whole shares only.
2. Dividends. Holders of shares of Cumulative Preferred
Stock will be entitled to receive, when and as declared by the Board or the
Committee out of assets of the Corporation legally available for payment, cash
dividends payable quarterly at the rate of 8.88% per annum. Dividends on the
Cumulative Preferred Stock, calculated as a percentage of the stated value,
will be payable quarterly on February 28, May 30, August 30 and November 30,
commencing February 28, 1992 (each a "dividend payment date"). Dividends on
shares of the Cumulative Preferred Stock will be cumulative from the date of
initial issuance of such shares of Cumulative Preferred Stock. Dividends will
be payable, in arrears, to holders of record as they appear on the stock books
of the Corporation on such record dates, not more than 60 days nor less than 10
days preceding the payment dates thereof, as shall be fixed by the Board or the
Committee. The amount of dividends payable for the initial dividend period or
any period shorter than a full dividend period shall be calculated on the basis
of a 360-day year of twelve 30-day months. No dividends may be declared or
paid or set apart for payment on any Parity Preferred Stock (as defined in
paragraph 9(b) below) with regard to the payment of dividends unless there
shall also be or have been declared and paid or set apart for payment on the
Cumulative Preferred Stock, like dividends for all dividend payment periods of
the Cumulative Preferred Stock ending on or before the dividend payment date of
such Parity Preferred Stock, ratably in proportion to the respective amounts of
dividends (x) accumulated and unpaid or payable on such Parity Preferred Stock,
on the one hand, and (y) accumulated and unpaid
- ---------------------
* Terms defined in this Subpart C are so defined for purposes of this
Subpart alone.
42
through the dividend payment period or periods of the Cumulative Preferred
Stock next preceding such dividend payment date, on the other hand.
Except as set forth in the preceding sentence, unless full
cumulative dividends on the Cumulative Preferred Stock have been paid, no
dividends (other than in Common Stock of the Corporation) may be paid or
declared and set aside for payment or other distribution made upon the Common
Stock or on any other stock of the Corporation ranking junior to or on a parity
with the Cumulative Preferred Stock as to dividends, nor may any Common Stock
or any other stock of the Corporation ranking junior to or on a parity with the
Cumulative Preferred Stock as to dividends be redeemed, purchased or otherwise
acquired by the Corporation for any consideration or any payment by the
Corporation be made to or available for a sinking fund for the redemption of
any shares of such stock; provided, however, that any moneys theretofore
deposited in any sinking fund with respect to any preferred stock of the
Corporation in compliance with the provisions of such sinking fund may
thereafter be applied to the purchase or redemption of such preferred stock in
accordance with the terms of such sinking fund regardless of whether at the
time of such application full cumulative dividends upon shares of the
Cumulative Preferred Stock outstanding to the last dividend payment date shall
have been paid or declared and set apart for payment; and provided further that
any such junior or parity Preferred Stock or Common Stock may be converted into
or exchanged for stock of the Corporation ranking junior to the Cumulative
Preferred Stock as to dividends.
3. Liquidation Preference. The shares of Cumulative
Preferred Stock shall rank, as to liquidation, dissolution or winding up of the
Corporation, prior to the shares of Common Stock and any other class of stock
of the Corporation ranking junior to the Cumulative Preferred Stock as to
rights upon liquidation, dissolution or winding up of the Corporation, so that
in the event of any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Cumulative Preferred Stock
shall be entitled to receive out of the assets of the Corporation available for
distribution to its stockholders, whether from capital, surplus or earnings,
before any distribution is made to holders of shares of Common Stock or any
other such junior stock, an amount equal to $200.00 per share (the "Liquidation
Preference" of a share of Cumulative Preferred Stock) plus an amount equal to
all dividends (whether or not earned or declared) accrued and
43
accumulated and unpaid on the shares of Cumulative Preferred Stock to the date
of final distribution. The holders of the Cumulative Preferred Stock will not
be entitled to receive the Liquidation Preference until the liquidation
preference of any other class of stock of the Corporation ranking senior to the
Cumulative Preferred Stock as to rights upon liquidation, dissolution or
winding up shall have been paid (or a sum set aside therefor sufficient to
provide for payment) in full. After payment of the full amount of the
Liquidation Preference and an amount equal to such dividends, the holders of
shares of Cumulative Preferred Stock will not be entitled to any further
participation in any distribution of assets by the Corporation. If, upon any
liquidation, dissolution or winding up of the Corporation, the assets of the
Corporation, or proceeds thereof, distributable among the holders of shares of
Parity Preferred Stock shall be insufficient to pay in full the preferential
amount aforesaid, then such assets, or the proceeds thereof, shall be
distributable among such holders ratably in accordance with the respective
amounts which would be payable on such shares if all amounts payable thereon
were paid in full. For the purposes hereof, neither a consolidation or merger
of the Corporation with or into any other corporation, nor a merger of any
other corporation with or into the Corporation, nor a sale or transfer of all
or any part of the Corporation's assets for cash or securities shall be
considered a liquidation, dissolution or winding up of the Corporation.
4. Conversion. The Cumulative Preferred Stock is not
convertible into shares of any other class or series of stock of the
Corporation.
5. Voting Rights. The holders of shares of Cumulative
Preferred Stock shall have no voting rights whatsoever, except for any voting
rights to which they may be entitled under the laws of the State of Delaware,
and except as follows:
(a) Whenever, at any time or times, dividends payable on the
shares of Cumulative Preferred Stock or on any Parity Preferred Stock
with respect to payment of dividends shall be in arrears for an
aggregate number of days equal to six calendar quarters or more,
whether or not consecutive, the holders of the outstanding shares of
Cumulative Preferred Stock shall have the right, with holders of
shares of any one or more other class or series of stock upon which
like voting rights have been conferred and are exercisable (voting
together as a class), to elect two of the authorized number of members
44
of the Board at the Corporation's next annual meeting of stockholders
and at each subsequent annual meeting of stockholders until such
arrearages have been paid or set apart for payment, at which time such
right shall terminate, except as herein or by law expressly provided,
subject to revesting in the event of each and every subsequent default
of the character above mentioned. Upon any termination of the right
of the holders of shares of Cumulative Preferred Stock as a class to
vote for directors as herein provided, the term of office of all
directors then in office elected by the holders of shares of
Cumulative Preferred Stock shall terminate immediately. Any director
who shall have been so elected pursuant to this paragraph may be
removed at any time, either with or without cause. Any vacancy
thereby created may be filled only by the affirmative vote of the
holders of shares of Cumulative Preferred Stock voting separately as a
class (together with the holders of shares of any other class or
series of stock upon which like voting rights have been conferred and
are exercisable). If the office of any director elected by the
holders of shares of Cumulative Preferred Stock voting as a class
becomes vacant for any reason other than removal from office as
aforesaid, the remaining director elected pursuant to this paragraph
may choose a successor who shall hold office for the unexpired term in
respect of which such vacancy occurred. At elections for such
directors, each holder of shares of Cumulative Preferred Stock shall
be entitled to one vote for each share held (the holders of shares of
any other class or series of preferred stock having like voting rights
being entitled to such number of votes, if any, for each share of such
stock held as may be granted to them).
(b) So long as any shares of Cumulative Preferred Stock
remain outstanding, the consent of the holders of at least two-thirds
of the shares of Cumulative Preferred Stock outstanding at the time
and all other classes or series of stock upon which like voting rights
have been conferred and are exercisable (voting together as a class)
given in person or by proxy, either in writing or at any meeting
called for the purpose, shall be necessary to permit, effect or
validate any one or more of the following:
(i) the issuance or increase of the authorized amount of
any class or series of shares ranking prior (as that term is
defined in paragraph 9(a) hereof) to the shares of the
Cumulative Preferred Stock; or
45
(ii) the amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Certificate of Incorporation (including this resolution
or any provision hereof) that would materially and adversely
affect any power, preference, or special right of the shares
of Cumulative Preferred Stock or of the holders thereof;
provided, however, that any increase in the amount of
authorized Common Stock or authorized Preferred Stock or any
increase or decrease in the number of shares of any series of
Preferred Stock or the creation and issuance of other series
of Common Stock or Preferred Stock, in each case ranking on a
parity with or junior to the shares of Cumulative Preferred
Stock with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or
winding up, shall not be deemed to materially and adversely
affect such powers, preferences or special rights.
(c) The foregoing voting provisions shall not apply if, at or
prior to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding shares of
Cumulative Preferred Stock shall have been redeemed or called for
redemption and sufficient funds shall have been deposited in trust to
effect such redemption.
6. Redemption. The shares of the Cumulative Preferred Stock
may be redeemed at the option of the Corporation, as a whole, or from time to
time in part, at any time, upon not less than 30 days' prior notice mailed to
the holders of the shares to be redeemed at their addresses as shown on the
stock books of the Corporation; provided, however, that shares of the
Cumulative Preferred Stock shall not be redeemable prior to November 30, 1996.
Subject to the foregoing, on or after such date, shares of the Cumulative
Preferred Stock are redeemable at $200.00 per share together with an amount
equal to all dividends (whether or not earned or declared) accrued and
accumulated and unpaid to, but excluding, the date fixed for redemption.
If full cumulative dividends on the Cumulative Preferred Stock
have not been paid, the Cumulative Preferred Stock may not be redeemed in part
and the Corporation may not purchase or acquire any shares of the Cumulative
Preferred Stock otherwise than pursuant to a purchase or exchange offer made on
the same terms to all holders of the Cumulative Preferred Stock.
46
If fewer than all the outstanding shares of Cumulative
Preferred Stock are to be redeemed, the Corporation will select those to be
redeemed by lot or a substantially equivalent method.
If a notice of redemption has been given pursuant to this
paragraph 6 and if, on or before the date fixed for redemption, the funds
necessary for such redemption shall have been set aside by the Corporation,
separate and apart from its other funds, in trust for the pro rata benefit of
the holders of the shares of Cumulative Preferred Stock so called for
redemption, then, notwithstanding that any certificates for such shares have
not been surrendered for cancellation, on the redemption date dividends shall
cease to accrue on the shares to be redeemed, and at the close of business on
the redemption date the holders of such shares shall cease to be stockholders
with respect to such shares and shall have no interest in or claims against the
Corporation by virtue thereof and shall have no voting or other rights with
respect to such shares, except the right to receive the moneys payable upon
surrender (and endorsement, if required by the Corporation) of their
certificates, and the shares evidenced thereby shall no longer be outstanding.
Subject to applicable escheat laws, any moneys so set aside by the Corporation
and unclaimed at the end of two years from the redemption date shall revert to
the general funds of the Corporation, after which reversion the holders of such
shares so called for redemption shall look only to the general funds of the
Corporation for the payment of the amounts payable upon such redemption. Any
interest accrued on funds so deposited shall be paid to the Corporation from
time to time.
All shares of Cumulative Preferred Stock redeemed, purchased
or otherwise acquired by the Corporation shall be retired and cancelled and
shall be restored to the status of authorized but unissued shares of Preferred
Stock, without designation as to series, and may thereafter be issued.
7. Authorization and Issuance of Other Securities. No
consent of the holders of the Cumulative Preferred Stock shall be required for
(a) the creation of any indebtedness of any kind of the Corporation, (b) the
creation, or increase or decrease in the amount, of any class or series of
stock of the Corporation not ranking prior as to dividends or upon liquidation,
dissolution or winding up to the Cumulative Preferred Stock or (c) any increase
or decrease in the amount of authorized Common Stock or any increase, decrease
or change in the par value thereof or in any other terms thereof.
47
8. Amendment of Resolution. The Board and the Committee each
reserves the right by subsequent amendment of this resolution from time to time
to increase or decrease the number of shares that constitute the Cumulative
Preferred Stock (but not below the number of shares thereof then outstanding)
and in other respects to amend this resolution within the limitations provided
by law, this resolution and the Certificate of Incorporation.
9. Rank. For the purposes of this resolution, any stock of
any class or classes of the Corporation shall be deemed to rank:
(a) prior to shares of the Cumulative Preferred Stock, either
as to dividends or upon liquidation, dissolution or winding up, or
both, if the holders of stock of such class or classes shall be
entitled by the terms thereof to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as
the case may be, in preference or priority to the holders of shares of
the Cumulative Preferred Stock;
(b) on a parity with shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation, dissolution or
winding up, or both, whether or not the dividend rates, dividend
payment dates, or redemption or liquidation prices per share thereof
be different from those of the Cumulative Preferred Stock, if the
holders of stock of such class or classes shall be entitled by the
terms thereof to the receipt of dividends or of amounts distributed
upon liquidation, dissolution or winding up, as the case may be, in
proportion to their respective dividend rates or liquidation prices,
without preference or priority of one over the other as between the
holders of such stock and the holders of shares of Cumulative
Preferred Stock (the term "Parity Preferred Stock" being used to refer
to any stock on a parity with the shares of Cumulative Preferred
Stock, either as to dividends or upon liquidation, dissolution or
winding up, or both, as the context may require); and
(c) junior to shares of the Cumulative Preferred Stock,
either as to dividends or upon liquidation, dissolution or winding up,
or both, if such class shall be Common Stock or if the holders of the
Cumulative Preferred Stock shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or priority to the
holders of stock of such class or classes.
48
The Cumulative Preferred Stock shall rank prior, as to
dividends and upon liquidation, dissolution or winding up, to the Common Stock
and on a parity with the Corporation's ESOP Convertible Preferred Stock, with a
liquidation value of $35.875 per share, the Corporation's 9.36% Cumulative
Preferred Stock, with a liquidation value of $25.00 per share, and the
Corporation's 8-3/4% Cumulative Preferred Stock, with a liquidation value of
$200.00 per share.
49
Subpart D: 8-3/4% Cumulative Preferred Stock*
1. Designation and Amount; Fractional Shares. The
designation for such series of the Preferred Stock authorized by this
resolution shall be the 8-3/4% Cumulative Preferred Stock, without par value,
with a stated value of $200.00 per share (the "Cumulative Preferred Stock").
The stated value per share of Cumulative Preferred Stock shall not for any
purpose be considered to be a determination by the Board or the Committee with
respect to the capital and surplus of the Corporation. The number of shares of
Cumulative Preferred Stock shall be 750,000. The Cumulative Preferred Stock is
issuable in whole shares only.
2. Dividends. Holders of shares of Cumulative Preferred
Stock will be entitled to receive, when and as declared by the Board or the
Committee out of assets of the Corporation legally available for payment, cash
dividends payable quarterly at the rate of 8-3/4% per annum. Dividends on the
Cumulative Preferred Stock, calculated as a percentage of the stated value,
will be payable quarterly on February 28, May 30, August 30 and November 30,
commencing May 30, 1992 (each a "dividend payment date"). Dividends on shares
of the Cumulative Preferred Stock will be cumulative from the date of initial
issuance of such shares of Cumulative Preferred Stock. Dividends will be
payable, in arrears, to holders of record as they appear on the stock books of
the Corporation on such record dates, not more than 60 days nor less than 10
days preceding the payment dates thereof, as shall be fixed by the Board or the
Committee. The amount of dividends payable for the initial dividend period or
any period shorter than a full dividend period shall be calculated on the basis
of a 360-day year of twelve 30-day months. No dividends may be declared or
paid or set apart for payment on any Parity Preferred Stock (as defined in
paragraph 9(b) below) with regard to the payment of dividends unless there
shall also be or have been declared and paid or set apart for payment on the
Cumulative Preferred Stock, like dividends for all dividend payment periods of
the Cumulative Preferred Stock ending on or before the dividend payment date of
such Parity Preferred Stock, ratably in proportion to the respective amounts of
dividends (x) accumulated and unpaid or payable on such Parity Preferred Stock,
on the one hand, and (y) accumulated and unpaid through the dividend payment
period or periods of the
- --------------------
* Terms defined in this Subpart D are so defined for purposes of this
Subpart alone.
50
Cumulative Preferred Stock next preceding such dividend payment date, on the
other hand.
Except as set forth in the preceding sentence, unless full
cumulative dividends on the Cumulative Preferred Stock have been paid, no
dividends (other than in Common Stock of the Corporation) may be paid or
declared and set aside for payment or other distribution made upon the Common
Stock or on any other stock of the Corporation ranking junior to or on a parity
with the Cumulative Preferred Stock as to dividends, nor may any Common Stock
or any other stock of the Corporation ranking junior to or on a parity with the
Cumulative Preferred Stock as to dividends be redeemed, purchased or otherwise
acquired by the Corporation for any consideration or any payment by the
Corporation be made to or available for a sinking fund for the redemption of
any shares of such stock; provided, however, that any moneys theretofore
deposited in any sinking fund with respect to any preferred stock of the
Corporation in compliance with the provisions of such sinking fund may
thereafter be applied to the purchase or redemption of such preferred stock in
accordance with the terms of such sinking fund regardless of whether at the
time of such application full cumulative dividends upon shares of the
Cumulative Preferred Stock outstanding to the last dividend payment date shall
have been paid or declared and set apart for payment; and provided further that
any such junior or parity Preferred Stock or Common Stock may be converted into
or exchanged for stock of the Corporation ranking junior to the Cumulative
Preferred Stock as to dividends.
3. Liquidation Preference. The shares of Cumulative
Preferred Stock shall rank, as to liquidation, dissolution or winding up of the
Corporation, prior to the shares of Common Stock and any other class of stock
of the Corporation ranking junior to the Cumulative Preferred Stock as to
rights upon liquidation, dissolution or winding up of the Corporation, so that
in the event of any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Cumulative Preferred Stock
shall be entitled to receive out of the assets of the Corporation available for
distribution to its stockholders, whether from capital, surplus or earnings,
before any distribution is made to holders of shares of Common Stock or any
other such junior stock, an amount equal to $200.00 per share (the "Liquidation
Preference" of a share of Cumulative Preferred Stock) plus an amount equal to
all dividends (whether or not earned or declared) accrued and accumulated and
unpaid on the shares of Cumulative Preferred
51
Stock to the date of final distribution. The holders of the Cumulative
Preferred Stock will not be entitled to receive the Liquidation Preference
until the liquidation preference of any other class of stock of the Corporation
ranking senior to the Cumulative Preferred Stock as to rights upon liquidation,
dissolution or winding up shall have been paid (or a sum set aside therefor
sufficient to provide for payment) in full. After payment of the full amount
of the Liquidation Preference and an amount equal to such dividends, the
holders of shares of Cumulative Preferred Stock will not be entitled to any
further participation in any distribution of assets by the Corporation. If,
upon any liquidation, dissolution or winding up of the Corporation, the assets
of the Corporation, or proceeds thereof, distributable among the holders of
shares of Parity Preferred Stock shall be insufficient to pay in full the
preferential amount aforesaid, then such assets, or the proceeds thereof, shall
be distributable among such holders ratably in accordance with the respective
amounts which would be payable on such shares if all amounts payable thereon
were paid in full. For the purposes hereof, neither a consolidation or merger
of the Corporation with or into any other corporation, nor a merger of any
other corporation with or into the Corporation, nor a sale or transfer of all
or any part of the Corporation's assets for cash or securities shall be
considered a liquidation, dissolution or winding up of the Corporation.
4. Conversion. The Cumulative Preferred Stock is not
convertible into shares of any other class or series of stock of the
Corporation.
5. Voting Rights. The holders of shares of Cumulative
Preferred Stock shall have no voting rights whatsoever, except for any voting
rights to which they may be entitled under the laws of the State of Delaware,
and except as follows:
(a) Whenever, at any time or times, dividends payable on the
shares of Cumulative Preferred Stock or on any Parity Preferred Stock
with respect to payment of dividends shall be in arrears for an
aggregate number of days equal to six calendar quarters or more,
whether or not consecutive, the holders of the outstanding shares of
Cumulative Preferred Stock shall have the right, with holders of
shares of any one or more other class or series of stock upon which
like voting rights have been conferred and are exercisable (voting
together as a class), to elect two of the authorized number of members
of the Board at the Corporation's next annual meeting of
52
stockholders and at each subsequent annual meeting of stockholders
until such arrearages have been paid or set apart for payment, at
which time such right shall terminate, except as herein or by law
expressly provided, subject to revesting in the event of each and
every subsequent default of the character above mentioned. Upon any
termination of the right of the holders of shares of Cumulative
Preferred Stock as a class to vote for directors as herein provided,
the term of office of all directors then in office elected by the
holders of shares of Cumulative Preferred Stock shall terminate
immediately. Any director who shall have been so elected pursuant to
this paragraph may be removed at any time, either with or without
cause. Any vacancy thereby created may be filled only by the
affirmative vote of the holders of shares of Cumulative Preferred
Stock voting separately as a class (together with the holders of
shares of any other class or series of stock upon which like voting
rights have been conferred and are exercisable). If the office of any
director elected by the holders of shares of Cumulative Preferred
Stock voting as a class becomes vacant for any reason other than
removal from office as aforesaid, the remaining director elected
pursuant to this paragraph may choose a successor who shall hold
office for the unexpired term in respect of which such vacancy
occurred. At elections for such directors, each holder of shares of
Cumulative Preferred Stock shall be entitled to one vote for each
share held (the holders of shares of any other class or series of
preferred stock having like voting rights being entitled to such
number of votes, if any, for each share of such stock held as may be
granted to them).
(b) So long as any shares of Cumulative Preferred Stock
remain outstanding, the consent of the holders of at least two-thirds
of the shares of Cumulative Preferred Stock outstanding at the time
and all other classes or series of stock upon which like voting rights
have been conferred and are exercisable (voting together as a class)
given in person or by proxy, either in writing or at any meeting
called for the purpose, shall be necessary to permit, effect or
validate any one or more of the following:
(i) the issuance or increase of the authorized amount of
any class or series of shares ranking prior (as that term is
defined in paragraph 9(a) hereof) to the shares of the
Cumulative Preferred Stock; or
53
(ii) the amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Certificate of Incorporation (including this resolution
or any provision hereof) that would materially and adversely
affect any power, preference, or special right of the shares
of Cumulative Preferred Stock or of the holders thereof;
provided, however, that any increase in the amount of
authorized Common Stock or authorized Preferred Stock or any
increase or decrease in the number of shares of any series of
Preferred Stock or the creation and issuance of other series
of Common Stock or Preferred Stock, in each case ranking on a
parity with or junior to the shares of Cumulative Preferred
Stock with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or
winding up, shall not be deemed to materially and adversely
affect such powers, preferences or special rights.
(c) The foregoing voting provisions shall not apply if, at or
prior to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding shares of
Cumulative Preferred Stock shall have been redeemed or called for
redemption and sufficient funds shall have been deposited in trust to
effect such redemption.
6. Redemption. The shares of the Cumulative Preferred Stock
may be redeemed at the option of the Corporation, as a whole, or from time to
time in part, at any time, upon not less than 30 days' prior notice mailed to
the holders of the shares to be redeemed at their addresses as shown on the
stock books of the Corporation; provided, however, that shares of the
Cumulative Preferred Stock shall not be redeemable prior to May 30, 1997.
Subject to the foregoing, on or after such date, shares of the Cumulative
Preferred Stock are redeemable at $200.00 per share together with an amount
equal to all dividends (whether or not earned or declared) accrued and
accumulated and unpaid to, but excluding, the date fixed for redemption.
If full cumulative dividends on the Cumulative Preferred Stock
have not been paid, the Cumulative Preferred Stock may not be redeemed in part
and the Corporation may not purchase or acquire any shares of the Cumulative
Preferred Stock otherwise than pursuant to a purchase or exchange offer made on
the same terms to all holders of the Cumulative Preferred Stock.
54
If fewer than all the outstanding shares of Cumulative
Preferred Stock are to be redeemed, the Corporation will select those to be
redeemed by lot or a substantially equivalent method.
If a notice of redemption has been given pursuant to this
paragraph 6 and if, on or before the date fixed for redemption, the funds
necessary for such redemption shall have been set aside by the Corporation,
separate and apart from its other funds, in trust for the pro rata benefit of
the holders of the shares of Cumulative Preferred Stock so called for
redemption, then, notwithstanding that any certificates for such shares have
not been surrendered for cancellation, on the redemption date dividends shall
cease to accrue on the shares to be redeemed, and at the close of business on
the redemption date the holders of such shares shall cease to be stockholders
with respect to such shares and shall have no interest in or claims against the
Corporation by virtue thereof and shall have no voting or other rights with
respect to such shares, except the right to receive the moneys payable upon
surrender (and endorsement, if required by the Corporation) of their
certificates, and the shares evidenced thereby shall no longer be outstanding.
Subject to applicable escheat laws, any moneys so set aside by the Corporation
and unclaimed at the end of two years from the redemption date shall revert to
the general funds of the Corporation, after which reversion the holders of such
shares so called for redemption shall look only to the general funds of the
Corporation for the payment of the amounts payable upon such redemption. Any
interest accrued on funds so deposited shall be paid to the Corporation from
time to time.
All shares of Cumulative Preferred Stock redeemed, purchased
or otherwise acquired by the Corporation shall be retired and cancelled and
shall be restored to the status of authorized but unissued shares of Preferred
Stock, without designation as to series, and may thereafter be issued.
7. Authorization and Issuance of Other Securities. No
consent of the holders of the Cumulative Preferred Stock shall be required for
(a) the creation of any indebtedness of any kind of the Corporation, (b) the
creation, or increase or decrease in the amount, of any class or series of
stock of the Corporation not ranking prior as to dividends or upon liquidation,
dissolution or winding up to the Cumulative Preferred Stock or (c) any increase
or decrease in the amount of authorized Common Stock or any increase, decrease
or change in the par value thereof or in any other terms thereof.
55
8. Amendment of Resolution. The Board and the Committee each
reserves the right by subsequent amendment of this resolution from time to time
to increase or decrease the number of shares that constitute the Cumulative
Preferred Stock (but not below the number of shares thereof then outstanding)
and in other respects to amend this resolution within the limitations provided
by law, this resolution and the Certificate of Incorporation.
9. Rank. For the purposes of this resolution, any stock of
any class or classes of the Corporation shall be deemed to rank:
(a) prior to shares of the Cumulative Preferred Stock, either
as to dividends or upon liquidation, dissolution or winding up, or
both, if the holders of stock of such class or classes shall be
entitled by the terms thereof to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as
the case may be, in preference or priority to the holders of shares of
the Cumulative Preferred Stock;
(b) on a parity with shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation, dissolution or
winding up, or both, whether or not the dividend rates, dividend
payment dates, or redemption or liquidation prices per share thereof
be different from those of the Cumulative Preferred Stock, if the
holders of stock of such class or classes shall be entitled by the
terms thereof to the receipt of dividends or of amounts distributed
upon liquidation, dissolution or winding up, as the case may be, in
proportion to their respective dividend rates or liquidation prices,
without preference or priority of one over the other as between the
holders of such stock and the holders of shares of Cumulative
Preferred Stock (the term "Parity Preferred Stock" being used to refer
to any stock on a parity with the shares of Cumulative Preferred
Stock, either as to dividends or upon liquidation, dissolution or
winding up, or both, as the context may require); and
(c) junior to shares of the Cumulative Preferred Stock,
either as to dividends or upon liquidation, dissolution or winding up,
or both, if such class shall be Common Stock or if the holders of the
Cumulative Preferred Stock shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or priority to the
holders of stock of such class or classes.
56
The Cumulative Preferred Stock shall rank prior, as to
dividends and upon liquidation, dissolution or winding up, to the Common Stock
and on a parity with the Corporation's ESOP Convertible Preferred Stock, with a
liquidation value of $35.875 per share, the Corporation's 9.36% Cumulative
Preferred Stock, with a liquidation value of $25.00 per share, and the
Corporation's 8.88% Cumulative Preferred Stock, with a liquidation value of
$200.00 per share.
57
PART II -- COMMON STOCK (a) Dividends. Subject to the
preferential dividend rights applicable to shares of any class or series of
stock having preference over the Common Stock as to dividends, the holders of
shares of Common Stock shall be entitled to receive such dividends when and as
declared by the Board of Directors and shall share equally, share for share
alike, in such dividends.
(b) Liquidation, Dissolution or Winding Up. In the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, after distribution in full of the preferential amounts to be
distributed to the holders of shares of any class or series of stock having
preference over the Common Stock upon voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of shares of Common
Stock shall be entitled to receive all of the remaining assets of the
Corporation available for distribution, ratably in proportion to the number of
shares of the Common Stock held.
(c) Voting. Each share of Common Stock shall entitle the
holder thereof to one vote on all matters submitted to a vote of the
stockholders of the Corporation. The holders of the shares of Common Stock
shall at all times, except as otherwise provided in this Restated Certificate
of Incorporation or required by law, vote as one class, together with the
holders of any other class or series of stock of the Corporation accorded such
general class voting right.
SECTION 3. Definitions. For the purposes of this Restated
Certificate of Incorporation:
(a) the term "outstanding", when used in reference to shares
of stock, shall mean issued shares, excluding shares held by the
Corporation or a Subsidiary; and
(b) the term "Subsidiary" or "Subsidiaries" shall mean a
corporation(s) of which the Corporation, directly or indirectly, has
the power, whether through the ownership of voting securities,
contract or otherwise, to elect at least a majority of the members of
such corporation's board of directors; provided, however, that for
purposes of Article VI of the Restated Certificate of Incorporation,
the term "Subsidiary" or "Subsidiaries" shall mean a corporation(s),
all of the capital stock of which is owned by the Corporation, other
than directors' qualifying shares.
58
ARTICLE V
BOARD OF DIRECTORS
SECTION 1. Number, Election and Terms of Directors.
The business and affairs of the Corporation shall be managed by or under the
direction of a Board of Directors consisting of not fewer than four nor more
than fifteen persons; provided, however, that, pursuant to the provisions of
Section 141(a) of the General Corporation Law of the State of Delaware, the
powers and authority of the Board of Directors with respect to any stock
option, performance unit or other compensation or employee benefit plan of the
Corporation, to the extent not otherwise assigned or reserved to the Board of
Directors by the provisions of any such plan, are hereby conferred upon and
shall be exercised by a committee or committees designated by resolution passed
by the Board of Directors to consist of one or more persons who may or may not
be directors of the Corporation, unless the Board of Directors, by resolution
passed by the Board of Directors, shall determine that any or all such powers
and authority shall instead be conferred upon and exercised by the Board of
Directors. The exact number of directors within the minimum and maximum
limitations specified in the preceding sentence may be established from time to
time by the Board of Directors pursuant to a resolution adopted by a majority
of the entire Board of Directors. Subject to the rights of the holders of any
class or series of stock having preference over the Common Stock as to
dividends or upon liquidation, dissolution or winding up of the Corporation to
elect directors under specified circumstances, if any, directors shall be
elected each year at the annual meeting of stockholders and shall hold office
until their successors shall have been duly elected and qualified, or until
their earlier resignation or removal.
SECTION 2. Calling Special Meetings of Stockholders.
A special meeting of the stockholders may be called at any time and for any
purpose or purposes by the President or the Chairman of the Board or by order
of the Board of Directors, and shall be called by the Secretary upon the
written request of the holders of record of at least 80% of the voting power of
the then outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (the "Voting Stock").
SECTION 3. Newly Created Directorships and Vacancies on the
Board of Directors. Subject to the rights of any class or series of stock
having preference over the
59
Common Stock as to dividends or upon liquidation, dissolution or winding up of
the Corporation to elect directors under specified circumstances, if any,
newly-created directorships resulting from any increase in the authorized
number of directors or any vacancies on the Board of Directors resulting from
death, resignation, retirement, disqualification, removal from office or other
cause shall be filled by a majority vote of the directors then in office,
although less than a quorum; and any director so chosen shall hold office for
the remaining term of his predecessor or, if there shall have been no
predecessor, until the next annual election of directors or until his successor
shall have been duly elected and qualified. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
SECTION 4. Removal of Directors. Subject to the rights of
the holders of any class or series of stock having preference over the Common
Stock as to dividends or upon liquidation, dissolution or winding up of the
Corporation to elect directors under specified circumstances, if any, any
director, or the entire Board of Directors, may be removed from office at any
time, with or without cause, only by the affirmative vote of the holders of at
least 80% of the voting power of the Voting Stock, voting together as a single
class.
SECTION 5. Amendment of By-Laws. In furtherance of and not
in limitation of the powers conferred by statute, the Board of Directors of the
Corporation from time to time, may amend, repeal or adopt By-Laws of the
Corporation; provided, that any By-Laws made, amended or repealed by the Board
of Directors or the stockholders may be amended or repealed, and that any
By-Laws may be made, by the stockholders of the Corporation. Notwithstanding
any other provisions of this Restated Certificate of Incorporation or the
By-Laws of the Corporation (and notwithstanding the fact that a lesser
percentage may be specified by law, this Restated Certificate of Incorporation
or the By-Laws of the Corporation), the affirmative vote of the holders of at
least 80% of the voting power of the Voting Stock, voting together as a single
class, shall be required for the stockholders of the Corporation to amend,
repeal or adopt any By-Laws of the Corporation or to adopt any amendment to
this Restated Certificate of Incorporation inconsistent with the By-Laws of the
Corporation.
SECTION 6. Amendment of Certificate of Incorporation.
Notwithstanding any other provisions of this Restated Certificate of
Incorporation or the By-Laws of the
60
Corporation (and notwithstanding the fact that a lesser percentage may be
specified by law, this Restated Certificate of Incorporation or the By-Laws of
the Corporation), the affirmative vote of the holders of at least 80% of the
voting power of the Voting Stock, voting together as a single class, shall be
required to amend or repeal, or to adopt any provision inconsistent with, this
Article V hereof.
SECTION 7. Other Powers. The By-Laws of the Corporation may
confer upon the Board of Directors powers in addition to the foregoing and in
addition to the powers and authorities expressly conferred upon them by law,
but only to the extent permitted by law and not prohibited by the provisions of
this Restated Certificate of Incorporation.
ARTICLE VI
INDEMNIFICATION
The Corporation shall indemnify, to the fullest extent
permitted by applicable law, any person who was or is a party or is threatened
to be made a party to, or is involved in any manner in, any threatened, pending
or completed action, suit or proceeding (whether civil, criminal,
administrative or investigative) by reason of the fact that such person (1) is
or was a director or officer of the Corporation or a Subsidiary or (2) is or
was serving at the request of the Corporation or a Subsidiary as a director,
officer, partner, member, employee or agent of another corporation,
partnership, joint venture, trust, committee or other enterprise.
To the extent deemed advisable by the Board of Directors, the
Corporation may indemnify, to the fullest extent permitted by applicable law,
any person who was or is a party or is threatened to be made a party to, or is
involved in any manner in, any threatened, pending or completed action, suit or
proceeding (whether civil, criminal, administrative or investigative) by reason
of the fact that the person is or was an employee or agent (other than a
director or officer) of the Corporation or a Subsidiary.
The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation or a Subsidiary, or is or was serving at the
request of the Corporation or a Subsidiary as a director, officer, partner,
61
member, employee or agent of another corporation, partnership, joint venture,
trust, committee or other enterprise, against any expense, liability or loss
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation or a Subsidiary would
have the power to indemnify him against such expense, liability or loss under
the provisions of applicable law.
No repeal, modification or amendment of, or adoption of any
provision inconsistent with, this Article VI nor, to the fullest extent
permitted by applicable law, any modification of law shall adversely affect any
right or protection of any person granted pursuant hereto existing at, or with
respect to events that occurred prior to, the time of such repeal, amendment,
adoption or modification.
For purposes of this Article VI, the term "Subsidiary" or
"Subsidiaries" shall mean a corporation(s), all of the capital stock of which
is owned directly or indirectly by the Corporation, other than directors'
qualifying shares.
The right to indemnification conferred in this Article VI also
includes, to the fullest extent permitted by applicable law, the right to be
paid the expenses (including attorneys' fees) incurred in connection with any
such proceeding in advance of its final disposition. The payment of any
amounts to any director, officer, partner, member, employee or agent pursuant
to this Article VI shall subrogate the Corporation to any right such director,
officer, partner, member, employee or agent may have against any other person
or entity. The rights conferred in this Article VI shall be contract rights.
ARTICLE VII
LIABILITY OF DIRECTORS
A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for any breach of
fiduciary duty as a director, except for liability (i) for any breach by the
director of his duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the General
Corporation Law of the State of Delaware or (iv) for any transaction from which
the director derived an improper personal benefit.
62
No repeal, modification or amendment of, or adoption of any
provision inconsistent with, this Article VII nor, to the fullest extent
permitted by law, any modification of law shall adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal, amendment, adoption or modification or affect the liability of any
director of the Corporation for any action taken or any omission that occurred
prior to the time of such repeal, amendment, adoption or modification.
If the General Corporation Law of the State of Delaware shall
be amended, after this Restated Certificate of Incorporation is amended to
include this Article VII, to authorize corporate action further eliminating or
limiting the liability of directors, then a director of the Corporation, in
addition to the circumstances in which he is not liable immediately prior to
such amendment, shall be free of liability to the fullest extent permitted by
the General Corporation Law of the State of Delaware, as so amended.
SEVENTH: That this restatement has been duly adopted by
resolution of the Board of Directors of the Corporation in accordance with
Section 245 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has caused this
Certificate to be executed by its President and attested by its Assistant
Secretary and its corporate seal to be affixed hereto this 14th day of
September, 1992.
/s/ Robert F. Greenhill
(Seal) ----------------------------
Robert F. Greenhill
President
Attest:
/s/ Patricia A. Kurtz
- -------------------------
Patricia A. Kurtz
Assistant Secretary
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
MORGAN STANLEY GROUP INC.
(Pursuant to Section 242 of the
Delaware General Corporation Law)
MORGAN STANLEY GROUP INC., a Delaware corporation, HEREBY
CERTIFIES AS FOLLOWS;
1. The name of the Corporation is Morgan Stanley Group Inc.
The date of filing of its original Certificate of Incorporation with the
Secretary of State of the State of Delaware was July 10, 1975. The date of
filing of the most recent Restated Certificate of Incorporation with the
Secretary of State of the State of Delaware was September 15, 1992.
2. This Certificate of Amendment sets forth amendments to the
Restated Certificate of Incorporation of the Corporation that were duly adopted
in accordance with the provisions of Section 242 of the General Corporation Law
of the State of Delaware.
3. Article IV, Section 2, Part I, Subpart A, Section 1(A) of
the Restated Certificate of Incorporation is hereby amended in full to be and
read as follows:
(A) The shares of such series shall be designated ESOP
CONVERTIBLE PREFERRED STOCK (hereinafter referred to as the "ESOP
Preferred Stock") and such series shall consist of 3,902,438 shares.
Such number of shares may be increased or decreased from time to time
by resolution of the Pricing Committee of this Board of Directors (the
"Pricing Committee"), but no such increase shall result in such series
consisting of more than 4,000,000 shares, and no decrease shall reduce
the number of shares of ESOP Preferred Stock to a number less than
that of shares of ESOP Preferred Stock then outstanding plus the
number of shares issuable upon exercise of any rights, options or
warrants or upon conversion of outstanding securities issued by the
Corporation relating to such shares. Notwithstanding the preceding
sentence, the Board of Directors may increase the number of shares of
ESOP
2
Preferred Stock to a number greater than 4,000,000 shares, or may
decrease the number of such shares, subject only to any limitations
imposed by applicable law or this Restated Certificate of
Incorporation. Any shares of ESOP Preferred Stock redeemed or
purchased by the Corporation shall remain issued and outstanding for
all purposes (except that as long as such shares are held by the
Corporation or its nominee, no dividends shall be paid on such shares
and they shall neither be entitled to vote nor counted for quorum
purposes) and may thereafter be transferred by the Corporation from
time to time to a trustee or trustees referred to in paragraph (B) of
this Section 1 (whereupon the voting and dividend rights of such
shares shall be restored); provided that the Corporation may provide
at the time of or at any time after such redemption or purchase that
any such shares then held by the Corporation or its nominee shall be
retired, and such shares shall then be restored to the status of
authorized but unissued shares of preferred stock of the Corporation.
4. Article IV, Section 2, Part I, Subpart A, Section 9,
Paragraphs (A), (B), (C), (D), (E), (F), (G) and (I) of the Restated
Certificate of Incorporation are hereby amended in full to be and read as
follows:
(A)(1) In the event the Corporation shall, at any time or
from time to time while any of the shares of the ESOP Preferred Stock
are outstanding, (i) pay a dividend or make a distribution in respect
of the Common Stock in shares of Common Stock or (ii) subdivide the
outstanding shares of Common Stock into a greater number of shares, in
each case whether by reclassification of shares, recapitalization of
the Corporation (excluding a recapitalization or reclassification
effected by a merger or consolidation to which Section 8 applies) or
otherwise, then, in such event, the Conversion Price shall, subject to
the provisions of paragraphs (E) and (F) of this Section 9,
automatically be adjusted by dividing such Conversion Price by a
fraction (the "Section 9(A) Fraction"), the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock outstanding immediately before such event. Such adjustment to
the Conversion Price shall be effective, upon payment of such dividend
or distribution in respect of the Common Stock, as of the record date
for the determination of stockholders entitled to receive such
dividend or distribution (on a
3
retroactive basis), and in the case of a subdivision shall become
effective immediately as of the effective date thereof. An adjustment
to the Conversion Price pursuant to this Section 9(A)(1) shall have no
effect on the Liquidation Price or the Preferred Dividend Rate of the
ESOP Preferred Stock.
(2) In the event the Corporation shall, at any time or from
time to time while any of the shares of the ESOP Preferred Stock are
outstanding, combine the outstanding shares of Common Stock into a
lesser number of shares, whether by reclassification of shares,
recapitalization of the Corporation (excluding a recapitalization or
reclassification effected by a merger, consolidation or other
transaction to which Section 8 applies) or otherwise, then, in such
event, the Conversion Price shall, subject to the provisions of
paragraph (F) of this Section 9, automatically be adjusted by dividing
the Conversion Price in effect immediately before such event by the
Section 9(A) Fraction. An adjustment to the Conversion Price made
pursuant to this paragraph 9(A)(2) shall be given effect immediately
as of the effective date of such combination and shall have no effect
on the Liquidation Price or the Preferred Dividend Rate of the ESOP
Preferred Stock.
(B) In the event the Corporation shall, at any time or from
time to time while any of the shares of ESOP Preferred Stock are
outstanding, issue to holders of shares of Common Stock as a dividend
or distribution, including by way of a reclassification of shares or a
recapitalization of the Corporation, any right or warrant to purchase
shares of Common Stock (but not including as a right or warrant for
this purpose any security convertible into or exchangeable for shares
of Common Stock) for a consideration having a Fair Market Value (as
hereinafter defined) per share less than the Fair Market Value of a
share of Common Stock on the date of issuance of such right or warrant
(other than pursuant to any employee or director incentive,
compensation or benefit plan or arrangement of the Corporation or any
subsidiary of the Corporation heretofore or hereafter adopted), then,
in such event, the Conversion Price shall, subject to the provisions
of paragraphs (E) and (F) of this Section 9, automatically be adjusted
by dividing such Conversion Price by a fraction (the "Section 9(B)
Fraction"), the numerator of which is the number of shares of Common
Stock outstanding immediately before such issuance of rights or
warrants plus the maximum
4
number of shares of Common Stock that could be acquired upon exercise
in full of all such rights and warrants and the denominator of which
is the number of shares of Common Stock outstanding immediately before
such issuance of warrants or rights plus the number of shares of
Common Stock that could be purchased at the Fair Market Value of a
share of Common Stock at the time of such issuance for the maximum
aggregate consideration payable upon exercise in full of all such
rights and warrants. Such adjustment to the Conversion Price shall be
effective upon such issuance of rights or warrants. An adjustment to
the Conversion Price pursuant to this Section 9(B) shall have no
effect on the Liquidation Price or the Preferred Dividend Rate of the
ESOP Preferred Stock.
(C)(1) In the event the Corporation shall, at any time or
from time to time while any of the shares of ESOP Preferred Stock are
outstanding, issue, sell or exchange shares of Common Stock (other
than pursuant to (x) any right or warrant to purchase or acquire
shares of Common Stock (including as such a right or warrant for this
purpose any security convertible into or exchangeable for shares of
Common Stock) or (y) any employee or director incentive, compensation
or benefit plan or arrangement of the Corporation or any subsidiary of
the Corporation heretofore or hereafter adopted) at a purchase price
per share less than the Fair Market Value of a share of Common Stock
on the date of such issuance, sale or exchange, then, in such event,
the Conversion Price shall, subject to the provisions of paragraphs
(E) and (F) of this Section 9, automatically be adjusted by dividing
such Conversion Price by a fraction (the "Section 9(C)(1) Fraction"),
the numerator of which is the number of shares of Common Stock
outstanding immediately before such issuance, sale or exchange plus
the number of shares of Common Stock so issued, sold or exchanged and
the denominator of which is the number of shares of Common Stock
outstanding immediately before such issuance, sale or exchange plus
the number of shares of Common Stock that could be purchased at the
Fair Market Value of a share of Common Stock at the time of such
issuance, sale or exchange for the maximum aggregate consideration
paid therefor.
(2) In the event that the Corporation shall, at any time or
from time to time while any ESOP Preferred Stock is outstanding, issue,
sell or exchange any right or warrant to purchase or acquire
shares of Common Stock (including as such a right or warrant for this
purpose
5
any security convertible into or exchangeable for shares of Common
Stock other than pursuant to any employee or director incentive,
compensation or benefit plan or arrangement of the Corporation or any
subsidiary of the Corporation heretofore or hereafter adopted) for a
consideration having a Fair Market Value, on the date of such
issuance, sale or exchange, less than the Non-Dilutive Amount (as
hereinafter defined), then, in such event, the Conversion Price shall,
subject to the provisions of paragraphs (E) and (F) of this Section 9,
automatically be adjusted by dividing such Conversion Price by a
fraction (the "Section 9(C)(2) Fraction"), the numerator of which is
the number of shares of Common Stock outstanding immediately before
such issuance of rights or warrants plus the maximum number of shares
of Common Stock that could be acquired upon exercise in full of all
such rights and warrants and the denominator of which is the number of
shares of Common Stock outstanding immediately before such issuance of
rights or warrants plus the number of shares of Common Stock that
could be purchased at the Fair Market Value of a share of Common Stock
at the time of such issuance for the total of (x) the maximum
aggregate consideration payable at the time of the issuance, sale or
exchange of such right or warrant and (y) the maximum aggregate
consideration payable upon exercise in full of all such rights or
warrants.
(3) An adjustment to the Conversion Price pursuant to this
Section 9(C) shall be effective upon the effective date of any
issuance, sale or exchange described in paragraph (1) or (2) above.
Any such adjustment shall have no effect on the Liquidation Price or
the Preferred Dividend Rate of the ESOP Preferred Stock.
(D) In the event the Corporation shall, at any time or from
time to time while any of the shares of ESOP Preferred Stock are
outstanding, make an Extraordinary Distribution (as hereinafter
defined) in respect of the Common Stock, whether by dividend,
distribution, reclassification of shares or recapitalization of the
Corporation (including capitalization or reclassification effected by
a merger or consolidation to which Section 8 does not apply) or effect
a Pro Rata Repurchase (as hereinafter defined) of Common Stock, then,
in such event, the Conversion Price shall, subject to the provisions
of paragraphs (E) and (F) of this Section 9, automatically be adjusted
by dividing such Conversion
6
Price by a fraction (the "Section 9(D) Fraction"), the numerator of
which is the product of (a) the number of shares of Common Stock
outstanding immediately before such Extraordinary Distribution or Pro
Rata Repurchase minus, in the case of a Pro Rata Repurchase, the
number of shares of Common Stock repurchased by the Corporation
multiplied by (b) the Fair Market Value of a share of Common Stock on
the day before the ex-dividend date with respect to an Extraordinary
Distribution that is paid in cash and on the distribution date with
respect to an Extraordinary Distribution that is paid other than in
cash, or on the applicable expiration date (including all extensions
thereof) of any tender offer that is a Pro Rata Repurchase or on the
date of purchase with respect to any Pro Rata Repurchase that is not a
tender offer, as the case may be, and the denominator of which is (i)
the product of (x) the number of shares of Common Stock outstanding
immediately before such Extraordinary Distribution or Pro Rata
Repurchase multiplied by (y) the Fair Market Value of a share of
Common Stock on the day before the ex-dividend date with respect to an
Extraordinary Distribution that is paid in cash and on the
distribution date with respect to an Extraordinary Distribution that
is paid other than in cash, or on the applicable expiration date
(including all extensions thereof) of any tender offer that is a Pro
Rata Repurchase, or on the date of purchase with respect to any Pro
Rata Repurchase that is not a tender offer, as the case may be, minus
(ii) the Fair Market Value of the Extraordinary Distribution or the
aggregate purchase price of the Pro Rata Repurchase, as the case may
be. The Corporation shall send each holder of ESOP Preferred Stock
(i) notice of its intent to make any Extraordinary Distribution and
(ii) notice of any offer by the Corporation to make a Pro Rata
Repurchase, in each case at the same time as, or as soon as
practicable after, such offer is first communicated to holders of
Common Stock or, in the case of an Extraordinary Distribution, the
announcement of a record date in accordance with the rules of any
stock exchange on which the Common Stock is listed or admitted to
trading. Such notice shall indicate the intended record date and the
amount and nature of such dividend or distribution, or the number of
shares subject to such offer for a Pro Rata Repurchase and the
purchase price payable by the Corporation pursuant to such offer, as
well as the Conversion Price and the number of shares of Common Stock
into which a share of ESOP Preferred Stock may be converted at such
time. An adjustment to the Conversion Price pursuant to
7
this Section 9(D) shall be effective (i) in the case of an
Extraordinary Dividend as of the record date for the determination of
holders entitled to receive such Extraordinary Dividend (on a
retroactive basis) and (ii) in the case of a Pro Rata Repurchase upon
the expiration date thereof (if such Pro Rata Repurchase is a tender
offer) or the effective date thereof (if such Pro Rata Repurchase is
not a tender offer). Any such adjustment shall have no effect on the
Liquidation Price or the Preferred Dividend Rate of the ESOP Preferred
Stock.
(E) The Board of Directors shall have the authority to
determine that any adjustment to the Conversion Price provided for in
paragraph (A)(1), (B), (C) or (D) of this Section 9 shall not be made
(or if already made, to determine that such adjustment shall be
cancelled prospectively), and in lieu thereof to declare a dividend in
respect of the ESOP Preferred Stock in shares of ESOP Preferred Stock
(a "Special Dividend") in such a manner that a holder of ESOP
Preferred Stock will become a holder of that number of shares of ESOP
Preferred Stock equal to the product of the number of such shares held
prior to such event times the Section 9(A), Section 9(B), Section
9(C)(1), Section 9(C)(2) or Section 9(D) Fraction, as applicable. The
declaration of such a Special Dividend shall be authorized, if at all,
by the Board of Directors no later than 30 calendar days following the
authorization by the Board of Directors (or by a committee duly
authorized by the Board of Directors) of the transaction or other
event described in any of the foregoing paragraphs (A)(1), (B), (C) or
(D) that would otherwise result in an adjustment to the Conversion
Price being made pursuant to any such paragraphs, and if the Board of
Directors does not authorize the declaration of a Special Dividend by
the end of such 30-day period, then no such Special Dividend shall be
declared and the adjustment to the Conversion Price provided for in
paragraph (A)(1), (B), (C) or (D) of this Section 9 shall become final
and binding on the Corporation and all stockholders of the
Corporation. Concurrently with the declaration of any Special
Dividend pursuant to this paragraph (E), the Conversion Price, the
Liquidation Price and the Preferred Dividend Rate of all shares of
ESOP Preferred Stock shall be adjusted by dividing the Conversion
Price, the Liquidation Price and the Preferred Dividend Rate,
respectively, in effect immediately before such event by the Section
9(A), Section 9(B), Section 9(C)(1), Section 9(C)(2) or Section 9(D)
Fraction, as applicable.
8
(F) Unless the Board of Directors determines otherwise, and
notwithstanding any other provision of this Section 9, any adjustment
to the Conversion Price provided for in any of paragraphs (A), (B), (C)
or (D) of this Section 9 shall not be made unless such adjustment
would require an increase or decrease of at least one percent (1%) in
the Conversion Price and, similarly, the Board of Directors shall not
declare any Special Dividend pursuant to paragraph (E) of this Section
9 unless such Special Dividend or adjustment would require an
increase or decrease of at least one percent (1%) in the number of
shares of ESOP Preferred Stock outstanding. Any lesser adjustment to
the Conversion Price or Special Dividend shall be carried forward and
shall be made no later than the time of, and together with, the next
subsequent adjustment to the Conversion Price or Special Dividend
which, together with any adjustment or adjustments or Special Dividend
or Dividends so carried forward, shall amount to an increase or
decrease of at least one percent (1%) of the Conversion Price or an
increase or decrease of at least one percent (1%) in the number of
shares of ESOP Preferred Stock outstanding, whichever the case may be.
(G) If the Corporation shall make any dividend or
distribution on the Common Stock or issue any Common Stock, other
capital stock or other security of the Corporation or any rights or
warrants to purchase or acquire any such security, which transaction
does not result in an adjustment to the Conversion Price or to the
number of shares of ESOP Preferred Stock outstanding pursuant to the
foregoing provisions of this Section 9, the Board of Directors of the
Corporation may, in its sole discretion, consider whether such action
is of such a nature that some type of equitable adjustment should be
made in respect of such transaction. If in such case the Board of
Directors of the Corporation determines that some type of adjustment
should be made, an adjustment shall be made effective as of such date
as determined by the Board of Directors of the Corporation. The
determination of the Board of Directors of the Corporation as to
whether some type of adjustment should be made pursuant to the
foregoing provisions of this Section 9(G), and, if so, as to what
adjustment should be made and when, shall be final and binding on the
Corporation and all stockholders of the Corporation. The Corporation
shall be entitled, but not required, to make such additional
adjustments, in addition to those required by the foregoing provisions
of this Section 9, as shall be necessary in order that any dividend or
9
distribution in shares of capital stock of the Corporation,
subdivision, reclassification or combination of shares of the
Corporation or any reclassification of the Corporation shall not be
taxable to holders of the Common Stock.
* * *
(I) Whenever an adjustment to the Conversion Price of the
ESOP Preferred Stock is required pursuant to this Section 9, the
Corporation shall forthwith place on file with the transfer agent for
the Common Stock and the ESOP Preferred Stock, if there be one, and
with the Treasurer of the Corporation, a statement signed by the
Treasurer or any Assistant Treasurer of the Corporation stating the
adjusted Conversion Price determined as provided herein. In addition,
whenever a Special Dividend is declared pursuant to paragraph (E) of
this Section 9, (i) the maximum number of shares of ESOP Preferred
Stock shall be adjusted by multiplying 4,000,000 (or such other number
as shall be the maximum number of shares of ESOP Preferred Stock in
effect prior to the authorization of such Special Dividend) by the
Section 9(A), Section 9(B), Section 9(C)(1), Section 9(C)(2) or
Section 9(D) Fraction, as the case may be, (ii) the Board of Directors
shall take action as is necessary so that a sufficient number of
shares of ESOP Preferred Stock are designated with respect to any
increase in the number of shares of ESOP Preferred Stock to be
outstanding as a result of such Special Dividend and (iii) the
Corporation shall forthwith place on file with the transfer agent for
the Common Stock and the ESOP Preferred Stock, if there be one, and
with the Treasurer of the Corporation, a statement signed by the
Treasurer or any Assistant Treasurer of the Corporation stating the
adjusted maximum number of shares of ESOP Preferred Stock, Conversion
Price, Liquidation Price and Preferred Dividend Rate determined as
provided herein. The statement required by either of the two
preceding sentences shall set forth in reasonable detail such facts as
shall be necessary to show the reason and the manner of computing such
adjustments, including any determination of Fair Market Value involved
in such computation. Promptly after each adjustment to the maximum
number of shares of ESOP Preferred Stock, Conversion Price, the
Liquidation Price, the Preferred Dividend Rate, or the number of
shares of ESOP Preferred Stock outstanding, the Corporation shall mail
a notice thereof and of the then prevailing maximum number of shares
of ESOP Preferred Stock, Conversion Price, Liquidation Price,
Preferred Dividend Rate and
10
number of shares of ESOP Preferred Stock outstanding to each holder of
shares of ESOP Preferred Stock.
IN WITNESS WHEREOF, MORGAN STANLEY GROUP INC. has caused this
Certificate to be signed by John J. Mack, its President, and attested by
Jonathan M. Clark, its General Counsel and Secretary, this 30th day of June,
1993.
MORGAN STANLEY GROUP INC.
By: /s/ John J. Mack
--------------------
Name: John J. Mack
Title: President
ATTEST:
/s/ Jonathan M. Clark
- --------------------------
Name: Jonathan M. Clark
Title: General Counsel and
Secretary
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE
7-3/8% CUMULATIVE PREFERRED STOCK
($200.00 Stated Value)
OF
MORGAN STANLEY GROUP INC.
______________________________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
______________________________
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Board of Directors (the "Board") of Morgan
Stanley Group Inc., a Delaware corporation (hereinafter called the
"Corporation"), by unanimous written consent in lieu of a meeting dated as of
July 27, 1993, with certain of the designations, preferences and rights having
been fixed by the Pricing Committee of the Board (the "Committee") at a meeting
on August 18, 1993, pursuant to authority delegated to it by the Board pursuant
to the provisions of Section 141(c) of the General Corporation Law of the State
of Delaware:
RESOLVED that, pursuant to authority expressly granted to and
vested in the Committee by the Board and in the Board by provisions of
the Restated Certificate of Incorporation of the Corporation, as
amended (the "Certificate of Incorporation"), the issuance of a series
of Preferred Stock, without par value (the "Preferred Stock"), which
shall consist of 1,000,000 of the 30,000,000 shares of Preferred Stock
which the Corporation now has authority to issue, is authorized, and
the Board and, pursuant to the authority expressly granted to the
Committee by the Board pursuant to the provisions of Section 141(c) of
the General Corporation Law of the State of Delaware and the
Certificate of Incorporation, the Committee, fix the powers,
2
designations, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
powers, designations, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations
or restrictions thereof, set forth in the Certificate of Incorporation
which may be applicable to the Preferred Stock) as follows:
1. Designation and Amount; Fractional Shares. The
designation for such series of the Preferred Stock authorized
by this resolution shall be the 7-3/8% Cumulative Preferred
Stock, without par value, with a stated value of $200.00 per
share (the "Cumulative Preferred Stock"). The stated value
per share of Cumulative Preferred Stock shall not for any
purpose be considered to be a determination by the Board or
the Committee with respect to the capital and surplus of the
Corporation. The number of shares of Cumulative Preferred
Stock shall be 1,000,000. The Cumulative Preferred Stock is
issuable in whole shares only.
2. Dividends. Holders of shares of Cumulative
Preferred Stock will be entitled to receive, when, as and if
declared by the Board or the Committee out of assets of the
Corporation legally available for payment, cash dividends
payable quarterly at the rate of 7-3/8% per annum. Dividends
on the Cumulative Preferred Stock, calculated as a percentage
of the stated value, will be payable quarterly on February 28,
May 30, August 30 and November 30 commencing November 30, 1993
(each a "dividend payment date"). Dividends on shares of the
Cumulative Preferred Stock will be cumulative from the date of
initial issuance of such shares of Cumulative Preferred Stock.
Dividends will be payable, in arrears, to holders of record as
they appear on the stock books of the Corporation on such
record dates, not more than 60 days nor less than 10 days
preceding the payment dates thereof, as shall be fixed by the
Board or the Committee. The amount of dividends payable for
the initial dividend period or any period shorter than a full
dividend period shall be calculated on the basis of a 360-day
year of twelve 30-day months. No dividends may be declared or
paid or set apart for payment on any Parity Preferred Stock
(as defined in paragraph 9(b) below) with regard to the
payment of dividends
3
unless there shall also be or have been declared and paid or
set apart for payment on the Cumulative Preferred Stock, like
dividends for all dividend payment periods of the Cumulative
Preferred Stock ending on or before the dividend payment date
of such Parity Preferred Stock, ratably in proportion to the
respective amounts of dividends (x) accumulated and unpaid or
payable on such Parity Preferred Stock, on the one hand, and
(y) accumulated and unpaid through the dividend payment
period or periods of the Cumulative Preferred Stock next
preceding such dividend payment date, on the other hand.
Except as set forth in the preceding sentence, unless
full cumulative dividends on the Cumulative Preferred Stock
have been paid, no dividends (other than in Common Stock of
the Corporation) may be paid or declared and set aside for
payment or other distribution made upon the Common Stock or on
any other stock of the Corporation ranking junior to or on a
parity with the Cumulative Preferred Stock as to dividends,
nor may any Common Stock or any other stock of the Corporation
ranking junior to or on a parity with the Cumulative Preferred
Stock as to dividends be redeemed, purchased or otherwise
acquired for any consideration (or any payment be made to or
available for a sinking fund for the redemption of any shares
of such stock; provided, however, that any moneys theretofore
deposited in any sinking fund with respect to any preferred
stock of the Corporation in compliance with the provisions of
such sinking fund may thereafter be applied to the purchase or
redemption of such preferred stock in accordance with the
terms of such sinking fund, regardless of whether at the time
of such application full cumulative dividends upon shares of
the Cumulative Preferred Stock outstanding to the last
dividend payment date shall have been paid or declared and set
apart for payment) by the Corporation; provided that any such
junior or parity Preferred Stock or Common Stock may be
converted into or exchanged for stock of the Corporation
ranking junior to the Cumulative Preferred Stock as to
dividends.
3. Liquidation Preference. The shares of Cumulative
Preferred Stock shall rank, as to liquidation, dissolution or
winding up of the Corporation, prior to the shares of Common
Stock and any other class of stock of the Corporation ranking
4
junior to the Cumulative Preferred Stock as to rights upon
liquidation, dissolution or winding up of the Corporation, so
that in the event of any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, the
holders of the Cumulative Preferred Stock shall be entitled to
receive out of the assets of the Corporation available for
distribution to its stockholders, whether from capital,
surplus or earnings, before any distribution is made to
holders of shares of Common Stock or any other such junior
stock, an amount equal to $200.00 per share (the "Liquidation
Preference" of a share of Cumulative Preferred Stock) plus an
amount equal to all dividends (whether or not earned or
declared) accrued and accumulated and unpaid on the shares of
Cumulative Preferred Stock to the date of final distribution.
The holders of the Cumulative Preferred Stock will not be
entitled to receive the Liquidation Preference until the
liquidation preference of any other class of stock of the
Corporation ranking senior to the Cumulative Preferred Stock
as to rights upon liquidation, dissolution or winding up shall
have been paid (or a sum set aside therefor sufficient to
provide for payment) in full. After payment of the full
amount of the Liquidation Preference and such dividends, the
holders of shares of Cumulative Preferred Stock will not be
entitled to any further participation in any distribution of
assets by the Corporation. If, upon any liquidation,
dissolution or winding up of the Corporation, the assets of
the Corporation, or proceeds thereof, distributable among the
holders of shares of Parity Preferred Stock shall be
insufficient to pay in full the preferential amount aforesaid,
then such assets, or the proceeds thereof, shall be
distributable among such holders ratably in accordance with
the respective amounts which would be payable on such shares
if all amounts payable thereon were paid in full. For the
purposes hereof, neither a consolidation or merger of the
Corporation with or into any other corporation, nor a merger
of any other corporation with or into the Corporation, nor a
sale or transfer of all or any part of the Corporation's
assets for cash or securities shall be considered a
liquidation, dissolution or winding up of the Corporation.
4. Conversion. The Cumulative Preferred Stock is
not convertible into shares of any other class or series of
stock of the Corporation.
5
5. Voting Rights. The holders of shares of
Cumulative Preferred Stock shall have no voting rights
whatsoever, except for any voting rights to which they may be
entitled under the laws of the State of Delaware, and except
as follows:
(a) Whenever, at any time or times,
dividends payable on the shares of Cumulative
Preferred Stock or on any Parity Preferred Stock with
respect to payment of dividends, shall be in arrears
for an aggregate number of days equal to six calendar
quarters or more, whether or not consecutive, the
holders of the outstanding shares of Cumulative
Preferred Stock shall have the right, with holders of
shares of any one or more other class or series of
stock upon which like voting rights have been
conferred and are exercisable (voting together as a
class), to elect two of the authorized number of
members of the Board at the Corporation's next annual
meeting of stockholders and at each subsequent annual
meeting of stockholders until such arrearages have
been paid or set apart for payment, at which time
such right shall terminate, except as herein or by
law expressly provided, subject to revesting in the
event of each and every subsequent default of the
character above mentioned. Upon any termination of
the right of the holders of shares of Cumulative
Preferred Stock as a class to vote for directors as
herein provided, the term of office of all directors
then in office elected by the holders of shares of
Cumulative Preferred Stock shall terminate
immediately.
Any director who shall have been so elected pursuant
to this paragraph may be removed at any time, either
with or without cause. Any vacancy thereby created
may be filled only by the affirmative vote of the
holders of shares of Cumulative Preferred Stock
voting separately as a class (together with the
holders of shares of any other class or series of
stock upon which like voting rights have been
conferred and are exercisable). If the office of any
director elected by the holders of shares of
Cumulative Preferred Stock voting as a class becomes
vacant for any reason other than removal from office
as aforesaid, the remaining
6
director elected pursuant to this paragraph may
choose a successor who shall hold office for the
unexpired term in respect of which such vacancy
occurred. At elections for such directors, each
holder of shares of Cumulative Preferred Stock shall
be entitled to one vote for each share held (the
holders of shares of any other class or series of
preferred stock having like voting rights being
entitled to such number of votes, if any, for each
share of such stock held as may be granted to them).
(b) So long as any shares of Cumulative
Preferred Stock remain outstanding, the consent of
the holders of at least two-thirds of the shares of
Cumulative Preferred Stock outstanding at the time
and all other classes or series of stock upon which
like voting rights have been conferred and are
exercisable (voting together as a class) given in
person or by proxy, either in writing or at any
meeting called for the purpose, shall be necessary to
permit, effect or validate any one or more of the
following:
(i) the issuance or increase of the
authorized amount of any class or series of
shares ranking prior (as that term is defined
in paragraph 9(a) hereof) to the shares of
the Cumulative Preferred Stock; or
(ii) the amendment, alteration or
repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the
Certificate of Incorporation, (including this
resolution or any provision hereof) that
would materially and adversely affect any
power, preference, or special right of the
shares of Cumulative Preferred Stock or of
the holders thereof;
provided, however, that any increase in the amount of
authorized Common Stock or authorized Preferred Stock
or any increase or decrease in the number of shares
of any series of Preferred Stock or the creation and
issuance of other series of Common Stock or Preferred
Stock, in each case ranking on a parity with or
junior to the shares of Cumulative Preferred Stock
with
7
respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution
or winding up, shall not be deemed to materially and
adversely affect such powers, preferences or special
rights.
(c) The foregoing voting provisions shall
not apply if, at or prior to the time when the act
with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of
Cumulative Preferred Stock shall have been redeemed
or called for redemption and sufficient funds shall
have been deposited in trust to effect such
redemption.
6. Redemption. The shares of the Cumulative
Preferred Stock may be redeemed at the option of the
Corporation, as a whole, or from time to time in part, at any
time, upon not less than 30 days' prior notice mailed to the
holders of the shares to be redeemed at their addresses as
shown on the stock books of the Corporation; provided,
however, that shares of the Cumulative Preferred Stock shall
not be redeemable prior to August 30, 1998. Subject to the
foregoing, on or after such date, shares of the Cumulative
Preferred Stock are redeemable at $200.00 per share together
with an amount equal to all dividends (whether or not earned
or declared) accrued and accumulated and unpaid to, but
excluding, the date fixed for redemption.
If full cumulative dividends on the Cumulative
Preferred Stock have not been paid, the Cumulative Preferred
Stock may not be redeemed in part and the Corporation may not
purchase or acquire any shares of the Cumulative Preferred
Stock otherwise than pursuant to a purchase or exchange offer
made on the same terms to all holders of the Cumulative
Preferred Stock. If fewer than all the outstanding shares of
Cumulative Preferred Stock are to be redeemed, the Corporation
will select those to be redeemed by lot or a substantially
equivalent method.
If a notice of redemption has been given pursuant to
this paragraph 6 and if, on or before the date fixed for
redemption, the funds necessary for such redemption shall have
been set aside by the Corporation, separate and apart from its
other funds, in trust for the pro rata benefit of the holders
of the shares of Cumulative Preferred Stock
8
so called for redemption, then, notwithstanding that any
certificates for such shares have not been surrendered for
cancellation, on the redemption date dividends shall cease to
accrue on the shares to be redeemed, and at the close of
business on the redemption date the holders of such shares
shall cease to be stockholders with respect to such shares and
shall have no interest in or claims against the Corporation by
virtue thereof and shall have no voting or other rights with
respect to such shares, except the right to receive the moneys
payable upon surrender (and endorsement, if required by the
Corporation) of their certificates, and the shares evidenced
thereby shall no longer be outstanding. Subject to applicable
escheat laws, any moneys so set aside by the Corporation and
unclaimed at the end of two years from the redemption date
shall revert to the general funds of the Corporation, after
which reversion the holders of such shares so called for
redemption shall look only to the general funds of the
Corporation for the payment of the amounts payable upon such
redemption. Any interest accrued on funds so deposited shall
be paid to the Corporation from time to time.
7. Authorization and Issuance of Other Securities.
No consent of the holders of the Cumulative Preferred Stock
shall be required for (a) the creation of any indebtedness of
any kind of the Corporation, (b) the creation, or increase or
decrease in the amount, of any class or series of stock of the
Corporation not ranking prior as to dividends or upon
liquidation, dissolution or winding up to the Cumulative
Preferred Stock or (c) any increase or decrease in the amount
of authorized Common Stock or any increase, decrease or change
in the par value thereof or in any other terms thereof.
8. Amendment of Resolution. The Board and the
Committee each reserves the right by subsequent amendment of
this resolution from time to time to increase or decrease the
number of shares that constitute the Cumulative Preferred
Stock (but not below the number of shares thereof then
outstanding) and in other respects to amend this resolution
within the limitations provided by law, this resolution and
the Certificate of Incorporation.
9. Rank. For the purposes of this resolution, any
stock of any class or classes of the Corporation shall be
deemed to rank:
9
(a) prior to shares of the Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, if
the holders of stock of such class or classes shall
be entitled by the terms thereof to the receipt of
dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case
may be, in preference or priority to the holders of
shares of the Cumulative Preferred Stock;
(b) on a parity with shares of the
Cumulative Preferred Stock, either as to dividends or
upon liquidation, dissolution or winding up, or both,
whether or not the dividend rates, dividend payment
dates, or redemption or liquidation prices per share
thereof be different from those of the Cumulative
Preferred Stock, if the holders of stock of such
class or classes shall be entitled by the terms
thereof to the receipt of dividends or of amounts
distributed upon liquidation, dissolution or winding
up, as the case may be, in proportion to their
respective dividend rates or liquidation prices,
without preference or priority of one over the other
as between the holders of such stock and the holders
of shares of Cumulative Preferred Stock (the term
"Parity Preferred Stock" being used to refer to any
stock on a parity with the shares of Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, as
the context may require); and
(c) junior to shares of the Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, if
such class shall be Common Stock or if the holders of
the Cumulative Preferred Stock shall be entitled to
the receipt of dividends or of amounts distributable
upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders
of stock of such class or classes.
The Cumulative Preferred Stock shall rank prior, as
to dividends and upon liquidation, dissolution or winding up,
to the Common Stock and on a parity with the Corporation's
ESOP Convertible
10
Preferred Stock, with a liquidation value of $35.88 per share,
the Corporation's 9.36% Cumulative Preferred Stock, with a
liquidation value of $25.00 per share, the Corporation's 8.88%
Cumulative Preferred Stock, with a liquidation value of
$200.00 per share and the Corporation's 8-3/4% Cumulative
Preferred Stock, with a liquidation value of $200.00 per
share.
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has
caused this Certificate to be made under the seal of the Corporation
and signed by Barton M. Biggs, its Managing Director, and attested by
Ralph L. Pellecchio, its Assistant Secretary, this 24th day of August,
1993.
MORGAN STANLEY GROUP INC.
By: /s/ Barton M. Biggs
---------------------
Name: Barton M. Biggs
Title: Managing Director,
who is duly authorized to
exercise the duties of a
Vice President.
[SEAL]
Attest:
/s/ Ralph L. Pellecchio
-----------------------
Assistant Secretary
CERTIFICATE OF CORRECTION FILED
TO CORRECT A CERTAIN ERROR IN THE
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE 7-3/8% CUMULATIVE PREFERRED STOCK
($200.00 STATED VALUE)
OF
MORGAN STANLEY GROUP INC,
FILED IN THE OFFICE OF THE SECRETARY OF STATE OF
THE STATE OF DELAWARE ON AUGUST 24, 1993, AND
FORWARDED TO THE OFFICE OF THE RECORDER OF DEEDS
IN AND FOR KENT COUNTY, DELAWARE ON AUGUST 25, 1993
Pursuant to Section 103(f) of the
General Corporation Law of the State of Delaware
Morgan Stanley Group Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
1. The name of the corporation is Morgan Stanley Group
Inc. (the "Corporation").
2. A Certificate of Designation of Preferences and Rights
of the 7-3/8% Cumulative Preferred Stock ($200.00 Stated Value) of the
Corporation was filed on August 24, 1993 and forwarded to the Office of the
Recorder of Deeds in and for Kent County, Delaware on August 25, 1993 (the
"Certificate").
3. The Certificate requires correction as permitted by
subsection (f) of the Section 103 of the General Corporation Law of the State
of Delaware.
4. The inaccuracy or defect of the Certificate to be
corrected is that the concluding clause is corrected to read as follows:
"IN WITNESS WHEREOF, Morgan Stanley Group Inc. has
caused this Certificate to be made under the seal of the
Corporation and signed by Barton M. Biggs, its Managing
Director, and attested by Ralph Pallecchio, its Assistant
Secretary, this 24th day of August, 1993."
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has caused this
Certificate of Correction to be made under the seal of the Corporation and
signed by Anson M. Beard, Jr., its Managing Director, and attested by Patricia
A. Kurtz, its Assistant Secretary, this 27th day of August, 1993.
MORGAN STANLEY GROUP INC.
By: /s/ Anson M. Beard, Jr.
--------------------------------
Name: Anson M. Beard, Jr.
Title: Managing Director,
who is duly authorized
to exercise the duties
of a Vice President
[SEAL]
Attest:
/s/ Patricia A. Kurtz
-------------------------
Assistant Secretary
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE
7.82% CUMULATIVE PREFERRED STOCK
($200.00 Stated Value)
OF
MORGAN STANLEY GROUP INC.
______________________________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
______________________________
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Board of Directors (the "Board") of Morgan
Stanley Group Inc., a Delaware corporation (hereinafter called the
"Corporation"), by unanimous written consent in lieu of a meeting dated as of
October 29, 1993, with certain of the designations, preferences and rights
having been fixed by the Pricing Committee of the Board (the "Committee") at a
meeting on November 19, 1993, pursuant to authority delegated to it by the
Board pursuant to the provisions of Section 141(c) of the General Corporation
Law of the State of Delaware:
RESOLVED that, pursuant to authority expressly granted to and
vested in the Committee by the Board and in the Board by provisions of
the Restated Certificate of Incorporation of the Corporation, as
amended (the "Certificate of Incorporation"), the issuance of a series
of Preferred Stock, without par value (the "Preferred Stock"), which
shall consist of 682,813 of the 30,000,000 shares of Preferred Stock
which the Corporation now has authority to issue, is authorized, and
the Board and, pursuant to the authority expressly granted to the
Committee by the Board pursuant to the provisions of Section 141(c) of
the General Corporation Law of the State of Delaware and the
Certificate of Incorporation, the Committee, fix the powers,
designations, preferences
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and relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions thereof, of the
shares of such series (in addition to the powers, designations,
preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof,
set forth in the Certificate of Incorporation which may be applicable
to the Preferred Stock) as follows:
1. Designation and Amount; Fractional Shares. The
designation for such series of the Preferred Stock authorized by
this resolution shall be the 7.82% Cumulative Preferred Stock,
without par value, with a stated value of $200.00 per share (the
"Cumulative Preferred Stock"). The stated value per share of
Cumulative Preferred Stock shall not for any purpose be
considered to be a determination by the Board or the Committee
with respect to the capital and surplus of the Corporation. The
maximum number of shares of Cumulative Preferred Stock shall be
682,813. The Cumulative Preferred Stock is issuable in whole
shares only.
2. Dividends. Holders of shares of Cumulative Preferred
Stock will be entitled to receive, when, as and if declared by
the Board or the Committee out of assets of the Corporation
legally available for payment, cash dividends payable quarterly
at the rate of 7.82% per annum. Dividends on the Cumulative
Preferred Stock will be payable quarterly on February 28, May 30,
August 30 and November 30 (each a "dividend payment date").
Dividends on shares of the Cumulative Preferred Stock will be
cumulative from the date of initial issuance of such shares of
Cumulative Preferred Stock. Dividends will be payable, in
arrears, to holders of record as they appear on the stock books
of the Corporation on such record dates, not more than 60 days
nor less than 10 days preceding the payment dates thereof, as
shall be fixed by the Board or the Committee. The amount of
dividends payable for the initial dividend period or any period
shorter than a full dividend period shall be calculated on the
basis of a 360-day year of twelve 30-day months. No dividends
may be declared or paid or set apart for payment on any Parity
Preferred Stock (as defined in paragraph 9(b) below) with regard
to the payment of dividends unless there shall also be or have
been declared and paid or set apart for payment on the Cumulative
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Preferred Stock, like dividends for all dividend payment periods
of the Cumulative Preferred Stock ending on or before the
dividend payment date of such Parity Preferred Stock, ratably in
proportion to the respective amounts of dividends (x) accumulated
and unpaid or payable on such Parity Preferred Stock, on the one
hand, and (y) accumulated and unpaid through the dividend payment
period or periods of the Cumulative Preferred Stock next
preceding such dividend payment date, on the other hand.
Except as set forth in the preceding sentence, unless full
cumulative dividends on the Cumulative Preferred Stock have been
paid, no dividends (other than in Common Stock of the
Corporation) may be paid or declared and set aside for payment
or other distribution made upon the Common Stock or on any other
stock of the Corporation ranking junior to or on a parity with
the Cumulative Preferred Stock as to dividends, nor may any
Common Stock or any other stock of the Corporation ranking junior
to or on a parity with the Cumulative Preferred Stock as to
dividends be redeemed, purchased or otherwise acquired for any
consideration (or any payment be made to or available for a
sinking fund for the redemption of any shares of such stock;
provided, however, that any moneys theretofore deposited in any
sinking fund with respect to any preferred stock of the
Corporation in compliance with the provisions of such sinking
fund may thereafter be applied to the purchase or redemption of
such preferred stock in accordance with the terms of such sinking
fund, regardless of whether at the time of such application full
cumulative dividends upon shares of the Cumulative Preferred
Stock outstanding to the last dividend payment date shall have
been paid or declared and set apart for payment) by the
Corporation; provided that any such junior or parity Preferred
Stock or Common Stock may be converted into or exchanged for
stock of the Corporation ranking junior to the Cumulative
Preferred Stock as to dividends.
3. Liquidation Preference. The shares of Cumulative
Preferred Stock shall rank, as to liquidation, dissolution or
winding up of the Corporation, prior to the shares of Common
Stock and any other class of stock of the Corporation ranking
junior to the Cumulative Preferred Stock as to
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rights upon liquidation, dissolution or winding up of the
Corporation, so that in the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary or
involuntary, the holders of the Cumulative Preferred Stock shall
be entitled to receive out of the assets of the Corporation
available for distribution to its stockholders, whether from
capital, surplus or earnings, before any distribution is made to
holders of shares of Common Stock or any other such junior stock,
an amount equal to $200.00 per share (the "Liquidation
Preference" of a share of Cumulative Preferred Stock) plus an
amount equal to all dividends (whether or not earned or declared)
accrued and accumulated and unpaid on the shares of Cumulative
Preferred Stock to the date of final distribution. The holders
of the Cumulative Preferred Stock will not be entitled to receive
the Liquidation Preference until the liquidation preference of
any other class of stock of the Corporation ranking senior to the
Cumulative Preferred Stock as to rights upon liquidation,
dissolution or winding up shall have been paid (or a sum set
aside therefor sufficient to provide for payment) in full. After
payment of the full amount of the Liquidation Preference and such
dividends, the holders of shares of Cumulative Preferred Stock
will not be entitled to any further participation in any
distribution of assets by the Corporation. If, upon any
liquidation, dissolution or winding up of the Corporation, the
assets of the Corporation, or proceeds thereof, distributable
among the holders of shares of Parity Preferred Stock shall be
insufficient to pay in full the preferential amount aforesaid,
then such assets, or the proceeds thereof, shall be distributable
among such holders ratably in accordance with the respective
amounts which would be payable on such shares if all amounts
payable thereon were paid in full. For the purposes hereof,
neither a consolidation or merger of the Corporation with or into
any other corporation, nor a merger of any other corporation with
or into the Corporation, nor a sale or transfer of all or any
part of the Corporation's assets for cash or securities shall be
considered a liquidation, dissolution or winding up of the
Corporation.
4. Conversion. The Cumulative Preferred Stock is not
convertible into shares of any other class or series of stock of
the Corporation.
5
5. Voting Rights. The holders of shares of Cumulative
Preferred Stock shall have no voting rights whatsoever, except
for any voting rights to which they may be entitled under the
laws of the State of Delaware, and except as follows:
(a) Whenever, at any time or times, dividends payable
on the shares of Cumulative Preferred Stock or on any Parity
Preferred Stock with respect to payment of dividends, shall
be in arrears for an aggregate number of days equal to six
calendar quarters or more, whether or not consecutive, the
holders of the outstanding shares of Cumulative Preferred
Stock shall have the right, with holders of shares of any
one or more other class or series of stock upon which like
voting rights have been conferred and are exercisable
(voting together as a class), to elect two of the authorized
number of members of the Board at the Corporation's next
annual meeting of stockholders and at each subsequent annual
meeting of stockholders until such arrearages have been paid
or set apart for payment, at which time such right shall
terminate, except as herein or by law expressly provided,
subject to revesting in the event of each and every
subsequent default of the character above mentioned. Upon
any termination of the right of the holders of shares of
Cumulative Preferred Stock as a class to vote for directors
as herein provided, the term of office of all directors then
in office elected by the holders of shares of Cumulative
Preferred Stock shall terminate immediately.
Any director who shall have been so elected pursuant to this
paragraph may be removed at any time, either with or without
cause. Any vacancy thereby created may be filled only by
the affirmative vote of the holders of shares of Cumulative
Preferred Stock voting separately as a class (together with
the holders of shares of any other class or series of stock
upon which like voting rights have been conferred and are
exercisable). If the office of any director elected by the
holders of shares of Cumulative Preferred Stock voting as a
class becomes vacant for any reason other than removal from
office as aforesaid, the remaining
6
director elected pursuant to this paragraph may choose
a successor who shall hold office for the unexpired term in
respect of which such vacancy occurred. At elections for
such directors, each holder of shares of Cumulative
Preferred Stock shall be entitled to one vote for each share
held (the holders of shares of any other class or series of
preferred stock having like voting rights being entitled to
such number of votes, if any, for each share of such stock
held as may be granted to them).
(b) So long as any shares of Cumulative Preferred
Stock remain outstanding, the consent of the holders of at
least two-thirds of the shares of Cumulative Preferred Stock
outstanding at the time and all other classes or series of
stock upon which like voting rights have been conferred and
are exercisable (voting together as a class) given in person
or by proxy, either in writing or at any meeting called for
the purpose, shall be necessary to permit, effect or
validate any one or more of the following:
(i) the issuance or increase of the authorized
amount of any class or series of shares ranking prior
(as that term is defined in paragraph 9(a) hereof) to
the shares of the Cumulative Preferred Stock; or
(ii) the amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of any
of the provisions of the Certificate of
Incorporation, (including this resolution or any
provision hereof) that would materially and adversely
affect any power, preference, or special right of the
shares of Cumulative Preferred Stock or of the
holders thereof;
provided, however, that any increase in the amount of
authorized Common Stock or authorized Preferred Stock
or any increase or decrease in the number of shares
of any series of Preferred Stock or the creation and
issuance of other series of Common Stock or Preferred
Stock, in each case ranking on a parity with or
junior to the shares of Cumulative Preferred Stock
with
7
respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution
or winding up, shall not be deemed to materially and
adversely affect such powers, preferences or special
rights.
(c) The foregoing voting provisions shall not apply
if, at or prior to the time when the act with respect to
which such vote would otherwise be required shall be
effected, all outstanding shares of Cumulative Preferred
Stock shall have been redeemed or called for redemption and
sufficient funds shall have been deposited in trust to
effect such redemption.
6. Redemption Shares. The shares of the Cumulative
Preferred Stock may be redeemed at the option of the Corporation,
as a whole, or from time to time in part, at any time, upon not
less than 30 days' prior notice mailed to the holders of the
shares to be redeemed at their addresses as shown on the stock
books of the Corporation; provided, however, that shares of the
Cumulative Preferred Stock shall not be redeemable prior to
November 30, 1998. Subject to the foregoing, on or after such
date, shares of the Cumulative Preferred Stock are redeemable at
$200.00 per share together with an amount equal to all dividends
(whether or not earned or declared) accrued and accumulated and
unpaid to, but excluding, the date fixed for redemption.
If full cumulative dividends on the Cumulative Preferred
Stock have not been paid, the Cumulative Preferred Stock may not
be redeemed in part and the Corporation may not purchase or
acquire any shares of the Cumulative Preferred Stock otherwise
than pursuant to a purchase or exchange offer made on the same
terms to all holders of the Cumulative Preferred Stock. If fewer
than all the outstanding shares of Cumulative Preferred Stock are
to be redeemed, the Corporation will select those to be redeemed
by lot or a substantially equivalent method.
If a notice of redemption has been given pursuant to this
paragraph 6 and if, on or before the date fixed for redemption,
the funds necessary for such redemption shall have been set aside
by the Corporation, separate and apart from its other funds, in
trust for the pro rata benefit of the holders of the shares of
Cumulative Preferred Stock
8
so called for redemption, then, notwithstanding that any
certificates for such shares have not been surrendered for
cancellation, on the redemption date dividends shall cease to
accrue on the shares to be redeemed, and at the close of business
on the redemption date the holders of such shares shall cease to
be stockholders with respect to such shares and shall have no
interest in or claims against the Corporation by virtue thereof
and shall have no voting or other rights with respect to such
shares, except the right to receive the moneys payable upon
surrender (and endorsement, if required by the Corporation) of
their certificates, and the shares evidenced thereby shall no
longer be outstanding. Subject to applicable escheat laws, any
moneys so set aside by the Corporation and unclaimed at the end
of two years from the redemption date shall revert to the general
funds of the Corporation, after which reversion the holders of
such shares so called for redemption shall look only to the
general funds of the Corporation for the payment of the amounts
payable upon such redemption. Any interest accrued on funds so
deposited shall be paid to the Corporation from time to time.
7. Authorization and Issuance of Other Securities. No
consent of the holders of the Cumulative Preferred Stock shall be
required for (a) the creation of any indebtedness of any kind of
the Corporation, (b) the creation, or increase or decrease in the
amount, of any class or series of stock of the Corporation not
ranking prior as to dividends or upon liquidation, dissolution or
winding up to the Cumulative Preferred Stock or (c) any increase
or decrease in the amount of authorized Common Stock or any
increase, decrease or change in the par value thereof or in any
other terms thereof.
8. Amendment of Resolution. The Board and the Committee
each reserves the right by subsequent amendment of this
resolution from time to time to increase or decrease the number
of shares that constitute the Cumulative Preferred Stock (but not
below the number of shares thereof then outstanding) and in other
respects to amend this resolution within the limitations provided
by law, this resolution and the Certificate of Incorporation.
9. Rank. For the purposes of this resolution, any stock
of any class or classes of the Corporation shall be deemed to
rank:
9
(a) prior to shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation,
dissolution or winding up, or both, if the holders of stock
of such class or classes shall be entitled by the terms
thereof to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up,
as the case may be, in preference or priority to the holders
of shares of the Cumulative Preferred Stock;
(b) on a parity with shares of the Cumulative
Preferred Stock, either as to dividends or upon liquidation,
dissolution or winding up, or both, whether or not the
dividend rates, dividend payment dates, or redemption or
liquidation prices per share thereof be different from those
of the Cumulative Preferred Stock, if the holders of stock
of such class or classes shall be entitled by the terms
thereof to the receipt of dividends or of amounts
distributed upon liquidation, dissolution or winding up, as
the case may be, in proportion to their respective dividend
rates or liquidation prices, without preference or priority
of one over the other as between the holders of such stock
and the holders of shares of Cumulative Preferred Stock (the
term "Parity Preferred Stock" being used to refer to any
stock on a parity with the shares of Cumulative Preferred
Stock, either as to dividends or upon liquidation,
dissolution or winding up, or both, as the context may
require); and
(c) junior to shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation,
dissolution or winding up, or both, if such class shall be
Common Stock or if the holders of the Cumulative Preferred
Stock shall be entitled to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or priority to
the holders of stock of such class or classes.
The Cumulative Preferred Stock shall rank prior, as to
dividends and upon liquidation, dissolution or winding up, to the
Common Stock and on a parity with the Corporation's ESOP
Convertible
10
Preferred Stock, with a liquidation value of $35.88 per share,
the Corporation's 9.36% Cumulative Preferred Stock, with a
liquidation value of $25.00 per share, the Corporation's 8.88%
Cumulative Preferred Stock, with a liquidation value of $200.00
per share, the Corporation's 8-3/4% Cumulative Preferred Stock,
with a liquidation value of $200.00 per share and the
Corporation's 7-3/8% Cumulative Preferred Stock, with a
liquidation value of $200.00 per share.
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has caused
this Certificate to be made under the seal of the Corporation and signed by
Richard B. Fisher, its Chairman, and attested by Patricia A. Kurtz, its
Assistant Secretary, this 23rd day of November, 1993.
MORGAN STANLEY GROUP INC.
/s/ Richard B. Fisher
By: ------------------------
Name: Richard B. Fisher
Title: Chairman
[SEAL]
Attest:
/s/ Patricia A. Kurtz
- -----------------------------
Assistant Secretary
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE
7.80% CUMULATIVE PREFERRED STOCK
($200.00 Stated Value)
OF
MORGAN STANLEY GROUP INC.
-------------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
-------------------------------
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Board of Directors (the "Board") of Morgan
Stanley Group Inc., a Delaware corporation (hereinafter called the
"Corporation"), by unanimous written consent in lieu of a meeting dated as of
October 29, 1993, with certain of the designations, preferences and rights
having been fixed by the Pricing Committee of the Board (the "Committee") at a
meeting on February 1, 1994, pursuant to authority delegated to it by the Board
pursuant to the provisions of Section 141(c) of the General Corporation Law of
the State of Delaware:
RESOLVED that, pursuant to authority expressly granted to and
vested in the Committee by the Board and in the Board by provisions of
the Restated Certificate of Incorporation of the Corporation, as
amended (the "Certificate of Incorporation"), the issuance of a series
of Preferred Stock, without par value (the "Preferred Stock"), which
shall consist of 1,150,000 of the 30,000,000 shares of Preferred
Stock which the Corporation now has authority to issue, is authorized,
and the Board and, pursuant to the authority expressly granted to the
Committee by the Board pursuant to the provisions of Section 141(c) of
the General Corporation Law of the State of Delaware and the
Certificate of Incorporation, the Committee, fix the powers,
2
designations, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
powers, designations, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations
or restrictions thereof, set forth in the Certificate of Incorporation
which may be applicable to the Preferred Stock) as follows:
1. Designation and Amount; Fractional Shares.
The designation for such series of the Preferred Stock
authorized by this resolution shall be the 7.80% Cumulative
Preferred Stock, without par value, with a stated value of
$200.00 per share (the "Cumulative Preferred Stock"). The
stated value per share of Cumulative Preferred Stock shall not
for any purpose be considered to be a determination by the
Board or the Committee with respect to the capital and surplus
of the Corporation. The maximum number of shares of
Cumulative Preferred Stock shall be 1,150,000. The Cumulative
Preferred Stock is issuable in whole shares only.
2. Dividends. Holders of shares of Cumulative
Preferred Stock will be entitled to receive, when, as and if
declared by the Board or the Committee out of assets of the
Corporation legally available for payment, cash dividends
payable quarterly at the rate of 7.80% per annum. Dividends
on the Cumulative Preferred Stock will be payable quarterly on
February 28, May 30, August 30 and November 30 (each a
"dividend payment date"). Dividends on shares of the
Cumulative Preferred Stock will be cumulative from the date of
initial issuance of such shares of Cumulative Preferred Stock.
Dividends will be payable, in arrears, to holders of record as
they appear on the stock books of the Corporation on such
record dates, not more than 60 days nor less than 10 days
preceding the payment dates thereof, as shall be fixed by the
Board or the Committee. The amount of dividends payable for
the initial dividend period or any period shorter than a full
dividend period shall be calculated on the basis of a 360-day
year of twelve 30-day months. No dividends may be declared or
paid or set apart for payment on any Parity Preferred Stock
(as defined in paragraph 9(b) below) with regard to the
payment of dividends unless there shall also be or have been
declared and paid or set apart for payment on the Cumulative
3
Preferred Stock, like dividends for all dividend payment
periods of the Cumulative Preferred Stock ending on or before
the dividend payment date of such Parity Preferred Stock,
ratably in proportion to the respective amounts of dividends
(x) accumulated and unpaid or payable on such Parity Preferred
Stock, on the one hand, and (y) accumulated and unpaid through
the dividend payment period or periods of the Cumulative
Preferred Stock next preceding such dividend payment date, on
the other hand.
Except as set forth in the preceding sentence, unless
full cumulative dividends on the Cumulative Preferred Stock
have been paid, no dividends (other than in Common Stock of
the Corporation) may be paid or declared and set aside for
payment or other distribution made upon the Common Stock or on
any other stock of the Corporation ranking junior to or on a
parity with the Cumulative Preferred Stock as to dividends,
nor may any Common Stock or any other stock of the Corporation
ranking junior to or on a parity with the Cumulative Preferred
Stock as to dividends be redeemed, purchased or otherwise
acquired for any consideration (or any payment be made to or
available for a sinking fund for the redemption of any shares
of such stock; provided, however, that any moneys theretofore
deposited in any sinking fund with respect to any preferred
stock of the Corporation in compliance with the provisions of
such sinking fund may thereafter be applied to the purchase or
redemption of such preferred stock in accordance with the
terms of such sinking fund, regardless of whether at the time
of such application full cumulative dividends upon shares of
the Cumulative Preferred Stock outstanding to the last
dividend payment date shall have been paid or declared and set
apart for payment) by the Corporation; provided that any such
junior or parity Preferred Stock or Common Stock may be
converted into or exchanged for stock of the Corporation
ranking junior to the Cumulative Preferred Stock as to
dividends.
3. Liquidation Preference. The shares of
Cumulative Preferred Stock shall rank, as to liquidation,
dissolution or winding up of the Corporation, prior to the
shares of Common Stock and any other class of stock of the
Corporation ranking junior to the Cumulative Preferred Stock
as to
4
rights upon liquidation, dissolution or winding up of the
Corporation, so that in the event of any liquidation,
dissolution or winding up of the Corporation, whether
voluntary or involuntary, the holders of the Cumulative
Preferred Stock shall be entitled to receive out of the assets
of the Corporation available for distribution to its
stockholders, whether from capital, surplus or earnings,
before any distribution is made to holders of shares of Common
Stock or any other such junior stock, an amount equal to
$200.00 per share (the "Liquidation Preference" of a share of
Cumulative Preferred Stock) plus an amount equal to all
dividends (whether or not earned or declared) accrued and
accumulated and unpaid on the shares of Cumulative Preferred
Stock to the date of final distribution. The holders of the
Cumulative Preferred Stock will not be entitled to receive the
Liquidation Preference until the liquidation preference of any
other class of stock of the Corporation ranking senior to the
Cumulative Preferred Stock as to rights upon liquidation,
dissolution or winding up shall have been paid (or a sum set
aside therefor sufficient to provide for payment) in full.
After payment of the full amount of the Liquidation Preference
and such dividends, the holders of shares of Cumulative
Preferred Stock will not be entitled to any further
participation in any distribution of assets by the
Corporation. If, upon any liquidation, dissolution or winding
up of the Corporation, the assets of the Corporation, or
proceeds thereof, distributable among the holders of shares of
Parity Preferred Stock shall be insufficient to pay in full
the preferential amount aforesaid, then such assets, or the
proceeds thereof, shall be distributable among such holders
ratably in accordance with the respective amounts which would
be payable on such shares if all amounts payable thereon were
paid in full. For the purposes hereof, neither a
consolidation or merger of the Corporation with or into any
other corporation, nor a merger of any other corporation with
or into the Corporation, nor a sale or transfer of all or any
part of the Corporation's assets for cash or securities shall
be considered a liquidation, dissolution or winding up of the
Corporation.
4. Conversion. The Cumulative Preferred Stock
is not convertible into shares of any other class or series of
stock of the Corporation.
5
5. Voting Rights. The holders of shares of
Cumulative Preferred Stock shall have no voting rights
whatsoever, except for any voting rights to which they may be
entitled under the laws of the State of Delaware, and except
as follows:
(a) Whenever, at any time or times,
dividends payable on the shares of Cumulative
Preferred Stock or on any Parity Preferred Stock with
respect to payment of dividends, shall be in arrears
for an aggregate number of days equal to six calendar
quarters or more, whether or not consecutive, the
holders of the outstanding shares of Cumulative
Preferred Stock shall have the right, with holders of
shares of any one or more other class or series of
stock upon which like voting rights have been
conferred and are exercisable (voting together as a
class), to elect two of the authorized number of
members of the Board at the Corporation's next annual
meeting of stockholders and at each subsequent annual
meeting of stockholders until such arrearages have
been paid or set apart for payment, at which time
such right shall terminate, except as herein or by
law expressly provided, subject to revesting in the
event of each and every subsequent default of the
character above mentioned. Upon any termination of
the right of the holders of shares of Cumulative
Preferred Stock as a class to vote for directors as
herein provided, the term of office of all directors
then in office elected by the holders of shares of
Cumulative Preferred Stock shall terminate
immediately.
Any director who shall have been so elected pursuant
to this paragraph may be removed at any time, either
with or without cause. Any vacancy thereby created
may be filled only by the affirmative vote of the
holders of shares of Cumulative Preferred Stock
voting separately as a class (together with the
holders of shares of any other class or series of
stock upon which like voting rights have been
conferred and are exercisable). If the office of any
director elected by the holders of shares of
Cumulative Preferred Stock voting as a class becomes
vacant for any reason other than removal from office
as aforesaid, the remaining
6
director elected pursuant to this paragraph may choose a successor who
shall hold office for the unexpired term in respect of which such
vacancy occurred. At elections for such directors, each holder of
shares of Cumulative Preferred Stock shall be entitled to one vote for
each share held (the holders of shares of any other class or series of
preferred stock having like voting rights being entitled to such number
of votes, if any, for each share of such stock held as may be granted to
them).
(b) So long as any shares of Cumulative Preferred Stock
remain outstanding, the consent of the holders of at least two-thirds of
the shares of the Cumulative Preferred Stock outstanding at the time and
all other classes or series of stock upon which like voting rights have
been conferred and are exercisable (voting together as a class) given in
person or by proxy, either in writing or at any meeting called for the
purpose, shall be necessary to permit, effect or validate any one or
more of the following:
(i) the issuance or increase of the authorized amount of
any class or series of shares ranking prior (as that term is
defined in paragraph 9(a) hereof) to the shares of the
Cumulative Preferred Stock; or
(ii) the amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions of
the Certificate of Incorporation, (including this resolution or
any provision hereof) that would materially and adversely
affect any power, preference, or special right of the shares of
Cumulative Preferred Stock or of the holders thereof;
provided, however, that any increase in the amount of authorized
Common Stock or authorized Preferred Stock or any increase or
decrease in the number of shares of any series of Preferred
Stock or the creation and issuance of other series of Common
Stock or Preferred Stock, in each case ranking on a parity with
or junior to the shares of Cumulative Preferred Stock with
7
respect to the payment of dividends and the distribution
of assets upon liquidation, dissolution or winding up, shall
not be deemed to materially and adversely affect such
powers, preferences or special rights.
(c) The foregoing voting provisions shall not
apply if, at or prior to the time when the act with respect to
which such vote would otherwise be required shall be effected,
all outstanding shares of Cumulative Preferred Stock shall have
been redeemed or called for redemption and sufficient funds
shall have been deposited in trust to effect such redemption.
6. Redemption Shares. The shares of the Cumulative
Preferred Stock may be redeemed at the option of the Corporation, as a
whole, or from time to time in part, at any time, upon not less than 30
days' prior notice mailed to the holders of the shares to be redeemed at
their addresses as shown on the stocks books of the Corporation;
provided, however, that shares of the Cumulative Preferred Stock shall
not be redeemable prior to February 28, 1999. Subject to the foregoing,
on or after such date, shares of the Cumulative Preferred Stock are
redeemable at $200.00 per share together with an amount equal to all
dividends (whether or not earned or declared) accrued and accumulated
and unpaid to, but excluding, the date fixed for redemption.
If full cumulative dividends on the Cumulative Preferred Stock
have not been paid, the Cumulative Preferred Stock may not be redeemed
in part and the Corporation may not purchase or acquire any shares of
the Cumulative Preferred Stock otherwise than pursuant to a purchase or
exchange offer made on the same terms to all holders of the Cumulative
Preferred Stock. If fewer than all the outstanding shares of Cumulative
Preferred Stock are to be redeemed, the Corporation will select those to
be redeemed by lot or a substantially equivalent method.
If a notice of redemption has been given pursuant to this
paragraph 6 and if, on or before the date fixed for redemption, the
funds necessary for such redemption shall have been set aside by the
Corporation, separate and apart from its other funds, in trust for the
pro rata benefit of the holders of the shares of Cumulative Preferred
Stock
8
so called for redemption, then, notwithstanding that any certificates
for such shares have not been surrendered for cancellation, on the
redemption date dividends shall cease to accrue on the shares to
be redeemed, and at the close of business on the redemption date the
holders of such shares shall cease to be stockholders with respect to
such shares and shall have no interest in or claims against the
Corporation by virtue thereof and shall have no voting or other rights
with respect to such shares, except the right to receive the moneys
payable upon surrender (and endorsement, if required by the Corporation)
of their certificates, and the shares evidenced thereby shall no longer
be outstanding. Subject to applicable escheat laws, any moneys so set
aside by the Corporation and unclaimed at the end of two years from the
redemption date shall revert to the general funds of the Corporation,
after which reversion the holders of such shares so called for
redemption shall look only to the general funds of the Corporation for
the payment of the amounts payable upon such redemption. Any interest
accrued on funds so deposited shall be paid to the Corporation from time
to time.
7. Authorization and Issuance of Other Securities. No
consent of the holders of the Cumulative Preferred Stock shall be
required for (a) the creation of any indebtedness of any kind of the
Corporation, (b) the creation, or increase or decrease in the amount, of
any class or series of stock of the Corporation not ranking prior as to
dividends or upon liquidation, dissolution or winding up to the
Cumulative Preferred Stock or (c) any increase or decrease in the amount
of authorized Common Stock or any increase, decrease or change in the
par value thereof or in any other terms thereof.
8. Amendment of Resolution. The Board and the Committee
each reserves the right by subsequent amendment of this resolution from
time to time to increase or decrease the number of shares that
constitute the Cumulative Preferred Stock (but not below the number of
shares thereof then outstanding) and in other respects to amend this
resolution within the limitations provided by law, this resolution and
the Certificate of Incorporation.
9. Rank. For the purposes of this resolution, any stock
of any class or classes of the Corporation shall be deemed to rank:
9
(a) prior to shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation, dissolution
or winding up, or both, if the holders of stock of such class
or classes shall be entitled by the terms thereof to the
receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
preference or priority to the holders of shares of the
Cumulative Preferred Stock;
(b) on a parity with shares of the Cumulative
Preferred Stock, either as to dividends or upon liquidation,
dissolution or winding up, or both, whether or not the dividend
rates, dividend payment dates, or redemption or liquidation
prices per share thereof be different from those of the
Cumulative Preferred Stock, if the holders of stock of such
class or classes shall be entitled by the terms thereof to the
receipt of dividends or of amounts distributed upon
liquidation, dissolution or winding up, as the case may be, in
proportion to their respective dividend rates or liquidation
prices, without preference or priority of one over the other as
between the holders of such stock and the holders of shares of
Cumulative Preferred Stock (the term "Parity Preferred Stock"
being used to refer to any stock on a parity with the shares of
Cumulative Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, as the context
may require); and
(c) junior to shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation, dissolution
or winding up, or both, if such class shall be Common Stock or
if the holders of the Cumulative Preferred Stock shall be
entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up, as
the case may be, in preference or priority to the holders of
stock in such class or classes.
The Cumulative Preferred Stock shall rank prior, as to
dividends and upon liquidation, dissolution or winding up, to the Common
Stock and on a parity with the Corporation's ESOP Convertible
10
Preferred Stock, with a liquidation value of $35.88
per share, the Corporation's 9.36% Cumulative
Preferred Stock, with a liquidation value of $25.00
per share, the Corporation's 8.88% Cumulative
Preferred Stock, with a liquidation value of $200.00
per share, the Corporation's 8-3/4% Cumulative
Preferred Stock, with a liquidation value of $200.00
per share, the Corporation's 7-3/8% Cumulative
Preferred Stock, with a liquidation value of $200.00
per share and, if issued, the Corporation's 7.82%
Cumulative Preferred Stock with a liquidation value
of $200.00 per share.
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has caused
this Certificate to be made under the seal of the Corporation and signed
by Richard B. Fisher, its Chairman, and attested by Patricia A. Kurtz,
its Assistant Secretary, this 4 day of February, 1994.
MORGAN STANLEY GROUP INC.
By: /s/ Richard B. Fisher
---------------------------
Name: Richard B. Fisher
Title: Chairman of the Board
[SEAL]
Attest:
/s/ Patricia A. Kurtz
- -------------------------
Patricia A. Kurtz
Assistant Secretary
CERTIFICATE OF DECREASE
OF
AUTHORIZED NUMBER OF SHARES
OF
7.82% CUMULATIVE PREFERRED STOCK
Morgan Stanley Group Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
That the Restated Certificate of Incorporation of the Corporation was
filed in the Office of the Secretary of State of Delaware on September 15, 1992
and forwarded for recording in the Office of the Recorder of Deeds for Kent
County, Delaware on September 15, 1992 and a Certificate of Designation of
Preferences and Rights ("Certificate of Designation") of the 7.82% Cumulative
Preferred Stock, was filed in said Office of the Secretary of State on November
24, 1993 and forwarded for recording in the office of the Recorder of Deeds on
even date therewith.
That pursuant to authority expressly granted to and vested in the
Pricing Committee of the Board of Directors of the Corporation (the "Pricing
Committee"), by resolutions duly adopted by said Board of Directors on October
29, 1993 (the "Resolutions"), the Pricing Committee fixed certain designations,
preferences and rights of the aforesaid 7.82% Cumulative Preferred Stock as set
forth in the Certificate of Designation.
That pursuant to authority expressly granted to and vested in the
Pricing Committee by the Resolutions, the Pricing Committee by a written
unanimous consent in lieu of a meeting dated as of April 12, 1994 duly adopted
a resolution authorizing and directing a decrease in the authorized number of
shares of the 7.82% Cumulative Preferred Stock of the Corporation, from 682,813
shares to 611,238 shares and providing that the 71,575 shares of the 7.82%
Cumulative Preferred Stock designated by the Pricing Committee but not issued
and outstanding resume the status of authorized and unissued Preferred Stock,
all in accordance with the provisions of Section 151 of The General Corporation
Law of the State of Delaware and the aforesaid Restated Certificate of
Incorporation of the Corporation.
IN WITNESS WHEREOF, said Morgan Stanley Group Inc., has caused this
certificate to be signed by Richard B. Fisher, its Chairman, and attested by
Patricia A. Kurtz, its Assistant Secretary, this 12 day of April, 1994.
By /s/ Richard B. Fisher
------------------------------
Name: Richard B. Fisher
Title: Chairman
ATTEST:
By /s/ Patricia A. Kurtz
------------------------------
Name: Patricia A. Kurtz
Title: Assistant Secretary
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE
9.00% CUMULATIVE PREFERRED STOCK
($200.00 Stated Value)
OF
MORGAN STANLEY GROUP INC.
------------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
------------------------------
The undersigned DOES HEREBY CERTIFY that the following resolution was
duly adopted by the Board of Directors (the "Board") of Morgan Stanley Group
-----
Inc., a Delaware corporation (hereinafter called the "Corporation"), by
-----------
unanimous written consent in lieu of a meeting dated as of October 29, 1993 with
certain of the designations, preferences and rights having been fixed by the
Pricing Committee of the Board (the "Committee") at a meeting on February 10,
---------
1995, pursuant to authority delegated to it by the Board pursuant to the
provisions of Section 141(c) of the General Corporation Law of the State of
Delaware:
RESOLVED that, pursuant to authority expressly granted to and vested
in the Committee by the Board and in the Board by provisions of the
Restated Certificate of Incorporation of the Corporation, as amended (the
"Certificate of Incorporation"), the issuance of a series of Preferred
-----------------------------
Stock, without par value (the "Preferred Stock"), which shall consist of
---------------
738,763 of the 30,000,000 shares of Preferred Stock which the Corporation
now has authority to issue, is authorized, and the Board and, pursuant to
the authority expressly granted to the Committee by the Board pursuant to
the provisions of Section 141(c) of the General Corporation Law of the
State of Delaware and the Certificate of Incorporation, the Committee fix
the powers, designations, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
powers, designations, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or restrictions
thereof, set
2
forth in the Certificate of Incorporation which may be applicable to the
Preferred Stock) as follows:
1. Designation and Amount; Fractional Shares. The designation
-----------------------------------------
for such series of the Preferred Stock authorized by this resolution
shall be the 9.00% Cumulative Preferred Stock, without par value, with
a stated value of $200.00 per share (the "Cumulative Preferred
--------------------
Stock"). The stated value per share of Cumulative Preferred Stock
------
shall not for any purpose be considered to be a determination by the
Board or the Committee with respect to the capital and surplus of the
Corporation. The maximum number of shares of Cumulative Preferred
Stock shall be 738,763. The Cumulative Preferred Stock is issuable in
whole shares only.
2. Dividends. Holders of shares of Cumulative Preferred Stock
---------
will be entitled to receive, when, as and if declared by the Board or
the Committee out of assets of the Corporation legally available for
payment, cash dividends payable quarterly at the rate of 9.00% per
annum. Dividends on the Cumulative Preferred Stock will be payable
quarterly on February 28, May 30, August 30 and November 30 (each a
"dividend payment date"). Dividends on shares of the Cumulative
----------------------
Preferred Stock will be cumulative from the date of initial issuance
of such shares of Cumulative Preferred Stock. Dividends will be
payable, in arrears, to holders of record as they appear on the stock
books of the Corporation on such record dates, not more than 60 days
nor less than 10 days preceding the payment dates thereof, as shall be
fixed by the Board or the Committee. The amount of dividends payable
for the initial dividend period or any period shorter than a full
dividend period shall be calculated on the basis of a 360-day year of
twelve 30-day months. No dividends may be declared or paid or set
apart for payment on any Parity Preferred Stock (as defined in
paragraph 9(b) below) with regard to the payment of dividends unless
there shall also be or have been declared and paid or set apart for
payment on the Cumulative Preferred Stock, like dividends for all
dividend payment periods of the Cumulative Preferred Stock ending on
or before the dividend payment date of such Parity Preferred Stock,
ratably in proportion to the respective amounts of dividends (x)
accumulated and unpaid or payable on such Parity Preferred Stock, on
the one hand, and (y) accumulated and unpaid through the dividend
payment period or periods of the Cumulative Preferred Stock next
preceding such dividend payment date, on the other hand.
Except as set forth in the preceding sentence, unless full
cumulative dividends on the Cumulative Preferred Stock have been paid,
no dividends (other than in Common Stock of the Corporation) may be
paid or declared and set aside for payment or other distribution made
upon the Common Stock or on any other stock of the Corporation ranking
junior to or on a parity with the
3
Cumulative Preferred Stock as to dividends, nor may any Common Stock
or any other stock of the Corporation ranking junior to or on a parity
with the Cumulative Preferred Stock as to dividends be redeemed,
purchased or otherwise acquired for any consideration (or any payment
be made to or available for a sinking fund for the redemption of any
shares of such stock; provided, however, that any moneys theretofore
deposited in any sinking fund with respect to any preferred stock of
the Corporation in compliance with the provisions of such sinking fund
may thereafter be applied to the purchase or redemption of such
preferred stock in accordance with the terms of such sinking fund,
regardless of whether at the time of such application full cumulative
dividends upon shares of the Cumulative Preferred Stock outstanding to
the last dividend payment date shall have been paid or declared and
set apart for payment) by the Corporation; provided that any such
junior or parity Preferred Stock or Common Stock may be converted into
or exchanged for stock of the Corporation ranking junior to the
Cumulative Preferred Stock as to dividends.
3. Liquidation Preference. The shares of Cumulative Preferred
----------------------
Stock shall rank, as to liquidation, dissolution or winding up of the
Corporation, prior to the shares of Common Stock and any other class
of stock of the Corporation ranking junior to the Cumulative Preferred
Stock as to rights upon liquidation, dissolution or winding up of the
Corporation, so that in the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, the
holders of the Cumulative Preferred Stock shall be entitled to receive
out of the assets of the Corporation available for distribution to its
stockholders, whether from capital, surplus or earnings, before any
distribution is made to holders of shares of Common Stock or any other
such junior stock, an amount equal to $200.00 per share (the
"Liquidation Preference" of a share of Cumulative Preferred Stock)
-----------------------
plus an amount equal to all dividends (whether or not earned or
declared) accrued and accumulated and unpaid on the shares of
Cumulative Preferred Stock to the date of final distribution. The
holders of the Cumulative Preferred Stock will not be entitled to
receive the Liquidation Preference until the liquidation preference of
any other class of stock of the Corporation ranking senior to the
Cumulative Preferred Stock as to rights upon liquidation, dissolution
or winding up shall have been paid (or a sum set aside therefor
sufficient to provide for payment) in full. After payment of the full
amount of the Liquidation Preference and such dividends, the holders
of shares of Cumulative Preferred Stock will not be entitled to any
further participation in any distribution of assets by the
Corporation. If, upon any liquidation, dissolution or winding up of
the Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of shares of Parity Preferred Stock
shall be insufficient to pay in full the preferential amount
aforesaid, then such assets, or the proceeds thereof, shall be
distributable among such holders
4
ratably in accordance with the respective amounts which would be
payable on such shares if all amounts payable thereon were paid in
full. For the purposes hereof, neither a consolidation or merger of
the Corporation with or into any other corporation, nor a merger of
any other corporation with or into the Corporation, nor a sale or
transfer of all or any part of the Corporation's assets for cash or
securities shall be considered a liquidation, dissolution or winding
up of the Corporation.
4. Conversion. The Cumulative Preferred Stock is not
----------
convertible into shares of any other class or series of stock of the
Corporation.
5. Voting Rights. The holders of shares of Cumulative Preferred
-------------
Stock shall have no voting rights whatsoever, except for any voting
rights to which they may be entitled under the laws of the State of
Delaware, and except as follows:
(a) Whenever, at any time or times, dividends payable on the
shares of Cumulative Preferred Stock or on any Parity Preferred
Stock with respect to payment of dividends, shall be in arrears
for an aggregate number of days equal to six calendar quarters or
more, whether or not consecutive, the holders of the outstanding
shares of Cumulative Preferred Stock shall have the right, with
holders of shares of any one or more other class or series of
stock upon which like voting rights have been conferred and are
exercisable (voting together as a class), to elect two of the
authorized number of members of the Board at the Corporation's
next annual meeting of stockholders and at each subsequent annual
meeting of stockholders until such arrearages have been paid or
set apart for payment, at which time such right shall terminate,
except as herein or by law expressly provided, subject to
revesting in the event of each and every subsequent default of
the character above mentioned. Upon any termination of the right
of the holders of shares of Cumulative Preferred Stock as a class
to vote for directors as herein provided, the term of office of
all directors then in office elected by the holders of shares of
Cumulative Preferred Stock shall terminate immediately.
Any director who shall have been so elected pursuant to this
paragraph may be removed at any time, either with or without
cause. Any vacancy thereby created may be filled only by the
affirmative vote of the holders of shares of Cumulative Preferred
Stock voting separately as a class (together with the holders of
shares of any other class or series of stock upon which like
voting rights have been conferred and are exercisable). If the
office of any director elected by the holders of shares of
Cumulative Preferred Stock voting as a class becomes vacant
5
for any reason other than removal from office as aforesaid, the
remaining director elected pursuant to this paragraph may choose
a successor who shall hold office for the unexpired term in
respect of which such vacancy occurred. At elections for such
directors, each holder of shares of Cumulative Preferred Stock
shall be entitled to one vote for each share held (the holders of
shares of any other class or series of preferred stock having
like voting rights being entitled to such number of votes, if
any, for each share of such stock held as may be granted to
them).
(b) So long as any shares of Cumulative Preferred Stock
remain outstanding, the consent of the holders of at least two-
thirds of the shares of Cumulative Preferred Stock outstanding at
the time and all other classes or series of stock upon which like
voting rights have been conferred and are exercisable (voting
together as a class) given in person or by proxy, either in
writing or at any meeting called for the purpose, shall be
necessary to permit, effect or validate any one or more of the
following:
(i) the issuance or increase of the authorized amount
of any class or series of shares ranking prior (as that term
is defined in paragraph 9(a) hereof) to the shares of the
Cumulative Preferred Stock; or
(ii) the amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Certificate of Incorporation, (including this
resolution or any provision hereof) that would materially
and adversely affect any power, preference, or special right
of the shares of Cumulative Preferred Stock or of the
holders thereof;
provided, however, that any increase in the amount of
authorized Common Stock or authorized Preferred Stock or any
increase or decrease in the number of shares of any series
of Preferred Stock or the creation and issuance of other
series of Common Stock or Preferred Stock, in each case
ranking on a parity with or junior to the shares of
Cumulative Preferred Stock with respect to the payment of
dividends and the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to materially
and adversely affect such powers, preferences or special
rights.
(c) The foregoing voting provisions shall not apply if, at
or prior to the time when the act with respect to which such vote
would
6
otherwise be required shall be effected, all outstanding shares
of Cumulative Preferred Stock shall have been redeemed or called
for redemption and sufficient funds shall have been deposited in
trust to effect such redemption.
6. Redemption Shares. The shares of the Cumulative Preferred
-----------------
Stock may be redeemed at the option of the Corporation, as a whole, or
from time to time in part, at any time, upon not less than 30 days'
prior notice mailed to the holders of the shares to be redeemed at
their addresses as shown on the stock books of the Corporation;
provided, however, that shares of the Cumulative Preferred Stock shall
not be redeemable prior to February 28, 2000. Subject to the
foregoing, on or after such date, shares of the Cumulative Preferred
Stock are redeemable at $200.00 per share together with an amount
equal to all dividends (whether or not earned or declared) accrued and
accumulated and unpaid to, but excluding, the date fixed for
redemption.
If full cumulative dividends on the Cumulative Preferred Stock
have not been paid, the Cumulative Preferred Stock may not be redeemed
in part and the Corporation may not purchase or acquire any shares of
the Cumulative Preferred Stock otherwise than pursuant to a purchase
or exchange offer made on the same terms to all holders of the
Cumulative Preferred Stock. If fewer than all the outstanding shares
of Cumulative Preferred Stock are to be redeemed, the Corporation will
select those to be redeemed by lot or a substantially equivalent
method.
If a notice of redemption has been given pursuant to this
paragraph 6 and if, on or before the date fixed for redemption, the
funds necessary for such redemption shall have been set aside by the
Corporation, separate and apart from its other funds, in trust for the
pro rata benefit of the holders of the shares of Cumulative Preferred
Stock so called for redemption, then, notwithstanding that any
certificates for such shares have not been surrendered for
cancellation, on the redemption date dividends shall cease to accrue
on the shares to be redeemed, and at the close of business on the
redemption date the holders of such shares shall cease to be
stockholders with respect to such shares and shall have no interest in
or claims against the Corporation by virtue thereof and shall have no
voting or other rights with respect to such shares, except the right
to receive the moneys payable upon surrender (and endorsement, if
required by the Corporation) of their certificates, and the shares
evidenced thereby shall no longer be outstanding. Subject to
applicable escheat laws, any moneys so set aside by the Corporation
and unclaimed at the end of two years from the redemption date shall
revert to the general funds of the Corporation, after which reversion
the holders of such shares so called for redemption shall look only to
the general funds of the Corporation for the
7
payment of the amounts payable upon such redemption. Any interest
accrued on funds so deposited shall be paid to the Corporation from
time to time.
7. Authorization and Issuance of Other Securities. No consent
----------------------------------------------
of the holders of the Cumulative Preferred Stock shall be required for
(a) the creation of any indebtedness of any kind of the Corporation,
(b) the creation, or increase or decrease in the amount, of any class
or series of stock of the Corporation not ranking prior as to
dividends or upon liquidation, dissolution or winding up to the
Cumulative Preferred Stock or (c) any increase or decrease in the
amount of authorized Common Stock or any increase, decrease or change
in the par value thereof or in any other terms thereof.
8. Amendment of Resolution. The Board and the Committee each
-----------------------
reserves the right by subsequent amendment of this resolution from
time to time to increase or decrease the number of shares that
constitute the Cumulative Preferred Stock (but not below the number of
shares thereof then outstanding) and in other respects to amend this
resolution within the limitations provided by law, this resolution and
the Certificate of Incorporation.
9. Rank. For the purposes of this resolution, any stock of
----
any class or classes of the Corporation shall be deemed to rank:
(a) prior to shares of the Cumulative Preferred Stock,
either as to dividends or upon liquidation, dissolution or
winding up, or both, if the holders of stock of such class or
classes shall be entitled by the terms thereof to the receipt of
dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or
priority to the holders of shares of the Cumulative Preferred
Stock;
(b) on a parity with shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation, dissolution or
winding up, or both, whether or not the dividend rates, dividend
payment dates, or redemption or liquidation prices per share
thereof be different from those of the Cumulative Preferred
Stock, if the holders of stock of such class or classes shall be
entitled by the terms thereof to the receipt of dividends or of
amounts distributed upon liquidation, dissolution or winding up,
as the case may be, in proportion to their respective dividend
rates or liquidation prices, without preference or priority of
one over the other as between the holders of such stock and the
holders of shares of Cumulative Preferred Stock (the term "Parity
------
Preferred Stock" being used to refer to any stock on a parity
---------------
with the shares of
8
Cumulative Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, as the context
may require); and
(c) junior to shares of the Cumulative Preferred Stock,
either as to dividends or upon liquidation, dissolution or
winding up, or both, if such class shall be Common Stock or if
the holders of the Cumulative Preferred Stock shall be entitled
to the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
preference or priority to the holders of stock of such class or
classes.
The Cumulative Preferred Stock shall rank prior, as to dividends
and upon liquidation, dissolution or winding up, to the Common Stock and on
a parity with (i) the Corporation's ESOP Convertible Preferred Stock, with
a liquidation value of $35.88 per share, (ii) the Corporation's 9.36%
Cumulative Preferred Stock, with a liquidation value of $25.00 per share,
(iii) the Corporation's 8.88% Cumulative Preferred Stock, with a
liquidation value of $200.00 per share, (iv) the Corporation's 8-3/4%
Cumulative Preferred Stock, with a liquidation value of $200.00 per share,
(v) the Corporation's 7-3/8% Cumulative Preferred Stock, with a liquidation
value of $200.00 per share, (vi) if issued, the Corporation's 7.82%
Cumulative Preferred Stock, with a liquidation value of $200.00 per share
and (vii) if issued, the Corporation's 7.80% Cumulative Preferred Stock,
with a liquidation value of $200.00 per share.
9
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has caused this
Certificate to be made under the seal of the Corporation and signed by
Richard B. Fisher, its Chairman, and attested by Patricia A. Kurtz, its
Assistant Secretary, this 14th day of February, 1995.
MORGAN STANLEY GROUP INC.
By: /s/ Richard B. Fisher
-----------------------------------------
Name: Richard B. Fisher
Title: Chairman of the Board
[SEAL]
ATTEST:
/s/ Patricia A. Kurtz
- ----------------------------------
Name: Patricia A. Kurtz
Title: Assistant Secretary
CERTIFICATE OF DECREASE
OF
AUTHORIZED NUMBER OF SHARES
OF
9.00% CUMULATIVE PREFERRED STOCK
Morgan Stanley Group Inc., a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
That the Restated Certificate of Incorporation of the
Corporation was filed in the Office of the Secretary of State of Delaware on
September 15, 1992 and forwarded for recording in the Office of the Recorder of
Deeds for Kent County, Delaware on September 15, 1992 and a Certificate of
Designation of Preferences and Rights ("Certificate of Designation") of the
9.00% Cumulative Preferred Stock, was filed in said Office of the Secretary of
State on February 17, 1995 and forwarded for recording in the office of the
Recorder of Deeds on even date therewith.
That pursuant to authority expressly granted to and vested in
the Pricing Committee of the Board of Directors of the Corporation (the "Pricing
Committee"), by resolutions duly adopted by said Board of Directors on October
29, 1993 (the "Resolutions"), the Pricing Committee fixed certain designations,
preferences and rights of the aforesaid 9.00% Cumulative Preferred Stock as set
forth in the Certificate of Designation.
That pursuant to authority expressly granted to and vested in
the Pricing Committee by the Resolutions, the Pricing Committee by a written
unanimous consent in lieu of a meeting dated as of March 9, 1995 duly adopted a
resolution authorizing and directing a decrease in the authorized number of
shares of the 9.00% Cumulative Preferred Stock of the Corporation, from 738,763
shares to 720,900 shares and providing that the 17,863 shares of the 9.00%
Cumulative Preferred Stock designated by the Pricing Committee but not issued
and outstanding resume the status of authorized and unissued Preferred Stock,
all in accordance with the provisions of Section 151 of The General Corporation
Law of the State of Delaware and the aforesaid Restated Certificate of
Incorporation of the Corporation.
IN WITNESS WHEREOF, said Morgan Stanley Group Inc., has caused
this certificate to be signed by Richard B. Fisher, its Chairman, and attested
by Patricia A. Kurtz, its Assistant Secretary, this 13th day of March, 1995.
By /s/ Richard B. Fisher
--------------------------------
Name: Richard B. Fisher
Title: Chairman
ATTEST:
By /s/ Patricia A. Kurtz
-------------------------------
Name: Patricia A. Kurtz
Title: Assistant Secretary
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE
8.40% CUMULATIVE PREFERRED STOCK
($200.00 Stated Value)
OF
MORGAN STANLEY GROUP INC.
----------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
----------
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Board of Directors (the "Board") of Morgan
Stanley Group Inc., a Delaware corporation (hereinafter called the
"Corporation"), by unanimous written consent in lieu of a meeting dated as of
April 12, 1995 with certain of the designations, preferences and rights having
been fixed by the Pricing Committee of the Board (the "Committee") at a meeting
on July 27, 1995, pursuant to authority delegated to it by the Board pursuant to
the provisions of Section 141(c) of the General Corporation Law of the State of
Delaware:
RESOLVED that, pursuant to authority expressly granted to and
vested in the Committee by the Board and in the Board by provisions of
the Restated Certificate of Incorporation of the Corporation, as
amended (the "Certificate of Incorporation"), the issuance of a series
of Preferred Stock, without par value (the "Preferred Stock"), which
shall consist of 1,006,250 of the 30,000,000 shares of Preferred Stock
which the Corporation now has authority to issue, is authorized, and
the Board and, pursuant to the authority expressly granted to the
Committee by the Board pursuant to the provisions of Section 141(c) of
the General Corporation Law of the State of Delaware and the
Certificate of Incorporation, the Committee fix the powers,
designations, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
powers, designations, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations or
restrictions thereof, set
2
forth in the Certificate of Incorporation which may be applicable
to the Preferred Stock) as follows:
1. Designation and Amount; Fractional Shares. The
designation for such series of the Preferred Stock authorized
by this resolution shall be the 8.40% Cumulative Preferred
Stock, without par value, with a stated value of $200.00 per
share (the "Cumulative Preferred Stock"). The stated value per
share of Cumulative Preferred Stock shall not for any purpose
be considered to be a determination by the Board or the
Committee with respect to the capital and surplus of the
Corporation. The total number of shares of Cumulative
Preferred Stock shall be 1,006,250. The Cumulative Preferred
Stock is issuable in whole shares only.
2. Dividends. Holders of shares of Cumulative
Preferred Stock will be entitled to receive, when, as and if
declared by the Board or the Committee out of assets of the
Corporation legally available for payment, cash dividends
payable quarterly at the rate of 8.40% per annum. Dividends on
the Cumulative Preferred Stock will be payable quarterly on
February 28, May 30, August 30 and November 30 (each a
"dividend payment date"). Dividends on shares of the
Cumulative Preferred Stock will be cumulative from the date of
initial issuance of such shares of Cumulative Preferred Stock.
Dividends will be payable, in arrears, to holders of record as
they appear on the stock books of the Corporation on such
record dates, not more than 60 days nor less than 10 days
preceding the payment dates thereof, as shall be fixed by the
Board or the Committee. The amount of dividends payable for
the initial dividend period or any period shorter than a full
dividend period shall be calculated on the basis of a 360-day
year of twelve 30-day months. No dividends may be declared or
paid or set apart for payment on any Parity Preferred Stock
(as defined in paragraph 9(b) below) with regard to the
payment of dividends unless there shall also be or have been
declared and paid or set apart for payment on the Cumulative
Preferred Stock, like dividends for all dividend payment
periods of the Cumulative Preferred Stock ending on or before
the dividend payment date of such Parity Preferred Stock,
ratably in proportion to the respective amounts of dividends
(x) accumulated and unpaid or payable on such Parity Preferred
Stock, on the one hand, and (y) accumulated and unpaid through
the dividend payment period or periods of the Cumulative
Preferred Stock next preceding such dividend payment date, on
the other hand.
Except as set forth in the preceding sentence, unless
full cumulative dividends on the Cumulative Preferred Stock
have been paid, no dividends (other than in Common Stock of
the Corporation) may be paid or declared and set aside for
payment or other distribution made upon the Common Stock or on
any other stock of the Corporation ranking junior to or on a
parity with the
3
Cumulative Preferred Stock as to dividends, nor may any Common
Stock or any other stock of the Corporation ranking junior to
or on a parity with the Cumulative Preferred Stock as to
dividends be redeemed, purchased or otherwise acquired for any
consideration (or any payment be made to or available for a
sinking fund for the redemption of any shares of such stock;
provided, however, that any moneys theretofore deposited in
any sinking fund with respect to any preferred stock of the
Corporation in compliance with the provisions of such sinking
fund may thereafter be applied to the purchase or redemption
of such preferred stock in accordance with the terms of such
sinking fund, regardless of whether at the time of such
application full cumulative dividends upon shares of the
Cumulative Preferred Stock outstanding to the last dividend
payment date shall have been paid or declared and set apart
for payment) by the Corporation; provided that any such junior
or parity Preferred Stock or Common Stock may be converted
into or exchanged for stock of the Corporation ranking junior
to the Cumulative Preferred Stock as to dividends.
3. Liquidation Preference. The shares of Cumulative
Preferred Stock shall rank, as to liquidation, dissolution or
winding up of the Corporation, prior to the shares of Common
Stock and any other class of stock of the Corporation ranking
junior to the Cumulative Preferred Stock as to rights upon
liquidation, dissolution or winding up of the Corporation, so
that in the event of any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, the
holders of the Cumulative Preferred Stock shall be entitled to
receive out of the assets of the Corporation available for
distribution to its stockholders, whether from capital,
surplus or earnings, before any distribution is made to
holders of shares of Common Stock or any other such junior
stock, an amount equal to $200.00 per share (the "Liquidation
Preference" of a share of Cumulative Preferred Stock) plus an
amount equal to all dividends (whether or not earned or
declared) accrued and accumulated and unpaid on the shares of
Cumulative Preferred Stock to the date of final distribution.
The holders of the Cumulative Preferred Stock will not be
entitled to receive the Liquidation Preference until the
liquidation preference of any other class of stock of the
Corporation ranking senior to the Cumulative Preferred Stock
as to rights upon liquidation, dissolution or winding up shall
have been paid (or a sum set aside therefor sufficient to
provide for payment) in full. After payment of the full amount
of the Liquidation Preference and such dividends, the holders
of shares of Cumulative Preferred Stock will not be entitled
to any further participation in any distribution of assets by
the Corporation. If, upon any liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation,
or proceeds thereof, distributable among the holders of shares
of Parity Preferred Stock shall be insufficient to pay in full
the preferential amount aforesaid, then such assets, or the
proceeds thereof, shall be distributable among such holders
4
ratably in accordance with the respective amounts which would
be payable on such shares if all amounts payable thereon were
paid in full. For the purposes hereof, neither a consolidation
or merger of the Corporation with or into any other
corporation, nor a merger of any other corporation with or
into the Corporation, nor a sale or transfer of all or any
part of the Corporation's assets for cash or securities shall
be considered a liquidation, dissolution or winding up of the
Corporation.
4. Conversion. The Cumulative Preferred Stock is
not convertible into shares of any other class or series of
stock of the Corporation.
5. Voting Rights. The holders of shares of
Cumulative Preferred Stock shall have no voting rights
whatsoever, except for any voting rights to which they may be
entitled under the laws of the State of Delaware, and
except as follows:
(a) Whenever, at any time or times,
dividends payable on the shares of Cumulative
Preferred Stock or on any Parity Preferred Stock with
respect to payment of dividends, shall be in arrears
for an aggregate number of days equal to six calendar
quarters or more, whether or not consecutive, the
holders of the outstanding shares of Cumulative
Preferred Stock shall have the right, with holders of
shares of any one or more other class or series of
stock upon which like voting rights have been
conferred and are exercisable (voting together as a
class), to elect two of the authorized number of
members of the Board at the Corporation's next annual
meeting of stockholders and at each subsequent annual
meeting of stockholders until such arrearages have
been paid or set apart for payment, at which time
such right shall terminate, except as herein or by
law expressly provided, subject to revesting in the
event of each and every subsequent default of the
character above mentioned. Upon any termination of
the right of the holders of shares of Cumulative
Preferred Stock as a class to vote for directors as
herein provided, the term of office of all directors
then in office elected by the holders of shares of
Cumulative Preferred Stock shall terminate
immediately.
Any director who shall have been so elected pursuant
to this paragraph may be removed at any time, either
with or without cause. Any vacancy thereby created
may be filled only by the affirmative vote of the
holders of shares of Cumulative Preferred Stock
voting separately as a class (together with the
holders of shares of any other class or series of
stock upon which like voting rights have been
conferred and are exercisable). If the office of any
director elected by the holders of shares of
Cumulative Preferred Stock voting as a class becomes
vacant
5
for any reason other than removal from office as
aforesaid, the remaining director elected pursuant to
this paragraph may choose a successor who shall hold
office for the unexpired term in respect of which
such vacancy occurred. At elections for such
directors, each holder of shares of Cumulative
Preferred Stock shall be entitled to one vote for
each share held (the holders of shares of any other
class or series of preferred stock having like voting
rights being entitled to such number of votes, if
any, for each share of such stock held as may be
granted to them).
(b) So long as any shares of Cumulative
Preferred Stock remain outstanding, the consent of
the holders of at least two-thirds of the shares of
Cumulative Preferred Stock outstanding at the time
and all other classes or series of stock upon which
like voting rights have been conferred and are
exercisable (voting together as a class) given in
person or by proxy, either in writing or at any
meeting called for the purpose, shall be necessary to
permit, effect or validate any one or more of the
following:
(i) the issuance or increase of the
authorized amount of any class or series of
shares ranking prior (as that term is
defined in paragraph 9(a) hereof) to the
shares of the Cumulative Preferred Stock; or
(ii) the amendment, alteration or
repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the
Certificate of Incorporation, (including
this resolution or any provision hereof)
that would materially and adversely affect
any power, preference, or special right of
the shares of Cumulative Preferred Stock or
of the holders thereof; provided, however,
that any increase in the amount of
authorized Common Stock or authorized
Preferred Stock or any increase or decrease
in the number of shares of any series of
Preferred Stock or the creation and issuance
of other series of Common Stock or Preferred
Stock, in each case ranking on a parity with
or junior to the shares of Cumulative
Preferred Stock with respect to the payment
of dividends and the distribution of assets
upon liquidation, dissolution or winding up,
shall not be deemed to materially and
adversely affect such powers, preferences or
special rights.
(c) The foregoing voting provisions shall
not apply if, at or prior to the time when the act
with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of
6
Cumulative Preferred Stock shall have been redeemed
or called for redemption and sufficient funds shall
have been deposited in trust to effect such
redemption.
6. Redemption Shares. The shares of the Cumulative
Preferred Stock may be redeemed at the option of the
Corporation, as a whole, or from time to time in part, at any
time, upon not less than 30 days' prior notice mailed to the
holders of the shares to be redeemed at their addresses as
shown on the stock books of the Corporation; provided,
however, that shares of the Cumulative Preferred Stock shall
not be redeemable prior to August 30, 2000. Subject to the
foregoing, on or after such date, shares of the Cumulative
Preferred Stock are redeemable at $200.00 per share together
with an amount equal to all dividends (whether or not earned
or declared) accrued and accumulated and unpaid to, but
excluding, the date fixed for redemption.
If full cumulative dividends on the Cumulative
Preferred Stock have not been paid, the Cumulative Preferred
Stock may not be redeemed in part and the Corporation may not
purchase or acquire any shares of the Cumulative Preferred
Stock otherwise than pursuant to a purchase or exchange offer
made on the same terms to all holders of the Cumulative
Preferred Stock. If fewer than all the outstanding shares of
Cumulative Preferred Stock are to be redeemed, the Corporation
will select those to be redeemed by lot or a substantially
equivalent method.
If a notice of redemption has been given pursuant to
this paragraph 6 and if, on or before the date fixed for
redemption, the funds necessary for such redemption shall have
been set aside by the Corporation, separate and apart from its
other funds, in trust for the pro rata benefit of the holders
of the shares of Cumulative Preferred Stock so called for
redemption, then, notwithstanding that any certificates for
such shares have not been surrendered for cancellation, on the
redemption date dividends shall cease to accrue on the shares
to be redeemed, and at the close of business on the redemption
date the holders of such shares shall cease to be stockholders
with respect to such shares and shall have no interest in or
claims against the Corporation by virtue thereof and shall
have no voting or other rights with respect to such shares,
except the right to receive the moneys payable upon surrender
(and endorsement, if required by the Corporation) of their
certificates, and the shares evidenced thereby shall no longer
be outstanding. Subject to applicable escheat laws, any moneys
so set aside by the Corporation and unclaimed at the end of
two years from the redemption date shall revert to the general
funds of the Corporation, after which reversion the holders of
such shares so called for redemption shall look only to the
general funds of the Corporation for the payment of the
amounts payable upon such redemption. Any interest accrued on
funds so deposited shall be paid to the Corporation from time
to time.
7
7. Authorization and Issuance of Other Securities. No
consent of the holders of the Cumulative Preferred Stock shall
be required for (a) the creation of any indebtedness of any
kind of the Corporation, (b) the creation, or increase or
decrease in the amount, of any class or series of stock of the
Corporation not ranking prior as to dividends or upon
liquidation, dissolution or winding up to the Cumulative
Preferred Stock or (c) any increase or decrease in the amount
of authorized Common Stock or any increase, decrease or change
in the par value thereof or in any other terms thereof.
8. Amendment of Resolution. The Board and the
Committee each reserves the right by subsequent amendment of
this resolution from time to time to increase or decrease the
number of shares that constitute the Cumulative Preferred
Stock (but not below the number of shares thereof then
outstanding) and in other respects to amend this resolution
within the limitations provided by law, this resolution and
the Certificate of Incorporation.
9. Rank. For the purposes of this resolution, any
stock of any class or classes of the Corporation shall be
deemed to rank:
(a) prior to shares of the Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, if
the holders of stock of such class or classes shall
be entitled by the terms thereof to the receipt of
dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case
may be, in preference or priority to the holders of
shares of the Cumulative Preferred Stock;
(b) on a parity with shares of the
Cumulative Preferred Stock, either as to dividends or
upon liquidation, dissolution or winding up, or both,
whether or not the dividend rates, dividend payment
dates, or redemption or liquidation prices per share
thereof be different from those of the Cumulative
Preferred Stock, if the holders of stock of such
class or classes shall be entitled by the terms
thereof to the receipt of dividends or of amounts
distributed upon liquidation, dissolution or winding
up, as the case may be, in proportion to their
respective dividend rates or liquidation prices,
without preference or priority of one over the other
as between the holders of such stock and the holders
of shares of Cumulative Preferred Stock (the term
"Parity Preferred Stock" being used to refer to any
stock on a parity with the shares of Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, as
the context may require); and
8
(c) junior to shares of the Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, if
such class shall be Common Stock or if the holders of
the Cumulative Preferred Stock shall be entitled to
the receipt of dividends or of amounts distributable
upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders
of stock of such class or classes.
The Cumulative Preferred Stock shall rank prior, as
to dividends and upon liquidation, dissolution or winding up,
to the Common Stock and on a parity with (i) the Corporation's
ESOP Convertible Preferred Stock, with a liquidation value of
$35.88 per share, (ii) the Corporation's 9.36% Cumulative
Preferred Stock, with a liquidation value of $25.00 per share,
(iii) the Corporation's 8.88% Cumulative Preferred Stock, with
a liquidation value of $200.00 per share, (iv) the
Corporation's 8-3/4% Cumulative Preferred Stock, with a
liquidation value of $200.00 per share, (v) the Corporation's
7-3/8% Cumulative Preferred Stock, with a liquidation value of
$200.00 per share, (vi) if issued, the Corporation's 7.82%
Cumulative Preferred Stock, with a liquidation value of
$200.00 per share, (vii) if issued, the Corporation's 7.80%
Cumulative Preferred Stock, with a liquidation value of
$200.00 per share and (viii) if issued, the Corporation's
9.00% Cumulative Preferred Stock, with a liquidation value of
$200.00 per share.
9
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has
caused this Certificate to be made under the seal of the Corporation
and signed by Richard B. Fisher, its Chairman, and attested by Patricia
A. Kurtz, its Assistant Secretary, this 27th day of July, 1995.
MORGAN STANLEY GROUP INC.
By: /s/ Richard B. Fisher
-----------------------------------
Name: Richard B. Fisher
Title: Chairman of the Board
[SEAL]
Attest:
/s/ Patricia A. Kurtz
- ----------------------------
Patricia A. Kurtz
Assistant Secretary
CERTIFICATE OF DECREASE
OF
AUTHORIZED NUMBER OF SHARES
OF
8.40% CUMULATIVE PREFERRED STOCK
Morgan Stanley Group Inc., a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
That the Restated Certificate of Incorporation of the
Corporation was filed in the Office of the Secretary of State of Delaware on
September 15, 1992 and forwarded for recording in the Office of the Recorder of
Deeds for Kent County, Delaware on September 15, 1992 and a Certificate of
Designation of Preferences and Rights ("Certificate of Designation") of the
8.40% Cumulative Preferred Stock, was filed in said Office of the Secretary of
State on July 31, 1995 and forwarded for recording in the office of the Recorder
of Deeds on even date therewith.
That pursuant to authority expressly granted to and vested in
the Pricing Committee of the Board of Directors of the Corporation (the "Pricing
Committee"), by resolutions duly adopted by said Board of Directors on April 12,
1995 (the "Resolutions"), the Pricing Committee fixed certain designations,
preferences and rights of the aforesaid 8.40% Cumulative Preferred Stock as set
forth in the Certificate of Designation.
That pursuant to authority expressly granted to and vested in the
Pricing Committee by the Resolutions, the Pricing Committee by a written
unanimous consent in lieu of a meeting dated as of September 6, 1995 duly
adopted a resolution authorizing and directing a decrease in the authorized
number of shares of the 8.40% Cumulative Preferred Stock of the Corporation,
from 1,006,250 shares to 996,776 shares and providing that the 9,474 shares of
the 8.40% Cumulative Preferred Stock designated by the Pricing Committee but not
issued and outstanding resume the status of authorized and unissued Preferred
Stock, all in accordance with the provisions of Section 151 of The General
Corporation Law of the State of Delaware and the aforesaid Restated Certificate
of Incorporation of the Corporation.
IN WITNESS WHEREOF, said Morgan Stanley Group Inc., has caused
this certificate to be signed by Richard B. Fisher, its Chairman, and attested
by Patricia A. Kurtz, its Assistant Secretary, this 6th day of September, 1995.
By /s/ Richard B. Fisher
---------------------------------
Name: Richard B. Fisher
Title: Chairman
ATTEST:
By /s/ Patricia A. Kurtz
----------------------------------
Name: Patricia A. Kurtz
Title: Assistant Secretary
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE
8.20% CUMULATIVE PREFERRED STOCK
($200.00 Stated Value)
OF
MORGAN STANLEY GROUP INC.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Board of Directors (the "Board") of Morgan
Stanley Group Inc., a Delaware corporation (hereinafter called the
"Corporation"), by unanimous written consent in lieu of a meeting dated as of
April 12, 1995 with certain of the designations, preferences and rights having
been fixed by the Pricing Committee of the Board (the "Committee") at a meeting
on October 13, 1995, pursuant to authority delegated to it by the Board pursuant
to the provisions of Section 141(c) of the General Corporation Law of the State
of Delaware:
RESOLVED that, pursuant to authority expressly granted to and
vested in the Committee by the Board and in the Board by provisions of
the Restated Certificate of Incorporation of the Corporation, as
amended (the "Certificate of Incorporation"), the issuance of a series
of Preferred Stock, without par value (the "Preferred Stock"), which
shall consist of 862,500 of the 30,000,000 shares of Preferred Stock
which the Corporation now has authority to issue, is authorized, and
the Board and, pursuant to the authority expressly granted to the
Committee by the Board pursuant to the provisions of Section 141(c) of
the General Corporation Law of the State of Delaware and the
Certificate of Incorporation, the Committee fix the powers,
designations, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
powers, designations, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations or
restrictions thereof, set
2
forth in the Certificate of Incorporation which may be applicable to
the Preferred Stock) as follows:
1. Designation and Amount; Fractional Shares. The
designation for such series of the Preferred Stock authorized
by this resolution shall be the 8.20% Cumulative Preferred
Stock, without par value, with a stated value of $200.00 per
share (the "Cumulative Preferred Stock"). The stated value per
share of Cumulative Preferred Stock shall not for any purpose
be considered to be a determination by the Board or the
Committee with respect to the capital and surplus of the
Corporation. The total number of shares of Cumulative
Preferred Stock shall be 862,500. The Cumulative Preferred
Stock is issuable in whole shares only.
2. Dividends. Holders of shares of Cumulative
Preferred Stock will be entitled to receive, when, as and if
declared by the Board or the Committee out of assets of the
Corporation legally available for payment, cash dividends
payable quarterly at the rate of 8.20% per annum. Dividends
on the Cumulative Preferred Stock will be payable quarterly on
February 28, May 30, August 30 and November 30 (each a
"dividend payment date"). Dividends on shares of the
Cumulative Preferred Stock will be cumulative from the date of
initial issuance of such shares of Cumulative Preferred Stock.
Dividends will be payable, in arrears, to holders of record as
they appear on the stock books of the Corporation on such
record dates, not more than 60 days nor less than 10 days
preceding the payment dates thereof, as shall be fixed by the
Board or the Committee. The amount of dividends payable for
the initial dividend period or any period shorter than a full
dividend period shall be calculated on the basis of a 360-day
year of twelve 30-day months. No dividends may be declared or
paid or set apart for payment on any Parity Preferred Stock
(as defined in paragraph 9(b) below) with regard to the
payment of dividends unless there shall also be or have been
declared and paid or set apart for payment on the Cumulative
Preferred Stock, like dividends for all dividend payment
periods of the Cumulative Preferred Stock ending on or before
the dividend payment date of such Parity Preferred Stock,
ratably in proportion to the respective amounts of dividends
(x) accumulated and unpaid or payable on such Parity Preferred
Stock, on the one hand, and (y) accumulated and unpaid through
the dividend payment period or periods of the Cumulative
Preferred Stock next preceding such dividend payment date, on
the other hand.
Except as set forth in the preceding sentence, unless
full cumulative dividends on the Cumulative Preferred Stock
have been paid, no dividends (other than in Common Stock of
the Corporation) may be paid or declared and set aside for
payment or other distribution made upon the Common Stock or on
any other stock of the Corporation ranking junior to or on a
parity with the
3
Cumulative Preferred Stock as to dividends, nor may any Common
Stock or any other stock of the Corporation ranking junior to
or on a parity with the Cumulative Preferred Stock as to
dividends be redeemed, purchased or otherwise acquired for any
consideration (or any payment be made to or available for a
sinking fund for the redemption of any shares of such stock;
provided, however, that any moneys theretofore deposited in
any sinking fund with respect to any preferred stock of the
Corporation in compliance with the provisions of such sinking
fund may thereafter be applied to the purchase or redemption
of such preferred stock in accordance with the terms of such
sinking fund, regardless of whether at the time of such
application full cumulative dividends upon shares of the
Cumulative Preferred Stock outstanding to the last dividend
payment date shall have been paid or declared and set apart
for payment) by the Corporation; provided that any such junior
or parity Preferred Stock or Common Stock may be converted
into or exchanged for stock of the Corporation ranking junior
to the Cumulative Preferred Stock as to dividends.
3. Liquidation Preference. The shares of Cumulative
Preferred Stock shall rank, as to liquidation, dissolution or
winding up of the Corporation, prior to the shares of Common
Stock and any other class of stock of the Corporation ranking
junior to the Cumulative Preferred Stock as to rights upon
liquidation, dissolution or winding up of the Corporation, so
that in the event of any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, the
holders of the Cumulative Preferred Stock shall be entitled to
receive out of the assets of the Corporation available for
distribution to its stockholders, whether from capital,
surplus or earnings, before any distribution is made to
holders of shares of Common Stock or any other such junior
stock, an amount equal to $200.00 per share (the "Liquidation
Preference" of a share of Cumulative Preferred Stock) plus an
amount equal to all dividends (whether or not earned or
declared) accrued and accumulated and unpaid on the shares of
Cumulative Preferred Stock to the date of final distribution.
The holders of the Cumulative Preferred Stock will not be
entitled to receive the Liquidation Preference until the
liquidation preference of any other class of stock of the
Corporation ranking senior to the Cumulative Preferred Stock
as to rights upon liquidation, dissolution or winding up shall
have been paid (or a sum set aside therefor sufficient to
provide for payment) in full. After payment of the full amount
of the Liquidation Preference and such dividends, the holders
of shares of Cumulative Preferred Stock will not be entitled
to any further participation in any distribution of assets by
the Corporation. If, upon any liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation,
or proceeds thereof, distributable among the holders of shares
of Parity Preferred Stock shall be insufficient to pay in full
the preferential amount aforesaid, then such assets, or the
proceeds thereof, shall be distributable among such holders
4
ratably in accordance with the respective amounts which would
be payable on such shares if all amounts payable thereon were
paid in full. For the purposes hereof, neither a consolidation
or merger of the Corporation with or into any other
corporation, nor a merger of any other corporation with or
into the Corporation, nor a sale or transfer of all or any
part of the Corporation's assets for cash or securities shall
be considered a liquidation, dissolution or winding up of the
Corporation.
4. Conversion. The Cumulative Preferred Stock
is not convertible into shares of any other class or series of
stock of the Corporation.
5. Voting Rights. The holders of shares of
Cumulative Preferred Stock shall have no voting rights
whatsoever, except for any voting rights to which they may be
entitled under the laws of the State of Delaware, and except
as follows:
(a) Whenever, at any time or times,
dividends payable on the shares of Cumulative
Preferred Stock or on any Parity Preferred Stock with
respect to payment of dividends, shall be in arrears
for an aggregate number of days equal to six calendar
quarters or more, whether or not consecutive, the
holders of the outstanding shares of Cumulative
Preferred Stock shall have the right, with holders of
shares of any one or more other class or series of
stock upon which like voting rights have been
conferred and are exercisable (voting together as a
class), to elect two of the authorized number of
members of the Board at the Corporation's next annual
meeting of stockholders and at each subsequent annual
meeting of stockholders until such arrearages have
been paid or set apart for payment, at which time
such right shall terminate, except as herein or by
law expressly provided, subject to revesting in the
event of each and every subsequent default of the
character above mentioned. Upon any termination of
the right of the holders of shares of Cumulative
Preferred Stock as a class to vote for directors as
herein provided, the term of office of all directors
then in office elected by the holders of shares of
Cumulative Preferred Stock shall terminate
immediately.
Any director who shall have been so elected pursuant
to this paragraph may be removed at any time, either
with or without cause. Any vacancy thereby created
may be filled only by the affirmative vote of the
holders of shares of Cumulative Preferred Stock
voting separately as a class (together with the
holders of shares of any other class or series of
stock upon which like voting rights have been
conferred and are exercisable). If the office of any
director elected by the holders of shares of
Cumulative Preferred Stock voting as a class becomes
vacant
5
for any reason other than removal from office as
aforesaid, the remaining director elected pursuant to
this paragraph may choose a successor who shall hold
office for the unexpired term in respect of which
such vacancy occurred. At elections for such
directors, each holder of shares of Cumulative
Preferred Stock shall be entitled to one vote for
each share held (the holders of shares of any other
class or series of preferred stock having like voting
rights being entitled to such number of votes, if
any, for each share of such stock held as may be
granted to them).
(b) So long as any shares of Cumulative
Preferred Stock remain outstanding, the consent of
the holders of at least two-thirds of the shares of
Cumulative Preferred Stock outstanding at the time
and all other classes or series of stock upon which
like voting rights have been conferred and are
exercisable (voting together as a class) given in
person or by proxy, either in writing or at any
meeting called for the purpose, shall be necessary to
permit, effect or validate any one or more of the
following:
(i) the issuance or increase of the
authorized amount of any class or series of
shares ranking prior (as that term is
defined in paragraph 9(a) hereof) to the
shares of the Cumulative Preferred Stock; or
(ii) the amendment, alteration or
repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the
Certificate of Incorporation, (including
this resolution or any provision hereof)
that would materially and adversely affect
any power, preference, or special right of
the shares of Cumulative Preferred Stock or
of the holders thereof; provided, however,
that any increase in the amount of
authorized Common Stock or authorized
Preferred Stock or any increase or decrease
in the number of shares of any series of
Preferred Stock or the creation and issuance
of other series of Common Stock or Preferred
Stock, in each case ranking on a parity with
or junior to the shares of Cumulative
Preferred Stock with respect to the payment
of dividends and the distribution of assets
upon liquidation, dissolution or winding up,
shall not be deemed to materially and
adversely affect such powers, preferences or
special rights.
(c) The foregoing voting provisions shall
not apply if, at or prior to the time when the act
with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of
6
Cumulative Preferred Stock shall have been redeemed
or called for redemption and sufficient funds shall
have been deposited in trust to effect such
redemption.
6. Redemption Shares. The shares of the Cumulative
Preferred Stock may be redeemed at the option of the
Corporation, as a whole, or from time to time in part, at any
time, upon not less than 30 days' prior notice mailed to the
holders of the shares to be redeemed at their addresses as
shown on the stock books of the Corporation; provided,
however, that shares of the Cumulative Preferred Stock shall
not be redeemable prior to November 30, 2000. Subject to the
foregoing, on or after such date, shares of the Cumulative
Preferred Stock are redeemable at $200.00 per share together
with an amount equal to all dividends (whether or not earned
or declared) accrued and accumulated and unpaid to, but
excluding, the date fixed for redemption.
If full cumulative dividends on the Cumulative
Preferred Stock have not been paid, the Cumulative Preferred
Stock may not be redeemed in part and the Corporation may not
purchase or acquire any shares of the Cumulative Preferred
Stock otherwise than pursuant to a purchase or exchange offer
made on the same terms to all holders of the Cumulative
Preferred Stock. If fewer than all the outstanding shares of
Cumulative Preferred Stock are to be redeemed, the Corporation
will select those to be redeemed by lot or a substantially
equivalent method.
If a notice of redemption has been given pursuant to
this paragraph 6 and if, on or before the date fixed for
redemption, the funds necessary for such redemption shall have
been set aside by the Corporation, separate and apart from its
other funds, in trust for the pro rata benefit of the holders
of the shares of Cumulative Preferred Stock so called for
redemption, then, notwithstanding that any certificates for
such shares have not been surrendered for cancellation, on the
redemption date dividends shall cease to accrue on the shares
to be redeemed, and at the close of business on the redemption
date the holders of such shares shall cease to be stockholders
with respect to such shares and shall have no interest in or
claims against the Corporation by virtue thereof and shall
have no voting or other rights with respect to such shares,
except the right to receive the moneys payable upon surrender
(and endorsement, if required by the Corporation) of their
certificates, and the shares evidenced thereby shall no longer
be outstanding. Subject to applicable escheat laws, any moneys
so set aside by the Corporation and unclaimed at the end of
two years from the redemption date shall revert to the general
funds of the Corporation, after which reversion the holders of
such shares so called for redemption shall look only to the
general funds of the Corporation for the payment of the
amounts payable upon such redemption. Any interest accrued on
funds so deposited shall be paid to the Corporation from time
to time.
7
7. Authorization and Issuance of Other Securities. No
consent of the holders of the Cumulative Preferred Stock shall
be required for (a) the creation of any indebtedness of any
kind of the Corporation, (b) the creation, or increase or
decrease in the amount, of any class or series of stock of the
Corporation not ranking prior as to dividends or upon
liquidation, dissolution or winding up to the Cumulative
Preferred Stock or (c) any increase or decrease in the amount
of authorized Common Stock or any increase, decrease or change
in the par value thereof or in any other terms thereof.
8. Amendment of Resolution. The Board and the
Committee each reserves the right by subsequent amendment of
this resolution from time to time to increase or decrease the
number of shares that constitute the Cumulative Preferred
Stock (but not below the number of shares thereof then
outstanding) and in other respects to amend this resolution
within the limitations provided by law, this resolution and
the Certificate of Incorporation.
9. Rank. For the purposes of this resolution,
any stock of any class or classes of the Corporation shall be
deemed to rank:
(a) prior to shares of the Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, if
the holders of stock of such class or classes shall
be entitled by the terms thereof to the receipt of
dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case
may be, in preference or priority to the holders of
shares of the Cumulative Preferred Stock;
(b) on a parity with shares of the
Cumulative Preferred Stock, either as to dividends or
upon liquidation, dissolution or winding up, or both,
whether or not the dividend rates, dividend payment
dates, or redemption or liquidation prices per share
thereof be different from those of the Cumulative
Preferred Stock, if the holders of stock of such
class or classes shall be entitled by the terms
thereof to the receipt of dividends or of amounts
distributed upon liquidation, dissolution or winding
up, as the case may be, in proportion to their
respective dividend rates or liquidation prices,
without preference or priority of one over the other
as between the holders of such stock and the holders
of shares of Cumulative Preferred Stock (the term
"Parity Preferred Stock" being used to refer to any
stock on a parity with the shares of Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, as
the context may require); and
8
(c) junior to shares of the Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, if
such class shall be Common Stock or if the holders of
the Cumulative Preferred Stock shall be entitled to
the receipt of dividends or of amounts distributable
upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders
of stock of such class or classes.
The Cumulative Preferred Stock shall rank prior, as
to dividends and upon liquidation, dissolution or winding up,
to the Common Stock and on a parity with (i) the Corporation's
ESOP Convertible Preferred Stock, with a liquidation value of
$35.88 per share, (ii) the Corporation's 9.36% Cumulative
Preferred Stock, with a liquidation value of $25.00 per share,
(iii) the Corporation's 8.88% Cumulative Preferred Stock, with
a liquidation value of $200.00 per share, (iv) the
Corporation's 8-3/4% Cumulative Preferred Stock, with a
liquidation value of $200.00 per share, (v) the Corporation's
7-3/8% Cumulative Preferred Stock, with a liquidation value of
$200.00 per share, (vi) if issued, the Corporation's 7.82%
Cumulative Preferred Stock, with a liquidation value of
$200.00 per share, (vii) if issued, the Corporation's 7.80%
Cumulative Preferred Stock, with a liquidation value of
$200.00 per share (viii) if issued, the Corporation's 9.00%
Cumulative Preferred Stock, with a liquidation value of
$200.00 per share and (ix) if issued, the Corporation's 8.40%
Cumulative Preferred Stock, with a liquidation value of
$200.00 per share.
9
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has
caused this Certificate to be made under the seal of the Corporation
and signed by Richard B. Fisher, its Chairman, and attested by Patricia
A. Kurtz, its Assistant Secretary, this 13th day of October, 1995.
MORGAN STANLEY GROUP INC.
By /s/ Richard B. Fisher
---------------------------------
Name: Richard B. Fisher
Title: Chairman of the Board
[SEAL]
Attest:
By /s/ Patricia A. Kurtz
----------------------------------
Name: Patricia A. Kurtz
Title: Assistant Secretary
CERTIFICATE OF DECREASE
OF
AUTHORIZED NUMBER OF SHARES
OF
8.20% CUMULATIVE PREFERRED STOCK
Morgan Stanley Group Inc., a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
That the Restated Certificate of Incorporation of the
Corporation was filed in the Office of the Secretary of State of Delaware on
September 15, 1992 and forwarded for recording in the Office of the Recorder of
Deeds for Kent County, Delaware on September 15, 1992 and a Certificate of
Designation of Preferences and Rights ("Certificate of Designation") of the
8.20% Cumulative Preferred Stock, was filed in said Office of the Secretary of
State on October 17, 1995 and forwarded for recording in the office of the
Recorder of Deeds on even date therewith.
That pursuant to authority expressly granted to and vested in
the Pricing Committee of the Board of Directors of the Corporation (the "Pricing
Committee"), by resolutions duly adopted by said Board of Directors on April 12,
1995 (the "Resolutions"), the Pricing Committee fixed certain designations,
preferences and rights of the aforesaid 8.20% Cumulative Preferred Stock as set
forth in the Certificate of Designation.
That pursuant to authority expressly granted to and vested in
the Pricing Committee by the Resolutions, the Pricing Committee by a written
unanimous consent in lieu of a meeting dated as of October 27, 1995 duly adopted
a resolution authorizing and directing a decrease in the authorized number of
shares of the 8.20% Cumulative Preferred Stock of the Corporation, from 862,500
shares to 847,500 shares and providing that the 15,000 shares of the 8.20%
Cumulative Preferred Stock designated by the Pricing Committee but not issued
and outstanding resume the status of authorized and unissued Preferred Stock,
all in accordance with the provisions of Section 151 of The General Corporation
Law of the State of Delaware and the aforesaid Restated Certificate of
Incorporation of the Corporation.
IN WITNESS WHEREOF, said Morgan Stanley Group Inc., has caused
this certificate to be signed by Richard B. Fisher, its Chairman, and attested
by Patricia A. Kurtz, its Assistant Secretary, this 31st day of October, 1995.
By /s/ Richard B. Fisher
____________________________
Name: Richard B. Fisher
Title: Chairman
ATTEST:
By /s/ Patricia A. Kurtz
______________________________
Name: Patricia A. Kurtz
Title: Assistant Secretary
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
MORGAN STANLEY GROUP INC.
MORGAN STANLEY GROUP INC., a Delaware corporation, HEREBY CERTIFIES AS
FOLLOWS:
1. The name of the Corporation is Morgan Stanley Group Inc. The date of
filing of its original Certificate of Incorporation with the Secretary of State
of the State of Delaware was July 10, 1975. The date of filing of its Restated
Certificate of Incorporation with the Secretary of State of the State of
Delaware was September 15, 1992.
2. This Certificate of Amendment sets forth amendments to the Restated
Certificate of Incorporation of the Corporation that were duly adopted in
accordance with the provisions of Section 242 of the General Corporation Law of
the State of Delaware.
3. Article IV, Section 1 of the Restated Certificate of Incorporation
is hereby amended in full to read as follows:
SECTION 1. Shares and Classes Authorized. The total number of
shares of all classes of capital stock which the Corporation shall have
authority to issue is 630,000,000 shares, which shall include:
(a) 30,000,000 shares of preferred stock of no par value each
(hereinafter referred to as "Preferred Stock"); and
(b) 600,000,000 shares of common stock of the par value of
$1.00 each (hereinafter referred to as "Common Stock");
such classes of Preferred Stock and Common Stock being sometimes
hereinafter collectively referred to as "capital stock".
IN WITNESS WHEREOF, MORGAN STANLEY GROUP INC. has caused this
certificate to be signed by Richard B. Fisher, its Chairman, and attested by
Jonathan M. Clark, its General Counsel and Secretary, this 16th day of April,
1996.
MORGAN STANLEY GROUP INC.
By /s/ Richard B. Fisher
---------------------------------
Name: Richard B. Fisher
Title: Chairman
ATTEST:
/s/ Jonathan M. Clark
- ---------------------------------
Name: Jonathan M. Clark
Title: General Counsel and Secretary
EXHIBIT 4.A
RESTATED CERTIFICATE OF INCORPORATION
OF
MORGAN STANLEY GROUP INC.
Pursuant to Section 245 of the
General Corporation Law of the State of Delaware
Morgan Stanley Group Inc., a corporation duly organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation") and originally incorporated in the State of Delaware on
July 10, 1975 under the name Morgan Stanley Holdings Incorporated, does
hereby certify as follows:
FIRST: That the Certificate of Incorporation of the
Corporation was filed in the office of the Secretary of State of the State of
Delaware, and a certified copy thereof was recorded in the office of the
Recorder of Kent County, Delaware, on the 10th day of July, 1975.
SECOND: That the Restated Certificate of Incorporation was
filed in the office of the Secretary of State of the State of Delaware, and a
certified copy thereof was recorded in the office of the Recorder of Kent
County, Delaware, on the 30th day of October, 1989.
THIRD: That Certificates of Amendment to the Restated
Certificate of Incorporation were filed in the office of the Secretary of State
of the State of Delaware, and certified copies thereof were recorded in the
office of the Recorder of Kent County, Delaware, on the 8th day of May, 1991,
and the 21st day of May, 1992.
FOURTH: That Certificates of Stock Designation were filed in
the office of the Secretary of State of the State of Delaware, and certified
copies thereof were recorded in the office of the Recorder of Kent County,
Delaware, on the 19th day of September, 1990, the 24th day of May, 1991, the
29th day of August, 1991, the 15th day of November, 1991, the 20th day of
March, 1992, and the 6th day of May, 1992.
FIFTH: That a Certificate of Retirement of Stock was filed in
the office of the Secretary of State of the State of Delaware and a certified
copy thereof was recorded in the office of the Recorder of Kent County,
Delaware, on the 20th day of June, 1992.
2
SIXTH: That this Restated Certificate of Incorporation
restates and integrates and does not further amend the provisions of the
Corporation's Restated Certificate of Incorporation as heretofore amended or
supplemented, and that there is no discrepancy between those provisions and the
provisions of this Restated Certificate of Incorporation, and that the Restated
Certificate of Incorporation is hereby restated to read in its entirety as
follows:
ARTICLE I
NAME
The name of the Corporation is:
MORGAN STANLEY GROUP INC.
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The registered office of the Corporation in the State of
Delaware is located at 32 Loockerman Sq., Ste. L-100, City of Dover, County of
Kent. The name of the registered agent of the Corporation at such address is
United States Corporation Company.
ARTICLE III
CORPORATE PURPOSE
The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may now or hereafter be organized under the
General Corporation Law of Delaware.
ARTICLE IV
CAPITAL STOCK
SECTION 1. Shares and Classes Authorized. The total number
of shares of all classes of capital stock which the Corporation shall have
authority to issue is 330,000,000 shares, which shall include:
(a) 30,000,000 shares of preferred stock of no par value
each (hereinafter referred to as "Preferred Stock"); and
3
(b) 300,000,000 shares of common stock of the par value
of $1.00 each (hereinafter referred to as "Common Stock");
such classes of Preferred Stock and Common Stock being sometimes hereinafter
collectively referred to as "capital stock".
SECTION 2. Preferences, Rights, Limitations and Restrictions
of Capital Stock. The designations and the powers, preferences and rights, and
the qualifications, limitations or restrictions thereof, in respect of the
classes of the capital stock, and the authority with respect thereto expressly
vested in the Board of Directors of the Corporation, are as follows:
PART I -- PREFERRED STOCK (a) The Preferred Stock may be
issued either as a class without series or, if so determined by the Board of
Directors of the Corporation, from time to time in one or more series and with
such designation for such class or each such series as shall be stated and
expressed in the resolution or resolutions providing for the issue of such
class or each such series adopted by the Board of Directors. The Board of
Directors in any such resolution or resolutions is expressly authorized to
state and express for such class or each such series:
(i) Voting rights, if any, including, without limitation, the
authority to confer multiple votes per share, voting rights as to
specified matters or issues or, subject to the provisions of this
Restated Certificate of Incorporation, voting rights to be exercised
either together with holders of Common Stock as a single class, or
independently as a separate class;
(ii) The rate per annum and the times at and conditions upon
which the holders of shares of such class or series shall be entitled
to receive dividends, the conditions and dates upon which such
dividends shall be payable and whether such dividends shall be
cumulative or noncumulative, and, if cumulative, the terms upon which
such dividends shall be cumulative;
(iii) Redemption, repurchase, retirement and sinking fund
rights, preferences and limitations, if any, the amount payable on
shares of such class or series in the event of such redemption,
repurchase or retirement, the terms and conditions of any sinking
fund, the manner of creating such fund or funds and whether any of the
foregoing shall be cumulative or noncumulative;
4
(iv) The rights to which the holders of the shares of such
class or series shall be entitled upon any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
(v) The terms, if any, upon which the shares of such class or
series shall be convertible into, or exchangeable for, shares of stock
of any other class or classes or of any other series of the same or
any other class or classes, including the price or prices or the rate
or rates of conversion or exchange and the terms of adjustment, if
any; and
(vi) Any other designations, preferences and relative,
participating, optional or other special rights and qualifications,
limitations or restrictions thereof so far as they are not
inconsistent with the provisions of this Restated Certificate of
Incorporation and to the full extent now or hereafter permitted by the
laws of the State of Delaware.
(b) All shares of the Preferred Stock, if issued as a
class without series, or all shares of the Preferred Stock of any one series,
if issued in series, shall be identical to each other in all respects and shall
entitle the holders thereof to the same rights and privileges, except that
shares of any one series issued at different times may differ as to the dates
from which dividends thereon, if cumulative, shall be cumulative.
5
Subpart A: ESOP Convertible Preferred Stock*
1. Designation and Issuance.
(A) The shares of such series shall be designated ESOP
CONVERTIBLE PREFERRED STOCK (hereinafter referred to as the "ESOP Preferred
Stock") and such series shall consist of 3,902,438 shares. Such number of
shares may be increased or decreased from time to time by resolution of the
Pricing Committee of this Board of Directors (the "Pricing Committee"), but no
such increase shall result in such series consisting of more than 4,000,000
shares, and no decrease shall reduce the number of shares of ESOP Preferred
Stock to a number less than that of shares of ESOP Preferred Stock then
outstanding plus the number of shares issuable upon exercise of any rights,
options or warrants or upon conversion of outstanding securities issued by the
Corporation relating to such shares. Any shares of ESOP Preferred Stock
redeemed or purchased by the Corporation shall remain issued and outstanding
for all purposes (except that as long as such shares are held by the
Corporation or its nominee, no dividends shall be paid on such shares and they
shall neither be entitled to vote nor counted for quorum purposes) and may
thereafter be transferred by the Corporation from time to time to a trustee or
trustees referred to in paragraph (B) of this Section 1 (whereupon the voting
and dividend rights of such shares shall be restored); provided that the
Corporation may provide at the time of or at any time after such redemption or
purchase that any such shares then held by the Corporation or its nominee shall
be retired, and such shares shall then be restored to the status of authorized
but unissued shares of preferred stock of the Corporation.
(B) Shares of ESOP Preferred Stock shall be issued only to a
trustee or trustees acting on behalf of an employee stock ownership trust or
plan or other employee benefit plan (a "Plan") of the Corporation. In the
event of any sale, transfer or other disposition (hereinafter a "transfer") of
shares of ESOP Preferred Stock to any person (including, without limitation,
any participant in the Plan) other than (x) any trustee or trustees of the Plan
or (y) any pledgee of such shares acquiring such shares as security for any
loan or
- --------------------
* Terms defined in this Subpart A are so defined for purposes of this
Subpart alone.
6
loans made to the Plan or to any trustee or trustees acting on behalf of the
Plan, the shares of ESOP Preferred Stock so transferred, upon such transfer and
without any further action by the Corporation or the holder, shall be
automatically converted into shares of Common Stock at the Conversion Price (as
hereinafter defined) and on the terms otherwise provided for the conversion of
shares of ESOP Preferred Stock into shares of Common Stock pursuant to Section
5 hereof and no such transferee shall have any of the voting powers,
preferences and relative, participating, optional or special rights ascribed to
shares of ESOP Preferred Stock hereunder, but, rather, only the powers and
rights pertaining to the Common Stock into which such shares of ESOP Preferred
Stock shall be so converted; provided, however, that in the event of a
foreclosure or other realization upon shares of ESOP Preferred Stock pledged as
security for any loan or loans made to the Plan or to the trustee or the
trustees acting on behalf of the Plan, the pledged shares so foreclosed or
otherwise realized upon shall be converted automatically into shares of Common
Stock at the Conversion Price and on the terms otherwise provided for
conversions of shares of ESOP Preferred Stock into shares of Common Stock
pursuant to Section 5 hereof. In the event of such a conversion, such
transferee shall be treated for all purposes as the record holder of the shares
of Common Stock into which the ESOP Preferred Stock shall have been converted
as of the date of such conversion. Certificates representing shares of ESOP
Preferred Stock shall be legended to reflect such restrictions on transfer.
Notwithstanding the foregoing provisions of this Section 1, shares of ESOP
Preferred Stock (i) may be converted into shares of Common Stock as provided by
Section 5 hereof and the shares of Common Stock issued upon such conversion may
be transferred by the holder thereof as permitted by law and (ii) shall be
redeemable by the Corporation upon the terms and conditions provided by
Sections 6, 7 and 8 hereof.
2. Dividends and Distributions.
(A) (1) Subject to the provisions for adjustment
hereinafter set forth, the holders of shares of ESOP Preferred Stock (other
than the Corporation or its nominee) shall be entitled to receive, when and as
declared by the Board of Directors out of funds legally available therefor,
cash dividends ("Preferred Dividends") payable in accordance with either of the
following elections, as the Board of Directors shall elect from time to time in
its absolute discretion:
7
(i) in an amount per share initially equal to $2.78 per
share per annum, and no more (such amount, as adjusted from time to
time pursuant to the terms hereof, including during any period in
which a Semiannual Payment Election (as defined below) shall be in
effect, the "Annual Dividend Rate"), payable annually in arrears on
December 31 (or such later date not more than four business days
thereafter as the Board of Directors may from time to time elect in
its absolute discretion; such date, the "Annual Payment Date") of each
year (such election, the "Annual Payment Election") beginning on the
Annual Payment Date occurring immediately after the effective date of
such Annual Payment Election; or
(ii) in an amount per share initially equal to $2.78 per share
per annum, and no more (such amount, as adjusted from time to time
pursuant to the terms hereof, including during any period in which an
Annual Payment Election is in effect, the "Semiannual Dividend Rate";
and the Semiannual Dividend Rate and the Annual Dividend Rate, as in
effect at any time, are each hereinafter referred to as the "Preferred
Dividend Rate"), semiannually in arrears, one-half on each June 30 and
December 31 (or, in either case, such later date not more than four
business days after either of such dates as the Board of Directors may
from time to time elect in its absolute discretion; such dates, the
"Semiannual Payment Dates") of each year (such election, the
"Semiannual Payment Election"), beginning on the Semiannual Payment
Date occurring immediately after the effective date of such Semiannual
Payment Election;
provided that any Semiannual Payment Election shall be made effective only
during the period beginning on January 5 and ending on June 29 in each year.
The Board of Directors shall give prompt notice to the holders of the ESOP
Preferred Stock of any Semiannual Payment Election or Annual Payment Election
and any election to alter any Dividend Payment Date pursuant to this Section
2(A)(1). Each Annual Payment Date or Semiannual Payment Date, as applicable,
is hereinafter referred to as a "Dividend Payment Date", and each payment of a
Preferred Dividend shall be made to holders of record at the opening of
business on such Dividend Payment Date.
(2) Preferred Dividends shall begin to accrue on
outstanding shares of ESOP Preferred Stock from the date of issuance of such
shares, except that with respect to any shares of ESOP Preferred Stock redeemed
or purchased by the Corporation and then reissued, Preferred Dividends shall
8
accrue on such shares from their date of reissuance. Preferred Dividends shall
accrue on a daily basis, whether or not the Corporation shall then have
earnings or surplus (computed on the basis of a 360-day year of twelve 30-day
months in case of any period less than one year) based on the Preferred
Dividend Rate in effect on such date; provided that if a Semiannual Payment
Election or an Annual Payment Election becomes effective on or after such date
and before the immediately succeeding Dividend Payment Date, payments in
respect of dividends on the ESOP Preferred Stock made on or after the effective
date of such Semiannual Payment Election or Annual Payment Election and on or
before such Dividend Payment Date shall be computed using the Preferred
Dividend Rate in effect on the date of such payment. Accrued but unpaid
Preferred Dividends shall cumulate as of the Dividend Payment Date on which
they first become payable, but no interest shall accrue on accumulated but
unpaid Preferred Dividends.
(B) So long as any shares of ESOP Preferred Stock shall be
outstanding, no dividend shall be declared or paid or set apart for payment on
any other series of stock ranking on a parity with the ESOP Preferred Stock as
to dividends, unless there shall also be or have been declared and paid or set
apart for payment on the ESOP Preferred Stock, like dividends for all dividend
payment periods of the ESOP Preferred Stock ending on or before the dividend
payment date of such parity stock, ratably in proportion to the respective
amounts of dividends (1) accumulated and unpaid or payable on such parity
stock, on the one hand, and (2) accumulated and unpaid through the dividend
payment period or periods of the ESOP Preferred Stock next preceding such
dividend payment date, on the other hand. If full cumulative dividends on the
ESOP Preferred Stock have not been declared and paid or set apart for payment
when due, the Corporation shall not declare or pay or set apart for payment any
dividends or make any other distributions on, or make any payment on account of
the purchase, redemption or other retirement of, any other class of stock or
series thereof of the Corporation ranking, as to dividends or upon dissolution,
junior to the ESOP Preferred Stock until full cumulative dividends on the ESOP
Preferred Stock shall have been paid or declared and set apart; provided,
however, that the foregoing shall not apply to (i) any dividend or distribution
payable solely in any shares of, or options, warrants or rights to subscribe
for or purchase shares of, any stock ranking, as to dividends and upon
dissolution, junior to the ESOP Preferred Stock or (ii) the acquisition of
shares of any stock ranking, as to dividends and upon dissolution, junior to
the ESOP Preferred Stock in
9
exchange solely for or by conversion solely into shares of any other stock
ranking junior to the ESOP Preferred Stock as to dividends and upon
dissolution.
(C) Any dividend payment made on shares of ESOP Preferred
Stock shall first be credited against the earliest accumulated but unpaid
dividend due with respect to such shares.
3. Liquidation Preference.
(A) In the event of any dissolution or liquidation of the
Corporation, whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation (whether capital or surplus)
shall be made to or set apart for the holders of any series or class or classes
of stock of the Corporation ranking junior to ESOP Preferred Stock upon
dissolution or liquidation, the holders of ESOP Preferred Stock (other than the
Corporation or its nominee) shall be entitled to receive the Liquidation Price
(as hereinafter defined) per share in effect at the time of dissolution or
liquidation plus an amount equal to all dividends accrued (whether or not
accumulated) and unpaid on the ESOP Preferred Stock to the date of final
distribution to such holders; but such holders shall not be entitled to and
shall not otherwise receive any further payments. The Liquidation Price per
share that holders of ESOP Preferred Stock shall receive upon dissolution or
liquidation shall be $35.875, subject to adjustment as hereinafter provided.
If, upon any dissolution or liquidation of the Corporation, the assets of the
Corporation, or proceeds thereof, distributable among the holders of ESOP
Preferred Stock shall be insufficient to pay in full the preferential amount
aforesaid and liquidating payments on any other shares ranking, as to
dissolution or liquidation, on a parity with ESOP Preferred Stock, then such
assets, or the proceeds thereof, shall be distributed among the holders of ESOP
Preferred Stock and any such other shares ratably in accordance with the
respective amounts that would be payable on such shares of ESOP Preferred Stock
and any such other shares if all amounts payable thereon were paid in full.
For the purposes of this Section 3, neither a consolidation or merger of the
Corporation with or into one or more corporations, nor the sale, transfer,
lease or exchange (for cash, shares of equity stock, securities or other
consideration) of all or substantially all of the assets of the Corporation,
nor the distribution to the stockholders of the Corporation of all or
substantially all of the consideration for such sale, unless such consideration
(apart from assumption of liabilities) or the net proceeds
10
thereof consists substantially entirely of cash, shall be deemed to be a
dissolution or liquidation, voluntary or involuntary.
(B) Subject to the rights of the holders of shares of any
series or class or classes of stock ranking on a parity with or senior to ESOP
Preferred Stock upon dissolution or liquidation, upon any dissolution or
liquidation of the Corporation, after payment shall have been made in full to
the holders of ESOP Preferred Stock as provided in this Section 3, but not
prior thereto, any other series or class or classes of stock ranking junior to
ESOP Preferred Stock upon dissolution or liquidation shall, subject to the
respective terms and provisions (if any) applying thereto, be entitled to
receive any and all assets of the Corporation remaining to be paid or
distributed, and the holders of ESOP Preferred Stock shall not be entitled to
share therein.
4. Ranking and Voting of Shares.
(A) The Corporation's 9.36% Cumulative Preferred Stock, with
a liquidation value of $25.00 per share, the Corporation's 8.88% Cumulative
Preferred Stock, with a liquidation value of $200.00 per share, and the
Corporation's 8-3/4% Cumulative Preferred Stock, with a liquidation value of
$200.00 per share, shall rank on a parity with ESOP Preferred Stock as to
dividends and as to distribution of assets upon dissolution or liquidation.
Unless otherwise provided in the Restated Certificate of
Incorporation of the Corporation, as the same may be amended, or in a
Certificate of Designation of Rights and Preferences relating to any subsequent
series of preferred stock, the ESOP Preferred Stock shall rank on a parity with
all series of the Corporation's preferred stock as to dividends and as to the
distribution of assets upon dissolution or liquidation.
(B) The holders of shares of ESOP Preferred Stock (other
than the Corporation or its nominee) shall have the following voting rights:
(1) The holders of ESOP Preferred Stock shall be entitled
to vote on all matters submitted to a vote of the stockholders of the
Corporation, voting together with the holders of Common Stock as one class.
The holder of each share of ESOP Preferred Stock shall be entitled to a number
of votes equal to 1.35 times the number of shares of Common
11
Stock into which such share of ESOP Preferred Stock could be converted on the
record date for determining the stockholders entitled to vote; it being
understood that whenever the "Conversion Price" (as defined in Section 5
hereof) is adjusted as provided in Section 9 hereof, the number of votes of the
ESOP Preferred Stock shall also be correspondingly adjusted. Notwithstanding
the immediately preceding sentence, if the governing body of the New York Stock
Exchange or any other securities listing service or exchange (each, an
"Exchange") or any relevant governmental or regulatory entity (each such
entity, and each governing body of an Exchange, a "Regulating Entity") shall
have disapproved of such voting power or taken or threatened any action against
the Corporation or in respect of any of its securities in accordance with Rule
19c-4 promulgated under the Securities Exchange Act of 1934 (the "Exchange
Act"), or any other rule or listing standard of any Regulating Entity regarding
the voting power of securities, or if the Board of Directors determines in its
sole judgment that any Regulating Entity may so disapprove or take or threaten
any such action, the holder of each share of ESOP Preferred Stock shall be
entitled to a maximum number of votes permissible (consistent with continued
listing of the Corporation's securities on any such Exchange) in accordance
with the interpretations of any such rule or listing standard by such
Regulating Entity, as determined by the Board of Directors.
(2) Except as otherwise required by law or set forth herein,
holders of ESOP Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for the taking of any
corporate action, including the issuance of any preferred stock now or
hereafter authorized; provided, however, that the vote of at least 66-2/3% of
the outstanding shares of ESOP Preferred Stock, voting separately as a series,
shall be necessary to approve any alteration, amendment or repeal of any
provision of the Restated Certificate of Incorporation or any alteration,
amendment or repeal of any provision of the resolutions relating to the
designation, preferences and rights of ESOP Preferred Stock (including any such
alteration, amendment or repeal effected by any merger or consolidation in
which the Corporation is the surviving or resulting corporation, but not
including any alteration or amendment of rights expressly provided for in
Section (B)(1) above or in Section 2(A)(1)), if such amendment, alteration or
repeal would alter or change the powers, preferences, or special rights of the
ESOP Preferred Stock so as to affect them adversely.
12
5. Conversion into Common Stock.
(A) A holder of shares of ESOP Preferred Stock shall be
entitled, at any time prior to the close of business on the date fixed for
redemption of such shares pursuant to Section 6, 7 or 8 hereof, to cause any or
all of such shares to be converted into shares of Common Stock. The number of
shares of Common Stock into which each share of the ESOP Preferred Stock may be
converted shall be determined by dividing the Liquidation Price in effect at
the time of conversion by the Conversion Price (as hereinafter defined) in
effect at the time of conversion. The initial Conversion Price per share at
which shares of Common Stock shall be issuable upon conversion of any shares of
ESOP Preferred Stock shall be $35.875, subject to adjustment as hereinafter
provided; that is, a conversion rate initially equivalent to one share of
Common Stock for each share of ESOP Preferred Stock, which is subject to
adjustment as hereinafter provided.
(B) Any holder of shares of ESOP Preferred Stock desiring to
convert such shares into shares of Common Stock shall surrender, if
certificated, the certificate or certificates representing the shares of ESOP
Preferred Stock being converted, duly assigned or endorsed for transfer to the
Corporation (or accompanied by duly executed stock powers relating thereto), or
if uncertificated, a duly executed stock power relating thereto, at the
principal executive office of the Corporation or the offices of the transfer
agent for the ESOP Preferred Stock or such office or offices in the continental
United States of an agent for conversion as may from time to time be designated
by notice to the holders of the ESOP Preferred Stock by the Corporation or the
transfer agent for the ESOP Preferred Stock, accompanied by written notice of
conversion. Such notice of conversion shall specify (i) the number of shares
of ESOP Preferred Stock to be converted and the name or names in which such
holder wishes the Common Stock and any shares of ESOP Preferred Stock not to be
so converted to be issued, and (ii) the address to which such holder wishes
delivery to be made of a confirmation of such conversion, if uncertificated, or
any new certificates which may be issued upon such conversion, if certificated.
(C) Upon surrender, if certificated, of a certificate
representing a share or shares of ESOP Preferred Stock for conversion, or if
uncertificated, of a duly executed stock power relating thereto, the
Corporation shall issue and send by hand delivery (with receipt to be
acknowledged) or by first class mail, postage prepaid, to the
13
holder thereof or to such holder's designee, at the address designated by such
holder, if certificated, a certificate or certificates for, or if
uncertificated, confirmation of, the number of shares of Common Stock to which
such holder shall be entitled upon conversion. If there shall have been
surrendered shares of ESOP Preferred Stock only part of which are to be
converted, the Corporation shall issue and deliver to such holder or such
holder's designee, if certificated, a new certificate or certificates
representing the number of shares of ESOP Preferred Stock that shall not have
been converted, or if uncertificated, confirmation of the number of shares of
ESOP Preferred Stock that shall not have been converted.
(D) The issuance by the Corporation of shares of Common
Stock upon a conversion of shares of ESOP Preferred Stock into shares of Common
Stock made at the option of the holder thereof shall be effective as of the
earlier of (i) the delivery to such holder or such holder's designee of the
certificates representing the shares of Common Stock issued upon conversion
thereof, if certificated, or confirmation, if uncertificated, and (ii) the
commencement of business on the second business day after the surrender of the
certificate or certificates, if certificated, or a duly executed stock power,
if uncertificated, for the shares of ESOP Preferred Stock to be converted. On
and after the effective date of conversion, the person or persons entitled to
receive Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such shares of Common Stock, and no
allowance or adjustment shall be made in respect of dividends payable to
holders of Common Stock of record on any date prior to such effective date.
The Corporation shall not be obligated to pay any dividend that may have
accrued or have been declared but that is not payable to holders of shares of
ESOP Preferred Stock if the Dividend Payment Date for such dividend is on or
subsequent to the effective date of conversion of such shares.
(E) The Corporation shall not be obligated to deliver to
holders of ESOP Preferred Stock any fractional share or shares of Common Stock
issuable upon any conversion of such shares of ESOP Preferred Stock, but in
lieu thereof may make a cash payment in respect thereof in any manner permitted
by law.
(F) The Corporation shall at all times reserve and keep
available out of its authorized and unissued Common Stock or treasury Common
Stock, solely for issuance upon the conversion of shares of ESOP Preferred
Stock as herein
14
provided, such number of shares of Common Stock as shall from time to time be
issuable upon the conversion of all the shares of ESOP Preferred Stock then
outstanding.
6. Redemption at the Option of the Corporation.
(A) The ESOP Preferred Stock shall be redeemable, in whole or in
part, at the option of the Corporation at any time after September 19, 2000,
out of funds legally available therefor, at a redemption price per share equal
to 100% of the Liquidation Price plus an amount equal to all accrued (whether
or not accumulated) and unpaid dividends thereon to the date fixed for
redemption. Payment of the redemption price shall be made by the Corporation
in cash or shares of Common Stock, or a combination thereof, as permitted by
paragraph (E) of this Section 6. From and after the date fixed for redemption,
dividends on shares of ESOP Preferred Stock called for redemption will cease to
accrue and all rights of the holder in respect of such shares shall cease,
except the right to receive the redemption price. Upon payment of the
redemption price, such shares shall be deemed to have been transferred to the
Corporation, to be held as treasury shares or to be retired, in either case as
provided in Section 1(A). If less than all of the outstanding shares of ESOP
Preferred Stock are to be redeemed, the Corporation shall either redeem a
portion of the shares of each holder determined pro rata based on the number of
shares held by each holder or shall select the shares to be redeemed by lot, as
may be determined by the Board of Directors of the Corporation.
(B) Notice of redemption will be sent to the holders of ESOP
Preferred Stock at the address shown on the books of the Corporation or any
transfer agent for ESOP Preferred Stock by first class mail, postage prepaid,
mailed not less than twenty (20) days nor more than sixty (60) days prior to the
redemption date or in any other manner provided by law. Each notice shall
state: (i) the redemption date; (ii) the total number of shares of ESOP
Preferred Stock to be redeemed and, if fewer than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from such
holder; (iii) the redemption price; (iv) the place or places where
certificates, if certificated, for such shares are to be surrendered for
payment of the redemption price; (v) that dividends on the shares to be
redeemed will cease to accrue on such redemption date; (vi) whether such
redemption price should be paid in cash or in shares of Common Stock; and (vii)
the conversion rights of the shares to be redeemed, the period within which
conversion
15
rights may be exercised and the Conversion Price and number of shares of Common
Stock issuable upon conversion of a share of ESOP Preferred Stock at the time.
Upon surrender of the certificates, if certificated, for any shares so called
for redemption, or upon the date fixed for redemption, if uncertificated, such
shares, if not previously converted, shall be redeemed by the Corporation as of
the close of business on the date fixed for redemption and at the redemption
price set forth in this Section 6.
(C) The Corporation may, in its sole discretion and
notwithstanding anything to the contrary in paragraph (A) of this Section 6, at
any time within one year after either of the following events:
(i) there shall be a change in the federal tax law or
regulations of the United States of America or of an interpretation or
application of such law or regulations or of a determination by a
court of competent jurisdiction that in any case has the effect of
precluding the Corporation from claiming (other than for purposes of
calculating any alternative minimum tax) any of the tax deductions for
dividends paid on the ESOP Preferred Stock when such dividends are
used as provided under Section 404(k)(2) of the Internal Revenue Code
of 1986, as amended (the "Code"), as in effect on the date shares of
ESOP Preferred Stock are initially issued, or
(ii) the Corporation shall certify to the holders of the ESOP
Preferred Stock that the Corporation has determined in good faith that
the Plan either is not qualified as a "stock bonus plan" within the
meaning of Section 401(a) of the Code or is not an "employee stock
ownership plan" within the meaning of Section 4975(e)(7) of the Code,
elect either to (a) redeem, out of funds legally available therefor, any or all
of such ESOP Preferred Stock for cash or, if the Corporation so elects, in
shares of Common Stock, or a combination of such shares of Common Stock and
cash, as permitted by paragraph (E) of this Section 6, at a redemption price
equal to (x) if the relevant event is as provided in clause (i) above, the
Liquidation Price per share on the date fixed for redemption, plus an amount
equal to accrued (whether or not accumulated) and unpaid dividends thereon to
the date fixed for redemption or (y) if the relevant event is as provided in
clause (ii) above, an amount calculated on the basis of the redemption prices
provided in paragraph (D) of this Section 6 on the date fixed for redemption or
(b)
16
exchange any or all of such shares of ESOP Preferred Stock for securities of at
least equal value (as determined by an independent appraiser) that constitute
"qualifying employer securities" with respect to a holder of ESOP Preferred
Stock within the meaning of Section 409(1) of the Code and Section 407(d)(5) of
the Employment Retirement Income Security Act of 1974, as amended ("ERISA"), or
any successor provisions of law. If the Corporation elects to redeem any or
all of the ESOP Preferred Stock pursuant to clause (a) of the preceding
sentence, notice of such redemption shall be given as required in paragraph (B)
of this Section 6, and if the Corporation elects to exchange any or all of the
ESOP Preferred Stock for securities of at least equal value pursuant to clause
(b) of the preceding sentence, it will cause notice of such election to be sent
to the holders of ESOP Preferred Stock at the address shown on the books of the
Corporation or any transfer agent for ESOP Preferred Stock by first class mail,
postage prepaid, mailed not less than twenty (20) days nor more than sixty (60)
days prior to the date of exchange or in any other manner required by law.
Each notice shall state: (i) the exchange date; (ii) the total number of
shares of ESOP Preferred Stock to be exchanged and, if fewer than all the
shares held by such holder are to be exchanged, the number of shares held by
such holder to be exchanged; (iii) the exchange rate; (iv) the place or places
where certificates, if certificated, for such shares are to be surrendered for
exchange; and (v) that dividends on the shares to be exchanged will cease to
accrue on such exchange date.
(D) Notwithstanding anything to the contrary in paragraph (A)
of this Section 6, in the event that the Plan is, or contributions thereto are,
terminated, the Corporation may, in its sole discretion, call for redemption
any or all of the then outstanding ESOP Preferred Stock, upon notice as
required in paragraph (B) of this Section 6, out of funds legally available
therefor, at a redemption price per share equal to the following percentages of
the Liquidation Price in effect on the date fixed for redemption:
17
<TABLE>
<CAPTION>
During the Twelve-
Month Period Percentage of
Beginning September 19, Liquidation Price
----------------------- -----------------
<S> <C>
1991 106.98
1992 106.20
1993 105.43
1994 104.65
1995 103.88
1996 103.10
1997 102.33
1998 101.55
1999 100.78
2000 100.00
</TABLE>
and thereafter at 100%, plus, in each case, an amount equal to all accrued
(whether or not accumulated) and unpaid dividends thereon to the date fixed for
redemption. Payment of the redemption price shall be made by the Corporation
in cash or shares of Common Stock, or a combination thereof, as permitted by
paragraph (E) of this Section 6. From and after the date fixed for redemption,
dividends on shares of ESOP Preferred Stock called for redemption will cease to
accrue and all rights of the holder in respect of such shares shall cease,
except the right to receive the redemption price. Upon payment of the
redemption price, such shares shall be deemed to have been transferred to the
Corporation, to be held as treasury shares or to be retired, in either case as
provided in Section 1(A).
(E) The Corporation, at its option, may make payment of the
redemption price required upon redemption of shares of ESOP Preferred Stock
in cash or in shares of Common Stock, or in a combination of such shares and
cash, any such shares of Common Stock to be valued for such purpose at their
Fair Market Value (as defined in paragraph 9(H)(2)); provided, however, that in
calculating their Fair Market Value the Adjustment Period (as defined in
paragraph 9(H)(2)) shall be deemed to be the five (5) consecutive trading days
preceding the date of redemption.
7. Redemption at the Option of the Holder.
(A) Unless otherwise provided by law, shares of ESOP
Preferred Stock shall be redeemed by the Corporation at the option of the
holder, at any time and from time to time upon notice to the Corporation given
not less than five business days prior to the date fixed by the holder in such
notice, when and to the extent necessary for such holder to
18
provide for distributions required to be made under, or to satisfy an
investment election provided to participants in accordance with, the Plan or
any successor plan or when the holder elects to redeem shares of ESOP Preferred
Stock in connection with any Preferred Dividend (a "Dividend Redemption"), in
shares of Common Stock legally available therefor, at a redemption price equal
to the higher of (x) the Liquidation Price per share on the date fixed for
redemption and (y) the Fair Market Value (as defined in paragraph 9(H)(2)) of
the number of shares of Common Stock into which each share of ESOP Preferred
Stock is convertible at the time the notice of such redemption is given, plus
in either case an amount equal to accrued (whether or not accumulated) and
unpaid dividends thereon to the date fixed for redemption (such higher price on
any date, together with such accrued and unpaid dividends, the "Special
Redemption Price"). At the election of the Corporation, such redemption may
instead be made out of funds legally available therefor in cash or a
combination of Common Stock and cash. Any shares of Common Stock shall be
valued for the purposes of redemption pursuant to this paragraph (A) as
provided by paragraph (E) of Section 6. In the case of any Dividend
Redemption, such holder shall give the notice specified above on the fifth
business day after the related Dividend Payment Date and such redemption shall
be effective as to such number of shares of ESOP Preferred Stock as shall equal
(x) the aggregate amount of such Preferred Dividends paid with respect to
shares of ESOP Preferred Stock allocated or credited to the accounts of
participants in the Plan or any successor plan that are used to repay any loan
associated with such allocated or credited shares divided by (y) the Special
Redemption Price specified above in this paragraph (A).
(B) Unless otherwise provided by law, shares of ESOP
Preferred Stock shall be redeemed by the Corporation at the option of the
holder, at any time and from time to time upon notice to the Corporation given
not less than five business days prior to the date fixed by the holder in such
notice, upon certification by such holder to the Corporation of the following
events: (i) when and to the extent necessary for such holder to make any
payments of principal, interest or premium due and payable (whether voluntary,
scheduled, upon acceleration or otherwise) upon any obligations of the trust
established under the Plan in connection with the acquisition of ESOP Preferred
Stock or any indebtedness, expenses or costs incurred by the holder for the
benefit of the Plan; or (ii) when and if it shall be established to the
satisfaction of the holder that the Plan
19
has not initially been determined by the Internal Revenue Service to be
qualified as a "stock bonus plan" and an "employee stock ownership plan" within
the meaning of Section 401(a) or 4975(e)(7) of the Code, respectively, in
shares of Common Stock legally available therefor, at a redemption price equal
to the Liquidation Price plus an amount equal to accrued and unpaid dividends
thereon to the date fixed for redemption. At the election of the Corporation,
such redemption may instead be made out of funds legally available therefor in
cash or a combination of Common Stock and cash. Any shares of Common Stock
shall be valued for the purposes of redemption pursuant to this paragraph (B)
as provided by paragraph (E) of Section 6.
8. Consolidation, Merger, etc.
(A) If the Corporation shall consummate any consolidation or merger
or similar transaction, however named, pursuant to which the outstanding shares
of Common Stock are by operation of law exchanged solely for or changed,
reclassified or converted solely into securities of any successor or resulting
company (including the Corporation) that constitute "qualifying employer
securities" with respect to a holder of ESOP Preferred Stock within the
meanings of Section 409(l) of the Code and Section 407(d)(5) of ERISA, or any
successor provision of law, and, if applicable, for a cash payment in lieu of
fractional shares, if any, then, in such event, the terms of such consolidation
or merger or similar transaction shall provide that the shares of ESOP
Preferred Stock of such holder shall be converted into or exchanged for and
shall become preferred securities of such successor or resulting company,
having in respect of such company insofar as possible (taking into account,
without limitation, any requirements relating to the listing of such preferred
securities on any national securities exchange or the qualification of such
preferred securities for trading in any over-the-counter market) the same
powers, preferences and relative, participating, optional or other special
rights (including the redemption rights provided by Sections 6, 7 and 8
hereof), and the qualifications, limitations or restrictions thereon, that the
ESOP Preferred Stock had immediately prior to such transaction; provided,
however, that after such transaction each security into which the ESOP
Preferred Stock is so converted or for which it is exchanged shall be
convertible, pursuant to the terms and conditions provided by Section 5 hereof,
into the number and kind of qualifying employer securities receivable by a
holder equivalent to the number of shares of Common Stock into which such
shares of ESOP
20
Preferred Stock could have been converted pursuant to Section 5 hereof
immediately prior to such transaction and provided further that if by virtue of
the structure of such transaction, a holder of Common Stock is required to make
an election with respect to the nature and kind of consideration to be received
in such transaction, which election cannot practicably be made by the holders
of the ESOP Preferred Stock, then such election shall be deemed to be solely
for "qualifying employer securities" (together, if applicable, with a cash
payment in lieu of fractional shares) with the effect provided above on the
basis of the number and kind of qualifying employer securities receivable by a
holder of the number of shares of Common Stock into which the shares of ESOP
Preferred Stock could have been converted pursuant to Section 5 hereof
immediately prior to such transaction (it being understood that if the kind or
amount of qualifying employer securities receivable in respect of each share of
Common Stock upon such transaction is not the same for each such share, then
the kind and amount of qualifying employer securities deemed to be receivable
in respect of each share of Common Stock for purposes of this proviso shall be
the kind and amount so receivable per share of Common Stock by a plurality of
such shares). The rights of the ESOP Preferred Stock as preferred equity of
such successor or resulting company shall successively be subject to
adjustments pursuant to Section 9 hereof after any such transaction as nearly
equivalent as practicable to the adjustments provided for by such Section prior
to such transaction. The Corporation shall not consummate any such merger,
consolidation or similar transaction unless all the terms of this paragraph (A)
are complied with.
(B) If the Corporation shall consummate any consolidation or
merger or similar transaction, however named, pursuant to which the outstanding
shares of Common Stock are by operation of law exchanged for or changed,
reclassified or converted into other shares or securities or cash or any other
property, or any combination thereof, other than any such consideration which
is constituted solely of qualifying employer securities that are common stock
or common equity (as referred to in paragraph (A) of this Section 8) and cash
payments, if applicable, in lieu of fractional shares or other interests,
outstanding shares of ESOP Preferred Stock shall, without any action on the
part of the Corporation or any holder thereof (but subject to paragraph (C) of
this Section 8), be automatically converted immediately prior to the
consummation of such merger, consolidation or similar transaction into shares
of Common Stock at the Conversion Price then in effect.
21
(C) If the Corporation shall enter into any agreement providing
for any consolidation or merger or similar transaction described in paragraph
(B) of this Section 8, then the Corporation shall as soon as practicable
thereafter (and in any event at least ten (10) business days before
consummation of such transaction) give notice of such agreement and the
material terms thereof to each holder of ESOP Preferred Stock and each such
holder shall have the right to elect, by written notice to the Corporation, to
receive, upon consummation of such transaction (if and when such transaction
is consummated), out of funds legally available therefor, from the Corporation
or the successor of the Corporation, in redemption of such ESOP Preferred
Stock, in lieu of any cash or other securities which such holder would
otherwise be entitled to receive under paragraph (B) of this Section 8, a cash
payment equal to the Liquidation Price per share on the date fixed for such
transaction, plus an amount equal to accrued (whether or not accumulated) and
unpaid dividends thereon to the date fixed for such transaction. No such
notice of redemption shall be effective unless given to the Corporation prior
to the close of business of the fifth business day prior to consummation of
such transaction, unless the Corporation or the successor of the Corporation
shall waive such prior notice, but any notice or redemption so given prior to
such time may be withdrawn by notice of withdrawal given to the Corporation
prior to the close of business on the fifth business day prior to consummation
of such transaction.
9. Anti-dilution Adjustments.
(A) (1) Subject to the provisions of paragraphs (E) and (F)
of this Section 9, in the event the Corporation shall, at any time or from time
to time while any of the shares of the ESOP Preferred Stock are outstanding,
(i) pay a dividend or make a distribution in respect of the Common Stock in
shares of Common Stock or (ii) subdivide the outstanding shares of Common Stock
into a greater number of shares, in each case whether by reclassification of
shares, recapitalization of the Corporation (excluding a recapitalization or
reclassification effected by a merger or consolidation to which Section 8
applies) or otherwise, then, in such event, the Board of Directors shall, to
the extent legally permissible, declare a dividend in respect of the ESOP
Preferred Stock in shares of ESOP Preferred Stock (a "Special Dividend") in
such a manner that a holder of ESOP Preferred Stock will become a holder of
that number of shares of ESOP Preferred Stock equal to the product of the
number of such shares held prior to such event times a fraction (the
22
"Section 9(A) Fraction"), the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock outstanding immediately before
such event. A Special Dividend declared pursuant to this Section 9(A)(1) shall
be effective, upon payment of such dividend or distribution in respect of the
Common Stock, as of the record date for the determination of stockholders
entitled to receive such dividend or distribution (on a retroactive basis), and
in the case of a subdivision shall become effective immediately as of the
effective date thereof. Concurrently with the declaration of the Special
Dividend pursuant to this paragraph 9(A)(1), the Conversion Price, the
Liquidation Price and the Preferred Dividend Rate of all shares of ESOP
Preferred Stock shall be adjusted by dividing the Conversion Price, the
Liquidation Price and the Preferred Dividend Rate, respectively, in effect
immediately before such event by the Section 9(A) Fraction.
(2) Subject to the provisions of paragraphs (E) and (F) of this
Section 9, in the event the Corporation shall, at any time or from time to time
while any of the shares of the ESOP Preferred Stock are outstanding, combine
the outstanding shares of Common Stock into a lesser number of shares, whether
by reclassification of shares, recapitalization of the Corporation (excluding a
recapitalization or reclassification effected by a merger, consolidation or
other transaction to which Section 8 applies) or otherwise, then, in such
event, the Conversion Price shall automatically be adjusted by dividing the
Conversion Price in effect immediately before such event by the Section 9(A)
Fraction and the Liquidation Price and the Preferred Dividend Rate will not be
adjusted. An adjustment to the Conversion Price made pursuant to this
paragraph 9(A)(2) shall be given effect immediately as of the effective date of
such combination.
(B) Subject to the provisions of paragraphs (E) and (F) of this
Section 9, in the event the Corporation shall, at any time or from time to time
while any of the shares of ESOP Preferred Stock are outstanding, issue to
holders of shares of Common Stock as a dividend or distribution, including by
way of a reclassification of shares or a recapitalization of the Corporation,
any right or warrant to purchase shares of Common Stock (but not including as a
right or warrant for this purpose any security convertible into or exchangeable
for shares of Common Stock) for a consideration having a Fair Market Value (as
hereinafter defined) per share less than the Fair Market Value of a share of
Common Stock on the date of issuance of such right or warrant (other than
pursuant to any
23
employee or director incentive, compensation or benefit plan or arrangement of
the Corporation or any subsidiary of the Corporation heretofore or hereafter
adopted), then, in such event, the Board of Directors shall, to the extent
legally permissible, declare a Special Dividend in such a manner that a holder
of ESOP Preferred Stock will become a holder of that number of shares of ESOP
Preferred Stock equal to the product of the number of such shares held prior to
such event times a fraction (the "Section 9(B) Fraction"), the numerator of
which is the number of shares of Common Stock outstanding immediately before
such issuance of rights or warrants plus the maximum number of shares of Common
Stock that could be acquired upon exercise in full of all such rights and
warrants and the denominator of which is the number of shares of Common Stock
outstanding immediately before such issuance of warrants or rights plus the
number of shares of Common Stock that could be purchased at the Fair Market
Value of a share of Common Stock at the time of such issuance for the maximum
aggregate consideration payable upon exercise in full of all such rights and
warrants. A Special Dividend declared pursuant to this Section 9(B) shall be
effective upon such issuance of rights or warrants. Concurrently with the
declaration of the Special Dividend pursuant to this Section 9(B), the
Conversion Price, the Liquidation Price and the Preferred Dividend Rate of all
shares of ESOP Preferred Stock shall be adjusted by dividing the Conversion
Price, the Liquidation Price and the Preferred Dividend Rate, respectively, in
effect immediately before such event by the Section 9(B) Fraction.
(C) (1) Subject to the provisions of paragraphs (E) and (F) of
this Section 9, in the event the Corporation shall, at any time or from time to
time while any of the shares of ESOP Preferred Stock are outstanding, issue,
sell or exchange shares of Common Stock (other than pursuant to (x) any right or
warrant to purchase or acquire shares of Common Stock (including as such a
right or warrant any security convertible into or exchangeable for shares of
Common Stock) or (y) any employee or director incentive, compensation or
benefit plan or arrangement of the Corporation or any subsidiary of the
Corporation heretofore or hereafter adopted) at a purchase price per share less
than the Fair Market Value of a share of Common Stock on the date of such
issuance, sale or exchange, then, in such event, the Board of Directors shall,
to the extent legally permissible, declare a Special Dividend in such a manner
that a holder of ESOP Preferred Stock will become the holder of that number of
shares of ESOP Preferred Stock equal to the product of the number of such
shares held prior to such event times a
24
fraction (the "Section 9(C)(1) Fraction"), the numerator of which is the number
of shares of Common Stock outstanding immediately before such issuance, sale or
exchange plus the number of shares of Common Stock so issued, sold or exchanged
and the denominator of which is the number of shares of Common Stock
outstanding immediately before such issuance, sale or exchange plus the number
of shares of Common Stock that could be purchased at the Fair Market Value of a
share of Common Stock at the time of such issuance, sale or exchange for the
maximum aggregate consideration paid therefor.
(2) Subject to the provisions of paragraphs (E) and (F) of this
Section 9, in the event that the Corporation shall, at any time or from time to
time while any ESOP Preferred Stock is outstanding, issue, sell or exchange any
right or warrant to purchase or acquire shares of Common Stock (including as
such a right or warrant any security convertible into or exchangeable for
shares of Common Stock other than pursuant to (x) any employee or director
incentive, compensation or benefit plan or arrangement of the Corporation or
any subsidiary of the Corporation heretofore or hereafter adopted and (y) any
dividend or distribution on shares of Common Stock contemplated in Section
9(A)(1)) for a consideration having a Fair Market Value, on the date of such
issuance, sale or exchange, less than the Non-Dilutive Amount (as hereinafter
defined), then, in such event, the Board of Directors shall, to the extent
legally permissible, declare a Special Dividend in such a manner that a holder
of ESOP Preferred Stock will become the holder of that number of shares of ESOP
Preferred Stock equal to the product of the number of such shares held prior to
such event times a fraction (the "Section 9(C)(2) Fraction"), the numerator of
which is the number of shares of Common Stock outstanding immediately before
such issuance of rights or warrants plus the maximum number of shares of Common
Stock that could be acquired upon exercise in full of all such rights and
warrants and the denominator of which is the number of shares of Common Stock
outstanding immediately before such issuance of rights or warrants plus the
number of shares of Common Stock that could be purchased at the Fair Market
Value of a share of Common Stock at the time of such issuance for the total of
(x) the maximum aggregate consideration payable at the time of the issuance,
sale or exchange of such right or warrant and (y) the maximum aggregate
consideration payable upon exercise in full of all such rights or warrants.
(3) A Special Dividend declared pursuant to this Section 9(C)
shall be effective upon the effective date of
25
such issuance, sale or exchange. Concurrently with the declaration of the
Special Dividend pursuant to this Section 9(C), the Conversion Price, the
Liquidation Price and the Preferred Dividend Rate of all shares of ESOP
Preferred Stock shall be adjusted by dividing the Conversion Price, the
Liquidation Price and the Preferred Dividend Rate, respectively, in effect
immediately before such event by the Section 9(C)(1) Fraction or Section
9(C)(2) Fraction, as the case may be.
(D) Subject to the provisions of paragraphs (E) and (F) of this
Section 9, in the event the Corporation shall, at any time or from time to time
while any of the shares of ESOP Preferred Stock are outstanding, make an
Extraordinary Distribution (as hereinafter defined) in respect of the Common
Stock, whether by dividend, distribution, reclassification of shares or
recapitalization of the Corporation (including capitalization or
reclassification effected by a merger or consolidation to which Section 8 does
not apply) or effect a Pro Rata Repurchase (as hereinafter defined) of Common
Stock, then, in such event, the Board of Directors shall, to the extent legally
permissible, declare a Special Dividend in such a manner that a holder of ESOP
Preferred Stock will become a holder of that number of shares of ESOP Preferred
Stock equal to the product of the number of such shares held prior to such
event times a fraction (the "Section 9(D) Fraction"), the numerator of which is
the product of (a) the number of shares of Common Stock outstanding immediately
before such Extraordinary Distribution or Pro Rata Repurchase minus, in the
case of Pro Rata Repurchase, the number of shares of Common Stock repurchased
by the Corporation multiplied by (b) the Fair Market Value of a share of Common
Stock on the day before the ex-dividend date with respect to an Extraordinary
Distribution that is paid in cash and on the distribution date with respect to
an Extraordinary Distribution that is paid other than in cash, or on the
applicable expiration date (including all extensions thereof) of any tender
offer that is a Pro Rata Repurchase or on the date of purchase with respect to
any Pro Rata Repurchase that is not a tender offer, as the case may be, and the
denominator of which is (i) the product of (x) the number of shares of Common
Stock outstanding immediately before such Extraordinary Distribution or Pro
Rata Repurchase multiplied by (y) the Fair Market Value of a share of Common
Stock on the day before the ex-dividend date with respect to an Extraordinary
Distribution that is paid in cash and on the distribution date with respect to
an Extraordinary Distribution that is paid other than in cash, or on the
applicable expiration date
26
(including all extensions thereof) of any tender offer that is a Pro Rata
Repurchase, or on the date of purchase with respect to any Pro Rata Repurchase
that is not a tender offer, as the case may be, minus (ii) the Fair Market
Value of the Extraordinary Distribution or the aggregate purchase price of the
Pro Rata Repurchase, as the case may be. The Corporation shall send each
holder of ESOP Preferred Stock (i) notice of its intent to make any
Extraordinary Distribution and (ii) notice of any offer by the Corporation to
make a Pro Rata Repurchase, in each case at the same time as, or as soon as
practicable after, such offer is first communicated to holders of Common Stock
or, in the case of an Extraordinary Distribution, the announcement of a record
date in accordance with the rules of any stock exchange on which the Common
Stock is listed or admitted to trading. Such notice shall indicate the
intended record date and the amount and nature of such dividend or
distribution, or the number of shares subject to such offer for a Pro Rata
Repurchase and the purchase price payable by the Corporation pursuant to such
offer, as well as the Conversion Price and the number of shares of Common Stock
into which a share of ESOP Preferred Stock may be converted at such time.
Concurrently with the Special Dividend paid pursuant to this Section 9(D), the
Conversion Price, the Liquidation Price and the Preferred Dividend Rate of all
shares of ESOP Preferred Stock shall be adjusted by dividing the Conversion
Price, the Liquidation Price and the Preferred Dividend Rate, respectively, in
effect immediately before such Extraordinary Distribution or Pro Rata
Repurchase by the Section 9(D) Fraction.
(E) Notwithstanding any other provision of this Section 9, the
Corporation shall not be required to make (i) any Special Dividend or any
adjustment of the Conversion Price, the Liquidation Price or the Preferred
Dividend Rate unless such Special Dividend or adjustment would require an
increase or decrease of at least one percent (1%) in the number of shares of
ESOP Preferred Stock outstanding, or, (ii) if no additional shares of ESOP
Preferred Stock are issued, any adjustment of the Conversion Price unless such
adjustment would require an increase or decrease of at least one percent (1%)
in the Conversion Price. Any lesser Special Dividend or adjustment shall be
carried forward and shall be made no later than the time of, and together with,
the next subsequent Special Dividend or adjustment which, together with any
Special Dividend or Dividends, adjustment or adjustments so carried forward,
shall amount to an increase or decrease of at least one percent (1%) of the
number of shares of ESOP Preferred Stock outstanding or, if no additional
shares of ESOP Preferred Stock are being issued,
27
an increase or decrease of at least one percent (1%) of the Conversion Price,
whichever the case may be.
(F) The Corporation and the Board of Directors shall each use its
best efforts to take all necessary steps or to take all actions as are
reasonably necessary or appropriate for declaration of any Special Dividend
provided in any of paragraphs (A), (B), (C) and (D) of this Section 9, but
shall not be required to call a special meeting of stockholders in order to
implement the provisions thereof. If for any reason the Board of Directors is
precluded from giving full effect to the Special Dividend provided in any of
such paragraphs, then no such Special Dividend shall be declared, but instead
the Conversion Price shall automatically be adjusted by dividing the Conversion
Price in effect immediately before the relevant event by the Section 9(A),
Section 9(B), Section 9(C) or Section 9(D) Fraction, as applicable, and the
Liquidation Price and the Preferred Dividend Rate will not be adjusted. An
adjustment to the Conversion Price made pursuant to this paragraph (F) shall be
given effect, (i) in the case of a payment of a dividend or distribution under
Section 9(A), upon payment thereof as of the record date for the determination
of holders entitled to receive such dividend or distribution (on a retroactive
basis), and, in the case of a subdivision under Section 9(A), immediately as of
the effective date thereof, (ii) in the case of Section 9(B), upon such
issuance of rights or warrants, (iii) in the case of Section 9(C), upon the
effective date of such issuance, sale or exchange and (iv) in the case of an
Extraordinary Dividend under Section 9(D), as of the record date for the
determination of holders entitled to receive such Extraordinary Dividend (on a
retroactive basis), and, in the case of a Pro Rata Repurchase under Section
9(D), upon the expiration date thereof (if such Pro Rata Repurchase is a tender
offer) or the effective date thereof (if such Pro Rata Repurchase is not a
tender offer). If subsequently the Board of Directors is able to give full
effect to the Special Dividend as provided in paragraph (A), (B), (C) or (D) of
this Section 9, then such Special Dividend will be declared and other
adjustments will be made in accordance with the provisions of such paragraph
and the adjustment in the Conversion Price as provided in this paragraph (F)
will automatically be reversed and nullified prospectively.
(G) If the Corporation shall make any dividend or distribution
on the Common Stock or issue any Common Stock, other capital stock or other
security of the Corporation or any rights or warrants to purchase or acquire
any such
28
security, which transaction does not result in an adjustment to the number of
shares of ESOP Preferred Stock outstanding or the Conversion Price pursuant to
the foregoing provisions of this Section 9, the Board of Directors of the
Corporation may, in its sole discretion, consider whether such action is of
such a nature that some type of equitable adjustment should be made in respect
of such transaction. If in such case the Board of Directors of the Corporation
determines that some type of adjustment should be made, an adjustment shall be
made effective as of such date as determined by the Board of Directors of the
Corporation. The determination of the Board of Directors of the Corporation as
to whether some type of adjustment should be made pursuant to the foregoing
provisions of this Section 9(G), and, if so, as to what adjustment should be
made and when, shall be final and binding on the Corporation and all
stockholders of the Corporation. The Corporation shall be entitled, but not
required, to make such additional adjustments, in addition to those required by
the foregoing provisions of this Section 9, as shall be necessary in order that
any dividend or distribution in shares of capital stock of the Corporation,
subdivision, reclassification or combination of shares of the Corporation or
any reclassification of the Corporation shall not be taxable to holders of the
Common Stock.
(H) For purposes hereof, the following definitions shall apply:
(1) "Extraordinary Distribution" shall mean any dividend or other
distribution to holders of Common Stock (effected while any of the shares of
ESOP Preferred Stock are outstanding) of (i) cash or (ii) any shares of capital
stock of the Corporation (other than shares of Common Stock), other securities
of the Corporation (other than securities of the type referred to in paragraph
(B) of this Section 9), evidences of indebtedness of the Corporation or any
other person or any other property (including shares of any subsidiary of the
Corporation), or any combination of the foregoing, where the aggregate amount
of such cash dividend or other distribution together with the amount of all
cash dividends and other distributions made during the preceding period of
twelve months, when combined with the aggregate amount of all Pro Rata
Repurchases (for this purpose, including only that portion of the aggregate
purchase price of such Pro Rata Repurchase that is in excess of the Fair Market
Value of the Common Stock repurchased as determined on the applicable
expiration date (including all extensions thereof) of any tender offer or
exchange offer that is a Pro Rata Repurchase, or the date of purchase with
respect to any
29
other Pro Rata Repurchase that is not a tender offer or exchange offer) made
during such period, exceeds twelve and one-half percent (12-1/2%) of the
aggregate Fair Market Value of all shares of Common Stock outstanding on the
day before the ex-dividend date with respect to such Extraordinary Distribution
that is paid in cash and on the distribution date with respect to an
Extraordinary Distribution that is paid other than in cash. The Fair Market
Value of an Extraordinary Distribution for purposes of paragraph (D) of this
Section 9 shall be the sum of the Fair Market Value of such Extraordinary
Distribution plus the aggregate amount of any cash dividends or other
distributions that are not Extraordinary Distributions made during such
twelve-month period and not previously included in the calculation of an
adjustment pursuant to paragraph (D) of this Section 9, but shall exclude the
aggregate amount of regular quarterly dividends declared by the Board of
Directors and paid by the Corporation in such twelve-month period.
(2) "Fair Market Value" shall mean, as to shares of Common Stock
or any other class of capital stock or securities of the Corporation or any
other issuer that are publicly traded, the average of the Current Market Prices
(as hereinafter defined) of such shares or securities for each day of the
Adjustment Period (as hereinafter defined). "Current Market Price" of publicly
traded shares of Common Stock or any other class of capital stock or other
security of the Corporation or any other issuer for a day shall mean the last
reported sales price, regular way, or, in case no sale takes place on such day,
the average of the reported closing bid and asked prices, regular way, in
either case as reported on the New York Stock Exchange Composite Tape or, if
such security is not listed or admitted to trading on the New York Stock
Exchange, on the principal national securities exchange on which such security
is listed or admitted to trading or, if not listed or admitted to trading on
any national securities exchange, on the National Association of Securities
Dealers Automated Quotation System ("NASDAQ") National Market System or, if
such security is not quoted on such National Market System, the average of the
closing bid and asked prices on such day in the over-the-counter market as
reported by NASDAQ or, if bid and asked prices for such security on such day
shall not have been reported through NASDAQ, the average of the bid and asked
prices for such day as furnished by any New York Stock Exchange member firm
regularly making a market in such security selected for such purpose by the
Board of Directors of the Corporation. "Adjustment Period" shall mean the
period of five consecutive trading days, selected by the Board of Directors of
the
30
Corporation, during the twenty (20) trading days preceding, and including, the
date as of which the Fair Market Value of a security is to be determined. The
"Fair Market Value" of any security that is not publicly traded or of any other
property shall mean the fair value thereof as determined by an independent
investment banking or appraisal firm experienced in the valuation of such
securities or property selected in good faith by the Board of Directors of the
Corporation, or, if no such investment banking or appraisal firm is in the good
faith judgment of the Board of Directors available to make such determination,
as determined in good faith by the Board of Directors of the Corporation.
(3) "Non-Dilutive Amount" in respect of an issuance, sale or
exchange by the Corporation of any right or warrant to purchase or acquire
shares of Common Stock (including any security convertible into or exchangeable
for shares of Common Stock) shall mean the difference between (i) the product of
the Fair Market Value of a share of Common Stock on the day preceding the first
public announcement of such issuance, sale or exchange multiplied by the
maximum number of shares of Common Stock that could be acquired on such date
upon the exercise in full of such rights or warrants (including upon the
conversion or exchange of all such convertible or exchangeable securities),
whether or not exercisable (or convertible or exchangeable) at such date, and
(ii) the aggregate amount payable pursuant to such right or warrant to purchase
or acquire such maximum number of shares of Common Stock; provided, however,
that in no event shall the Non-Dilutive Amount be less than zero. For purposes
of the foregoing sentence, in the case of a security convertible into or
exchangeable for shares of Common Stock, the amount payable pursuant to a right
or warrant to purchase or acquire shares of Common Stock shall be the Fair
Market Value of such security on the date of the issuance, sale or exchange of
such security by the Corporation.
(4) "Pro Rata Repurchase" shall mean any purchase of shares or
Common Stock by the Corporation or any subsidiary thereof, whether for cash,
shares of capital stock of the Corporation, other securities of the Corporation,
evidences of indebtedness of the Corporation or any other person or any other
property (including shares of a subsidiary of the Corporation), or any
combination thereof, effected while any of the shares of ESOP Preferred Stock
are outstanding, pursuant to any tender offer or exchange offer subject to
Section 13(e) of the Exchange Act, or any successor provision of law, or
pursuant to any other offer available to substantially all holders of Common
Stock;
31
provided, however, that no purchase of shares by the Corporation or any
subsidiary thereof made in open market transactions shall be deemed a Pro Rata
Repurchase. For purposes of this Section 9(H), shares shall be deemed to have
been purchased by the Corporation or any subsidiary thereof "in open market
transactions" if they have been purchased substantially in accordance with the
requirements of Rule 10b-18 as in effect under the Exchange Act on the date
shares of ESOP Preferred Stock are initially issued by the Corporation or on
such other terms and conditions as the Board of Directors of the Corporation
shall have determined are reasonably designed to prevent such purchases from
having a material effect on the trading market for the Common Stock.
(I) Whenever an adjustment increasing the number of shares of
ESOP Preferred Stock outstanding is required pursuant hereto, the Board of
Directors shall take action as is necessary so that a sufficient number of
shares of ESOP Preferred Stock are designated with respect to such increase
resulting from such adjustment. Whenever an adjustment to the Conversion
Price, the Liquidation Price or the Preferred Dividend Rate of the ESOP
Preferred Stock is required pursuant hereto, the Corporation shall forthwith
place on file with the transfer agent for the Common Stock and the ESOP
Preferred Stock, if there be one, and with the Treasurer of the Corporation, a
statement signed by the Treasurer or any Assistant Treasurer of the Corporation
stating the adjusted Conversion Price, Liquidation Price and Preferred Dividend
Rate determined as provided herein. Such statement shall set forth in
reasonable detail such facts as shall be necessary to show the reason and the
manner of computing such adjustments, including any determination of Fair
Market Value involved in such computation. Promptly after each adjustment to
the number of shares of ESOP Preferred Stock outstanding, the Conversion Price,
the Liquidation Price or the Preferred Dividend Rate, the Corporation shall
mail a notice thereof and of the then prevailing number of shares of ESOP
Preferred Stock outstanding, the Conversion Price, the Liquidation Price and
the Preferred Dividend Rate to each holder of shares of ESOP Preferred Stock.
10. Miscellaneous.
(A) All notices referred to herein shall be in writing, and
all notices hereunder shall be deemed to have been given upon the earlier of
receipt thereof or three (3) business days after the mailing thereof if sent by
registered mail (unless first-class mail shall be specifically permitted for
such notice under the terms hereof) with postage prepaid,
32
addressed: (i) if to the Corporation, to its office at 1251 Avenue of the
Americas, New York, New York 10020 (Attention: Secretary) or to the transfer
agent for the ESOP Preferred Stock, or other agent of the Corporation
designated as permitted hereof or (ii) if to any holder of the ESOP Preferred
Stock or Common Stock, as the case may be, to such holder at the address of
such holder as listed in the stock record books of the Corporation (which may
include the records of any transfer agent for Common Stock) or (iii) to such
other address as the Corporation or any such holder, as the case may be, shall
have designated by notice similarly given.
(B) The term "Common Stock" as used herein means the Corporation's
Common Stock, par value $1.00 per share, as the same exists at the date of
filing of this Certificate of Designation pursuant to Section 151 of the
General Corporation Law of the State of Delaware, or any other class of stock
resulting from successive changes or reclassifications of such Common Stock
consisting solely of changes in par value, or from par value to without par
value, or from without par value to par value. In the event that, at any time
as a result of an adjustment made pursuant to Section 9 hereof, the holder of
any shares of the ESOP Preferred Stock upon thereafter surrendering such shares
for conversion shall become entitled to receive any shares or other securities
of the Corporation other than shares of Common Stock, the anti-dilution
provisions contained in Section 9 hereof shall apply in a manner and on terms
as nearly equivalent as practicable to the provisions with respect to Common
Stock, and the provisions of Sections 1 through 8 and 10 hereof with respect to
the Common Stock shall apply on like or similar terms to any such other shares
or securities.
(C) The Corporation shall pay any and all stock transfer and
documentary stamp taxes that may be payable in respect of any issuance or
delivery of shares of ESOP Preferred Stock or shares of Common Stock or other
securities issued on account of ESOP Preferred Stock pursuant thereto or
certificates representing such shares or securities. The Corporation shall
not, however, be required to pay any such tax which may be payable in respect
of any transfer involved in the issuance or delivery of shares of ESOP
Preferred Stock or Common Stock or other securities in a name other than that
in which the shares of ESOP Preferred Stock with respect to which such shares
or other securities are issued or delivered were registered, or in respect of
any payment to any person with respect to any shares or securities other than a
payment
33
to the registered holder thereof, and shall not be required to make any such
issuance, delivery or payment unless and until the person otherwise entitled to
such issuance, delivery or payment has paid to the Corporation the amount of
any such tax or has established, to the satisfaction of the Corporation, that
such tax has been paid or is not payable.
(D) In the event that a holder of shares of ESOP Preferred Stock
shall not by written notice designate the name in which shares of Common Stock
to be issued upon conversion or exchange of such shares should be registered or
to whom payment upon redemption of shares of ESOP Preferred Stock should be
made or the address to which the certificate or certificates representing such
shares, or such payment, should be sent, the Corporation shall be entitled to
register such shares, and make such payment, in the name of the holder of such
ESOP Preferred Stock as shown on the records of the Corporation and to send the
certificate or certificates or other documentation representing such shares, or
such payment, to the address of such holder shown on the records of the
Corporation.
(E) The Corporation may appoint, and from time to time discharge
and change, a transfer agent for the ESOP Preferred Stock. Upon any such
appointment or discharge of a transfer agent, the Corporation shall send notice
thereof by first-class mail, postage prepaid, to each holder of record of ESOP
Preferred Stock.
34
Subpart B: 9.36% Cumulative Preferred Stock*
1. Designation and Amount; Fractional Shares. The designation
for such series of the Preferred Stock authorized by this resolution shall be
the 9.36% Cumulative Preferred Stock, without par value but with a stated value
of $25.00 per share (the "Cumulative Preferred Stock"). The maximum number of
shares of Cumulative Preferred Stock shall be 5,500,000. The Cumulative
Preferred Stock is issuable in whole shares only.
2. Dividends. Holders of shares of Cumulative Preferred Stock
will be entitled to receive, when and as declared by the Board out of assets of
the Corporation legally available for payment, cash dividends payable quarterly
at the rate of 9.36% per annum. Dividends on the Cumulative Preferred Stock,
calculated as a percentage of the stated value, will be payable quarterly on
February 28, May 30, August 30 and November 30, commencing August 30, 1991
(each a "dividend payment date"). Dividends on shares of the Cumulative
Preferred Stock will be cumulative from the date of initial issuance of such
shares of Cumulative Preferred Stock. Dividends will be payable, in arrears,
to holders of record as they appear on the stock books of the Corporation on
such record dates, not more than 60 days nor less than 10 days preceding the
payment dates thereof, as shall be fixed by the Board. The amount of dividends
payable for the initial dividend period or any period shorter than a full
dividend period shall be calculated on the basis of a 360-day year of twelve
30-day months. No dividends may be declared or paid or set apart for payment
on any Parity Preferred Stock (as defined in paragraph 9(b) below) with regard
to the payment of dividends unless there shall also be or have been declared
and paid or set apart for payment on the Cumulative Preferred Stock, like
dividends for all dividend payment periods of the Cumulative Preferred Stock
ending on or before the dividend payment date of such Parity Preferred Stock,
ratably in proportion to the respective amounts of dividends (x) accumulated
and unpaid or payable on such Parity Preferred Stock, on the one hand, and (y)
accumulated and unpaid through the dividend payment period or periods of the
Cumulative Preferred Stock next preceding such dividend payment date, on the
other hand.
- --------------------
* Terms defined in this Subpart B are so defined for purposes of this
Subpart alone.
35
Except as set forth in the preceding sentence, unless full
cumulative dividends on the Cumulative Preferred Stock have been paid, no
dividends (other than in Common Stock of the Corporation) may be paid or
declared and set aside for payment or other distribution made upon the Common
Stock or on any other stock of the Corporation ranking junior to or on a parity
with the Cumulative Preferred Stock as to dividends, nor may any Common Stock
or any other stock of the Corporation ranking junior to or on a parity with the
Cumulative Preferred Stock as to dividends be redeemed, purchased or otherwise
acquired for any consideration (or any payment be made to or available for a
sinking fund for the redemption of any shares of such stock; provided, however,
that any moneys theretofore deposited in any sinking fund with respect to any
preferred stock of the Corporation in compliance with the provisions of such
sinking fund may thereafter be applied to the purchase or redemption of such
preferred stock in accordance with the terms of such sinking fund regardless of
whether at the time of such application full cumulative dividends upon shares
of the Cumulative Preferred Stock outstanding to the last dividend payment date
shall have been paid or declared and set apart for payment) by the Corporation
(except by conversion into or exchange for stock of the Corporation ranking
junior to the Cumulative Preferred Stock as to dividends).
3. Liquidation Preference. The shares of Cumulative Preferred
Stock shall rank, as to liquidation, dissolution or winding up of the
Corporation, prior to the shares of Common Stock and any other class of stock
of the Corporation ranking junior to the Cumulative Preferred Stock as to
rights upon liquidation, dissolution or winding up of the Corporation, so that
in the event of any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Cumulative Preferred Stock
shall be entitled to receive out of the assets of the Corporation available for
distribution to its stockholders, whether from capital, surplus or earnings,
before any distribution is made to holders of shares of Common Stock or any
other such junior stock, an amount equal to $25.00 per share (the "Liquidation
Preference" of a share of Cumulative Preferred Stock) plus an amount equal to
all dividends (whether or not earned or declared) accrued and accumulated and
unpaid on the shares of Cumulative Preferred Stock to the date of final
distribution. The holders of the Cumulative Preferred Stock will not be
entitled to receive the Liquidation Preference until the liquidation preference
of any other class of stock of the Corporation ranking senior to the Cumulative
Preferred Stock as to rights upon
36
liquidation, dissolution or winding up shall have been paid (or a sum set aside
therefor sufficient to provide for payment) in full. After payment of the full
amount of the Liquidation Preference and such dividends, the holders of shares
of Cumulative Preferred Stock will not be entitled to any further participation
in any distribution of assets by the Corporation. If, upon any liquidation,
dissolution or winding up of the Corporation, the assets of the Corporation, or
proceeds thereof, distributable among the holders of shares of Parity Preferred
Stock shall be insufficient to pay in full the preferential amount aforesaid,
then such assets, or the proceeds thereof, shall be distributable among such
holders ratably in accordance with the respective amounts which would be
payable on such shares if all amounts payable thereon were paid in full. For
the purposes hereof, neither a consolidation or merger of the Corporation with
or into any other corporation, nor a merger of any other corporation with or
into the Corporation, nor a sale or transfer of all or any part of the
Corporation's assets for cash or securities shall be considered a liquidation,
dissolution or winding up of the Corporation.
4. Conversion. The Cumulative Preferred Stock is not
convertible into shares of any other class or series of stock of the
Corporation.
5. Voting Rights. The holders of shares of Cumulative
Preferred Stock shall have no voting rights whatsoever, except for any voting
rights to which they may be entitled under the laws of the State of Delaware,
and except as follows:
(a) Whenever, at any time or times, dividends payable on the
shares of Cumulative Preferred Stock or on any Parity Preferred Stock
with respect to payment of dividends shall be in arrears for an
aggregate number of days equal to six calendar quarters or more,
whether or not consecutive, the holders of the outstanding shares of
Cumulative Preferred Stock shall have the right, with holders of
shares of any one or more other class or series of stock upon which
like voting rights have been conferred and are exercisable (voting
together as a class), to elect two of the authorized number of members
of the Board of Directors of the Corporation at the Corporation's next
annual meeting of stockholders and at each subsequent annual meeting
of stockholders until such arrearages have been paid or set apart for
payment, at which time such right shall terminate, except as herein or
by law expressly provided, subject to revesting in the
37
event of each and every subsequent default of the character above
mentioned. Upon any termination of the right of the holders of shares
of Cumulative Preferred Stock as a class to vote for directors as
herein provided, the term of office of all directors then in office
elected by the holders of shares of Cumulative Preferred Stock shall
terminate immediately. Any director who shall have been so elected
pursuant to this paragraph may be removed at any time, either with or
without cause. Any vacancy thereby created may be filled, only by the
affirmative vote of the holders of shares of Cumulative Preferred
Stock voting separately as a class (together with the holders of
shares of any other class or series of stock upon which like voting
rights have been conferred and are exercisable). If the office of any
director elected by the holders of shares of Cumulative Preferred
Stock voting as a class becomes vacant for any reason other than
removal from office as aforesaid, the remaining director elected
pursuant to this paragraph may choose a successor who shall hold
office for the unexpired term in respect of which such vacancy
occurred. At elections for such directors, each holder of shares of
Cumulative Preferred Stock shall be entitled to one vote for each
share held (the holders of shares of any other class or series of
preferred stock having like voting rights being entitled to such
number of votes, if any, for each share of such stock held as may be
granted to them).
(b) So long as any shares of Cumulative Preferred Stock
remain outstanding, the consent of the holders of at least two-thirds
of the shares of Cumulative Preferred Stock outstanding at the time
and all other class or series of stock upon which like voting rights
have been conferred and are exercisable (voting together as a class)
given in person or by proxy, either in writing or at any meeting
called for the purpose, shall be necessary to permit, effect or
validate any one or more of the following:
(i) the issuance or increase of the authorized amount of
any class or series of shares ranking prior (as that term is
defined in paragraph 9(a) hereof) to the shares of the
Cumulative Preferred Stock; or
(ii) the amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Certificate of
38
Incorporation (including this resolution or any provision
hereof) that would materially and adversely affect any power,
preference, or special right of the shares of Cumulative
Preferred Stock or of the holders thereof;
provided, however, that any increase in the amount of authorized
Common Stock or authorized Preferred Stock or any increase or decrease
in the number of shares of any series of Preferred Stock or the
creation and issuance of other series of Common Stock or Preferred
Stock, in each case ranking on a parity with or junior to the shares
of Cumulative Preferred Stock with respect to the payment of dividends
and the distribution of assets upon liquidation, dissolution or
winding up, shall not be deemed to materially and adversely affect
such powers, preferences or special rights.
(c) The foregoing voting provisions shall not apply if, at or
prior to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding shares of
Cumulative Preferred Stock shall have been redeemed or called for
redemption and sufficient funds shall have been deposited in trust to
effect such redemption.
6. Redemption. The shares of the Cumulative Preferred Stock
may be redeemed at the option of the Corporation, as a whole, or from time to
time in part, at any time, upon not less than 30 days' prior notice mailed to
the holders of the shares to be redeemed at their addresses as shown on the
stock books of the Corporation; provided, however, that shares of the
Cumulative Preferred Stock shall not be redeemable prior to May 30, 1996.
Subject to the foregoing, on or after such date, shares of the Cumulative
Preferred Stock are redeemable at $25.00 per share together with an amount
equal to all dividends (whether or not earned or declared) accrued and
accumulated and unpaid to, but excluding, the date fixed for redemption.
If full cumulative dividends on the Cumulative Preferred Stock
have not been paid, the Cumulative Preferred Stock may not be redeemed in part
and the Corporation may not purchase or acquire any shares of the Cumulative
Preferred Stock otherwise than pursuant to a purchase or exchange offer made on
the same terms to all holders of the Cumulative Preferred Stock. If fewer than
all the outstanding shares of Cumulative Preferred Stock are to be redeemed,
the Corporation will select those to be redeemed by lot or a substantially
equivalent method.
39
If a notice of redemption has been given pursuant to this
paragraph 6 and if, on or before the date fixed for redemption, the funds
necessary for such redemption shall have been set aside by the Corporation,
separate and apart from its other funds, in trust for the pro rata benefit of
the holders of the shares of Cumulative Preferred Stock so called for
redemption, then, notwithstanding that any certificates for such shares have
not been surrendered for cancellation, on the redemption date dividends shall
cease to accrue on the shares to be redeemed, and at the close of business on
the redemption date the holders of such shares shall cease to be stockholders
with respect to such shares and shall have no interest in or claims against the
Corporation by virtue thereof and shall have no voting or other rights with
respect to such shares, except the right to receive the moneys payable upon
surrender (and endorsement, if required by the Corporation) of their
certificates, and the shares evidenced thereby shall no longer be outstanding.
Subject to applicable escheat laws, any moneys so set aside by the Corporation
and unclaimed at the end of two years from the redemption date shall revert to
the general funds of the Corporation, after which reversion the holders of such
shares so called for redemption shall look only to the general funds of the
Corporation for the payment of the amounts payable upon such redemption. Any
interest accrued on funds so deposited shall be paid to the Corporation from
time to time.
7. Authorization and Issuance of Other Securities. No
consent of the holders of the Cumulative Preferred Stock shall be required for
(a) the creation of any indebtedness of any kind of the Corporation, (b) the
creation, or increase or decrease in the amount, of any class or series of
stock of the Corporation not ranking prior as to dividends or upon liquidation,
dissolution or winding up to the Cumulative Preferred Stock or (c) any increase
or decrease in the amount of authorized Common Stock or any increase, decrease
or change in the par value thereof or in any other terms thereof.
8. Amendment of Resolution. Subject to the provisions of
paragraph 5, the Board reserves the right by subsequent amendment of this
resolution from time to time to increase or decrease the number of shares which
constitute the Cumulative Preferred Stock (but not below the number of shares
thereof then outstanding) and in other respects to amend this resolution within
the limitations provided by law, this resolution and the Certificate of
Incorporation.
9. Rank. For the purposes of this resolution, any stock of
any class or classes of the Corporation shall be deemed to rank:
40
(a) prior to shares of the Cumulative Preferred Stock, either
as to dividends or upon liquidation, dissolution or winding up, or
both, if the holders of stock of such class or classes shall be
entitled by the terms thereof to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as
the case may be, in preference or priority to the holders of shares of
the Cumulative Preferred Stock;
(b) on a parity with shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation, dissolution or
winding up, or both, whether or not the dividend rates, dividend
payment dates, or redemption or liquidation prices per share thereof
be different from those of the Cumulative Preferred Stock, if the
holders of stock of such class or classes shall be entitled by the
terms thereof to the receipt of dividends or of amounts distributed
upon liquidation, dissolution or winding up, as the case may be, in
proportion to their respective dividend rates or liquidation prices,
without preference or priority of one over the other as between the
holders of such stock and the holders of shares of Cumulative
Preferred Stock (the term "Parity Preferred Stock" being used to refer
to any stock on a parity with the shares of Cumulative Preferred
Stock, either as to dividends or upon liquidation, dissolution or
winding up, or both, as the context may require); and
(c) junior to shares of the Cumulative Preferred Stock,
either as to dividends or upon liquidation, dissolution or winding up,
or both, if such class shall be Common Stock or if the holders of the
Cumulative Preferred Stock shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or priority to the
holders of stock of such class or classes.
The Cumulative Preferred Stock shall rank prior, as to
dividends and upon liquidation, dissolution or winding up, to the Common Stock
and on a parity with the Corporation's ESOP Convertible Preferred Stock, with a
liquidation value of $35.875 per share, the Corporation's 8.88% Cumulative
Preferred Stock, with a liquidation value of $200.00 per share, and the
Corporation's 8-3/4% Cumulative Preferred Stock, with a liquidation value of
$200.00 per share.
41
Subpart C: 8.88% Cumulative Preferred Stock*
1. Designation and Amount; Fractional Shares. The
designation for such series of the Preferred Stock authorized by this
resolution shall be the 8.88% Cumulative Preferred Stock, without par value,
with a stated value of $200.00 per share (the "Cumulative Preferred Stock").
The stated value per share of Cumulative Preferred Stock shall not for any
purpose be considered to be a determination by the Board or the Committee with
respect to the capital and surplus of the Corporation. The maximum number of
shares of Cumulative Preferred Stock shall be 975,000. The Cumulative
Preferred Stock is issuable in whole shares only.
2. Dividends. Holders of shares of Cumulative Preferred
Stock will be entitled to receive, when and as declared by the Board or the
Committee out of assets of the Corporation legally available for payment, cash
dividends payable quarterly at the rate of 8.88% per annum. Dividends on the
Cumulative Preferred Stock, calculated as a percentage of the stated value,
will be payable quarterly on February 28, May 30, August 30 and November 30,
commencing February 28, 1992 (each a "dividend payment date"). Dividends on
shares of the Cumulative Preferred Stock will be cumulative from the date of
initial issuance of such shares of Cumulative Preferred Stock. Dividends will
be payable, in arrears, to holders of record as they appear on the stock books
of the Corporation on such record dates, not more than 60 days nor less than 10
days preceding the payment dates thereof, as shall be fixed by the Board or the
Committee. The amount of dividends payable for the initial dividend period or
any period shorter than a full dividend period shall be calculated on the basis
of a 360-day year of twelve 30-day months. No dividends may be declared or
paid or set apart for payment on any Parity Preferred Stock (as defined in
paragraph 9(b) below) with regard to the payment of dividends unless there
shall also be or have been declared and paid or set apart for payment on the
Cumulative Preferred Stock, like dividends for all dividend payment periods of
the Cumulative Preferred Stock ending on or before the dividend payment date of
such Parity Preferred Stock, ratably in proportion to the respective amounts of
dividends (x) accumulated and unpaid or payable on such Parity Preferred Stock,
on the one hand, and (y) accumulated and unpaid
- ---------------------
* Terms defined in this Subpart C are so defined for purposes of this
Subpart alone.
42
through the dividend payment period or periods of the Cumulative Preferred
Stock next preceding such dividend payment date, on the other hand.
Except as set forth in the preceding sentence, unless full
cumulative dividends on the Cumulative Preferred Stock have been paid, no
dividends (other than in Common Stock of the Corporation) may be paid or
declared and set aside for payment or other distribution made upon the Common
Stock or on any other stock of the Corporation ranking junior to or on a parity
with the Cumulative Preferred Stock as to dividends, nor may any Common Stock
or any other stock of the Corporation ranking junior to or on a parity with the
Cumulative Preferred Stock as to dividends be redeemed, purchased or otherwise
acquired by the Corporation for any consideration or any payment by the
Corporation be made to or available for a sinking fund for the redemption of
any shares of such stock; provided, however, that any moneys theretofore
deposited in any sinking fund with respect to any preferred stock of the
Corporation in compliance with the provisions of such sinking fund may
thereafter be applied to the purchase or redemption of such preferred stock in
accordance with the terms of such sinking fund regardless of whether at the
time of such application full cumulative dividends upon shares of the
Cumulative Preferred Stock outstanding to the last dividend payment date shall
have been paid or declared and set apart for payment; and provided further that
any such junior or parity Preferred Stock or Common Stock may be converted into
or exchanged for stock of the Corporation ranking junior to the Cumulative
Preferred Stock as to dividends.
3. Liquidation Preference. The shares of Cumulative
Preferred Stock shall rank, as to liquidation, dissolution or winding up of the
Corporation, prior to the shares of Common Stock and any other class of stock
of the Corporation ranking junior to the Cumulative Preferred Stock as to
rights upon liquidation, dissolution or winding up of the Corporation, so that
in the event of any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Cumulative Preferred Stock
shall be entitled to receive out of the assets of the Corporation available for
distribution to its stockholders, whether from capital, surplus or earnings,
before any distribution is made to holders of shares of Common Stock or any
other such junior stock, an amount equal to $200.00 per share (the "Liquidation
Preference" of a share of Cumulative Preferred Stock) plus an amount equal to
all dividends (whether or not earned or declared) accrued and
43
accumulated and unpaid on the shares of Cumulative Preferred Stock to the date
of final distribution. The holders of the Cumulative Preferred Stock will not
be entitled to receive the Liquidation Preference until the liquidation
preference of any other class of stock of the Corporation ranking senior to the
Cumulative Preferred Stock as to rights upon liquidation, dissolution or
winding up shall have been paid (or a sum set aside therefor sufficient to
provide for payment) in full. After payment of the full amount of the
Liquidation Preference and an amount equal to such dividends, the holders of
shares of Cumulative Preferred Stock will not be entitled to any further
participation in any distribution of assets by the Corporation. If, upon any
liquidation, dissolution or winding up of the Corporation, the assets of the
Corporation, or proceeds thereof, distributable among the holders of shares of
Parity Preferred Stock shall be insufficient to pay in full the preferential
amount aforesaid, then such assets, or the proceeds thereof, shall be
distributable among such holders ratably in accordance with the respective
amounts which would be payable on such shares if all amounts payable thereon
were paid in full. For the purposes hereof, neither a consolidation or merger
of the Corporation with or into any other corporation, nor a merger of any
other corporation with or into the Corporation, nor a sale or transfer of all
or any part of the Corporation's assets for cash or securities shall be
considered a liquidation, dissolution or winding up of the Corporation.
4. Conversion. The Cumulative Preferred Stock is not
convertible into shares of any other class or series of stock of the
Corporation.
5. Voting Rights. The holders of shares of Cumulative
Preferred Stock shall have no voting rights whatsoever, except for any voting
rights to which they may be entitled under the laws of the State of Delaware,
and except as follows:
(a) Whenever, at any time or times, dividends payable on the
shares of Cumulative Preferred Stock or on any Parity Preferred Stock
with respect to payment of dividends shall be in arrears for an
aggregate number of days equal to six calendar quarters or more,
whether or not consecutive, the holders of the outstanding shares of
Cumulative Preferred Stock shall have the right, with holders of
shares of any one or more other class or series of stock upon which
like voting rights have been conferred and are exercisable (voting
together as a class), to elect two of the authorized number of members
44
of the Board at the Corporation's next annual meeting of stockholders
and at each subsequent annual meeting of stockholders until such
arrearages have been paid or set apart for payment, at which time such
right shall terminate, except as herein or by law expressly provided,
subject to revesting in the event of each and every subsequent default
of the character above mentioned. Upon any termination of the right
of the holders of shares of Cumulative Preferred Stock as a class to
vote for directors as herein provided, the term of office of all
directors then in office elected by the holders of shares of
Cumulative Preferred Stock shall terminate immediately. Any director
who shall have been so elected pursuant to this paragraph may be
removed at any time, either with or without cause. Any vacancy
thereby created may be filled only by the affirmative vote of the
holders of shares of Cumulative Preferred Stock voting separately as a
class (together with the holders of shares of any other class or
series of stock upon which like voting rights have been conferred and
are exercisable). If the office of any director elected by the
holders of shares of Cumulative Preferred Stock voting as a class
becomes vacant for any reason other than removal from office as
aforesaid, the remaining director elected pursuant to this paragraph
may choose a successor who shall hold office for the unexpired term in
respect of which such vacancy occurred. At elections for such
directors, each holder of shares of Cumulative Preferred Stock shall
be entitled to one vote for each share held (the holders of shares of
any other class or series of preferred stock having like voting rights
being entitled to such number of votes, if any, for each share of such
stock held as may be granted to them).
(b) So long as any shares of Cumulative Preferred Stock
remain outstanding, the consent of the holders of at least two-thirds
of the shares of Cumulative Preferred Stock outstanding at the time
and all other classes or series of stock upon which like voting rights
have been conferred and are exercisable (voting together as a class)
given in person or by proxy, either in writing or at any meeting
called for the purpose, shall be necessary to permit, effect or
validate any one or more of the following:
(i) the issuance or increase of the authorized amount of
any class or series of shares ranking prior (as that term is
defined in paragraph 9(a) hereof) to the shares of the
Cumulative Preferred Stock; or
45
(ii) the amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Certificate of Incorporation (including this resolution
or any provision hereof) that would materially and adversely
affect any power, preference, or special right of the shares
of Cumulative Preferred Stock or of the holders thereof;
provided, however, that any increase in the amount of
authorized Common Stock or authorized Preferred Stock or any
increase or decrease in the number of shares of any series of
Preferred Stock or the creation and issuance of other series
of Common Stock or Preferred Stock, in each case ranking on a
parity with or junior to the shares of Cumulative Preferred
Stock with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or
winding up, shall not be deemed to materially and adversely
affect such powers, preferences or special rights.
(c) The foregoing voting provisions shall not apply if, at or
prior to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding shares of
Cumulative Preferred Stock shall have been redeemed or called for
redemption and sufficient funds shall have been deposited in trust to
effect such redemption.
6. Redemption. The shares of the Cumulative Preferred Stock
may be redeemed at the option of the Corporation, as a whole, or from time to
time in part, at any time, upon not less than 30 days' prior notice mailed to
the holders of the shares to be redeemed at their addresses as shown on the
stock books of the Corporation; provided, however, that shares of the
Cumulative Preferred Stock shall not be redeemable prior to November 30, 1996.
Subject to the foregoing, on or after such date, shares of the Cumulative
Preferred Stock are redeemable at $200.00 per share together with an amount
equal to all dividends (whether or not earned or declared) accrued and
accumulated and unpaid to, but excluding, the date fixed for redemption.
If full cumulative dividends on the Cumulative Preferred Stock
have not been paid, the Cumulative Preferred Stock may not be redeemed in part
and the Corporation may not purchase or acquire any shares of the Cumulative
Preferred Stock otherwise than pursuant to a purchase or exchange offer made on
the same terms to all holders of the Cumulative Preferred Stock.
46
If fewer than all the outstanding shares of Cumulative
Preferred Stock are to be redeemed, the Corporation will select those to be
redeemed by lot or a substantially equivalent method.
If a notice of redemption has been given pursuant to this
paragraph 6 and if, on or before the date fixed for redemption, the funds
necessary for such redemption shall have been set aside by the Corporation,
separate and apart from its other funds, in trust for the pro rata benefit of
the holders of the shares of Cumulative Preferred Stock so called for
redemption, then, notwithstanding that any certificates for such shares have
not been surrendered for cancellation, on the redemption date dividends shall
cease to accrue on the shares to be redeemed, and at the close of business on
the redemption date the holders of such shares shall cease to be stockholders
with respect to such shares and shall have no interest in or claims against the
Corporation by virtue thereof and shall have no voting or other rights with
respect to such shares, except the right to receive the moneys payable upon
surrender (and endorsement, if required by the Corporation) of their
certificates, and the shares evidenced thereby shall no longer be outstanding.
Subject to applicable escheat laws, any moneys so set aside by the Corporation
and unclaimed at the end of two years from the redemption date shall revert to
the general funds of the Corporation, after which reversion the holders of such
shares so called for redemption shall look only to the general funds of the
Corporation for the payment of the amounts payable upon such redemption. Any
interest accrued on funds so deposited shall be paid to the Corporation from
time to time.
All shares of Cumulative Preferred Stock redeemed, purchased
or otherwise acquired by the Corporation shall be retired and cancelled and
shall be restored to the status of authorized but unissued shares of Preferred
Stock, without designation as to series, and may thereafter be issued.
7. Authorization and Issuance of Other Securities. No
consent of the holders of the Cumulative Preferred Stock shall be required for
(a) the creation of any indebtedness of any kind of the Corporation, (b) the
creation, or increase or decrease in the amount, of any class or series of
stock of the Corporation not ranking prior as to dividends or upon liquidation,
dissolution or winding up to the Cumulative Preferred Stock or (c) any increase
or decrease in the amount of authorized Common Stock or any increase, decrease
or change in the par value thereof or in any other terms thereof.
47
8. Amendment of Resolution. The Board and the Committee each
reserves the right by subsequent amendment of this resolution from time to time
to increase or decrease the number of shares that constitute the Cumulative
Preferred Stock (but not below the number of shares thereof then outstanding)
and in other respects to amend this resolution within the limitations provided
by law, this resolution and the Certificate of Incorporation.
9. Rank. For the purposes of this resolution, any stock of
any class or classes of the Corporation shall be deemed to rank:
(a) prior to shares of the Cumulative Preferred Stock, either
as to dividends or upon liquidation, dissolution or winding up, or
both, if the holders of stock of such class or classes shall be
entitled by the terms thereof to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as
the case may be, in preference or priority to the holders of shares of
the Cumulative Preferred Stock;
(b) on a parity with shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation, dissolution or
winding up, or both, whether or not the dividend rates, dividend
payment dates, or redemption or liquidation prices per share thereof
be different from those of the Cumulative Preferred Stock, if the
holders of stock of such class or classes shall be entitled by the
terms thereof to the receipt of dividends or of amounts distributed
upon liquidation, dissolution or winding up, as the case may be, in
proportion to their respective dividend rates or liquidation prices,
without preference or priority of one over the other as between the
holders of such stock and the holders of shares of Cumulative
Preferred Stock (the term "Parity Preferred Stock" being used to refer
to any stock on a parity with the shares of Cumulative Preferred
Stock, either as to dividends or upon liquidation, dissolution or
winding up, or both, as the context may require); and
(c) junior to shares of the Cumulative Preferred Stock,
either as to dividends or upon liquidation, dissolution or winding up,
or both, if such class shall be Common Stock or if the holders of the
Cumulative Preferred Stock shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or priority to the
holders of stock of such class or classes.
48
The Cumulative Preferred Stock shall rank prior, as to
dividends and upon liquidation, dissolution or winding up, to the Common Stock
and on a parity with the Corporation's ESOP Convertible Preferred Stock, with a
liquidation value of $35.875 per share, the Corporation's 9.36% Cumulative
Preferred Stock, with a liquidation value of $25.00 per share, and the
Corporation's 8-3/4% Cumulative Preferred Stock, with a liquidation value of
$200.00 per share.
49
Subpart D: 8-3/4% Cumulative Preferred Stock*
1. Designation and Amount; Fractional Shares. The
designation for such series of the Preferred Stock authorized by this
resolution shall be the 8-3/4% Cumulative Preferred Stock, without par value,
with a stated value of $200.00 per share (the "Cumulative Preferred Stock").
The stated value per share of Cumulative Preferred Stock shall not for any
purpose be considered to be a determination by the Board or the Committee with
respect to the capital and surplus of the Corporation. The number of shares of
Cumulative Preferred Stock shall be 750,000. The Cumulative Preferred Stock is
issuable in whole shares only.
2. Dividends. Holders of shares of Cumulative Preferred
Stock will be entitled to receive, when and as declared by the Board or the
Committee out of assets of the Corporation legally available for payment, cash
dividends payable quarterly at the rate of 8-3/4% per annum. Dividends on the
Cumulative Preferred Stock, calculated as a percentage of the stated value,
will be payable quarterly on February 28, May 30, August 30 and November 30,
commencing May 30, 1992 (each a "dividend payment date"). Dividends on shares
of the Cumulative Preferred Stock will be cumulative from the date of initial
issuance of such shares of Cumulative Preferred Stock. Dividends will be
payable, in arrears, to holders of record as they appear on the stock books of
the Corporation on such record dates, not more than 60 days nor less than 10
days preceding the payment dates thereof, as shall be fixed by the Board or the
Committee. The amount of dividends payable for the initial dividend period or
any period shorter than a full dividend period shall be calculated on the basis
of a 360-day year of twelve 30-day months. No dividends may be declared or
paid or set apart for payment on any Parity Preferred Stock (as defined in
paragraph 9(b) below) with regard to the payment of dividends unless there
shall also be or have been declared and paid or set apart for payment on the
Cumulative Preferred Stock, like dividends for all dividend payment periods of
the Cumulative Preferred Stock ending on or before the dividend payment date of
such Parity Preferred Stock, ratably in proportion to the respective amounts of
dividends (x) accumulated and unpaid or payable on such Parity Preferred Stock,
on the one hand, and (y) accumulated and unpaid through the dividend payment
period or periods of the
- --------------------
* Terms defined in this Subpart D are so defined for purposes of this
Subpart alone.
50
Cumulative Preferred Stock next preceding such dividend payment date, on the
other hand.
Except as set forth in the preceding sentence, unless full
cumulative dividends on the Cumulative Preferred Stock have been paid, no
dividends (other than in Common Stock of the Corporation) may be paid or
declared and set aside for payment or other distribution made upon the Common
Stock or on any other stock of the Corporation ranking junior to or on a parity
with the Cumulative Preferred Stock as to dividends, nor may any Common Stock
or any other stock of the Corporation ranking junior to or on a parity with the
Cumulative Preferred Stock as to dividends be redeemed, purchased or otherwise
acquired by the Corporation for any consideration or any payment by the
Corporation be made to or available for a sinking fund for the redemption of
any shares of such stock; provided, however, that any moneys theretofore
deposited in any sinking fund with respect to any preferred stock of the
Corporation in compliance with the provisions of such sinking fund may
thereafter be applied to the purchase or redemption of such preferred stock in
accordance with the terms of such sinking fund regardless of whether at the
time of such application full cumulative dividends upon shares of the
Cumulative Preferred Stock outstanding to the last dividend payment date shall
have been paid or declared and set apart for payment; and provided further that
any such junior or parity Preferred Stock or Common Stock may be converted into
or exchanged for stock of the Corporation ranking junior to the Cumulative
Preferred Stock as to dividends.
3. Liquidation Preference. The shares of Cumulative
Preferred Stock shall rank, as to liquidation, dissolution or winding up of the
Corporation, prior to the shares of Common Stock and any other class of stock
of the Corporation ranking junior to the Cumulative Preferred Stock as to
rights upon liquidation, dissolution or winding up of the Corporation, so that
in the event of any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Cumulative Preferred Stock
shall be entitled to receive out of the assets of the Corporation available for
distribution to its stockholders, whether from capital, surplus or earnings,
before any distribution is made to holders of shares of Common Stock or any
other such junior stock, an amount equal to $200.00 per share (the "Liquidation
Preference" of a share of Cumulative Preferred Stock) plus an amount equal to
all dividends (whether or not earned or declared) accrued and accumulated and
unpaid on the shares of Cumulative Preferred
51
Stock to the date of final distribution. The holders of the Cumulative
Preferred Stock will not be entitled to receive the Liquidation Preference
until the liquidation preference of any other class of stock of the Corporation
ranking senior to the Cumulative Preferred Stock as to rights upon liquidation,
dissolution or winding up shall have been paid (or a sum set aside therefor
sufficient to provide for payment) in full. After payment of the full amount
of the Liquidation Preference and an amount equal to such dividends, the
holders of shares of Cumulative Preferred Stock will not be entitled to any
further participation in any distribution of assets by the Corporation. If,
upon any liquidation, dissolution or winding up of the Corporation, the assets
of the Corporation, or proceeds thereof, distributable among the holders of
shares of Parity Preferred Stock shall be insufficient to pay in full the
preferential amount aforesaid, then such assets, or the proceeds thereof, shall
be distributable among such holders ratably in accordance with the respective
amounts which would be payable on such shares if all amounts payable thereon
were paid in full. For the purposes hereof, neither a consolidation or merger
of the Corporation with or into any other corporation, nor a merger of any
other corporation with or into the Corporation, nor a sale or transfer of all
or any part of the Corporation's assets for cash or securities shall be
considered a liquidation, dissolution or winding up of the Corporation.
4. Conversion. The Cumulative Preferred Stock is not
convertible into shares of any other class or series of stock of the
Corporation.
5. Voting Rights. The holders of shares of Cumulative
Preferred Stock shall have no voting rights whatsoever, except for any voting
rights to which they may be entitled under the laws of the State of Delaware,
and except as follows:
(a) Whenever, at any time or times, dividends payable on the
shares of Cumulative Preferred Stock or on any Parity Preferred Stock
with respect to payment of dividends shall be in arrears for an
aggregate number of days equal to six calendar quarters or more,
whether or not consecutive, the holders of the outstanding shares of
Cumulative Preferred Stock shall have the right, with holders of
shares of any one or more other class or series of stock upon which
like voting rights have been conferred and are exercisable (voting
together as a class), to elect two of the authorized number of members
of the Board at the Corporation's next annual meeting of
52
stockholders and at each subsequent annual meeting of stockholders
until such arrearages have been paid or set apart for payment, at
which time such right shall terminate, except as herein or by law
expressly provided, subject to revesting in the event of each and
every subsequent default of the character above mentioned. Upon any
termination of the right of the holders of shares of Cumulative
Preferred Stock as a class to vote for directors as herein provided,
the term of office of all directors then in office elected by the
holders of shares of Cumulative Preferred Stock shall terminate
immediately. Any director who shall have been so elected pursuant to
this paragraph may be removed at any time, either with or without
cause. Any vacancy thereby created may be filled only by the
affirmative vote of the holders of shares of Cumulative Preferred
Stock voting separately as a class (together with the holders of
shares of any other class or series of stock upon which like voting
rights have been conferred and are exercisable). If the office of any
director elected by the holders of shares of Cumulative Preferred
Stock voting as a class becomes vacant for any reason other than
removal from office as aforesaid, the remaining director elected
pursuant to this paragraph may choose a successor who shall hold
office for the unexpired term in respect of which such vacancy
occurred. At elections for such directors, each holder of shares of
Cumulative Preferred Stock shall be entitled to one vote for each
share held (the holders of shares of any other class or series of
preferred stock having like voting rights being entitled to such
number of votes, if any, for each share of such stock held as may be
granted to them).
(b) So long as any shares of Cumulative Preferred Stock
remain outstanding, the consent of the holders of at least two-thirds
of the shares of Cumulative Preferred Stock outstanding at the time
and all other classes or series of stock upon which like voting rights
have been conferred and are exercisable (voting together as a class)
given in person or by proxy, either in writing or at any meeting
called for the purpose, shall be necessary to permit, effect or
validate any one or more of the following:
(i) the issuance or increase of the authorized amount of
any class or series of shares ranking prior (as that term is
defined in paragraph 9(a) hereof) to the shares of the
Cumulative Preferred Stock; or
53
(ii) the amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Certificate of Incorporation (including this resolution
or any provision hereof) that would materially and adversely
affect any power, preference, or special right of the shares
of Cumulative Preferred Stock or of the holders thereof;
provided, however, that any increase in the amount of
authorized Common Stock or authorized Preferred Stock or any
increase or decrease in the number of shares of any series of
Preferred Stock or the creation and issuance of other series
of Common Stock or Preferred Stock, in each case ranking on a
parity with or junior to the shares of Cumulative Preferred
Stock with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or
winding up, shall not be deemed to materially and adversely
affect such powers, preferences or special rights.
(c) The foregoing voting provisions shall not apply if, at or
prior to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding shares of
Cumulative Preferred Stock shall have been redeemed or called for
redemption and sufficient funds shall have been deposited in trust to
effect such redemption.
6. Redemption. The shares of the Cumulative Preferred Stock
may be redeemed at the option of the Corporation, as a whole, or from time to
time in part, at any time, upon not less than 30 days' prior notice mailed to
the holders of the shares to be redeemed at their addresses as shown on the
stock books of the Corporation; provided, however, that shares of the
Cumulative Preferred Stock shall not be redeemable prior to May 30, 1997.
Subject to the foregoing, on or after such date, shares of the Cumulative
Preferred Stock are redeemable at $200.00 per share together with an amount
equal to all dividends (whether or not earned or declared) accrued and
accumulated and unpaid to, but excluding, the date fixed for redemption.
If full cumulative dividends on the Cumulative Preferred Stock
have not been paid, the Cumulative Preferred Stock may not be redeemed in part
and the Corporation may not purchase or acquire any shares of the Cumulative
Preferred Stock otherwise than pursuant to a purchase or exchange offer made on
the same terms to all holders of the Cumulative Preferred Stock.
54
If fewer than all the outstanding shares of Cumulative
Preferred Stock are to be redeemed, the Corporation will select those to be
redeemed by lot or a substantially equivalent method.
If a notice of redemption has been given pursuant to this
paragraph 6 and if, on or before the date fixed for redemption, the funds
necessary for such redemption shall have been set aside by the Corporation,
separate and apart from its other funds, in trust for the pro rata benefit of
the holders of the shares of Cumulative Preferred Stock so called for
redemption, then, notwithstanding that any certificates for such shares have
not been surrendered for cancellation, on the redemption date dividends shall
cease to accrue on the shares to be redeemed, and at the close of business on
the redemption date the holders of such shares shall cease to be stockholders
with respect to such shares and shall have no interest in or claims against the
Corporation by virtue thereof and shall have no voting or other rights with
respect to such shares, except the right to receive the moneys payable upon
surrender (and endorsement, if required by the Corporation) of their
certificates, and the shares evidenced thereby shall no longer be outstanding.
Subject to applicable escheat laws, any moneys so set aside by the Corporation
and unclaimed at the end of two years from the redemption date shall revert to
the general funds of the Corporation, after which reversion the holders of such
shares so called for redemption shall look only to the general funds of the
Corporation for the payment of the amounts payable upon such redemption. Any
interest accrued on funds so deposited shall be paid to the Corporation from
time to time.
All shares of Cumulative Preferred Stock redeemed, purchased
or otherwise acquired by the Corporation shall be retired and cancelled and
shall be restored to the status of authorized but unissued shares of Preferred
Stock, without designation as to series, and may thereafter be issued.
7. Authorization and Issuance of Other Securities. No
consent of the holders of the Cumulative Preferred Stock shall be required for
(a) the creation of any indebtedness of any kind of the Corporation, (b) the
creation, or increase or decrease in the amount, of any class or series of
stock of the Corporation not ranking prior as to dividends or upon liquidation,
dissolution or winding up to the Cumulative Preferred Stock or (c) any increase
or decrease in the amount of authorized Common Stock or any increase, decrease
or change in the par value thereof or in any other terms thereof.
55
8. Amendment of Resolution. The Board and the Committee each
reserves the right by subsequent amendment of this resolution from time to time
to increase or decrease the number of shares that constitute the Cumulative
Preferred Stock (but not below the number of shares thereof then outstanding)
and in other respects to amend this resolution within the limitations provided
by law, this resolution and the Certificate of Incorporation.
9. Rank. For the purposes of this resolution, any stock of
any class or classes of the Corporation shall be deemed to rank:
(a) prior to shares of the Cumulative Preferred Stock, either
as to dividends or upon liquidation, dissolution or winding up, or
both, if the holders of stock of such class or classes shall be
entitled by the terms thereof to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as
the case may be, in preference or priority to the holders of shares of
the Cumulative Preferred Stock;
(b) on a parity with shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation, dissolution or
winding up, or both, whether or not the dividend rates, dividend
payment dates, or redemption or liquidation prices per share thereof
be different from those of the Cumulative Preferred Stock, if the
holders of stock of such class or classes shall be entitled by the
terms thereof to the receipt of dividends or of amounts distributed
upon liquidation, dissolution or winding up, as the case may be, in
proportion to their respective dividend rates or liquidation prices,
without preference or priority of one over the other as between the
holders of such stock and the holders of shares of Cumulative
Preferred Stock (the term "Parity Preferred Stock" being used to refer
to any stock on a parity with the shares of Cumulative Preferred
Stock, either as to dividends or upon liquidation, dissolution or
winding up, or both, as the context may require); and
(c) junior to shares of the Cumulative Preferred Stock,
either as to dividends or upon liquidation, dissolution or winding up,
or both, if such class shall be Common Stock or if the holders of the
Cumulative Preferred Stock shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or priority to the
holders of stock of such class or classes.
56
The Cumulative Preferred Stock shall rank prior, as to
dividends and upon liquidation, dissolution or winding up, to the Common Stock
and on a parity with the Corporation's ESOP Convertible Preferred Stock, with a
liquidation value of $35.875 per share, the Corporation's 9.36% Cumulative
Preferred Stock, with a liquidation value of $25.00 per share, and the
Corporation's 8.88% Cumulative Preferred Stock, with a liquidation value of
$200.00 per share.
57
PART II -- COMMON STOCK (a) Dividends. Subject to the
preferential dividend rights applicable to shares of any class or series of
stock having preference over the Common Stock as to dividends, the holders of
shares of Common Stock shall be entitled to receive such dividends when and as
declared by the Board of Directors and shall share equally, share for share
alike, in such dividends.
(b) Liquidation, Dissolution or Winding Up. In the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, after distribution in full of the preferential amounts to be
distributed to the holders of shares of any class or series of stock having
preference over the Common Stock upon voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of shares of Common
Stock shall be entitled to receive all of the remaining assets of the
Corporation available for distribution, ratably in proportion to the number of
shares of the Common Stock held.
(c) Voting. Each share of Common Stock shall entitle the
holder thereof to one vote on all matters submitted to a vote of the
stockholders of the Corporation. The holders of the shares of Common Stock
shall at all times, except as otherwise provided in this Restated Certificate
of Incorporation or required by law, vote as one class, together with the
holders of any other class or series of stock of the Corporation accorded such
general class voting right.
SECTION 3. Definitions. For the purposes of this Restated
Certificate of Incorporation:
(a) the term "outstanding", when used in reference to shares
of stock, shall mean issued shares, excluding shares held by the
Corporation or a Subsidiary; and
(b) the term "Subsidiary" or "Subsidiaries" shall mean a
corporation(s) of which the Corporation, directly or indirectly, has
the power, whether through the ownership of voting securities,
contract or otherwise, to elect at least a majority of the members of
such corporation's board of directors; provided, however, that for
purposes of Article VI of the Restated Certificate of Incorporation,
the term "Subsidiary" or "Subsidiaries" shall mean a corporation(s),
all of the capital stock of which is owned by the Corporation, other
than directors' qualifying shares.
58
ARTICLE V
BOARD OF DIRECTORS
SECTION 1. Number, Election and Terms of Directors.
The business and affairs of the Corporation shall be managed by or under the
direction of a Board of Directors consisting of not fewer than four nor more
than fifteen persons; provided, however, that, pursuant to the provisions of
Section 141(a) of the General Corporation Law of the State of Delaware, the
powers and authority of the Board of Directors with respect to any stock
option, performance unit or other compensation or employee benefit plan of the
Corporation, to the extent not otherwise assigned or reserved to the Board of
Directors by the provisions of any such plan, are hereby conferred upon and
shall be exercised by a committee or committees designated by resolution passed
by the Board of Directors to consist of one or more persons who may or may not
be directors of the Corporation, unless the Board of Directors, by resolution
passed by the Board of Directors, shall determine that any or all such powers
and authority shall instead be conferred upon and exercised by the Board of
Directors. The exact number of directors within the minimum and maximum
limitations specified in the preceding sentence may be established from time to
time by the Board of Directors pursuant to a resolution adopted by a majority
of the entire Board of Directors. Subject to the rights of the holders of any
class or series of stock having preference over the Common Stock as to
dividends or upon liquidation, dissolution or winding up of the Corporation to
elect directors under specified circumstances, if any, directors shall be
elected each year at the annual meeting of stockholders and shall hold office
until their successors shall have been duly elected and qualified, or until
their earlier resignation or removal.
SECTION 2. Calling Special Meetings of Stockholders.
A special meeting of the stockholders may be called at any time and for any
purpose or purposes by the President or the Chairman of the Board or by order
of the Board of Directors, and shall be called by the Secretary upon the
written request of the holders of record of at least 80% of the voting power of
the then outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (the "Voting Stock").
SECTION 3. Newly Created Directorships and Vacancies on the
Board of Directors. Subject to the rights of any class or series of stock
having preference over the
59
Common Stock as to dividends or upon liquidation, dissolution or winding up of
the Corporation to elect directors under specified circumstances, if any,
newly-created directorships resulting from any increase in the authorized
number of directors or any vacancies on the Board of Directors resulting from
death, resignation, retirement, disqualification, removal from office or other
cause shall be filled by a majority vote of the directors then in office,
although less than a quorum; and any director so chosen shall hold office for
the remaining term of his predecessor or, if there shall have been no
predecessor, until the next annual election of directors or until his successor
shall have been duly elected and qualified. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
SECTION 4. Removal of Directors. Subject to the rights of
the holders of any class or series of stock having preference over the Common
Stock as to dividends or upon liquidation, dissolution or winding up of the
Corporation to elect directors under specified circumstances, if any, any
director, or the entire Board of Directors, may be removed from office at any
time, with or without cause, only by the affirmative vote of the holders of at
least 80% of the voting power of the Voting Stock, voting together as a single
class.
SECTION 5. Amendment of By-Laws. In furtherance of and not
in limitation of the powers conferred by statute, the Board of Directors of the
Corporation from time to time, may amend, repeal or adopt By-Laws of the
Corporation; provided, that any By-Laws made, amended or repealed by the Board
of Directors or the stockholders may be amended or repealed, and that any
By-Laws may be made, by the stockholders of the Corporation. Notwithstanding
any other provisions of this Restated Certificate of Incorporation or the
By-Laws of the Corporation (and notwithstanding the fact that a lesser
percentage may be specified by law, this Restated Certificate of Incorporation
or the By-Laws of the Corporation), the affirmative vote of the holders of at
least 80% of the voting power of the Voting Stock, voting together as a single
class, shall be required for the stockholders of the Corporation to amend,
repeal or adopt any By-Laws of the Corporation or to adopt any amendment to
this Restated Certificate of Incorporation inconsistent with the By-Laws of the
Corporation.
SECTION 6. Amendment of Certificate of Incorporation.
Notwithstanding any other provisions of this Restated Certificate of
Incorporation or the By-Laws of the
60
Corporation (and notwithstanding the fact that a lesser percentage may be
specified by law, this Restated Certificate of Incorporation or the By-Laws of
the Corporation), the affirmative vote of the holders of at least 80% of the
voting power of the Voting Stock, voting together as a single class, shall be
required to amend or repeal, or to adopt any provision inconsistent with, this
Article V hereof.
SECTION 7. Other Powers. The By-Laws of the Corporation may
confer upon the Board of Directors powers in addition to the foregoing and in
addition to the powers and authorities expressly conferred upon them by law,
but only to the extent permitted by law and not prohibited by the provisions of
this Restated Certificate of Incorporation.
ARTICLE VI
INDEMNIFICATION
The Corporation shall indemnify, to the fullest extent
permitted by applicable law, any person who was or is a party or is threatened
to be made a party to, or is involved in any manner in, any threatened, pending
or completed action, suit or proceeding (whether civil, criminal,
administrative or investigative) by reason of the fact that such person (1) is
or was a director or officer of the Corporation or a Subsidiary or (2) is or
was serving at the request of the Corporation or a Subsidiary as a director,
officer, partner, member, employee or agent of another corporation,
partnership, joint venture, trust, committee or other enterprise.
To the extent deemed advisable by the Board of Directors, the
Corporation may indemnify, to the fullest extent permitted by applicable law,
any person who was or is a party or is threatened to be made a party to, or is
involved in any manner in, any threatened, pending or completed action, suit or
proceeding (whether civil, criminal, administrative or investigative) by reason
of the fact that the person is or was an employee or agent (other than a
director or officer) of the Corporation or a Subsidiary.
The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation or a Subsidiary, or is or was serving at the
request of the Corporation or a Subsidiary as a director, officer, partner,
61
member, employee or agent of another corporation, partnership, joint venture,
trust, committee or other enterprise, against any expense, liability or loss
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation or a Subsidiary would
have the power to indemnify him against such expense, liability or loss under
the provisions of applicable law.
No repeal, modification or amendment of, or adoption of any
provision inconsistent with, this Article VI nor, to the fullest extent
permitted by applicable law, any modification of law shall adversely affect any
right or protection of any person granted pursuant hereto existing at, or with
respect to events that occurred prior to, the time of such repeal, amendment,
adoption or modification.
For purposes of this Article VI, the term "Subsidiary" or
"Subsidiaries" shall mean a corporation(s), all of the capital stock of which
is owned directly or indirectly by the Corporation, other than directors'
qualifying shares.
The right to indemnification conferred in this Article VI also
includes, to the fullest extent permitted by applicable law, the right to be
paid the expenses (including attorneys' fees) incurred in connection with any
such proceeding in advance of its final disposition. The payment of any
amounts to any director, officer, partner, member, employee or agent pursuant
to this Article VI shall subrogate the Corporation to any right such director,
officer, partner, member, employee or agent may have against any other person
or entity. The rights conferred in this Article VI shall be contract rights.
ARTICLE VII
LIABILITY OF DIRECTORS
A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for any breach of
fiduciary duty as a director, except for liability (i) for any breach by the
director of his duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the General
Corporation Law of the State of Delaware or (iv) for any transaction from which
the director derived an improper personal benefit.
62
No repeal, modification or amendment of, or adoption of any
provision inconsistent with, this Article VII nor, to the fullest extent
permitted by law, any modification of law shall adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal, amendment, adoption or modification or affect the liability of any
director of the Corporation for any action taken or any omission that occurred
prior to the time of such repeal, amendment, adoption or modification.
If the General Corporation Law of the State of Delaware shall
be amended, after this Restated Certificate of Incorporation is amended to
include this Article VII, to authorize corporate action further eliminating or
limiting the liability of directors, then a director of the Corporation, in
addition to the circumstances in which he is not liable immediately prior to
such amendment, shall be free of liability to the fullest extent permitted by
the General Corporation Law of the State of Delaware, as so amended.
SEVENTH: That this restatement has been duly adopted by
resolution of the Board of Directors of the Corporation in accordance with
Section 245 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has caused this
Certificate to be executed by its President and attested by its Assistant
Secretary and its corporate seal to be affixed hereto this 14th day of
September, 1992.
/s/ Robert F. Greenhill
(Seal) ----------------------------
Robert F. Greenhill
President
Attest:
/s/ Patricia A. Kurtz
- -------------------------
Patricia A. Kurtz
Assistant Secretary
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
MORGAN STANLEY GROUP INC.
(Pursuant to Section 242 of the
Delaware General Corporation Law)
MORGAN STANLEY GROUP INC., a Delaware corporation, HEREBY
CERTIFIES AS FOLLOWS;
1. The name of the Corporation is Morgan Stanley Group Inc.
The date of filing of its original Certificate of Incorporation with the
Secretary of State of the State of Delaware was July 10, 1975. The date of
filing of the most recent Restated Certificate of Incorporation with the
Secretary of State of the State of Delaware was September 15, 1992.
2. This Certificate of Amendment sets forth amendments to the
Restated Certificate of Incorporation of the Corporation that were duly adopted
in accordance with the provisions of Section 242 of the General Corporation Law
of the State of Delaware.
3. Article IV, Section 2, Part I, Subpart A, Section 1(A) of
the Restated Certificate of Incorporation is hereby amended in full to be and
read as follows:
(A) The shares of such series shall be designated ESOP
CONVERTIBLE PREFERRED STOCK (hereinafter referred to as the "ESOP
Preferred Stock") and such series shall consist of 3,902,438 shares.
Such number of shares may be increased or decreased from time to time
by resolution of the Pricing Committee of this Board of Directors (the
"Pricing Committee"), but no such increase shall result in such series
consisting of more than 4,000,000 shares, and no decrease shall reduce
the number of shares of ESOP Preferred Stock to a number less than
that of shares of ESOP Preferred Stock then outstanding plus the
number of shares issuable upon exercise of any rights, options or
warrants or upon conversion of outstanding securities issued by the
Corporation relating to such shares. Notwithstanding the preceding
sentence, the Board of Directors may increase the number of shares of
ESOP
2
Preferred Stock to a number greater than 4,000,000 shares, or may
decrease the number of such shares, subject only to any limitations
imposed by applicable law or this Restated Certificate of
Incorporation. Any shares of ESOP Preferred Stock redeemed or
purchased by the Corporation shall remain issued and outstanding for
all purposes (except that as long as such shares are held by the
Corporation or its nominee, no dividends shall be paid on such shares
and they shall neither be entitled to vote nor counted for quorum
purposes) and may thereafter be transferred by the Corporation from
time to time to a trustee or trustees referred to in paragraph (B) of
this Section 1 (whereupon the voting and dividend rights of such
shares shall be restored); provided that the Corporation may provide
at the time of or at any time after such redemption or purchase that
any such shares then held by the Corporation or its nominee shall be
retired, and such shares shall then be restored to the status of
authorized but unissued shares of preferred stock of the Corporation.
4. Article IV, Section 2, Part I, Subpart A, Section 9,
Paragraphs (A), (B), (C), (D), (E), (F), (G) and (I) of the Restated
Certificate of Incorporation are hereby amended in full to be and read as
follows:
(A)(1) In the event the Corporation shall, at any time or
from time to time while any of the shares of the ESOP Preferred Stock
are outstanding, (i) pay a dividend or make a distribution in respect
of the Common Stock in shares of Common Stock or (ii) subdivide the
outstanding shares of Common Stock into a greater number of shares, in
each case whether by reclassification of shares, recapitalization of
the Corporation (excluding a recapitalization or reclassification
effected by a merger or consolidation to which Section 8 applies) or
otherwise, then, in such event, the Conversion Price shall, subject to
the provisions of paragraphs (E) and (F) of this Section 9,
automatically be adjusted by dividing such Conversion Price by a
fraction (the "Section 9(A) Fraction"), the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock outstanding immediately before such event. Such adjustment to
the Conversion Price shall be effective, upon payment of such dividend
or distribution in respect of the Common Stock, as of the record date
for the determination of stockholders entitled to receive such
dividend or distribution (on a
3
retroactive basis), and in the case of a subdivision shall become
effective immediately as of the effective date thereof. An adjustment
to the Conversion Price pursuant to this Section 9(A)(1) shall have no
effect on the Liquidation Price or the Preferred Dividend Rate of the
ESOP Preferred Stock.
(2) In the event the Corporation shall, at any time or from
time to time while any of the shares of the ESOP Preferred Stock are
outstanding, combine the outstanding shares of Common Stock into a
lesser number of shares, whether by reclassification of shares,
recapitalization of the Corporation (excluding a recapitalization or
reclassification effected by a merger, consolidation or other
transaction to which Section 8 applies) or otherwise, then, in such
event, the Conversion Price shall, subject to the provisions of
paragraph (F) of this Section 9, automatically be adjusted by dividing
the Conversion Price in effect immediately before such event by the
Section 9(A) Fraction. An adjustment to the Conversion Price made
pursuant to this paragraph 9(A)(2) shall be given effect immediately
as of the effective date of such combination and shall have no effect
on the Liquidation Price or the Preferred Dividend Rate of the ESOP
Preferred Stock.
(B) In the event the Corporation shall, at any time or from
time to time while any of the shares of ESOP Preferred Stock are
outstanding, issue to holders of shares of Common Stock as a dividend
or distribution, including by way of a reclassification of shares or a
recapitalization of the Corporation, any right or warrant to purchase
shares of Common Stock (but not including as a right or warrant for
this purpose any security convertible into or exchangeable for shares
of Common Stock) for a consideration having a Fair Market Value (as
hereinafter defined) per share less than the Fair Market Value of a
share of Common Stock on the date of issuance of such right or warrant
(other than pursuant to any employee or director incentive,
compensation or benefit plan or arrangement of the Corporation or any
subsidiary of the Corporation heretofore or hereafter adopted), then,
in such event, the Conversion Price shall, subject to the provisions
of paragraphs (E) and (F) of this Section 9, automatically be adjusted
by dividing such Conversion Price by a fraction (the "Section 9(B)
Fraction"), the numerator of which is the number of shares of Common
Stock outstanding immediately before such issuance of rights or
warrants plus the maximum
4
number of shares of Common Stock that could be acquired upon exercise
in full of all such rights and warrants and the denominator of which
is the number of shares of Common Stock outstanding immediately before
such issuance of warrants or rights plus the number of shares of
Common Stock that could be purchased at the Fair Market Value of a
share of Common Stock at the time of such issuance for the maximum
aggregate consideration payable upon exercise in full of all such
rights and warrants. Such adjustment to the Conversion Price shall be
effective upon such issuance of rights or warrants. An adjustment to
the Conversion Price pursuant to this Section 9(B) shall have no
effect on the Liquidation Price or the Preferred Dividend Rate of the
ESOP Preferred Stock.
(C)(1) In the event the Corporation shall, at any time or
from time to time while any of the shares of ESOP Preferred Stock are
outstanding, issue, sell or exchange shares of Common Stock (other
than pursuant to (x) any right or warrant to purchase or acquire
shares of Common Stock (including as such a right or warrant for this
purpose any security convertible into or exchangeable for shares of
Common Stock) or (y) any employee or director incentive, compensation
or benefit plan or arrangement of the Corporation or any subsidiary of
the Corporation heretofore or hereafter adopted) at a purchase price
per share less than the Fair Market Value of a share of Common Stock
on the date of such issuance, sale or exchange, then, in such event,
the Conversion Price shall, subject to the provisions of paragraphs
(E) and (F) of this Section 9, automatically be adjusted by dividing
such Conversion Price by a fraction (the "Section 9(C)(1) Fraction"),
the numerator of which is the number of shares of Common Stock
outstanding immediately before such issuance, sale or exchange plus
the number of shares of Common Stock so issued, sold or exchanged and
the denominator of which is the number of shares of Common Stock
outstanding immediately before such issuance, sale or exchange plus
the number of shares of Common Stock that could be purchased at the
Fair Market Value of a share of Common Stock at the time of such
issuance, sale or exchange for the maximum aggregate consideration
paid therefor.
(2) In the event that the Corporation shall, at any time or
from time to time while any ESOP Preferred Stock is outstanding, issue,
sell or exchange any right or warrant to purchase or acquire
shares of Common Stock (including as such a right or warrant for this
purpose
5
any security convertible into or exchangeable for shares of Common
Stock other than pursuant to any employee or director incentive,
compensation or benefit plan or arrangement of the Corporation or any
subsidiary of the Corporation heretofore or hereafter adopted) for a
consideration having a Fair Market Value, on the date of such
issuance, sale or exchange, less than the Non-Dilutive Amount (as
hereinafter defined), then, in such event, the Conversion Price shall,
subject to the provisions of paragraphs (E) and (F) of this Section 9,
automatically be adjusted by dividing such Conversion Price by a
fraction (the "Section 9(C)(2) Fraction"), the numerator of which is
the number of shares of Common Stock outstanding immediately before
such issuance of rights or warrants plus the maximum number of shares
of Common Stock that could be acquired upon exercise in full of all
such rights and warrants and the denominator of which is the number of
shares of Common Stock outstanding immediately before such issuance of
rights or warrants plus the number of shares of Common Stock that
could be purchased at the Fair Market Value of a share of Common Stock
at the time of such issuance for the total of (x) the maximum
aggregate consideration payable at the time of the issuance, sale or
exchange of such right or warrant and (y) the maximum aggregate
consideration payable upon exercise in full of all such rights or
warrants.
(3) An adjustment to the Conversion Price pursuant to this
Section 9(C) shall be effective upon the effective date of any
issuance, sale or exchange described in paragraph (1) or (2) above.
Any such adjustment shall have no effect on the Liquidation Price or
the Preferred Dividend Rate of the ESOP Preferred Stock.
(D) In the event the Corporation shall, at any time or from
time to time while any of the shares of ESOP Preferred Stock are
outstanding, make an Extraordinary Distribution (as hereinafter
defined) in respect of the Common Stock, whether by dividend,
distribution, reclassification of shares or recapitalization of the
Corporation (including capitalization or reclassification effected by
a merger or consolidation to which Section 8 does not apply) or effect
a Pro Rata Repurchase (as hereinafter defined) of Common Stock, then,
in such event, the Conversion Price shall, subject to the provisions
of paragraphs (E) and (F) of this Section 9, automatically be adjusted
by dividing such Conversion
6
Price by a fraction (the "Section 9(D) Fraction"), the numerator of
which is the product of (a) the number of shares of Common Stock
outstanding immediately before such Extraordinary Distribution or Pro
Rata Repurchase minus, in the case of a Pro Rata Repurchase, the
number of shares of Common Stock repurchased by the Corporation
multiplied by (b) the Fair Market Value of a share of Common Stock on
the day before the ex-dividend date with respect to an Extraordinary
Distribution that is paid in cash and on the distribution date with
respect to an Extraordinary Distribution that is paid other than in
cash, or on the applicable expiration date (including all extensions
thereof) of any tender offer that is a Pro Rata Repurchase or on the
date of purchase with respect to any Pro Rata Repurchase that is not a
tender offer, as the case may be, and the denominator of which is (i)
the product of (x) the number of shares of Common Stock outstanding
immediately before such Extraordinary Distribution or Pro Rata
Repurchase multiplied by (y) the Fair Market Value of a share of
Common Stock on the day before the ex-dividend date with respect to an
Extraordinary Distribution that is paid in cash and on the
distribution date with respect to an Extraordinary Distribution that
is paid other than in cash, or on the applicable expiration date
(including all extensions thereof) of any tender offer that is a Pro
Rata Repurchase, or on the date of purchase with respect to any Pro
Rata Repurchase that is not a tender offer, as the case may be, minus
(ii) the Fair Market Value of the Extraordinary Distribution or the
aggregate purchase price of the Pro Rata Repurchase, as the case may
be. The Corporation shall send each holder of ESOP Preferred Stock
(i) notice of its intent to make any Extraordinary Distribution and
(ii) notice of any offer by the Corporation to make a Pro Rata
Repurchase, in each case at the same time as, or as soon as
practicable after, such offer is first communicated to holders of
Common Stock or, in the case of an Extraordinary Distribution, the
announcement of a record date in accordance with the rules of any
stock exchange on which the Common Stock is listed or admitted to
trading. Such notice shall indicate the intended record date and the
amount and nature of such dividend or distribution, or the number of
shares subject to such offer for a Pro Rata Repurchase and the
purchase price payable by the Corporation pursuant to such offer, as
well as the Conversion Price and the number of shares of Common Stock
into which a share of ESOP Preferred Stock may be converted at such
time. An adjustment to the Conversion Price pursuant to
7
this Section 9(D) shall be effective (i) in the case of an
Extraordinary Dividend as of the record date for the determination of
holders entitled to receive such Extraordinary Dividend (on a
retroactive basis) and (ii) in the case of a Pro Rata Repurchase upon
the expiration date thereof (if such Pro Rata Repurchase is a tender
offer) or the effective date thereof (if such Pro Rata Repurchase is
not a tender offer). Any such adjustment shall have no effect on the
Liquidation Price or the Preferred Dividend Rate of the ESOP Preferred
Stock.
(E) The Board of Directors shall have the authority to
determine that any adjustment to the Conversion Price provided for in
paragraph (A)(1), (B), (C) or (D) of this Section 9 shall not be made
(or if already made, to determine that such adjustment shall be
cancelled prospectively), and in lieu thereof to declare a dividend in
respect of the ESOP Preferred Stock in shares of ESOP Preferred Stock
(a "Special Dividend") in such a manner that a holder of ESOP
Preferred Stock will become a holder of that number of shares of ESOP
Preferred Stock equal to the product of the number of such shares held
prior to such event times the Section 9(A), Section 9(B), Section
9(C)(1), Section 9(C)(2) or Section 9(D) Fraction, as applicable. The
declaration of such a Special Dividend shall be authorized, if at all,
by the Board of Directors no later than 30 calendar days following the
authorization by the Board of Directors (or by a committee duly
authorized by the Board of Directors) of the transaction or other
event described in any of the foregoing paragraphs (A)(1), (B), (C) or
(D) that would otherwise result in an adjustment to the Conversion
Price being made pursuant to any such paragraphs, and if the Board of
Directors does not authorize the declaration of a Special Dividend by
the end of such 30-day period, then no such Special Dividend shall be
declared and the adjustment to the Conversion Price provided for in
paragraph (A)(1), (B), (C) or (D) of this Section 9 shall become final
and binding on the Corporation and all stockholders of the
Corporation. Concurrently with the declaration of any Special
Dividend pursuant to this paragraph (E), the Conversion Price, the
Liquidation Price and the Preferred Dividend Rate of all shares of
ESOP Preferred Stock shall be adjusted by dividing the Conversion
Price, the Liquidation Price and the Preferred Dividend Rate,
respectively, in effect immediately before such event by the Section
9(A), Section 9(B), Section 9(C)(1), Section 9(C)(2) or Section 9(D)
Fraction, as applicable.
8
(F) Unless the Board of Directors determines otherwise, and
notwithstanding any other provision of this Section 9, any adjustment
to the Conversion Price provided for in any of paragraphs (A), (B), (C)
or (D) of this Section 9 shall not be made unless such adjustment
would require an increase or decrease of at least one percent (1%) in
the Conversion Price and, similarly, the Board of Directors shall not
declare any Special Dividend pursuant to paragraph (E) of this Section
9 unless such Special Dividend or adjustment would require an
increase or decrease of at least one percent (1%) in the number of
shares of ESOP Preferred Stock outstanding. Any lesser adjustment to
the Conversion Price or Special Dividend shall be carried forward and
shall be made no later than the time of, and together with, the next
subsequent adjustment to the Conversion Price or Special Dividend
which, together with any adjustment or adjustments or Special Dividend
or Dividends so carried forward, shall amount to an increase or
decrease of at least one percent (1%) of the Conversion Price or an
increase or decrease of at least one percent (1%) in the number of
shares of ESOP Preferred Stock outstanding, whichever the case may be.
(G) If the Corporation shall make any dividend or
distribution on the Common Stock or issue any Common Stock, other
capital stock or other security of the Corporation or any rights or
warrants to purchase or acquire any such security, which transaction
does not result in an adjustment to the Conversion Price or to the
number of shares of ESOP Preferred Stock outstanding pursuant to the
foregoing provisions of this Section 9, the Board of Directors of the
Corporation may, in its sole discretion, consider whether such action
is of such a nature that some type of equitable adjustment should be
made in respect of such transaction. If in such case the Board of
Directors of the Corporation determines that some type of adjustment
should be made, an adjustment shall be made effective as of such date
as determined by the Board of Directors of the Corporation. The
determination of the Board of Directors of the Corporation as to
whether some type of adjustment should be made pursuant to the
foregoing provisions of this Section 9(G), and, if so, as to what
adjustment should be made and when, shall be final and binding on the
Corporation and all stockholders of the Corporation. The Corporation
shall be entitled, but not required, to make such additional
adjustments, in addition to those required by the foregoing provisions
of this Section 9, as shall be necessary in order that any dividend or
9
distribution in shares of capital stock of the Corporation,
subdivision, reclassification or combination of shares of the
Corporation or any reclassification of the Corporation shall not be
taxable to holders of the Common Stock.
* * *
(I) Whenever an adjustment to the Conversion Price of the
ESOP Preferred Stock is required pursuant to this Section 9, the
Corporation shall forthwith place on file with the transfer agent for
the Common Stock and the ESOP Preferred Stock, if there be one, and
with the Treasurer of the Corporation, a statement signed by the
Treasurer or any Assistant Treasurer of the Corporation stating the
adjusted Conversion Price determined as provided herein. In addition,
whenever a Special Dividend is declared pursuant to paragraph (E) of
this Section 9, (i) the maximum number of shares of ESOP Preferred
Stock shall be adjusted by multiplying 4,000,000 (or such other number
as shall be the maximum number of shares of ESOP Preferred Stock in
effect prior to the authorization of such Special Dividend) by the
Section 9(A), Section 9(B), Section 9(C)(1), Section 9(C)(2) or
Section 9(D) Fraction, as the case may be, (ii) the Board of Directors
shall take action as is necessary so that a sufficient number of
shares of ESOP Preferred Stock are designated with respect to any
increase in the number of shares of ESOP Preferred Stock to be
outstanding as a result of such Special Dividend and (iii) the
Corporation shall forthwith place on file with the transfer agent for
the Common Stock and the ESOP Preferred Stock, if there be one, and
with the Treasurer of the Corporation, a statement signed by the
Treasurer or any Assistant Treasurer of the Corporation stating the
adjusted maximum number of shares of ESOP Preferred Stock, Conversion
Price, Liquidation Price and Preferred Dividend Rate determined as
provided herein. The statement required by either of the two
preceding sentences shall set forth in reasonable detail such facts as
shall be necessary to show the reason and the manner of computing such
adjustments, including any determination of Fair Market Value involved
in such computation. Promptly after each adjustment to the maximum
number of shares of ESOP Preferred Stock, Conversion Price, the
Liquidation Price, the Preferred Dividend Rate, or the number of
shares of ESOP Preferred Stock outstanding, the Corporation shall mail
a notice thereof and of the then prevailing maximum number of shares
of ESOP Preferred Stock, Conversion Price, Liquidation Price,
Preferred Dividend Rate and
10
number of shares of ESOP Preferred Stock outstanding to each holder of
shares of ESOP Preferred Stock.
IN WITNESS WHEREOF, MORGAN STANLEY GROUP INC. has caused this
Certificate to be signed by John J. Mack, its President, and attested by
Jonathan M. Clark, its General Counsel and Secretary, this 30th day of June,
1993.
MORGAN STANLEY GROUP INC.
By: /s/ John J. Mack
--------------------
Name: John J. Mack
Title: President
ATTEST:
/s/ Jonathan M. Clark
- --------------------------
Name: Jonathan M. Clark
Title: General Counsel and
Secretary
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE
7-3/8% CUMULATIVE PREFERRED STOCK
($200.00 Stated Value)
OF
MORGAN STANLEY GROUP INC.
______________________________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
______________________________
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Board of Directors (the "Board") of Morgan
Stanley Group Inc., a Delaware corporation (hereinafter called the
"Corporation"), by unanimous written consent in lieu of a meeting dated as of
July 27, 1993, with certain of the designations, preferences and rights having
been fixed by the Pricing Committee of the Board (the "Committee") at a meeting
on August 18, 1993, pursuant to authority delegated to it by the Board pursuant
to the provisions of Section 141(c) of the General Corporation Law of the State
of Delaware:
RESOLVED that, pursuant to authority expressly granted to and
vested in the Committee by the Board and in the Board by provisions of
the Restated Certificate of Incorporation of the Corporation, as
amended (the "Certificate of Incorporation"), the issuance of a series
of Preferred Stock, without par value (the "Preferred Stock"), which
shall consist of 1,000,000 of the 30,000,000 shares of Preferred Stock
which the Corporation now has authority to issue, is authorized, and
the Board and, pursuant to the authority expressly granted to the
Committee by the Board pursuant to the provisions of Section 141(c) of
the General Corporation Law of the State of Delaware and the
Certificate of Incorporation, the Committee, fix the powers,
2
designations, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
powers, designations, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations
or restrictions thereof, set forth in the Certificate of Incorporation
which may be applicable to the Preferred Stock) as follows:
1. Designation and Amount; Fractional Shares. The
designation for such series of the Preferred Stock authorized
by this resolution shall be the 7-3/8% Cumulative Preferred
Stock, without par value, with a stated value of $200.00 per
share (the "Cumulative Preferred Stock"). The stated value
per share of Cumulative Preferred Stock shall not for any
purpose be considered to be a determination by the Board or
the Committee with respect to the capital and surplus of the
Corporation. The number of shares of Cumulative Preferred
Stock shall be 1,000,000. The Cumulative Preferred Stock is
issuable in whole shares only.
2. Dividends. Holders of shares of Cumulative
Preferred Stock will be entitled to receive, when, as and if
declared by the Board or the Committee out of assets of the
Corporation legally available for payment, cash dividends
payable quarterly at the rate of 7-3/8% per annum. Dividends
on the Cumulative Preferred Stock, calculated as a percentage
of the stated value, will be payable quarterly on February 28,
May 30, August 30 and November 30 commencing November 30, 1993
(each a "dividend payment date"). Dividends on shares of the
Cumulative Preferred Stock will be cumulative from the date of
initial issuance of such shares of Cumulative Preferred Stock.
Dividends will be payable, in arrears, to holders of record as
they appear on the stock books of the Corporation on such
record dates, not more than 60 days nor less than 10 days
preceding the payment dates thereof, as shall be fixed by the
Board or the Committee. The amount of dividends payable for
the initial dividend period or any period shorter than a full
dividend period shall be calculated on the basis of a 360-day
year of twelve 30-day months. No dividends may be declared or
paid or set apart for payment on any Parity Preferred Stock
(as defined in paragraph 9(b) below) with regard to the
payment of dividends
3
unless there shall also be or have been declared and paid or
set apart for payment on the Cumulative Preferred Stock, like
dividends for all dividend payment periods of the Cumulative
Preferred Stock ending on or before the dividend payment date
of such Parity Preferred Stock, ratably in proportion to the
respective amounts of dividends (x) accumulated and unpaid or
payable on such Parity Preferred Stock, on the one hand, and
(y) accumulated and unpaid through the dividend payment
period or periods of the Cumulative Preferred Stock next
preceding such dividend payment date, on the other hand.
Except as set forth in the preceding sentence, unless
full cumulative dividends on the Cumulative Preferred Stock
have been paid, no dividends (other than in Common Stock of
the Corporation) may be paid or declared and set aside for
payment or other distribution made upon the Common Stock or on
any other stock of the Corporation ranking junior to or on a
parity with the Cumulative Preferred Stock as to dividends,
nor may any Common Stock or any other stock of the Corporation
ranking junior to or on a parity with the Cumulative Preferred
Stock as to dividends be redeemed, purchased or otherwise
acquired for any consideration (or any payment be made to or
available for a sinking fund for the redemption of any shares
of such stock; provided, however, that any moneys theretofore
deposited in any sinking fund with respect to any preferred
stock of the Corporation in compliance with the provisions of
such sinking fund may thereafter be applied to the purchase or
redemption of such preferred stock in accordance with the
terms of such sinking fund, regardless of whether at the time
of such application full cumulative dividends upon shares of
the Cumulative Preferred Stock outstanding to the last
dividend payment date shall have been paid or declared and set
apart for payment) by the Corporation; provided that any such
junior or parity Preferred Stock or Common Stock may be
converted into or exchanged for stock of the Corporation
ranking junior to the Cumulative Preferred Stock as to
dividends.
3. Liquidation Preference. The shares of Cumulative
Preferred Stock shall rank, as to liquidation, dissolution or
winding up of the Corporation, prior to the shares of Common
Stock and any other class of stock of the Corporation ranking
4
junior to the Cumulative Preferred Stock as to rights upon
liquidation, dissolution or winding up of the Corporation, so
that in the event of any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, the
holders of the Cumulative Preferred Stock shall be entitled to
receive out of the assets of the Corporation available for
distribution to its stockholders, whether from capital,
surplus or earnings, before any distribution is made to
holders of shares of Common Stock or any other such junior
stock, an amount equal to $200.00 per share (the "Liquidation
Preference" of a share of Cumulative Preferred Stock) plus an
amount equal to all dividends (whether or not earned or
declared) accrued and accumulated and unpaid on the shares of
Cumulative Preferred Stock to the date of final distribution.
The holders of the Cumulative Preferred Stock will not be
entitled to receive the Liquidation Preference until the
liquidation preference of any other class of stock of the
Corporation ranking senior to the Cumulative Preferred Stock
as to rights upon liquidation, dissolution or winding up shall
have been paid (or a sum set aside therefor sufficient to
provide for payment) in full. After payment of the full
amount of the Liquidation Preference and such dividends, the
holders of shares of Cumulative Preferred Stock will not be
entitled to any further participation in any distribution of
assets by the Corporation. If, upon any liquidation,
dissolution or winding up of the Corporation, the assets of
the Corporation, or proceeds thereof, distributable among the
holders of shares of Parity Preferred Stock shall be
insufficient to pay in full the preferential amount aforesaid,
then such assets, or the proceeds thereof, shall be
distributable among such holders ratably in accordance with
the respective amounts which would be payable on such shares
if all amounts payable thereon were paid in full. For the
purposes hereof, neither a consolidation or merger of the
Corporation with or into any other corporation, nor a merger
of any other corporation with or into the Corporation, nor a
sale or transfer of all or any part of the Corporation's
assets for cash or securities shall be considered a
liquidation, dissolution or winding up of the Corporation.
4. Conversion. The Cumulative Preferred Stock is
not convertible into shares of any other class or series of
stock of the Corporation.
5
5. Voting Rights. The holders of shares of
Cumulative Preferred Stock shall have no voting rights
whatsoever, except for any voting rights to which they may be
entitled under the laws of the State of Delaware, and except
as follows:
(a) Whenever, at any time or times,
dividends payable on the shares of Cumulative
Preferred Stock or on any Parity Preferred Stock with
respect to payment of dividends, shall be in arrears
for an aggregate number of days equal to six calendar
quarters or more, whether or not consecutive, the
holders of the outstanding shares of Cumulative
Preferred Stock shall have the right, with holders of
shares of any one or more other class or series of
stock upon which like voting rights have been
conferred and are exercisable (voting together as a
class), to elect two of the authorized number of
members of the Board at the Corporation's next annual
meeting of stockholders and at each subsequent annual
meeting of stockholders until such arrearages have
been paid or set apart for payment, at which time
such right shall terminate, except as herein or by
law expressly provided, subject to revesting in the
event of each and every subsequent default of the
character above mentioned. Upon any termination of
the right of the holders of shares of Cumulative
Preferred Stock as a class to vote for directors as
herein provided, the term of office of all directors
then in office elected by the holders of shares of
Cumulative Preferred Stock shall terminate
immediately.
Any director who shall have been so elected pursuant
to this paragraph may be removed at any time, either
with or without cause. Any vacancy thereby created
may be filled only by the affirmative vote of the
holders of shares of Cumulative Preferred Stock
voting separately as a class (together with the
holders of shares of any other class or series of
stock upon which like voting rights have been
conferred and are exercisable). If the office of any
director elected by the holders of shares of
Cumulative Preferred Stock voting as a class becomes
vacant for any reason other than removal from office
as aforesaid, the remaining
6
director elected pursuant to this paragraph may
choose a successor who shall hold office for the
unexpired term in respect of which such vacancy
occurred. At elections for such directors, each
holder of shares of Cumulative Preferred Stock shall
be entitled to one vote for each share held (the
holders of shares of any other class or series of
preferred stock having like voting rights being
entitled to such number of votes, if any, for each
share of such stock held as may be granted to them).
(b) So long as any shares of Cumulative
Preferred Stock remain outstanding, the consent of
the holders of at least two-thirds of the shares of
Cumulative Preferred Stock outstanding at the time
and all other classes or series of stock upon which
like voting rights have been conferred and are
exercisable (voting together as a class) given in
person or by proxy, either in writing or at any
meeting called for the purpose, shall be necessary to
permit, effect or validate any one or more of the
following:
(i) the issuance or increase of the
authorized amount of any class or series of
shares ranking prior (as that term is defined
in paragraph 9(a) hereof) to the shares of
the Cumulative Preferred Stock; or
(ii) the amendment, alteration or
repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the
Certificate of Incorporation, (including this
resolution or any provision hereof) that
would materially and adversely affect any
power, preference, or special right of the
shares of Cumulative Preferred Stock or of
the holders thereof;
provided, however, that any increase in the amount of
authorized Common Stock or authorized Preferred Stock
or any increase or decrease in the number of shares
of any series of Preferred Stock or the creation and
issuance of other series of Common Stock or Preferred
Stock, in each case ranking on a parity with or
junior to the shares of Cumulative Preferred Stock
with
7
respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution
or winding up, shall not be deemed to materially and
adversely affect such powers, preferences or special
rights.
(c) The foregoing voting provisions shall
not apply if, at or prior to the time when the act
with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of
Cumulative Preferred Stock shall have been redeemed
or called for redemption and sufficient funds shall
have been deposited in trust to effect such
redemption.
6. Redemption. The shares of the Cumulative
Preferred Stock may be redeemed at the option of the
Corporation, as a whole, or from time to time in part, at any
time, upon not less than 30 days' prior notice mailed to the
holders of the shares to be redeemed at their addresses as
shown on the stock books of the Corporation; provided,
however, that shares of the Cumulative Preferred Stock shall
not be redeemable prior to August 30, 1998. Subject to the
foregoing, on or after such date, shares of the Cumulative
Preferred Stock are redeemable at $200.00 per share together
with an amount equal to all dividends (whether or not earned
or declared) accrued and accumulated and unpaid to, but
excluding, the date fixed for redemption.
If full cumulative dividends on the Cumulative
Preferred Stock have not been paid, the Cumulative Preferred
Stock may not be redeemed in part and the Corporation may not
purchase or acquire any shares of the Cumulative Preferred
Stock otherwise than pursuant to a purchase or exchange offer
made on the same terms to all holders of the Cumulative
Preferred Stock. If fewer than all the outstanding shares of
Cumulative Preferred Stock are to be redeemed, the Corporation
will select those to be redeemed by lot or a substantially
equivalent method.
If a notice of redemption has been given pursuant to
this paragraph 6 and if, on or before the date fixed for
redemption, the funds necessary for such redemption shall have
been set aside by the Corporation, separate and apart from its
other funds, in trust for the pro rata benefit of the holders
of the shares of Cumulative Preferred Stock
8
so called for redemption, then, notwithstanding that any
certificates for such shares have not been surrendered for
cancellation, on the redemption date dividends shall cease to
accrue on the shares to be redeemed, and at the close of
business on the redemption date the holders of such shares
shall cease to be stockholders with respect to such shares and
shall have no interest in or claims against the Corporation by
virtue thereof and shall have no voting or other rights with
respect to such shares, except the right to receive the moneys
payable upon surrender (and endorsement, if required by the
Corporation) of their certificates, and the shares evidenced
thereby shall no longer be outstanding. Subject to applicable
escheat laws, any moneys so set aside by the Corporation and
unclaimed at the end of two years from the redemption date
shall revert to the general funds of the Corporation, after
which reversion the holders of such shares so called for
redemption shall look only to the general funds of the
Corporation for the payment of the amounts payable upon such
redemption. Any interest accrued on funds so deposited shall
be paid to the Corporation from time to time.
7. Authorization and Issuance of Other Securities.
No consent of the holders of the Cumulative Preferred Stock
shall be required for (a) the creation of any indebtedness of
any kind of the Corporation, (b) the creation, or increase or
decrease in the amount, of any class or series of stock of the
Corporation not ranking prior as to dividends or upon
liquidation, dissolution or winding up to the Cumulative
Preferred Stock or (c) any increase or decrease in the amount
of authorized Common Stock or any increase, decrease or change
in the par value thereof or in any other terms thereof.
8. Amendment of Resolution. The Board and the
Committee each reserves the right by subsequent amendment of
this resolution from time to time to increase or decrease the
number of shares that constitute the Cumulative Preferred
Stock (but not below the number of shares thereof then
outstanding) and in other respects to amend this resolution
within the limitations provided by law, this resolution and
the Certificate of Incorporation.
9. Rank. For the purposes of this resolution, any
stock of any class or classes of the Corporation shall be
deemed to rank:
9
(a) prior to shares of the Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, if
the holders of stock of such class or classes shall
be entitled by the terms thereof to the receipt of
dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case
may be, in preference or priority to the holders of
shares of the Cumulative Preferred Stock;
(b) on a parity with shares of the
Cumulative Preferred Stock, either as to dividends or
upon liquidation, dissolution or winding up, or both,
whether or not the dividend rates, dividend payment
dates, or redemption or liquidation prices per share
thereof be different from those of the Cumulative
Preferred Stock, if the holders of stock of such
class or classes shall be entitled by the terms
thereof to the receipt of dividends or of amounts
distributed upon liquidation, dissolution or winding
up, as the case may be, in proportion to their
respective dividend rates or liquidation prices,
without preference or priority of one over the other
as between the holders of such stock and the holders
of shares of Cumulative Preferred Stock (the term
"Parity Preferred Stock" being used to refer to any
stock on a parity with the shares of Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, as
the context may require); and
(c) junior to shares of the Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, if
such class shall be Common Stock or if the holders of
the Cumulative Preferred Stock shall be entitled to
the receipt of dividends or of amounts distributable
upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders
of stock of such class or classes.
The Cumulative Preferred Stock shall rank prior, as
to dividends and upon liquidation, dissolution or winding up,
to the Common Stock and on a parity with the Corporation's
ESOP Convertible
10
Preferred Stock, with a liquidation value of $35.88 per share,
the Corporation's 9.36% Cumulative Preferred Stock, with a
liquidation value of $25.00 per share, the Corporation's 8.88%
Cumulative Preferred Stock, with a liquidation value of
$200.00 per share and the Corporation's 8-3/4% Cumulative
Preferred Stock, with a liquidation value of $200.00 per
share.
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has
caused this Certificate to be made under the seal of the Corporation
and signed by Barton M. Biggs, its Managing Director, and attested by
Ralph L. Pellecchio, its Assistant Secretary, this 24th day of August,
1993.
MORGAN STANLEY GROUP INC.
By: /s/ Barton M. Biggs
---------------------
Name: Barton M. Biggs
Title: Managing Director,
who is duly authorized to
exercise the duties of a
Vice President.
[SEAL]
Attest:
/s/ Ralph L. Pellecchio
-----------------------
Assistant Secretary
CERTIFICATE OF CORRECTION FILED
TO CORRECT A CERTAIN ERROR IN THE
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE 7-3/8% CUMULATIVE PREFERRED STOCK
($200.00 STATED VALUE)
OF
MORGAN STANLEY GROUP INC,
FILED IN THE OFFICE OF THE SECRETARY OF STATE OF
THE STATE OF DELAWARE ON AUGUST 24, 1993, AND
FORWARDED TO THE OFFICE OF THE RECORDER OF DEEDS
IN AND FOR KENT COUNTY, DELAWARE ON AUGUST 25, 1993
Pursuant to Section 103(f) of the
General Corporation Law of the State of Delaware
Morgan Stanley Group Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
1. The name of the corporation is Morgan Stanley Group
Inc. (the "Corporation").
2. A Certificate of Designation of Preferences and Rights
of the 7-3/8% Cumulative Preferred Stock ($200.00 Stated Value) of the
Corporation was filed on August 24, 1993 and forwarded to the Office of the
Recorder of Deeds in and for Kent County, Delaware on August 25, 1993 (the
"Certificate").
3. The Certificate requires correction as permitted by
subsection (f) of the Section 103 of the General Corporation Law of the State
of Delaware.
4. The inaccuracy or defect of the Certificate to be
corrected is that the concluding clause is corrected to read as follows:
"IN WITNESS WHEREOF, Morgan Stanley Group Inc. has
caused this Certificate to be made under the seal of the
Corporation and signed by Barton M. Biggs, its Managing
Director, and attested by Ralph Pallecchio, its Assistant
Secretary, this 24th day of August, 1993."
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has caused this
Certificate of Correction to be made under the seal of the Corporation and
signed by Anson M. Beard, Jr., its Managing Director, and attested by Patricia
A. Kurtz, its Assistant Secretary, this 27th day of August, 1993.
MORGAN STANLEY GROUP INC.
By: /s/ Anson M. Beard, Jr.
--------------------------------
Name: Anson M. Beard, Jr.
Title: Managing Director,
who is duly authorized
to exercise the duties
of a Vice President
[SEAL]
Attest:
/s/ Patricia A. Kurtz
-------------------------
Assistant Secretary
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE
7.82% CUMULATIVE PREFERRED STOCK
($200.00 Stated Value)
OF
MORGAN STANLEY GROUP INC.
______________________________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
______________________________
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Board of Directors (the "Board") of Morgan
Stanley Group Inc., a Delaware corporation (hereinafter called the
"Corporation"), by unanimous written consent in lieu of a meeting dated as of
October 29, 1993, with certain of the designations, preferences and rights
having been fixed by the Pricing Committee of the Board (the "Committee") at a
meeting on November 19, 1993, pursuant to authority delegated to it by the
Board pursuant to the provisions of Section 141(c) of the General Corporation
Law of the State of Delaware:
RESOLVED that, pursuant to authority expressly granted to and
vested in the Committee by the Board and in the Board by provisions of
the Restated Certificate of Incorporation of the Corporation, as
amended (the "Certificate of Incorporation"), the issuance of a series
of Preferred Stock, without par value (the "Preferred Stock"), which
shall consist of 682,813 of the 30,000,000 shares of Preferred Stock
which the Corporation now has authority to issue, is authorized, and
the Board and, pursuant to the authority expressly granted to the
Committee by the Board pursuant to the provisions of Section 141(c) of
the General Corporation Law of the State of Delaware and the
Certificate of Incorporation, the Committee, fix the powers,
designations, preferences
2
and relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions thereof, of the
shares of such series (in addition to the powers, designations,
preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof,
set forth in the Certificate of Incorporation which may be applicable
to the Preferred Stock) as follows:
1. Designation and Amount; Fractional Shares. The
designation for such series of the Preferred Stock authorized by
this resolution shall be the 7.82% Cumulative Preferred Stock,
without par value, with a stated value of $200.00 per share (the
"Cumulative Preferred Stock"). The stated value per share of
Cumulative Preferred Stock shall not for any purpose be
considered to be a determination by the Board or the Committee
with respect to the capital and surplus of the Corporation. The
maximum number of shares of Cumulative Preferred Stock shall be
682,813. The Cumulative Preferred Stock is issuable in whole
shares only.
2. Dividends. Holders of shares of Cumulative Preferred
Stock will be entitled to receive, when, as and if declared by
the Board or the Committee out of assets of the Corporation
legally available for payment, cash dividends payable quarterly
at the rate of 7.82% per annum. Dividends on the Cumulative
Preferred Stock will be payable quarterly on February 28, May 30,
August 30 and November 30 (each a "dividend payment date").
Dividends on shares of the Cumulative Preferred Stock will be
cumulative from the date of initial issuance of such shares of
Cumulative Preferred Stock. Dividends will be payable, in
arrears, to holders of record as they appear on the stock books
of the Corporation on such record dates, not more than 60 days
nor less than 10 days preceding the payment dates thereof, as
shall be fixed by the Board or the Committee. The amount of
dividends payable for the initial dividend period or any period
shorter than a full dividend period shall be calculated on the
basis of a 360-day year of twelve 30-day months. No dividends
may be declared or paid or set apart for payment on any Parity
Preferred Stock (as defined in paragraph 9(b) below) with regard
to the payment of dividends unless there shall also be or have
been declared and paid or set apart for payment on the Cumulative
3
Preferred Stock, like dividends for all dividend payment periods
of the Cumulative Preferred Stock ending on or before the
dividend payment date of such Parity Preferred Stock, ratably in
proportion to the respective amounts of dividends (x) accumulated
and unpaid or payable on such Parity Preferred Stock, on the one
hand, and (y) accumulated and unpaid through the dividend payment
period or periods of the Cumulative Preferred Stock next
preceding such dividend payment date, on the other hand.
Except as set forth in the preceding sentence, unless full
cumulative dividends on the Cumulative Preferred Stock have been
paid, no dividends (other than in Common Stock of the
Corporation) may be paid or declared and set aside for payment
or other distribution made upon the Common Stock or on any other
stock of the Corporation ranking junior to or on a parity with
the Cumulative Preferred Stock as to dividends, nor may any
Common Stock or any other stock of the Corporation ranking junior
to or on a parity with the Cumulative Preferred Stock as to
dividends be redeemed, purchased or otherwise acquired for any
consideration (or any payment be made to or available for a
sinking fund for the redemption of any shares of such stock;
provided, however, that any moneys theretofore deposited in any
sinking fund with respect to any preferred stock of the
Corporation in compliance with the provisions of such sinking
fund may thereafter be applied to the purchase or redemption of
such preferred stock in accordance with the terms of such sinking
fund, regardless of whether at the time of such application full
cumulative dividends upon shares of the Cumulative Preferred
Stock outstanding to the last dividend payment date shall have
been paid or declared and set apart for payment) by the
Corporation; provided that any such junior or parity Preferred
Stock or Common Stock may be converted into or exchanged for
stock of the Corporation ranking junior to the Cumulative
Preferred Stock as to dividends.
3. Liquidation Preference. The shares of Cumulative
Preferred Stock shall rank, as to liquidation, dissolution or
winding up of the Corporation, prior to the shares of Common
Stock and any other class of stock of the Corporation ranking
junior to the Cumulative Preferred Stock as to
4
rights upon liquidation, dissolution or winding up of the
Corporation, so that in the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary or
involuntary, the holders of the Cumulative Preferred Stock shall
be entitled to receive out of the assets of the Corporation
available for distribution to its stockholders, whether from
capital, surplus or earnings, before any distribution is made to
holders of shares of Common Stock or any other such junior stock,
an amount equal to $200.00 per share (the "Liquidation
Preference" of a share of Cumulative Preferred Stock) plus an
amount equal to all dividends (whether or not earned or declared)
accrued and accumulated and unpaid on the shares of Cumulative
Preferred Stock to the date of final distribution. The holders
of the Cumulative Preferred Stock will not be entitled to receive
the Liquidation Preference until the liquidation preference of
any other class of stock of the Corporation ranking senior to the
Cumulative Preferred Stock as to rights upon liquidation,
dissolution or winding up shall have been paid (or a sum set
aside therefor sufficient to provide for payment) in full. After
payment of the full amount of the Liquidation Preference and such
dividends, the holders of shares of Cumulative Preferred Stock
will not be entitled to any further participation in any
distribution of assets by the Corporation. If, upon any
liquidation, dissolution or winding up of the Corporation, the
assets of the Corporation, or proceeds thereof, distributable
among the holders of shares of Parity Preferred Stock shall be
insufficient to pay in full the preferential amount aforesaid,
then such assets, or the proceeds thereof, shall be distributable
among such holders ratably in accordance with the respective
amounts which would be payable on such shares if all amounts
payable thereon were paid in full. For the purposes hereof,
neither a consolidation or merger of the Corporation with or into
any other corporation, nor a merger of any other corporation with
or into the Corporation, nor a sale or transfer of all or any
part of the Corporation's assets for cash or securities shall be
considered a liquidation, dissolution or winding up of the
Corporation.
4. Conversion. The Cumulative Preferred Stock is not
convertible into shares of any other class or series of stock of
the Corporation.
5
5. Voting Rights. The holders of shares of Cumulative
Preferred Stock shall have no voting rights whatsoever, except
for any voting rights to which they may be entitled under the
laws of the State of Delaware, and except as follows:
(a) Whenever, at any time or times, dividends payable
on the shares of Cumulative Preferred Stock or on any Parity
Preferred Stock with respect to payment of dividends, shall
be in arrears for an aggregate number of days equal to six
calendar quarters or more, whether or not consecutive, the
holders of the outstanding shares of Cumulative Preferred
Stock shall have the right, with holders of shares of any
one or more other class or series of stock upon which like
voting rights have been conferred and are exercisable
(voting together as a class), to elect two of the authorized
number of members of the Board at the Corporation's next
annual meeting of stockholders and at each subsequent annual
meeting of stockholders until such arrearages have been paid
or set apart for payment, at which time such right shall
terminate, except as herein or by law expressly provided,
subject to revesting in the event of each and every
subsequent default of the character above mentioned. Upon
any termination of the right of the holders of shares of
Cumulative Preferred Stock as a class to vote for directors
as herein provided, the term of office of all directors then
in office elected by the holders of shares of Cumulative
Preferred Stock shall terminate immediately.
Any director who shall have been so elected pursuant to this
paragraph may be removed at any time, either with or without
cause. Any vacancy thereby created may be filled only by
the affirmative vote of the holders of shares of Cumulative
Preferred Stock voting separately as a class (together with
the holders of shares of any other class or series of stock
upon which like voting rights have been conferred and are
exercisable). If the office of any director elected by the
holders of shares of Cumulative Preferred Stock voting as a
class becomes vacant for any reason other than removal from
office as aforesaid, the remaining
6
director elected pursuant to this paragraph may choose
a successor who shall hold office for the unexpired term in
respect of which such vacancy occurred. At elections for
such directors, each holder of shares of Cumulative
Preferred Stock shall be entitled to one vote for each share
held (the holders of shares of any other class or series of
preferred stock having like voting rights being entitled to
such number of votes, if any, for each share of such stock
held as may be granted to them).
(b) So long as any shares of Cumulative Preferred
Stock remain outstanding, the consent of the holders of at
least two-thirds of the shares of Cumulative Preferred Stock
outstanding at the time and all other classes or series of
stock upon which like voting rights have been conferred and
are exercisable (voting together as a class) given in person
or by proxy, either in writing or at any meeting called for
the purpose, shall be necessary to permit, effect or
validate any one or more of the following:
(i) the issuance or increase of the authorized
amount of any class or series of shares ranking prior
(as that term is defined in paragraph 9(a) hereof) to
the shares of the Cumulative Preferred Stock; or
(ii) the amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of any
of the provisions of the Certificate of
Incorporation, (including this resolution or any
provision hereof) that would materially and adversely
affect any power, preference, or special right of the
shares of Cumulative Preferred Stock or of the
holders thereof;
provided, however, that any increase in the amount of
authorized Common Stock or authorized Preferred Stock
or any increase or decrease in the number of shares
of any series of Preferred Stock or the creation and
issuance of other series of Common Stock or Preferred
Stock, in each case ranking on a parity with or
junior to the shares of Cumulative Preferred Stock
with
7
respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution
or winding up, shall not be deemed to materially and
adversely affect such powers, preferences or special
rights.
(c) The foregoing voting provisions shall not apply
if, at or prior to the time when the act with respect to
which such vote would otherwise be required shall be
effected, all outstanding shares of Cumulative Preferred
Stock shall have been redeemed or called for redemption and
sufficient funds shall have been deposited in trust to
effect such redemption.
6. Redemption Shares. The shares of the Cumulative
Preferred Stock may be redeemed at the option of the Corporation,
as a whole, or from time to time in part, at any time, upon not
less than 30 days' prior notice mailed to the holders of the
shares to be redeemed at their addresses as shown on the stock
books of the Corporation; provided, however, that shares of the
Cumulative Preferred Stock shall not be redeemable prior to
November 30, 1998. Subject to the foregoing, on or after such
date, shares of the Cumulative Preferred Stock are redeemable at
$200.00 per share together with an amount equal to all dividends
(whether or not earned or declared) accrued and accumulated and
unpaid to, but excluding, the date fixed for redemption.
If full cumulative dividends on the Cumulative Preferred
Stock have not been paid, the Cumulative Preferred Stock may not
be redeemed in part and the Corporation may not purchase or
acquire any shares of the Cumulative Preferred Stock otherwise
than pursuant to a purchase or exchange offer made on the same
terms to all holders of the Cumulative Preferred Stock. If fewer
than all the outstanding shares of Cumulative Preferred Stock are
to be redeemed, the Corporation will select those to be redeemed
by lot or a substantially equivalent method.
If a notice of redemption has been given pursuant to this
paragraph 6 and if, on or before the date fixed for redemption,
the funds necessary for such redemption shall have been set aside
by the Corporation, separate and apart from its other funds, in
trust for the pro rata benefit of the holders of the shares of
Cumulative Preferred Stock
8
so called for redemption, then, notwithstanding that any
certificates for such shares have not been surrendered for
cancellation, on the redemption date dividends shall cease to
accrue on the shares to be redeemed, and at the close of business
on the redemption date the holders of such shares shall cease to
be stockholders with respect to such shares and shall have no
interest in or claims against the Corporation by virtue thereof
and shall have no voting or other rights with respect to such
shares, except the right to receive the moneys payable upon
surrender (and endorsement, if required by the Corporation) of
their certificates, and the shares evidenced thereby shall no
longer be outstanding. Subject to applicable escheat laws, any
moneys so set aside by the Corporation and unclaimed at the end
of two years from the redemption date shall revert to the general
funds of the Corporation, after which reversion the holders of
such shares so called for redemption shall look only to the
general funds of the Corporation for the payment of the amounts
payable upon such redemption. Any interest accrued on funds so
deposited shall be paid to the Corporation from time to time.
7. Authorization and Issuance of Other Securities. No
consent of the holders of the Cumulative Preferred Stock shall be
required for (a) the creation of any indebtedness of any kind of
the Corporation, (b) the creation, or increase or decrease in the
amount, of any class or series of stock of the Corporation not
ranking prior as to dividends or upon liquidation, dissolution or
winding up to the Cumulative Preferred Stock or (c) any increase
or decrease in the amount of authorized Common Stock or any
increase, decrease or change in the par value thereof or in any
other terms thereof.
8. Amendment of Resolution. The Board and the Committee
each reserves the right by subsequent amendment of this
resolution from time to time to increase or decrease the number
of shares that constitute the Cumulative Preferred Stock (but not
below the number of shares thereof then outstanding) and in other
respects to amend this resolution within the limitations provided
by law, this resolution and the Certificate of Incorporation.
9. Rank. For the purposes of this resolution, any stock
of any class or classes of the Corporation shall be deemed to
rank:
9
(a) prior to shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation,
dissolution or winding up, or both, if the holders of stock
of such class or classes shall be entitled by the terms
thereof to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up,
as the case may be, in preference or priority to the holders
of shares of the Cumulative Preferred Stock;
(b) on a parity with shares of the Cumulative
Preferred Stock, either as to dividends or upon liquidation,
dissolution or winding up, or both, whether or not the
dividend rates, dividend payment dates, or redemption or
liquidation prices per share thereof be different from those
of the Cumulative Preferred Stock, if the holders of stock
of such class or classes shall be entitled by the terms
thereof to the receipt of dividends or of amounts
distributed upon liquidation, dissolution or winding up, as
the case may be, in proportion to their respective dividend
rates or liquidation prices, without preference or priority
of one over the other as between the holders of such stock
and the holders of shares of Cumulative Preferred Stock (the
term "Parity Preferred Stock" being used to refer to any
stock on a parity with the shares of Cumulative Preferred
Stock, either as to dividends or upon liquidation,
dissolution or winding up, or both, as the context may
require); and
(c) junior to shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation,
dissolution or winding up, or both, if such class shall be
Common Stock or if the holders of the Cumulative Preferred
Stock shall be entitled to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or priority to
the holders of stock of such class or classes.
The Cumulative Preferred Stock shall rank prior, as to
dividends and upon liquidation, dissolution or winding up, to the
Common Stock and on a parity with the Corporation's ESOP
Convertible
10
Preferred Stock, with a liquidation value of $35.88 per share,
the Corporation's 9.36% Cumulative Preferred Stock, with a
liquidation value of $25.00 per share, the Corporation's 8.88%
Cumulative Preferred Stock, with a liquidation value of $200.00
per share, the Corporation's 8-3/4% Cumulative Preferred Stock,
with a liquidation value of $200.00 per share and the
Corporation's 7-3/8% Cumulative Preferred Stock, with a
liquidation value of $200.00 per share.
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has caused
this Certificate to be made under the seal of the Corporation and signed by
Richard B. Fisher, its Chairman, and attested by Patricia A. Kurtz, its
Assistant Secretary, this 23rd day of November, 1993.
MORGAN STANLEY GROUP INC.
/s/ Richard B. Fisher
By: ------------------------
Name: Richard B. Fisher
Title: Chairman
[SEAL]
Attest:
/s/ Patricia A. Kurtz
- -----------------------------
Assistant Secretary
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE
7.80% CUMULATIVE PREFERRED STOCK
($200.00 Stated Value)
OF
MORGAN STANLEY GROUP INC.
-------------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
-------------------------------
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Board of Directors (the "Board") of Morgan
Stanley Group Inc., a Delaware corporation (hereinafter called the
"Corporation"), by unanimous written consent in lieu of a meeting dated as of
October 29, 1993, with certain of the designations, preferences and rights
having been fixed by the Pricing Committee of the Board (the "Committee") at a
meeting on February 1, 1994, pursuant to authority delegated to it by the Board
pursuant to the provisions of Section 141(c) of the General Corporation Law of
the State of Delaware:
RESOLVED that, pursuant to authority expressly granted to and
vested in the Committee by the Board and in the Board by provisions of
the Restated Certificate of Incorporation of the Corporation, as
amended (the "Certificate of Incorporation"), the issuance of a series
of Preferred Stock, without par value (the "Preferred Stock"), which
shall consist of 1,150,000 of the 30,000,000 shares of Preferred
Stock which the Corporation now has authority to issue, is authorized,
and the Board and, pursuant to the authority expressly granted to the
Committee by the Board pursuant to the provisions of Section 141(c) of
the General Corporation Law of the State of Delaware and the
Certificate of Incorporation, the Committee, fix the powers,
2
designations, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
powers, designations, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations
or restrictions thereof, set forth in the Certificate of Incorporation
which may be applicable to the Preferred Stock) as follows:
1. Designation and Amount; Fractional Shares.
The designation for such series of the Preferred Stock
authorized by this resolution shall be the 7.80% Cumulative
Preferred Stock, without par value, with a stated value of
$200.00 per share (the "Cumulative Preferred Stock"). The
stated value per share of Cumulative Preferred Stock shall not
for any purpose be considered to be a determination by the
Board or the Committee with respect to the capital and surplus
of the Corporation. The maximum number of shares of
Cumulative Preferred Stock shall be 1,150,000. The Cumulative
Preferred Stock is issuable in whole shares only.
2. Dividends. Holders of shares of Cumulative
Preferred Stock will be entitled to receive, when, as and if
declared by the Board or the Committee out of assets of the
Corporation legally available for payment, cash dividends
payable quarterly at the rate of 7.80% per annum. Dividends
on the Cumulative Preferred Stock will be payable quarterly on
February 28, May 30, August 30 and November 30 (each a
"dividend payment date"). Dividends on shares of the
Cumulative Preferred Stock will be cumulative from the date of
initial issuance of such shares of Cumulative Preferred Stock.
Dividends will be payable, in arrears, to holders of record as
they appear on the stock books of the Corporation on such
record dates, not more than 60 days nor less than 10 days
preceding the payment dates thereof, as shall be fixed by the
Board or the Committee. The amount of dividends payable for
the initial dividend period or any period shorter than a full
dividend period shall be calculated on the basis of a 360-day
year of twelve 30-day months. No dividends may be declared or
paid or set apart for payment on any Parity Preferred Stock
(as defined in paragraph 9(b) below) with regard to the
payment of dividends unless there shall also be or have been
declared and paid or set apart for payment on the Cumulative
3
Preferred Stock, like dividends for all dividend payment
periods of the Cumulative Preferred Stock ending on or before
the dividend payment date of such Parity Preferred Stock,
ratably in proportion to the respective amounts of dividends
(x) accumulated and unpaid or payable on such Parity Preferred
Stock, on the one hand, and (y) accumulated and unpaid through
the dividend payment period or periods of the Cumulative
Preferred Stock next preceding such dividend payment date, on
the other hand.
Except as set forth in the preceding sentence, unless
full cumulative dividends on the Cumulative Preferred Stock
have been paid, no dividends (other than in Common Stock of
the Corporation) may be paid or declared and set aside for
payment or other distribution made upon the Common Stock or on
any other stock of the Corporation ranking junior to or on a
parity with the Cumulative Preferred Stock as to dividends,
nor may any Common Stock or any other stock of the Corporation
ranking junior to or on a parity with the Cumulative Preferred
Stock as to dividends be redeemed, purchased or otherwise
acquired for any consideration (or any payment be made to or
available for a sinking fund for the redemption of any shares
of such stock; provided, however, that any moneys theretofore
deposited in any sinking fund with respect to any preferred
stock of the Corporation in compliance with the provisions of
such sinking fund may thereafter be applied to the purchase or
redemption of such preferred stock in accordance with the
terms of such sinking fund, regardless of whether at the time
of such application full cumulative dividends upon shares of
the Cumulative Preferred Stock outstanding to the last
dividend payment date shall have been paid or declared and set
apart for payment) by the Corporation; provided that any such
junior or parity Preferred Stock or Common Stock may be
converted into or exchanged for stock of the Corporation
ranking junior to the Cumulative Preferred Stock as to
dividends.
3. Liquidation Preference. The shares of
Cumulative Preferred Stock shall rank, as to liquidation,
dissolution or winding up of the Corporation, prior to the
shares of Common Stock and any other class of stock of the
Corporation ranking junior to the Cumulative Preferred Stock
as to
4
rights upon liquidation, dissolution or winding up of the
Corporation, so that in the event of any liquidation,
dissolution or winding up of the Corporation, whether
voluntary or involuntary, the holders of the Cumulative
Preferred Stock shall be entitled to receive out of the assets
of the Corporation available for distribution to its
stockholders, whether from capital, surplus or earnings,
before any distribution is made to holders of shares of Common
Stock or any other such junior stock, an amount equal to
$200.00 per share (the "Liquidation Preference" of a share of
Cumulative Preferred Stock) plus an amount equal to all
dividends (whether or not earned or declared) accrued and
accumulated and unpaid on the shares of Cumulative Preferred
Stock to the date of final distribution. The holders of the
Cumulative Preferred Stock will not be entitled to receive the
Liquidation Preference until the liquidation preference of any
other class of stock of the Corporation ranking senior to the
Cumulative Preferred Stock as to rights upon liquidation,
dissolution or winding up shall have been paid (or a sum set
aside therefor sufficient to provide for payment) in full.
After payment of the full amount of the Liquidation Preference
and such dividends, the holders of shares of Cumulative
Preferred Stock will not be entitled to any further
participation in any distribution of assets by the
Corporation. If, upon any liquidation, dissolution or winding
up of the Corporation, the assets of the Corporation, or
proceeds thereof, distributable among the holders of shares of
Parity Preferred Stock shall be insufficient to pay in full
the preferential amount aforesaid, then such assets, or the
proceeds thereof, shall be distributable among such holders
ratably in accordance with the respective amounts which would
be payable on such shares if all amounts payable thereon were
paid in full. For the purposes hereof, neither a
consolidation or merger of the Corporation with or into any
other corporation, nor a merger of any other corporation with
or into the Corporation, nor a sale or transfer of all or any
part of the Corporation's assets for cash or securities shall
be considered a liquidation, dissolution or winding up of the
Corporation.
4. Conversion. The Cumulative Preferred Stock
is not convertible into shares of any other class or series of
stock of the Corporation.
5
5. Voting Rights. The holders of shares of
Cumulative Preferred Stock shall have no voting rights
whatsoever, except for any voting rights to which they may be
entitled under the laws of the State of Delaware, and except
as follows:
(a) Whenever, at any time or times,
dividends payable on the shares of Cumulative
Preferred Stock or on any Parity Preferred Stock with
respect to payment of dividends, shall be in arrears
for an aggregate number of days equal to six calendar
quarters or more, whether or not consecutive, the
holders of the outstanding shares of Cumulative
Preferred Stock shall have the right, with holders of
shares of any one or more other class or series of
stock upon which like voting rights have been
conferred and are exercisable (voting together as a
class), to elect two of the authorized number of
members of the Board at the Corporation's next annual
meeting of stockholders and at each subsequent annual
meeting of stockholders until such arrearages have
been paid or set apart for payment, at which time
such right shall terminate, except as herein or by
law expressly provided, subject to revesting in the
event of each and every subsequent default of the
character above mentioned. Upon any termination of
the right of the holders of shares of Cumulative
Preferred Stock as a class to vote for directors as
herein provided, the term of office of all directors
then in office elected by the holders of shares of
Cumulative Preferred Stock shall terminate
immediately.
Any director who shall have been so elected pursuant
to this paragraph may be removed at any time, either
with or without cause. Any vacancy thereby created
may be filled only by the affirmative vote of the
holders of shares of Cumulative Preferred Stock
voting separately as a class (together with the
holders of shares of any other class or series of
stock upon which like voting rights have been
conferred and are exercisable). If the office of any
director elected by the holders of shares of
Cumulative Preferred Stock voting as a class becomes
vacant for any reason other than removal from office
as aforesaid, the remaining
6
director elected pursuant to this paragraph may choose a successor who
shall hold office for the unexpired term in respect of which such
vacancy occurred. At elections for such directors, each holder of
shares of Cumulative Preferred Stock shall be entitled to one vote for
each share held (the holders of shares of any other class or series of
preferred stock having like voting rights being entitled to such number
of votes, if any, for each share of such stock held as may be granted to
them).
(b) So long as any shares of Cumulative Preferred Stock
remain outstanding, the consent of the holders of at least two-thirds of
the shares of the Cumulative Preferred Stock outstanding at the time and
all other classes or series of stock upon which like voting rights have
been conferred and are exercisable (voting together as a class) given in
person or by proxy, either in writing or at any meeting called for the
purpose, shall be necessary to permit, effect or validate any one or
more of the following:
(i) the issuance or increase of the authorized amount of
any class or series of shares ranking prior (as that term is
defined in paragraph 9(a) hereof) to the shares of the
Cumulative Preferred Stock; or
(ii) the amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions of
the Certificate of Incorporation, (including this resolution or
any provision hereof) that would materially and adversely
affect any power, preference, or special right of the shares of
Cumulative Preferred Stock or of the holders thereof;
provided, however, that any increase in the amount of authorized
Common Stock or authorized Preferred Stock or any increase or
decrease in the number of shares of any series of Preferred
Stock or the creation and issuance of other series of Common
Stock or Preferred Stock, in each case ranking on a parity with
or junior to the shares of Cumulative Preferred Stock with
7
respect to the payment of dividends and the distribution
of assets upon liquidation, dissolution or winding up, shall
not be deemed to materially and adversely affect such
powers, preferences or special rights.
(c) The foregoing voting provisions shall not
apply if, at or prior to the time when the act with respect to
which such vote would otherwise be required shall be effected,
all outstanding shares of Cumulative Preferred Stock shall have
been redeemed or called for redemption and sufficient funds
shall have been deposited in trust to effect such redemption.
6. Redemption Shares. The shares of the Cumulative
Preferred Stock may be redeemed at the option of the Corporation, as a
whole, or from time to time in part, at any time, upon not less than 30
days' prior notice mailed to the holders of the shares to be redeemed at
their addresses as shown on the stocks books of the Corporation;
provided, however, that shares of the Cumulative Preferred Stock shall
not be redeemable prior to February 28, 1999. Subject to the foregoing,
on or after such date, shares of the Cumulative Preferred Stock are
redeemable at $200.00 per share together with an amount equal to all
dividends (whether or not earned or declared) accrued and accumulated
and unpaid to, but excluding, the date fixed for redemption.
If full cumulative dividends on the Cumulative Preferred Stock
have not been paid, the Cumulative Preferred Stock may not be redeemed
in part and the Corporation may not purchase or acquire any shares of
the Cumulative Preferred Stock otherwise than pursuant to a purchase or
exchange offer made on the same terms to all holders of the Cumulative
Preferred Stock. If fewer than all the outstanding shares of Cumulative
Preferred Stock are to be redeemed, the Corporation will select those to
be redeemed by lot or a substantially equivalent method.
If a notice of redemption has been given pursuant to this
paragraph 6 and if, on or before the date fixed for redemption, the
funds necessary for such redemption shall have been set aside by the
Corporation, separate and apart from its other funds, in trust for the
pro rata benefit of the holders of the shares of Cumulative Preferred
Stock
8
so called for redemption, then, notwithstanding that any certificates
for such shares have not been surrendered for cancellation, on the
redemption date dividends shall cease to accrue on the shares to
be redeemed, and at the close of business on the redemption date the
holders of such shares shall cease to be stockholders with respect to
such shares and shall have no interest in or claims against the
Corporation by virtue thereof and shall have no voting or other rights
with respect to such shares, except the right to receive the moneys
payable upon surrender (and endorsement, if required by the Corporation)
of their certificates, and the shares evidenced thereby shall no longer
be outstanding. Subject to applicable escheat laws, any moneys so set
aside by the Corporation and unclaimed at the end of two years from the
redemption date shall revert to the general funds of the Corporation,
after which reversion the holders of such shares so called for
redemption shall look only to the general funds of the Corporation for
the payment of the amounts payable upon such redemption. Any interest
accrued on funds so deposited shall be paid to the Corporation from time
to time.
7. Authorization and Issuance of Other Securities. No
consent of the holders of the Cumulative Preferred Stock shall be
required for (a) the creation of any indebtedness of any kind of the
Corporation, (b) the creation, or increase or decrease in the amount, of
any class or series of stock of the Corporation not ranking prior as to
dividends or upon liquidation, dissolution or winding up to the
Cumulative Preferred Stock or (c) any increase or decrease in the amount
of authorized Common Stock or any increase, decrease or change in the
par value thereof or in any other terms thereof.
8. Amendment of Resolution. The Board and the Committee
each reserves the right by subsequent amendment of this resolution from
time to time to increase or decrease the number of shares that
constitute the Cumulative Preferred Stock (but not below the number of
shares thereof then outstanding) and in other respects to amend this
resolution within the limitations provided by law, this resolution and
the Certificate of Incorporation.
9. Rank. For the purposes of this resolution, any stock
of any class or classes of the Corporation shall be deemed to rank:
9
(a) prior to shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation, dissolution
or winding up, or both, if the holders of stock of such class
or classes shall be entitled by the terms thereof to the
receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
preference or priority to the holders of shares of the
Cumulative Preferred Stock;
(b) on a parity with shares of the Cumulative
Preferred Stock, either as to dividends or upon liquidation,
dissolution or winding up, or both, whether or not the dividend
rates, dividend payment dates, or redemption or liquidation
prices per share thereof be different from those of the
Cumulative Preferred Stock, if the holders of stock of such
class or classes shall be entitled by the terms thereof to the
receipt of dividends or of amounts distributed upon
liquidation, dissolution or winding up, as the case may be, in
proportion to their respective dividend rates or liquidation
prices, without preference or priority of one over the other as
between the holders of such stock and the holders of shares of
Cumulative Preferred Stock (the term "Parity Preferred Stock"
being used to refer to any stock on a parity with the shares of
Cumulative Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, as the context
may require); and
(c) junior to shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation, dissolution
or winding up, or both, if such class shall be Common Stock or
if the holders of the Cumulative Preferred Stock shall be
entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up, as
the case may be, in preference or priority to the holders of
stock in such class or classes.
The Cumulative Preferred Stock shall rank prior, as to
dividends and upon liquidation, dissolution or winding up, to the Common
Stock and on a parity with the Corporation's ESOP Convertible
10
Preferred Stock, with a liquidation value of $35.88
per share, the Corporation's 9.36% Cumulative
Preferred Stock, with a liquidation value of $25.00
per share, the Corporation's 8.88% Cumulative
Preferred Stock, with a liquidation value of $200.00
per share, the Corporation's 8-3/4% Cumulative
Preferred Stock, with a liquidation value of $200.00
per share, the Corporation's 7-3/8% Cumulative
Preferred Stock, with a liquidation value of $200.00
per share and, if issued, the Corporation's 7.82%
Cumulative Preferred Stock with a liquidation value
of $200.00 per share.
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has caused
this Certificate to be made under the seal of the Corporation and signed
by Richard B. Fisher, its Chairman, and attested by Patricia A. Kurtz,
its Assistant Secretary, this 4 day of February, 1994.
MORGAN STANLEY GROUP INC.
By: /s/ Richard B. Fisher
---------------------------
Name: Richard B. Fisher
Title: Chairman of the Board
[SEAL]
Attest:
/s/ Patricia A. Kurtz
- -------------------------
Patricia A. Kurtz
Assistant Secretary
CERTIFICATE OF DECREASE
OF
AUTHORIZED NUMBER OF SHARES
OF
7.82% CUMULATIVE PREFERRED STOCK
Morgan Stanley Group Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
That the Restated Certificate of Incorporation of the Corporation was
filed in the Office of the Secretary of State of Delaware on September 15, 1992
and forwarded for recording in the Office of the Recorder of Deeds for Kent
County, Delaware on September 15, 1992 and a Certificate of Designation of
Preferences and Rights ("Certificate of Designation") of the 7.82% Cumulative
Preferred Stock, was filed in said Office of the Secretary of State on November
24, 1993 and forwarded for recording in the office of the Recorder of Deeds on
even date therewith.
That pursuant to authority expressly granted to and vested in the
Pricing Committee of the Board of Directors of the Corporation (the "Pricing
Committee"), by resolutions duly adopted by said Board of Directors on October
29, 1993 (the "Resolutions"), the Pricing Committee fixed certain designations,
preferences and rights of the aforesaid 7.82% Cumulative Preferred Stock as set
forth in the Certificate of Designation.
That pursuant to authority expressly granted to and vested in the
Pricing Committee by the Resolutions, the Pricing Committee by a written
unanimous consent in lieu of a meeting dated as of April 12, 1994 duly adopted
a resolution authorizing and directing a decrease in the authorized number of
shares of the 7.82% Cumulative Preferred Stock of the Corporation, from 682,813
shares to 611,238 shares and providing that the 71,575 shares of the 7.82%
Cumulative Preferred Stock designated by the Pricing Committee but not issued
and outstanding resume the status of authorized and unissued Preferred Stock,
all in accordance with the provisions of Section 151 of The General Corporation
Law of the State of Delaware and the aforesaid Restated Certificate of
Incorporation of the Corporation.
IN WITNESS WHEREOF, said Morgan Stanley Group Inc., has caused this
certificate to be signed by Richard B. Fisher, its Chairman, and attested by
Patricia A. Kurtz, its Assistant Secretary, this 12 day of April, 1994.
By /s/ Richard B. Fisher
------------------------------
Name: Richard B. Fisher
Title: Chairman
ATTEST:
By /s/ Patricia A. Kurtz
------------------------------
Name: Patricia A. Kurtz
Title: Assistant Secretary
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE
9.00% CUMULATIVE PREFERRED STOCK
($200.00 Stated Value)
OF
MORGAN STANLEY GROUP INC.
------------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
------------------------------
The undersigned DOES HEREBY CERTIFY that the following resolution was
duly adopted by the Board of Directors (the "Board") of Morgan Stanley Group
-----
Inc., a Delaware corporation (hereinafter called the "Corporation"), by
-----------
unanimous written consent in lieu of a meeting dated as of October 29, 1993 with
certain of the designations, preferences and rights having been fixed by the
Pricing Committee of the Board (the "Committee") at a meeting on February 10,
---------
1995, pursuant to authority delegated to it by the Board pursuant to the
provisions of Section 141(c) of the General Corporation Law of the State of
Delaware:
RESOLVED that, pursuant to authority expressly granted to and vested
in the Committee by the Board and in the Board by provisions of the
Restated Certificate of Incorporation of the Corporation, as amended (the
"Certificate of Incorporation"), the issuance of a series of Preferred
-----------------------------
Stock, without par value (the "Preferred Stock"), which shall consist of
---------------
738,763 of the 30,000,000 shares of Preferred Stock which the Corporation
now has authority to issue, is authorized, and the Board and, pursuant to
the authority expressly granted to the Committee by the Board pursuant to
the provisions of Section 141(c) of the General Corporation Law of the
State of Delaware and the Certificate of Incorporation, the Committee fix
the powers, designations, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
powers, designations, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or restrictions
thereof, set
2
forth in the Certificate of Incorporation which may be applicable to the
Preferred Stock) as follows:
1. Designation and Amount; Fractional Shares. The designation
-----------------------------------------
for such series of the Preferred Stock authorized by this resolution
shall be the 9.00% Cumulative Preferred Stock, without par value, with
a stated value of $200.00 per share (the "Cumulative Preferred
--------------------
Stock"). The stated value per share of Cumulative Preferred Stock
------
shall not for any purpose be considered to be a determination by the
Board or the Committee with respect to the capital and surplus of the
Corporation. The maximum number of shares of Cumulative Preferred
Stock shall be 738,763. The Cumulative Preferred Stock is issuable in
whole shares only.
2. Dividends. Holders of shares of Cumulative Preferred Stock
---------
will be entitled to receive, when, as and if declared by the Board or
the Committee out of assets of the Corporation legally available for
payment, cash dividends payable quarterly at the rate of 9.00% per
annum. Dividends on the Cumulative Preferred Stock will be payable
quarterly on February 28, May 30, August 30 and November 30 (each a
"dividend payment date"). Dividends on shares of the Cumulative
----------------------
Preferred Stock will be cumulative from the date of initial issuance
of such shares of Cumulative Preferred Stock. Dividends will be
payable, in arrears, to holders of record as they appear on the stock
books of the Corporation on such record dates, not more than 60 days
nor less than 10 days preceding the payment dates thereof, as shall be
fixed by the Board or the Committee. The amount of dividends payable
for the initial dividend period or any period shorter than a full
dividend period shall be calculated on the basis of a 360-day year of
twelve 30-day months. No dividends may be declared or paid or set
apart for payment on any Parity Preferred Stock (as defined in
paragraph 9(b) below) with regard to the payment of dividends unless
there shall also be or have been declared and paid or set apart for
payment on the Cumulative Preferred Stock, like dividends for all
dividend payment periods of the Cumulative Preferred Stock ending on
or before the dividend payment date of such Parity Preferred Stock,
ratably in proportion to the respective amounts of dividends (x)
accumulated and unpaid or payable on such Parity Preferred Stock, on
the one hand, and (y) accumulated and unpaid through the dividend
payment period or periods of the Cumulative Preferred Stock next
preceding such dividend payment date, on the other hand.
Except as set forth in the preceding sentence, unless full
cumulative dividends on the Cumulative Preferred Stock have been paid,
no dividends (other than in Common Stock of the Corporation) may be
paid or declared and set aside for payment or other distribution made
upon the Common Stock or on any other stock of the Corporation ranking
junior to or on a parity with the
3
Cumulative Preferred Stock as to dividends, nor may any Common Stock
or any other stock of the Corporation ranking junior to or on a parity
with the Cumulative Preferred Stock as to dividends be redeemed,
purchased or otherwise acquired for any consideration (or any payment
be made to or available for a sinking fund for the redemption of any
shares of such stock; provided, however, that any moneys theretofore
deposited in any sinking fund with respect to any preferred stock of
the Corporation in compliance with the provisions of such sinking fund
may thereafter be applied to the purchase or redemption of such
preferred stock in accordance with the terms of such sinking fund,
regardless of whether at the time of such application full cumulative
dividends upon shares of the Cumulative Preferred Stock outstanding to
the last dividend payment date shall have been paid or declared and
set apart for payment) by the Corporation; provided that any such
junior or parity Preferred Stock or Common Stock may be converted into
or exchanged for stock of the Corporation ranking junior to the
Cumulative Preferred Stock as to dividends.
3. Liquidation Preference. The shares of Cumulative Preferred
----------------------
Stock shall rank, as to liquidation, dissolution or winding up of the
Corporation, prior to the shares of Common Stock and any other class
of stock of the Corporation ranking junior to the Cumulative Preferred
Stock as to rights upon liquidation, dissolution or winding up of the
Corporation, so that in the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, the
holders of the Cumulative Preferred Stock shall be entitled to receive
out of the assets of the Corporation available for distribution to its
stockholders, whether from capital, surplus or earnings, before any
distribution is made to holders of shares of Common Stock or any other
such junior stock, an amount equal to $200.00 per share (the
"Liquidation Preference" of a share of Cumulative Preferred Stock)
-----------------------
plus an amount equal to all dividends (whether or not earned or
declared) accrued and accumulated and unpaid on the shares of
Cumulative Preferred Stock to the date of final distribution. The
holders of the Cumulative Preferred Stock will not be entitled to
receive the Liquidation Preference until the liquidation preference of
any other class of stock of the Corporation ranking senior to the
Cumulative Preferred Stock as to rights upon liquidation, dissolution
or winding up shall have been paid (or a sum set aside therefor
sufficient to provide for payment) in full. After payment of the full
amount of the Liquidation Preference and such dividends, the holders
of shares of Cumulative Preferred Stock will not be entitled to any
further participation in any distribution of assets by the
Corporation. If, upon any liquidation, dissolution or winding up of
the Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of shares of Parity Preferred Stock
shall be insufficient to pay in full the preferential amount
aforesaid, then such assets, or the proceeds thereof, shall be
distributable among such holders
4
ratably in accordance with the respective amounts which would be
payable on such shares if all amounts payable thereon were paid in
full. For the purposes hereof, neither a consolidation or merger of
the Corporation with or into any other corporation, nor a merger of
any other corporation with or into the Corporation, nor a sale or
transfer of all or any part of the Corporation's assets for cash or
securities shall be considered a liquidation, dissolution or winding
up of the Corporation.
4. Conversion. The Cumulative Preferred Stock is not
----------
convertible into shares of any other class or series of stock of the
Corporation.
5. Voting Rights. The holders of shares of Cumulative Preferred
-------------
Stock shall have no voting rights whatsoever, except for any voting
rights to which they may be entitled under the laws of the State of
Delaware, and except as follows:
(a) Whenever, at any time or times, dividends payable on the
shares of Cumulative Preferred Stock or on any Parity Preferred
Stock with respect to payment of dividends, shall be in arrears
for an aggregate number of days equal to six calendar quarters or
more, whether or not consecutive, the holders of the outstanding
shares of Cumulative Preferred Stock shall have the right, with
holders of shares of any one or more other class or series of
stock upon which like voting rights have been conferred and are
exercisable (voting together as a class), to elect two of the
authorized number of members of the Board at the Corporation's
next annual meeting of stockholders and at each subsequent annual
meeting of stockholders until such arrearages have been paid or
set apart for payment, at which time such right shall terminate,
except as herein or by law expressly provided, subject to
revesting in the event of each and every subsequent default of
the character above mentioned. Upon any termination of the right
of the holders of shares of Cumulative Preferred Stock as a class
to vote for directors as herein provided, the term of office of
all directors then in office elected by the holders of shares of
Cumulative Preferred Stock shall terminate immediately.
Any director who shall have been so elected pursuant to this
paragraph may be removed at any time, either with or without
cause. Any vacancy thereby created may be filled only by the
affirmative vote of the holders of shares of Cumulative Preferred
Stock voting separately as a class (together with the holders of
shares of any other class or series of stock upon which like
voting rights have been conferred and are exercisable). If the
office of any director elected by the holders of shares of
Cumulative Preferred Stock voting as a class becomes vacant
5
for any reason other than removal from office as aforesaid, the
remaining director elected pursuant to this paragraph may choose
a successor who shall hold office for the unexpired term in
respect of which such vacancy occurred. At elections for such
directors, each holder of shares of Cumulative Preferred Stock
shall be entitled to one vote for each share held (the holders of
shares of any other class or series of preferred stock having
like voting rights being entitled to such number of votes, if
any, for each share of such stock held as may be granted to
them).
(b) So long as any shares of Cumulative Preferred Stock
remain outstanding, the consent of the holders of at least two-
thirds of the shares of Cumulative Preferred Stock outstanding at
the time and all other classes or series of stock upon which like
voting rights have been conferred and are exercisable (voting
together as a class) given in person or by proxy, either in
writing or at any meeting called for the purpose, shall be
necessary to permit, effect or validate any one or more of the
following:
(i) the issuance or increase of the authorized amount
of any class or series of shares ranking prior (as that term
is defined in paragraph 9(a) hereof) to the shares of the
Cumulative Preferred Stock; or
(ii) the amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Certificate of Incorporation, (including this
resolution or any provision hereof) that would materially
and adversely affect any power, preference, or special right
of the shares of Cumulative Preferred Stock or of the
holders thereof;
provided, however, that any increase in the amount of
authorized Common Stock or authorized Preferred Stock or any
increase or decrease in the number of shares of any series
of Preferred Stock or the creation and issuance of other
series of Common Stock or Preferred Stock, in each case
ranking on a parity with or junior to the shares of
Cumulative Preferred Stock with respect to the payment of
dividends and the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to materially
and adversely affect such powers, preferences or special
rights.
(c) The foregoing voting provisions shall not apply if, at
or prior to the time when the act with respect to which such vote
would
6
otherwise be required shall be effected, all outstanding shares
of Cumulative Preferred Stock shall have been redeemed or called
for redemption and sufficient funds shall have been deposited in
trust to effect such redemption.
6. Redemption Shares. The shares of the Cumulative Preferred
-----------------
Stock may be redeemed at the option of the Corporation, as a whole, or
from time to time in part, at any time, upon not less than 30 days'
prior notice mailed to the holders of the shares to be redeemed at
their addresses as shown on the stock books of the Corporation;
provided, however, that shares of the Cumulative Preferred Stock shall
not be redeemable prior to February 28, 2000. Subject to the
foregoing, on or after such date, shares of the Cumulative Preferred
Stock are redeemable at $200.00 per share together with an amount
equal to all dividends (whether or not earned or declared) accrued and
accumulated and unpaid to, but excluding, the date fixed for
redemption.
If full cumulative dividends on the Cumulative Preferred Stock
have not been paid, the Cumulative Preferred Stock may not be redeemed
in part and the Corporation may not purchase or acquire any shares of
the Cumulative Preferred Stock otherwise than pursuant to a purchase
or exchange offer made on the same terms to all holders of the
Cumulative Preferred Stock. If fewer than all the outstanding shares
of Cumulative Preferred Stock are to be redeemed, the Corporation will
select those to be redeemed by lot or a substantially equivalent
method.
If a notice of redemption has been given pursuant to this
paragraph 6 and if, on or before the date fixed for redemption, the
funds necessary for such redemption shall have been set aside by the
Corporation, separate and apart from its other funds, in trust for the
pro rata benefit of the holders of the shares of Cumulative Preferred
Stock so called for redemption, then, notwithstanding that any
certificates for such shares have not been surrendered for
cancellation, on the redemption date dividends shall cease to accrue
on the shares to be redeemed, and at the close of business on the
redemption date the holders of such shares shall cease to be
stockholders with respect to such shares and shall have no interest in
or claims against the Corporation by virtue thereof and shall have no
voting or other rights with respect to such shares, except the right
to receive the moneys payable upon surrender (and endorsement, if
required by the Corporation) of their certificates, and the shares
evidenced thereby shall no longer be outstanding. Subject to
applicable escheat laws, any moneys so set aside by the Corporation
and unclaimed at the end of two years from the redemption date shall
revert to the general funds of the Corporation, after which reversion
the holders of such shares so called for redemption shall look only to
the general funds of the Corporation for the
7
payment of the amounts payable upon such redemption. Any interest
accrued on funds so deposited shall be paid to the Corporation from
time to time.
7. Authorization and Issuance of Other Securities. No consent
----------------------------------------------
of the holders of the Cumulative Preferred Stock shall be required for
(a) the creation of any indebtedness of any kind of the Corporation,
(b) the creation, or increase or decrease in the amount, of any class
or series of stock of the Corporation not ranking prior as to
dividends or upon liquidation, dissolution or winding up to the
Cumulative Preferred Stock or (c) any increase or decrease in the
amount of authorized Common Stock or any increase, decrease or change
in the par value thereof or in any other terms thereof.
8. Amendment of Resolution. The Board and the Committee each
-----------------------
reserves the right by subsequent amendment of this resolution from
time to time to increase or decrease the number of shares that
constitute the Cumulative Preferred Stock (but not below the number of
shares thereof then outstanding) and in other respects to amend this
resolution within the limitations provided by law, this resolution and
the Certificate of Incorporation.
9. Rank. For the purposes of this resolution, any stock of
----
any class or classes of the Corporation shall be deemed to rank:
(a) prior to shares of the Cumulative Preferred Stock,
either as to dividends or upon liquidation, dissolution or
winding up, or both, if the holders of stock of such class or
classes shall be entitled by the terms thereof to the receipt of
dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or
priority to the holders of shares of the Cumulative Preferred
Stock;
(b) on a parity with shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation, dissolution or
winding up, or both, whether or not the dividend rates, dividend
payment dates, or redemption or liquidation prices per share
thereof be different from those of the Cumulative Preferred
Stock, if the holders of stock of such class or classes shall be
entitled by the terms thereof to the receipt of dividends or of
amounts distributed upon liquidation, dissolution or winding up,
as the case may be, in proportion to their respective dividend
rates or liquidation prices, without preference or priority of
one over the other as between the holders of such stock and the
holders of shares of Cumulative Preferred Stock (the term "Parity
------
Preferred Stock" being used to refer to any stock on a parity
---------------
with the shares of
8
Cumulative Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, as the context
may require); and
(c) junior to shares of the Cumulative Preferred Stock,
either as to dividends or upon liquidation, dissolution or
winding up, or both, if such class shall be Common Stock or if
the holders of the Cumulative Preferred Stock shall be entitled
to the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
preference or priority to the holders of stock of such class or
classes.
The Cumulative Preferred Stock shall rank prior, as to dividends
and upon liquidation, dissolution or winding up, to the Common Stock and on
a parity with (i) the Corporation's ESOP Convertible Preferred Stock, with
a liquidation value of $35.88 per share, (ii) the Corporation's 9.36%
Cumulative Preferred Stock, with a liquidation value of $25.00 per share,
(iii) the Corporation's 8.88% Cumulative Preferred Stock, with a
liquidation value of $200.00 per share, (iv) the Corporation's 8-3/4%
Cumulative Preferred Stock, with a liquidation value of $200.00 per share,
(v) the Corporation's 7-3/8% Cumulative Preferred Stock, with a liquidation
value of $200.00 per share, (vi) if issued, the Corporation's 7.82%
Cumulative Preferred Stock, with a liquidation value of $200.00 per share
and (vii) if issued, the Corporation's 7.80% Cumulative Preferred Stock,
with a liquidation value of $200.00 per share.
9
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has caused this
Certificate to be made under the seal of the Corporation and signed by
Richard B. Fisher, its Chairman, and attested by Patricia A. Kurtz, its
Assistant Secretary, this 14th day of February, 1995.
MORGAN STANLEY GROUP INC.
By: /s/ Richard B. Fisher
-----------------------------------------
Name: Richard B. Fisher
Title: Chairman of the Board
[SEAL]
ATTEST:
/s/ Patricia A. Kurtz
- ----------------------------------
Name: Patricia A. Kurtz
Title: Assistant Secretary
CERTIFICATE OF DECREASE
OF
AUTHORIZED NUMBER OF SHARES
OF
9.00% CUMULATIVE PREFERRED STOCK
Morgan Stanley Group Inc., a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
That the Restated Certificate of Incorporation of the
Corporation was filed in the Office of the Secretary of State of Delaware on
September 15, 1992 and forwarded for recording in the Office of the Recorder of
Deeds for Kent County, Delaware on September 15, 1992 and a Certificate of
Designation of Preferences and Rights ("Certificate of Designation") of the
9.00% Cumulative Preferred Stock, was filed in said Office of the Secretary of
State on February 17, 1995 and forwarded for recording in the office of the
Recorder of Deeds on even date therewith.
That pursuant to authority expressly granted to and vested in
the Pricing Committee of the Board of Directors of the Corporation (the "Pricing
Committee"), by resolutions duly adopted by said Board of Directors on October
29, 1993 (the "Resolutions"), the Pricing Committee fixed certain designations,
preferences and rights of the aforesaid 9.00% Cumulative Preferred Stock as set
forth in the Certificate of Designation.
That pursuant to authority expressly granted to and vested in
the Pricing Committee by the Resolutions, the Pricing Committee by a written
unanimous consent in lieu of a meeting dated as of March 9, 1995 duly adopted a
resolution authorizing and directing a decrease in the authorized number of
shares of the 9.00% Cumulative Preferred Stock of the Corporation, from 738,763
shares to 720,900 shares and providing that the 17,863 shares of the 9.00%
Cumulative Preferred Stock designated by the Pricing Committee but not issued
and outstanding resume the status of authorized and unissued Preferred Stock,
all in accordance with the provisions of Section 151 of The General Corporation
Law of the State of Delaware and the aforesaid Restated Certificate of
Incorporation of the Corporation.
IN WITNESS WHEREOF, said Morgan Stanley Group Inc., has caused
this certificate to be signed by Richard B. Fisher, its Chairman, and attested
by Patricia A. Kurtz, its Assistant Secretary, this 13th day of March, 1995.
By /s/ Richard B. Fisher
--------------------------------
Name: Richard B. Fisher
Title: Chairman
ATTEST:
By /s/ Patricia A. Kurtz
-------------------------------
Name: Patricia A. Kurtz
Title: Assistant Secretary
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE
8.40% CUMULATIVE PREFERRED STOCK
($200.00 Stated Value)
OF
MORGAN STANLEY GROUP INC.
----------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
----------
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Board of Directors (the "Board") of Morgan
Stanley Group Inc., a Delaware corporation (hereinafter called the
"Corporation"), by unanimous written consent in lieu of a meeting dated as of
April 12, 1995 with certain of the designations, preferences and rights having
been fixed by the Pricing Committee of the Board (the "Committee") at a meeting
on July 27, 1995, pursuant to authority delegated to it by the Board pursuant to
the provisions of Section 141(c) of the General Corporation Law of the State of
Delaware:
RESOLVED that, pursuant to authority expressly granted to and
vested in the Committee by the Board and in the Board by provisions of
the Restated Certificate of Incorporation of the Corporation, as
amended (the "Certificate of Incorporation"), the issuance of a series
of Preferred Stock, without par value (the "Preferred Stock"), which
shall consist of 1,006,250 of the 30,000,000 shares of Preferred Stock
which the Corporation now has authority to issue, is authorized, and
the Board and, pursuant to the authority expressly granted to the
Committee by the Board pursuant to the provisions of Section 141(c) of
the General Corporation Law of the State of Delaware and the
Certificate of Incorporation, the Committee fix the powers,
designations, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
powers, designations, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations or
restrictions thereof, set
2
forth in the Certificate of Incorporation which may be applicable
to the Preferred Stock) as follows:
1. Designation and Amount; Fractional Shares. The
designation for such series of the Preferred Stock authorized
by this resolution shall be the 8.40% Cumulative Preferred
Stock, without par value, with a stated value of $200.00 per
share (the "Cumulative Preferred Stock"). The stated value per
share of Cumulative Preferred Stock shall not for any purpose
be considered to be a determination by the Board or the
Committee with respect to the capital and surplus of the
Corporation. The total number of shares of Cumulative
Preferred Stock shall be 1,006,250. The Cumulative Preferred
Stock is issuable in whole shares only.
2. Dividends. Holders of shares of Cumulative
Preferred Stock will be entitled to receive, when, as and if
declared by the Board or the Committee out of assets of the
Corporation legally available for payment, cash dividends
payable quarterly at the rate of 8.40% per annum. Dividends on
the Cumulative Preferred Stock will be payable quarterly on
February 28, May 30, August 30 and November 30 (each a
"dividend payment date"). Dividends on shares of the
Cumulative Preferred Stock will be cumulative from the date of
initial issuance of such shares of Cumulative Preferred Stock.
Dividends will be payable, in arrears, to holders of record as
they appear on the stock books of the Corporation on such
record dates, not more than 60 days nor less than 10 days
preceding the payment dates thereof, as shall be fixed by the
Board or the Committee. The amount of dividends payable for
the initial dividend period or any period shorter than a full
dividend period shall be calculated on the basis of a 360-day
year of twelve 30-day months. No dividends may be declared or
paid or set apart for payment on any Parity Preferred Stock
(as defined in paragraph 9(b) below) with regard to the
payment of dividends unless there shall also be or have been
declared and paid or set apart for payment on the Cumulative
Preferred Stock, like dividends for all dividend payment
periods of the Cumulative Preferred Stock ending on or before
the dividend payment date of such Parity Preferred Stock,
ratably in proportion to the respective amounts of dividends
(x) accumulated and unpaid or payable on such Parity Preferred
Stock, on the one hand, and (y) accumulated and unpaid through
the dividend payment period or periods of the Cumulative
Preferred Stock next preceding such dividend payment date, on
the other hand.
Except as set forth in the preceding sentence, unless
full cumulative dividends on the Cumulative Preferred Stock
have been paid, no dividends (other than in Common Stock of
the Corporation) may be paid or declared and set aside for
payment or other distribution made upon the Common Stock or on
any other stock of the Corporation ranking junior to or on a
parity with the
3
Cumulative Preferred Stock as to dividends, nor may any Common
Stock or any other stock of the Corporation ranking junior to
or on a parity with the Cumulative Preferred Stock as to
dividends be redeemed, purchased or otherwise acquired for any
consideration (or any payment be made to or available for a
sinking fund for the redemption of any shares of such stock;
provided, however, that any moneys theretofore deposited in
any sinking fund with respect to any preferred stock of the
Corporation in compliance with the provisions of such sinking
fund may thereafter be applied to the purchase or redemption
of such preferred stock in accordance with the terms of such
sinking fund, regardless of whether at the time of such
application full cumulative dividends upon shares of the
Cumulative Preferred Stock outstanding to the last dividend
payment date shall have been paid or declared and set apart
for payment) by the Corporation; provided that any such junior
or parity Preferred Stock or Common Stock may be converted
into or exchanged for stock of the Corporation ranking junior
to the Cumulative Preferred Stock as to dividends.
3. Liquidation Preference. The shares of Cumulative
Preferred Stock shall rank, as to liquidation, dissolution or
winding up of the Corporation, prior to the shares of Common
Stock and any other class of stock of the Corporation ranking
junior to the Cumulative Preferred Stock as to rights upon
liquidation, dissolution or winding up of the Corporation, so
that in the event of any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, the
holders of the Cumulative Preferred Stock shall be entitled to
receive out of the assets of the Corporation available for
distribution to its stockholders, whether from capital,
surplus or earnings, before any distribution is made to
holders of shares of Common Stock or any other such junior
stock, an amount equal to $200.00 per share (the "Liquidation
Preference" of a share of Cumulative Preferred Stock) plus an
amount equal to all dividends (whether or not earned or
declared) accrued and accumulated and unpaid on the shares of
Cumulative Preferred Stock to the date of final distribution.
The holders of the Cumulative Preferred Stock will not be
entitled to receive the Liquidation Preference until the
liquidation preference of any other class of stock of the
Corporation ranking senior to the Cumulative Preferred Stock
as to rights upon liquidation, dissolution or winding up shall
have been paid (or a sum set aside therefor sufficient to
provide for payment) in full. After payment of the full amount
of the Liquidation Preference and such dividends, the holders
of shares of Cumulative Preferred Stock will not be entitled
to any further participation in any distribution of assets by
the Corporation. If, upon any liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation,
or proceeds thereof, distributable among the holders of shares
of Parity Preferred Stock shall be insufficient to pay in full
the preferential amount aforesaid, then such assets, or the
proceeds thereof, shall be distributable among such holders
4
ratably in accordance with the respective amounts which would
be payable on such shares if all amounts payable thereon were
paid in full. For the purposes hereof, neither a consolidation
or merger of the Corporation with or into any other
corporation, nor a merger of any other corporation with or
into the Corporation, nor a sale or transfer of all or any
part of the Corporation's assets for cash or securities shall
be considered a liquidation, dissolution or winding up of the
Corporation.
4. Conversion. The Cumulative Preferred Stock is
not convertible into shares of any other class or series of
stock of the Corporation.
5. Voting Rights. The holders of shares of
Cumulative Preferred Stock shall have no voting rights
whatsoever, except for any voting rights to which they may be
entitled under the laws of the State of Delaware, and
except as follows:
(a) Whenever, at any time or times,
dividends payable on the shares of Cumulative
Preferred Stock or on any Parity Preferred Stock with
respect to payment of dividends, shall be in arrears
for an aggregate number of days equal to six calendar
quarters or more, whether or not consecutive, the
holders of the outstanding shares of Cumulative
Preferred Stock shall have the right, with holders of
shares of any one or more other class or series of
stock upon which like voting rights have been
conferred and are exercisable (voting together as a
class), to elect two of the authorized number of
members of the Board at the Corporation's next annual
meeting of stockholders and at each subsequent annual
meeting of stockholders until such arrearages have
been paid or set apart for payment, at which time
such right shall terminate, except as herein or by
law expressly provided, subject to revesting in the
event of each and every subsequent default of the
character above mentioned. Upon any termination of
the right of the holders of shares of Cumulative
Preferred Stock as a class to vote for directors as
herein provided, the term of office of all directors
then in office elected by the holders of shares of
Cumulative Preferred Stock shall terminate
immediately.
Any director who shall have been so elected pursuant
to this paragraph may be removed at any time, either
with or without cause. Any vacancy thereby created
may be filled only by the affirmative vote of the
holders of shares of Cumulative Preferred Stock
voting separately as a class (together with the
holders of shares of any other class or series of
stock upon which like voting rights have been
conferred and are exercisable). If the office of any
director elected by the holders of shares of
Cumulative Preferred Stock voting as a class becomes
vacant
5
for any reason other than removal from office as
aforesaid, the remaining director elected pursuant to
this paragraph may choose a successor who shall hold
office for the unexpired term in respect of which
such vacancy occurred. At elections for such
directors, each holder of shares of Cumulative
Preferred Stock shall be entitled to one vote for
each share held (the holders of shares of any other
class or series of preferred stock having like voting
rights being entitled to such number of votes, if
any, for each share of such stock held as may be
granted to them).
(b) So long as any shares of Cumulative
Preferred Stock remain outstanding, the consent of
the holders of at least two-thirds of the shares of
Cumulative Preferred Stock outstanding at the time
and all other classes or series of stock upon which
like voting rights have been conferred and are
exercisable (voting together as a class) given in
person or by proxy, either in writing or at any
meeting called for the purpose, shall be necessary to
permit, effect or validate any one or more of the
following:
(i) the issuance or increase of the
authorized amount of any class or series of
shares ranking prior (as that term is
defined in paragraph 9(a) hereof) to the
shares of the Cumulative Preferred Stock; or
(ii) the amendment, alteration or
repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the
Certificate of Incorporation, (including
this resolution or any provision hereof)
that would materially and adversely affect
any power, preference, or special right of
the shares of Cumulative Preferred Stock or
of the holders thereof; provided, however,
that any increase in the amount of
authorized Common Stock or authorized
Preferred Stock or any increase or decrease
in the number of shares of any series of
Preferred Stock or the creation and issuance
of other series of Common Stock or Preferred
Stock, in each case ranking on a parity with
or junior to the shares of Cumulative
Preferred Stock with respect to the payment
of dividends and the distribution of assets
upon liquidation, dissolution or winding up,
shall not be deemed to materially and
adversely affect such powers, preferences or
special rights.
(c) The foregoing voting provisions shall
not apply if, at or prior to the time when the act
with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of
6
Cumulative Preferred Stock shall have been redeemed
or called for redemption and sufficient funds shall
have been deposited in trust to effect such
redemption.
6. Redemption Shares. The shares of the Cumulative
Preferred Stock may be redeemed at the option of the
Corporation, as a whole, or from time to time in part, at any
time, upon not less than 30 days' prior notice mailed to the
holders of the shares to be redeemed at their addresses as
shown on the stock books of the Corporation; provided,
however, that shares of the Cumulative Preferred Stock shall
not be redeemable prior to August 30, 2000. Subject to the
foregoing, on or after such date, shares of the Cumulative
Preferred Stock are redeemable at $200.00 per share together
with an amount equal to all dividends (whether or not earned
or declared) accrued and accumulated and unpaid to, but
excluding, the date fixed for redemption.
If full cumulative dividends on the Cumulative
Preferred Stock have not been paid, the Cumulative Preferred
Stock may not be redeemed in part and the Corporation may not
purchase or acquire any shares of the Cumulative Preferred
Stock otherwise than pursuant to a purchase or exchange offer
made on the same terms to all holders of the Cumulative
Preferred Stock. If fewer than all the outstanding shares of
Cumulative Preferred Stock are to be redeemed, the Corporation
will select those to be redeemed by lot or a substantially
equivalent method.
If a notice of redemption has been given pursuant to
this paragraph 6 and if, on or before the date fixed for
redemption, the funds necessary for such redemption shall have
been set aside by the Corporation, separate and apart from its
other funds, in trust for the pro rata benefit of the holders
of the shares of Cumulative Preferred Stock so called for
redemption, then, notwithstanding that any certificates for
such shares have not been surrendered for cancellation, on the
redemption date dividends shall cease to accrue on the shares
to be redeemed, and at the close of business on the redemption
date the holders of such shares shall cease to be stockholders
with respect to such shares and shall have no interest in or
claims against the Corporation by virtue thereof and shall
have no voting or other rights with respect to such shares,
except the right to receive the moneys payable upon surrender
(and endorsement, if required by the Corporation) of their
certificates, and the shares evidenced thereby shall no longer
be outstanding. Subject to applicable escheat laws, any moneys
so set aside by the Corporation and unclaimed at the end of
two years from the redemption date shall revert to the general
funds of the Corporation, after which reversion the holders of
such shares so called for redemption shall look only to the
general funds of the Corporation for the payment of the
amounts payable upon such redemption. Any interest accrued on
funds so deposited shall be paid to the Corporation from time
to time.
7
7. Authorization and Issuance of Other Securities. No
consent of the holders of the Cumulative Preferred Stock shall
be required for (a) the creation of any indebtedness of any
kind of the Corporation, (b) the creation, or increase or
decrease in the amount, of any class or series of stock of the
Corporation not ranking prior as to dividends or upon
liquidation, dissolution or winding up to the Cumulative
Preferred Stock or (c) any increase or decrease in the amount
of authorized Common Stock or any increase, decrease or change
in the par value thereof or in any other terms thereof.
8. Amendment of Resolution. The Board and the
Committee each reserves the right by subsequent amendment of
this resolution from time to time to increase or decrease the
number of shares that constitute the Cumulative Preferred
Stock (but not below the number of shares thereof then
outstanding) and in other respects to amend this resolution
within the limitations provided by law, this resolution and
the Certificate of Incorporation.
9. Rank. For the purposes of this resolution, any
stock of any class or classes of the Corporation shall be
deemed to rank:
(a) prior to shares of the Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, if
the holders of stock of such class or classes shall
be entitled by the terms thereof to the receipt of
dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case
may be, in preference or priority to the holders of
shares of the Cumulative Preferred Stock;
(b) on a parity with shares of the
Cumulative Preferred Stock, either as to dividends or
upon liquidation, dissolution or winding up, or both,
whether or not the dividend rates, dividend payment
dates, or redemption or liquidation prices per share
thereof be different from those of the Cumulative
Preferred Stock, if the holders of stock of such
class or classes shall be entitled by the terms
thereof to the receipt of dividends or of amounts
distributed upon liquidation, dissolution or winding
up, as the case may be, in proportion to their
respective dividend rates or liquidation prices,
without preference or priority of one over the other
as between the holders of such stock and the holders
of shares of Cumulative Preferred Stock (the term
"Parity Preferred Stock" being used to refer to any
stock on a parity with the shares of Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, as
the context may require); and
8
(c) junior to shares of the Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, if
such class shall be Common Stock or if the holders of
the Cumulative Preferred Stock shall be entitled to
the receipt of dividends or of amounts distributable
upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders
of stock of such class or classes.
The Cumulative Preferred Stock shall rank prior, as
to dividends and upon liquidation, dissolution or winding up,
to the Common Stock and on a parity with (i) the Corporation's
ESOP Convertible Preferred Stock, with a liquidation value of
$35.88 per share, (ii) the Corporation's 9.36% Cumulative
Preferred Stock, with a liquidation value of $25.00 per share,
(iii) the Corporation's 8.88% Cumulative Preferred Stock, with
a liquidation value of $200.00 per share, (iv) the
Corporation's 8-3/4% Cumulative Preferred Stock, with a
liquidation value of $200.00 per share, (v) the Corporation's
7-3/8% Cumulative Preferred Stock, with a liquidation value of
$200.00 per share, (vi) if issued, the Corporation's 7.82%
Cumulative Preferred Stock, with a liquidation value of
$200.00 per share, (vii) if issued, the Corporation's 7.80%
Cumulative Preferred Stock, with a liquidation value of
$200.00 per share and (viii) if issued, the Corporation's
9.00% Cumulative Preferred Stock, with a liquidation value of
$200.00 per share.
9
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has
caused this Certificate to be made under the seal of the Corporation
and signed by Richard B. Fisher, its Chairman, and attested by Patricia
A. Kurtz, its Assistant Secretary, this 27th day of July, 1995.
MORGAN STANLEY GROUP INC.
By: /s/ Richard B. Fisher
-----------------------------------
Name: Richard B. Fisher
Title: Chairman of the Board
[SEAL]
Attest:
/s/ Patricia A. Kurtz
- ----------------------------
Patricia A. Kurtz
Assistant Secretary
CERTIFICATE OF DECREASE
OF
AUTHORIZED NUMBER OF SHARES
OF
8.40% CUMULATIVE PREFERRED STOCK
Morgan Stanley Group Inc., a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
That the Restated Certificate of Incorporation of the
Corporation was filed in the Office of the Secretary of State of Delaware on
September 15, 1992 and forwarded for recording in the Office of the Recorder of
Deeds for Kent County, Delaware on September 15, 1992 and a Certificate of
Designation of Preferences and Rights ("Certificate of Designation") of the
8.40% Cumulative Preferred Stock, was filed in said Office of the Secretary of
State on July 31, 1995 and forwarded for recording in the office of the Recorder
of Deeds on even date therewith.
That pursuant to authority expressly granted to and vested in
the Pricing Committee of the Board of Directors of the Corporation (the "Pricing
Committee"), by resolutions duly adopted by said Board of Directors on April 12,
1995 (the "Resolutions"), the Pricing Committee fixed certain designations,
preferences and rights of the aforesaid 8.40% Cumulative Preferred Stock as set
forth in the Certificate of Designation.
That pursuant to authority expressly granted to and vested in the
Pricing Committee by the Resolutions, the Pricing Committee by a written
unanimous consent in lieu of a meeting dated as of September 6, 1995 duly
adopted a resolution authorizing and directing a decrease in the authorized
number of shares of the 8.40% Cumulative Preferred Stock of the Corporation,
from 1,006,250 shares to 996,776 shares and providing that the 9,474 shares of
the 8.40% Cumulative Preferred Stock designated by the Pricing Committee but not
issued and outstanding resume the status of authorized and unissued Preferred
Stock, all in accordance with the provisions of Section 151 of The General
Corporation Law of the State of Delaware and the aforesaid Restated Certificate
of Incorporation of the Corporation.
IN WITNESS WHEREOF, said Morgan Stanley Group Inc., has caused
this certificate to be signed by Richard B. Fisher, its Chairman, and attested
by Patricia A. Kurtz, its Assistant Secretary, this 6th day of September, 1995.
By /s/ Richard B. Fisher
---------------------------------
Name: Richard B. Fisher
Title: Chairman
ATTEST:
By /s/ Patricia A. Kurtz
----------------------------------
Name: Patricia A. Kurtz
Title: Assistant Secretary
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE
8.20% CUMULATIVE PREFERRED STOCK
($200.00 Stated Value)
OF
MORGAN STANLEY GROUP INC.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Board of Directors (the "Board") of Morgan
Stanley Group Inc., a Delaware corporation (hereinafter called the
"Corporation"), by unanimous written consent in lieu of a meeting dated as of
April 12, 1995 with certain of the designations, preferences and rights having
been fixed by the Pricing Committee of the Board (the "Committee") at a meeting
on October 13, 1995, pursuant to authority delegated to it by the Board pursuant
to the provisions of Section 141(c) of the General Corporation Law of the State
of Delaware:
RESOLVED that, pursuant to authority expressly granted to and
vested in the Committee by the Board and in the Board by provisions of
the Restated Certificate of Incorporation of the Corporation, as
amended (the "Certificate of Incorporation"), the issuance of a series
of Preferred Stock, without par value (the "Preferred Stock"), which
shall consist of 862,500 of the 30,000,000 shares of Preferred Stock
which the Corporation now has authority to issue, is authorized, and
the Board and, pursuant to the authority expressly granted to the
Committee by the Board pursuant to the provisions of Section 141(c) of
the General Corporation Law of the State of Delaware and the
Certificate of Incorporation, the Committee fix the powers,
designations, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
powers, designations, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations or
restrictions thereof, set
2
forth in the Certificate of Incorporation which may be applicable to
the Preferred Stock) as follows:
1. Designation and Amount; Fractional Shares. The
designation for such series of the Preferred Stock authorized
by this resolution shall be the 8.20% Cumulative Preferred
Stock, without par value, with a stated value of $200.00 per
share (the "Cumulative Preferred Stock"). The stated value per
share of Cumulative Preferred Stock shall not for any purpose
be considered to be a determination by the Board or the
Committee with respect to the capital and surplus of the
Corporation. The total number of shares of Cumulative
Preferred Stock shall be 862,500. The Cumulative Preferred
Stock is issuable in whole shares only.
2. Dividends. Holders of shares of Cumulative
Preferred Stock will be entitled to receive, when, as and if
declared by the Board or the Committee out of assets of the
Corporation legally available for payment, cash dividends
payable quarterly at the rate of 8.20% per annum. Dividends
on the Cumulative Preferred Stock will be payable quarterly on
February 28, May 30, August 30 and November 30 (each a
"dividend payment date"). Dividends on shares of the
Cumulative Preferred Stock will be cumulative from the date of
initial issuance of such shares of Cumulative Preferred Stock.
Dividends will be payable, in arrears, to holders of record as
they appear on the stock books of the Corporation on such
record dates, not more than 60 days nor less than 10 days
preceding the payment dates thereof, as shall be fixed by the
Board or the Committee. The amount of dividends payable for
the initial dividend period or any period shorter than a full
dividend period shall be calculated on the basis of a 360-day
year of twelve 30-day months. No dividends may be declared or
paid or set apart for payment on any Parity Preferred Stock
(as defined in paragraph 9(b) below) with regard to the
payment of dividends unless there shall also be or have been
declared and paid or set apart for payment on the Cumulative
Preferred Stock, like dividends for all dividend payment
periods of the Cumulative Preferred Stock ending on or before
the dividend payment date of such Parity Preferred Stock,
ratably in proportion to the respective amounts of dividends
(x) accumulated and unpaid or payable on such Parity Preferred
Stock, on the one hand, and (y) accumulated and unpaid through
the dividend payment period or periods of the Cumulative
Preferred Stock next preceding such dividend payment date, on
the other hand.
Except as set forth in the preceding sentence, unless
full cumulative dividends on the Cumulative Preferred Stock
have been paid, no dividends (other than in Common Stock of
the Corporation) may be paid or declared and set aside for
payment or other distribution made upon the Common Stock or on
any other stock of the Corporation ranking junior to or on a
parity with the
3
Cumulative Preferred Stock as to dividends, nor may any Common
Stock or any other stock of the Corporation ranking junior to
or on a parity with the Cumulative Preferred Stock as to
dividends be redeemed, purchased or otherwise acquired for any
consideration (or any payment be made to or available for a
sinking fund for the redemption of any shares of such stock;
provided, however, that any moneys theretofore deposited in
any sinking fund with respect to any preferred stock of the
Corporation in compliance with the provisions of such sinking
fund may thereafter be applied to the purchase or redemption
of such preferred stock in accordance with the terms of such
sinking fund, regardless of whether at the time of such
application full cumulative dividends upon shares of the
Cumulative Preferred Stock outstanding to the last dividend
payment date shall have been paid or declared and set apart
for payment) by the Corporation; provided that any such junior
or parity Preferred Stock or Common Stock may be converted
into or exchanged for stock of the Corporation ranking junior
to the Cumulative Preferred Stock as to dividends.
3. Liquidation Preference. The shares of Cumulative
Preferred Stock shall rank, as to liquidation, dissolution or
winding up of the Corporation, prior to the shares of Common
Stock and any other class of stock of the Corporation ranking
junior to the Cumulative Preferred Stock as to rights upon
liquidation, dissolution or winding up of the Corporation, so
that in the event of any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, the
holders of the Cumulative Preferred Stock shall be entitled to
receive out of the assets of the Corporation available for
distribution to its stockholders, whether from capital,
surplus or earnings, before any distribution is made to
holders of shares of Common Stock or any other such junior
stock, an amount equal to $200.00 per share (the "Liquidation
Preference" of a share of Cumulative Preferred Stock) plus an
amount equal to all dividends (whether or not earned or
declared) accrued and accumulated and unpaid on the shares of
Cumulative Preferred Stock to the date of final distribution.
The holders of the Cumulative Preferred Stock will not be
entitled to receive the Liquidation Preference until the
liquidation preference of any other class of stock of the
Corporation ranking senior to the Cumulative Preferred Stock
as to rights upon liquidation, dissolution or winding up shall
have been paid (or a sum set aside therefor sufficient to
provide for payment) in full. After payment of the full amount
of the Liquidation Preference and such dividends, the holders
of shares of Cumulative Preferred Stock will not be entitled
to any further participation in any distribution of assets by
the Corporation. If, upon any liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation,
or proceeds thereof, distributable among the holders of shares
of Parity Preferred Stock shall be insufficient to pay in full
the preferential amount aforesaid, then such assets, or the
proceeds thereof, shall be distributable among such holders
4
ratably in accordance with the respective amounts which would
be payable on such shares if all amounts payable thereon were
paid in full. For the purposes hereof, neither a consolidation
or merger of the Corporation with or into any other
corporation, nor a merger of any other corporation with or
into the Corporation, nor a sale or transfer of all or any
part of the Corporation's assets for cash or securities shall
be considered a liquidation, dissolution or winding up of the
Corporation.
4. Conversion. The Cumulative Preferred Stock
is not convertible into shares of any other class or series of
stock of the Corporation.
5. Voting Rights. The holders of shares of
Cumulative Preferred Stock shall have no voting rights
whatsoever, except for any voting rights to which they may be
entitled under the laws of the State of Delaware, and except
as follows:
(a) Whenever, at any time or times,
dividends payable on the shares of Cumulative
Preferred Stock or on any Parity Preferred Stock with
respect to payment of dividends, shall be in arrears
for an aggregate number of days equal to six calendar
quarters or more, whether or not consecutive, the
holders of the outstanding shares of Cumulative
Preferred Stock shall have the right, with holders of
shares of any one or more other class or series of
stock upon which like voting rights have been
conferred and are exercisable (voting together as a
class), to elect two of the authorized number of
members of the Board at the Corporation's next annual
meeting of stockholders and at each subsequent annual
meeting of stockholders until such arrearages have
been paid or set apart for payment, at which time
such right shall terminate, except as herein or by
law expressly provided, subject to revesting in the
event of each and every subsequent default of the
character above mentioned. Upon any termination of
the right of the holders of shares of Cumulative
Preferred Stock as a class to vote for directors as
herein provided, the term of office of all directors
then in office elected by the holders of shares of
Cumulative Preferred Stock shall terminate
immediately.
Any director who shall have been so elected pursuant
to this paragraph may be removed at any time, either
with or without cause. Any vacancy thereby created
may be filled only by the affirmative vote of the
holders of shares of Cumulative Preferred Stock
voting separately as a class (together with the
holders of shares of any other class or series of
stock upon which like voting rights have been
conferred and are exercisable). If the office of any
director elected by the holders of shares of
Cumulative Preferred Stock voting as a class becomes
vacant
5
for any reason other than removal from office as
aforesaid, the remaining director elected pursuant to
this paragraph may choose a successor who shall hold
office for the unexpired term in respect of which
such vacancy occurred. At elections for such
directors, each holder of shares of Cumulative
Preferred Stock shall be entitled to one vote for
each share held (the holders of shares of any other
class or series of preferred stock having like voting
rights being entitled to such number of votes, if
any, for each share of such stock held as may be
granted to them).
(b) So long as any shares of Cumulative
Preferred Stock remain outstanding, the consent of
the holders of at least two-thirds of the shares of
Cumulative Preferred Stock outstanding at the time
and all other classes or series of stock upon which
like voting rights have been conferred and are
exercisable (voting together as a class) given in
person or by proxy, either in writing or at any
meeting called for the purpose, shall be necessary to
permit, effect or validate any one or more of the
following:
(i) the issuance or increase of the
authorized amount of any class or series of
shares ranking prior (as that term is
defined in paragraph 9(a) hereof) to the
shares of the Cumulative Preferred Stock; or
(ii) the amendment, alteration or
repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the
Certificate of Incorporation, (including
this resolution or any provision hereof)
that would materially and adversely affect
any power, preference, or special right of
the shares of Cumulative Preferred Stock or
of the holders thereof; provided, however,
that any increase in the amount of
authorized Common Stock or authorized
Preferred Stock or any increase or decrease
in the number of shares of any series of
Preferred Stock or the creation and issuance
of other series of Common Stock or Preferred
Stock, in each case ranking on a parity with
or junior to the shares of Cumulative
Preferred Stock with respect to the payment
of dividends and the distribution of assets
upon liquidation, dissolution or winding up,
shall not be deemed to materially and
adversely affect such powers, preferences or
special rights.
(c) The foregoing voting provisions shall
not apply if, at or prior to the time when the act
with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of
6
Cumulative Preferred Stock shall have been redeemed
or called for redemption and sufficient funds shall
have been deposited in trust to effect such
redemption.
6. Redemption Shares. The shares of the Cumulative
Preferred Stock may be redeemed at the option of the
Corporation, as a whole, or from time to time in part, at any
time, upon not less than 30 days' prior notice mailed to the
holders of the shares to be redeemed at their addresses as
shown on the stock books of the Corporation; provided,
however, that shares of the Cumulative Preferred Stock shall
not be redeemable prior to November 30, 2000. Subject to the
foregoing, on or after such date, shares of the Cumulative
Preferred Stock are redeemable at $200.00 per share together
with an amount equal to all dividends (whether or not earned
or declared) accrued and accumulated and unpaid to, but
excluding, the date fixed for redemption.
If full cumulative dividends on the Cumulative
Preferred Stock have not been paid, the Cumulative Preferred
Stock may not be redeemed in part and the Corporation may not
purchase or acquire any shares of the Cumulative Preferred
Stock otherwise than pursuant to a purchase or exchange offer
made on the same terms to all holders of the Cumulative
Preferred Stock. If fewer than all the outstanding shares of
Cumulative Preferred Stock are to be redeemed, the Corporation
will select those to be redeemed by lot or a substantially
equivalent method.
If a notice of redemption has been given pursuant to
this paragraph 6 and if, on or before the date fixed for
redemption, the funds necessary for such redemption shall have
been set aside by the Corporation, separate and apart from its
other funds, in trust for the pro rata benefit of the holders
of the shares of Cumulative Preferred Stock so called for
redemption, then, notwithstanding that any certificates for
such shares have not been surrendered for cancellation, on the
redemption date dividends shall cease to accrue on the shares
to be redeemed, and at the close of business on the redemption
date the holders of such shares shall cease to be stockholders
with respect to such shares and shall have no interest in or
claims against the Corporation by virtue thereof and shall
have no voting or other rights with respect to such shares,
except the right to receive the moneys payable upon surrender
(and endorsement, if required by the Corporation) of their
certificates, and the shares evidenced thereby shall no longer
be outstanding. Subject to applicable escheat laws, any moneys
so set aside by the Corporation and unclaimed at the end of
two years from the redemption date shall revert to the general
funds of the Corporation, after which reversion the holders of
such shares so called for redemption shall look only to the
general funds of the Corporation for the payment of the
amounts payable upon such redemption. Any interest accrued on
funds so deposited shall be paid to the Corporation from time
to time.
7
7. Authorization and Issuance of Other Securities. No
consent of the holders of the Cumulative Preferred Stock shall
be required for (a) the creation of any indebtedness of any
kind of the Corporation, (b) the creation, or increase or
decrease in the amount, of any class or series of stock of the
Corporation not ranking prior as to dividends or upon
liquidation, dissolution or winding up to the Cumulative
Preferred Stock or (c) any increase or decrease in the amount
of authorized Common Stock or any increase, decrease or change
in the par value thereof or in any other terms thereof.
8. Amendment of Resolution. The Board and the
Committee each reserves the right by subsequent amendment of
this resolution from time to time to increase or decrease the
number of shares that constitute the Cumulative Preferred
Stock (but not below the number of shares thereof then
outstanding) and in other respects to amend this resolution
within the limitations provided by law, this resolution and
the Certificate of Incorporation.
9. Rank. For the purposes of this resolution,
any stock of any class or classes of the Corporation shall be
deemed to rank:
(a) prior to shares of the Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, if
the holders of stock of such class or classes shall
be entitled by the terms thereof to the receipt of
dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case
may be, in preference or priority to the holders of
shares of the Cumulative Preferred Stock;
(b) on a parity with shares of the
Cumulative Preferred Stock, either as to dividends or
upon liquidation, dissolution or winding up, or both,
whether or not the dividend rates, dividend payment
dates, or redemption or liquidation prices per share
thereof be different from those of the Cumulative
Preferred Stock, if the holders of stock of such
class or classes shall be entitled by the terms
thereof to the receipt of dividends or of amounts
distributed upon liquidation, dissolution or winding
up, as the case may be, in proportion to their
respective dividend rates or liquidation prices,
without preference or priority of one over the other
as between the holders of such stock and the holders
of shares of Cumulative Preferred Stock (the term
"Parity Preferred Stock" being used to refer to any
stock on a parity with the shares of Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, as
the context may require); and
8
(c) junior to shares of the Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, if
such class shall be Common Stock or if the holders of
the Cumulative Preferred Stock shall be entitled to
the receipt of dividends or of amounts distributable
upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders
of stock of such class or classes.
The Cumulative Preferred Stock shall rank prior, as
to dividends and upon liquidation, dissolution or winding up,
to the Common Stock and on a parity with (i) the Corporation's
ESOP Convertible Preferred Stock, with a liquidation value of
$35.88 per share, (ii) the Corporation's 9.36% Cumulative
Preferred Stock, with a liquidation value of $25.00 per share,
(iii) the Corporation's 8.88% Cumulative Preferred Stock, with
a liquidation value of $200.00 per share, (iv) the
Corporation's 8-3/4% Cumulative Preferred Stock, with a
liquidation value of $200.00 per share, (v) the Corporation's
7-3/8% Cumulative Preferred Stock, with a liquidation value of
$200.00 per share, (vi) if issued, the Corporation's 7.82%
Cumulative Preferred Stock, with a liquidation value of
$200.00 per share, (vii) if issued, the Corporation's 7.80%
Cumulative Preferred Stock, with a liquidation value of
$200.00 per share (viii) if issued, the Corporation's 9.00%
Cumulative Preferred Stock, with a liquidation value of
$200.00 per share and (ix) if issued, the Corporation's 8.40%
Cumulative Preferred Stock, with a liquidation value of
$200.00 per share.
9
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has
caused this Certificate to be made under the seal of the Corporation
and signed by Richard B. Fisher, its Chairman, and attested by Patricia
A. Kurtz, its Assistant Secretary, this 13th day of October, 1995.
MORGAN STANLEY GROUP INC.
By /s/ Richard B. Fisher
---------------------------------
Name: Richard B. Fisher
Title: Chairman of the Board
[SEAL]
Attest:
By /s/ Patricia A. Kurtz
----------------------------------
Name: Patricia A. Kurtz
Title: Assistant Secretary
CERTIFICATE OF DECREASE
OF
AUTHORIZED NUMBER OF SHARES
OF
8.20% CUMULATIVE PREFERRED STOCK
Morgan Stanley Group Inc., a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
That the Restated Certificate of Incorporation of the
Corporation was filed in the Office of the Secretary of State of Delaware on
September 15, 1992 and forwarded for recording in the Office of the Recorder of
Deeds for Kent County, Delaware on September 15, 1992 and a Certificate of
Designation of Preferences and Rights ("Certificate of Designation") of the
8.20% Cumulative Preferred Stock, was filed in said Office of the Secretary of
State on October 17, 1995 and forwarded for recording in the office of the
Recorder of Deeds on even date therewith.
That pursuant to authority expressly granted to and vested in
the Pricing Committee of the Board of Directors of the Corporation (the "Pricing
Committee"), by resolutions duly adopted by said Board of Directors on April 12,
1995 (the "Resolutions"), the Pricing Committee fixed certain designations,
preferences and rights of the aforesaid 8.20% Cumulative Preferred Stock as set
forth in the Certificate of Designation.
That pursuant to authority expressly granted to and vested in
the Pricing Committee by the Resolutions, the Pricing Committee by a written
unanimous consent in lieu of a meeting dated as of October 27, 1995 duly adopted
a resolution authorizing and directing a decrease in the authorized number of
shares of the 8.20% Cumulative Preferred Stock of the Corporation, from 862,500
shares to 847,500 shares and providing that the 15,000 shares of the 8.20%
Cumulative Preferred Stock designated by the Pricing Committee but not issued
and outstanding resume the status of authorized and unissued Preferred Stock,
all in accordance with the provisions of Section 151 of The General Corporation
Law of the State of Delaware and the aforesaid Restated Certificate of
Incorporation of the Corporation.
IN WITNESS WHEREOF, said Morgan Stanley Group Inc., has caused
this certificate to be signed by Richard B. Fisher, its Chairman, and attested
by Patricia A. Kurtz, its Assistant Secretary, this 31st day of October, 1995.
By /s/ Richard B. Fisher
____________________________
Name: Richard B. Fisher
Title: Chairman
ATTEST:
By /s/ Patricia A. Kurtz
______________________________
Name: Patricia A. Kurtz
Title: Assistant Secretary
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
MORGAN STANLEY GROUP INC.
MORGAN STANLEY GROUP INC., a Delaware corporation, HEREBY CERTIFIES AS
FOLLOWS:
1. The name of the Corporation is Morgan Stanley Group Inc. The date of
filing of its original Certificate of Incorporation with the Secretary of State
of the State of Delaware was July 10, 1975. The date of filing of its Restated
Certificate of Incorporation with the Secretary of State of the State of
Delaware was September 15, 1992.
2. This Certificate of Amendment sets forth amendments to the Restated
Certificate of Incorporation of the Corporation that were duly adopted in
accordance with the provisions of Section 242 of the General Corporation Law of
the State of Delaware.
3. Article IV, Section 1 of the Restated Certificate of Incorporation
is hereby amended in full to read as follows:
SECTION 1. Shares and Classes Authorized. The total number of
shares of all classes of capital stock which the Corporation shall have
authority to issue is 630,000,000 shares, which shall include:
(a) 30,000,000 shares of preferred stock of no par value each
(hereinafter referred to as "Preferred Stock"); and
(b) 600,000,000 shares of common stock of the par value of
$1.00 each (hereinafter referred to as "Common Stock");
such classes of Preferred Stock and Common Stock being sometimes
hereinafter collectively referred to as "capital stock".
IN WITNESS WHEREOF, MORGAN STANLEY GROUP INC. has caused this
certificate to be signed by Richard B. Fisher, its Chairman, and attested by
Jonathan M. Clark, its General Counsel and Secretary, this 16th day of April,
1996.
MORGAN STANLEY GROUP INC.
By /s/ Richard B. Fisher
---------------------------------
Name: Richard B. Fisher
Title: Chairman
ATTEST:
/s/ Jonathan M. Clark
- ---------------------------------
Name: Jonathan M. Clark
Title: General Counsel and Secretary
Exhibit 4B
- -----------------------------------------------------------------------------
SECOND SUPPLEMENTAL SENIOR INDENTURE
BETWEEN
MORGAN STANLEY GROUP INC.
AND
CHEMICAL BANK,
Trustee
----------
Dated as of April 15, 1996
-----------
SUPPLEMENTAL TO SENIOR INDENTURE
DATED AS OF APRIL 15, 1989, AS SUPPLEMENTED BY A
FIRST SUPPLEMENTAL SENIOR INDENTURE DATED AS OF MAY 15, 1991
- --------------------------------------------------------------------------------
SECOND SUPPLEMENTAL SENIOR INDENTURE dated as of April 15,
1996 (the "Second Supplemental Indenture") between Morgan Stanley Group Inc., a
Delaware corporation (the "Issuer"), and Chemical Bank, as trustee (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer and the Trustee are parties to that
certain Senior Indenture dated as of April 15, 1989, as supplemented by a First
Supplemental Senior Indenture dated as of May 15, 1991 (as so supplemented, the
"Indenture");
WHEREAS, Section 8.1 of the Indenture provides that, without
the consent of Holders of any Securities or Coupons, the Issuer, when authorized
by a resolution of its Board of Directors, and the Trustee may enter into
indentures supplemental to the Indenture for the purpose of, among other things,
making any provisions as the Issuer may deem necessary or desirable, subject to
the conditions set forth therein;
WHEREAS, the Issuer desires to add to and modify certain
provisions of the Indenture to reflect (1) the change of the Issuer's address
and (2) a modification of the officers of the Issuer who are authorized to
execute certain documents in connection with the issuance of Securities;
WHEREAS, the entry into this Second Supplemental Indenture by
the parties hereto is in all respects authorized by the provisions of the
Indenture; and
WHEREAS, all things necessary to make this Second Supplemental
Indenture a valid agreement of the Issuer in accordance with its terms have been
done.
NOW, THEREFORE, for and in consideration of the premises, the
Issuer and the Trustee mutually covenant and agree for the equal and
proportionate benefit of the respective Holders from time to time of the
Securities and of the Coupons, if any, appertaining thereto as follows:
ARTICLE ONE
1.1. Application of Article One. The provisions of this
Article One shall apply to (a) Holders of all series of Securities issued under
the Indenture and Outstanding at the date hereof and (b) Holders of any series
of Securities that may be issued under the Indenture subsequent to the date
hereof.
1.2. Amendment of Section 1.1. Section 1.1 of the Indenture
is hereby amended by
(a) deleting the definition of "Issuer Order" and inserting in
lieu thereof the following: " `Issuer Order' means a written statement,
request or order of the Issuer signed in its name by the chairman or
vice chairman of the Board of Directors,
the president, the chief financial officer, the treasurer or any
managing director of the Issuer or such other person specifically
designated by the Board of Directors or the Executive Committee thereof
to execute any such written statement, request or order."; and
(b) deleting in the definition of "Officer's Certificate" the
first sentence and inserting in lieu thereof the following:
" `Officer's Certificate' means a certificate signed by the chairman
or vice chairman of the Board of Directors, the president, the chief
financial officer, the treasurer or any managing director of the Issuer
or such other person specifically designated by the Board of Directors
or the Executive Committee thereof to execute any such certificate and
delivered to the Trustee.".
1.3. Amendment of Section 2.5. Section 2.5 of the Indenture
shall be amended by deleting the first paragraph and inserting in lieu thereof
the following:
The Securities and, if applicable, each Coupon appertaining
thereto shall be signed on behalf of the Issuer by the
chairman or vice chairman of the Board of Directors, the
president, the chief financial officer, the treasurer or any
managing director of the Issuer or such other person
specifically designated by the Board of Directors or the
Executive Committee thereof to execute Securities or, if
applicable, Coupons, which Securities or Coupons may, but need
not, be attested. Such signatures may be the manual or
facsimile signatures of the present or any future such
officers. Minor errors or defects in any such reproduction of
any such signature shall not affect the validity or
enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
1.4. Amendment of Section 11.4. Section 11.4 of the Indenture
is hereby amended by deleting in the first sentence of the first paragraph the
address "1251 Avenue of the Americas, New York, New York 10020" and inserting in
lieu thereof the following: "1585 Broadway, New York, New York 10036".
ARTICLE TWO
MISCELLANEOUS
2.1. Further Assurances. The Issuer will, upon request by the
Trustee, execute and deliver such further instruments and do such further acts
as may reasonably be necessary or proper to carry out more effectively the
purposes of this Second Supplemental Indenture.
-2-
2.2. Other Terms of Indenture. Except insofar as herein
otherwise expressly provided, all the provisions, terms and conditions of the
Indenture are in all respects ratified and confirmed and shall remain in full
force and effect.
2.3. Terms Defined. All terms defined elsewhere in the
Indenture shall have the same meanings when used herein.
2.4. GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF NEW
YORK SHALL GOVERN THIS SECOND SUPPLEMENTAL INDENTURE.
2.5. Multiple Counterparts. This Second Supplemental Indenture
may be executed in any number of counterparts, each of which shall be deemed to
be an original for all purposes, but such counterparts shall together be deemed
to constitute but one and the same instrument.
2.6. Responsibility of Trustee. The recitals contained herein
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity of this Second Supplemental Indenture.
* * * * * * * * * * * *
-3-
IN WITNESS WHEREOF, this Second Supplemental Indenture has
been duly executed by the Issuer and the Trustee as of the day and year first
written above.
MORGAN STANLEY GROUP INC.
By: ______________________
Title:
Attest:
By: _________________________
Assistant Secretary
CHEMICAL BANK, as Trustee
By: ______________________
Title:
Attest:
By: ______________________
-4-
Exhibit 4c
- -----------------------------------------------------------------------------
SECOND SUPPLEMENTAL SUBORDINATED INDENTURE
BETWEEN
MORGAN STANLEY GROUP INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
----------
Dated as of April 15, 1996
-----------
SUPPLEMENTAL TO SUBORDINATED INDENTURE
DATED AS OF APRIL 15, 1989, AS SUPPLEMENTED BY A
FIRST SUPPLEMENTAL SUBORDINATED INDENTURE DATED
AS OF MAY 15, 1991
- --------------------------------------------------------------------------------
SECOND SUPPLEMENTAL SUBORDINATED INDENTURE dated as of April
15, 1996 (the "Second Supplemental Indenture") between Morgan Stanley Group
Inc., a Delaware corporation (the "Issuer"), and The First National Bank of
Chicago, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer and the Trustee are parties to that
certain Subordinated Indenture dated as of April 15, 1989, as supplemented by a
First Supplemental Subordinated Indenture dated as of May 15, 1991 (as so
supplemented, the "Indenture");
WHEREAS, Section 8.1 of the Indenture provides that, without
the consent of Holders of any Securities or Coupons, the Issuer, when authorized
by a resolution of its Board of Directors, and the Trustee may enter into
indentures supplemental to the Indenture for the purpose of, among other things,
making any provisions as the Issuer may deem necessary or desirable, subject to
the conditions set forth therein;
WHEREAS, the Issuer desires to add to and modify certain
provisions of the Indenture to reflect (1) the change of the Issuer's address
and (2) a modification of the officers of the Issuer who are authorized to
execute certain documents in connection with the issuance of Securities;
WHEREAS, the entry into this Second Supplemental Indenture by
the parties hereto is in all respects authorized by the provisions of the
Indenture; and
WHEREAS, all things necessary to make this Second Supplemental
Indenture a valid agreement of the Issuer in accordance with its terms have been
done.
NOW, THEREFORE, for and in consideration of the premises, the
Issuer and the Trustee mutually covenant and agree for the equal and
proportionate benefit of the respective Holders from time to time of the
Securities and of the Coupons, if any, appertaining thereto as follows:
ARTICLE ONE
1.1. Application of Article One. The provisions of this
Article One shall apply to (a) Holders of all series of Securities issued under
the Indenture and Outstanding at the date hereof and (b) Holders of any series
of Securities that may be issued under the Indenture subsequent to the date
hereof.
1.2. Amendment of Section 1.1. Section 1.1 of the Indenture is
hereby amended by
(a) deleting the definition of "Issuer Order" and inserting in
lieu thereof the following: " `Issuer Order' means a written statement,
request or order of the Issuer signed in its name by the chairman or
vice chairman of the Board of Directors, the president, the chief
financial officer, the treasurer or any managing director of the Issuer
or such other person specifically designated by the Board of Directors
or the Executive Committee thereof to execute any such written
statement, request or order."; and
(b) deleting in the definition of "Officer's Certificate" the
first sentence and inserting in lieu thereof the following: "`Officer's
Certificate' means a certificate signed by the chairman or vice
chairman of the Board of Directors, the president, the chief financial
officer, the treasurer or any managing director of the Issuer or such
other person specifically designated by the Board of Directors or the
Executive Committee thereof to execute any such certificate and
delivered to the Trustee.".
1.3. Amendment of Section 2.5. Section 2.5 of the Indenture
shall be amended by deleting the first paragraph and inserting in lieu thereof
the following:
The Securities and, if applicable, each Coupon appertaining
thereto shall be signed on behalf of the Issuer by the
chairman or vice chairman of the Board of Directors, the
president, the chief financial officer, the treasurer or any
managing director of the Issuer or such other person
specifically designated by the Board of Directors or the
Executive Committee thereof to execute Securities or, if
applicable, Coupons, which Securities or Coupons may, but need
not, be attested. Such signatures may be the manual or
facsimile signatures of the present or any future such
officers. Minor errors or defects in any such reproduction of
any such signature shall not affect the validity or
enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
1.4. Amendment of Section 11.4. Section 11.4 of the Indenture
is hereby amended by deleting in the first sentence of the first paragraph the
address "1251 Avenue of the Americas, New York, New York 10020" and inserting in
lieu thereof the following: "1585 Broadway, New York, New York 10036".
ARTICLE TWO
MISCELLANEOUS
2.1. Further Assurances. The Issuer will, upon request by the
Trustee, execute and deliver such further instruments and do such further acts
as may reasonably be necessary or proper to carry out more effectively the
purposes of this Second Supplemental Indenture.
-2-
2.2. Other Terms of Indenture. Except insofar as herein
otherwise expressly provided, all the provisions, terms and conditions of the
Indenture are in all respects ratified and confirmed and shall remain in full
force and effect.
2.3. Terms Defined. All terms defined elsewhere in the
Indenture shall have the same meanings when used herein.
2.4. GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF NEW YORK
SHALL GOVERN THIS SECOND SUPPLEMENTAL INDENTURE.
2.5. Multiple Counterparts. This Second Supplemental Indenture
may be executed in any number of counterparts, each of which shall be deemed to
be an original for all purposes, but such counterparts shall together be deemed
to constitute but one and the same instrument.
2.6. Responsibility of Trustee. The recitals contained herein
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity of this Second Supplemental Indenture.
* * * * * * * * * * * *
-3-
IN WITNESS WHEREOF, this Second Supplemental Indenture has
been duly executed by the Issuer and the Trustee as of the day and year first
written above.
MORGAN STANLEY GROUP INC.
By: _____________________
Title:
Attest:
By: ____________________
Assistant Secretary
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By: ________________________
Title:
Attest:
By: _____________________
EXHIBIT 4.D
[FORM OF FACE OF SECURITY]
Fixed Rate Senior Note
REGISTERED REGISTERED
No. FXR [PRINCIPAL AMOUNT]
CUSIP: *
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.*
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE
APPROXIMATE METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR
THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE
DISCOUNT ("OID") RULES.
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Fixed Rate)
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: ORIGINAL
DATE: MATURITY
DATE:
INTEREST ACCRUAL DATE: INITIAL REDEMPTION APPLICABILITY OPTIONAL
PERCENTAGE: OF MODIFIED REPAYMENT
PAYMENT UPON DATES(S):
ACCELERATION:
TOTAL AMOUNT OF OID: ANNUAL REDEMPTION If yes, state EXCHANGE RATE
PERCENTAGE Issue Price: AGENT:
REDUCTION:
ORIGINAL YIELD TO SPECIFIED CURRENCY:
MATURITY:
INITIAL ACCRUAL INTEREST PAYMENT
PERIOD: DATE:
APPLICABILITY OF INTEREST PAYMENT
ISSUER's OPTION TO PERIOD:
EXTEND ORIGINAL
MATURITY DATE:
If yes, state Final APPLICABILITY OF
Maturity Date: ANNUAL INTEREST
PAYMENTS:
OTHER PROVISIONS:
_____________________
* Applies only if this Note is a Registered Global Security.
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to
, or registered assignees, the principal sum of , on the Original
Maturity Date specified above or, if the maturity hereof is extended in
accordance with the procedures set forth below to an Extended Maturity
Date, as defined below, on such Extended Maturity Date (except to the
extent previously redeemed or repaid) and to pay interest thereon at the
Interest Rate per annum specified above or, if the interest rate hereon is
reset or re-established in connection with an extension of maturity in
accordance with the procedures specified on the reverse hereof, at the
interest rate per annum determined pursuant to such procedures, from and
including the Interest Accrual Date specified above until the principal
hereof is paid or duly made available for payment (except as provided
below), monthly, quarterly, semiannually or annually in arrears as
specified above as the Interest Payment Period on each Interest Payment
Date (as specified above) commencing on the Interest Payment Date next
succeeding the Interest Accrual Date specified above, and at maturity (or
on any redemption or repayment date); provided, however, that if the
Interest Accrual Date occurs between a Record Date, as defined below, and
the next succeeding Interest Payment Date, interest payments will commence
on the second Interest Payment Date succeeding the Interest Accrual Date to
the registered holder of this Note on the Record Date with respect to such
second Interest Payment Date; and provided, further, that if this Note is
subject to "Annual Interest Payments," interest payments shall be made
annually in arrears and the term "Interest Payment Date" shall be deemed to
mean the first day of March in each year.
Interest on this Note will accrue from and including the
most recent Interest Payment Date to which interest has been paid or duly
provided for, or, if no interest has been paid or duly provided for, from
and including the Interest Accrual Date, until, but excluding the date the
principal hereof has been paid or duly made available for payment (except
as provided below). The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the person in whose name this Note
(or one or more predecessor Notes) is registered at the close of business
on the date 15 calendar days prior to such Interest Payment Date (whether
or not a Business Day) (each such date a "Record Date"); provided,
however, that interest payable at maturity (or on any redemption or
repayment date) will be payable to the person to whom the principal hereof
shall be payable. As used herein, "Business Day" means any day, other than
a Saturday or Sunday, that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to
close in The City of New York and (i) with respect to Notes denominated in
a Specified Currency other than U.S. dollars, Australian dollars or
European Currency Units ("ECUs"), in the principal financial center of the
country of the Specified Currency, (ii) with respect to Notes denominated
in Australian dollars, in Sydney and (iii) with respect to Notes
denominated in ECUs, that is not a non-ECU clearing day, as determined by
the ECU Banking Association in Paris.
Payment of the principal of this Note, any premium and the
interest due at maturity (or on any redemption or repayment date), unless this
Note is denominated in a Specified Currency other than U.S. dollars and is to
be paid in whole or in part in such Specified Currency, will be made in
immediately available funds upon surrender of this Note at the office or
agency of the Paying Agent, as defined on the reverse hereof, maintained for
that purpose in the Borough of Manhattan, The City of New York, or at such
other paying agency as the Issuer may determine, in U.S. dollars. U.S. dollar
payments of interest, other than interest due at maturity or on any date of
redemption or repayment, will be made by U.S. dollar check mailed to the
address of the person entitled thereto as such address shall appear in the
Note register. A holder of U.S. $10,000,000 or more in aggregate principal
amount of Notes having the same Interest Payment Date, the interest on which
is payable in U.S. dollars, shall be entitled to receive payments of interest,
other than interest due at maturity or on any date of redemption or repayment,
by wire transfer of immediately available funds if appropriate wire transfer
instructions have been received by the Paying Agent in writing not less than
15 calendar days prior to the applicable Interest Payment Date.
If this Note is denominated in a Specified Currency other
than U.S. dollars, and the holder does not elect (in whole or in part) to
receive payment in U.S. dollars pursuant to the next succeeding paragraph,
payments of interest, principal or any premium with regard to this Note
will be made by wire transfer of immediately available funds to an account
maintained by the holder hereof with a bank located outside the United
States if appropriate wire transfer instructions have been received by the
Paying Agent in writing not less than 15 calendar days prior to the
applicable payment date, provided that, if such wire transfer instructions
are not received, such payments will be made by check payable in such
Specified Currency mailed to the address of the person entitled thereto as
such address shall appear in the Note register, and provided, further, that
payment of the principal of this Note, any premium and the interest due at
maturity (or on any redemption or repayment date) will be made upon
surrender of this Note at the office or agency referred to in the preceding
paragraph.
Unless otherwise indicated herein, the holder of this Note, if
denominated in a Specified Currency other than U.S. dollars, may elect to
receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the Record
Date or at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be. Such election shall remain
in effect unless such request is revoked by written notice to the Paying Agent
as to all or a portion of payments on this Note at least five Business Days
prior to such Record Date or at least ten days prior to the Maturity Date or
any redemption or repayment date, as the case may be.
If the holder elects to receive all or a portion of payments of
principal of and any premium and interest on this Note, if denominated in a
Specified Currency other than U.S. dollars, in U.S. dollars, the Exchange Rate
Agent will convert such payments into U.S. dollars. In the event of such an
election, payment in respect of this Note will be based upon the exchange rate
as determined by the Exchange Rate Agent based on the highest bid quotation in
The City of New York received by such Exchange Rate Agent at approximately
11:00 A.M., New York City time, on the second Business Day preceding the
applicable payment date from three recognized foreign exchange dealers (one of
which may be the Exchange Rate Agent unless such Exchange Rate Agent is Morgan
Stanley & Co. Incorporated), for the purchase by the quoting dealer of U.S.
dollars for the Specified Currency for settlement on such payment date in the
amount of the Specified Currency payable in the absence of such election to
such holder and at which the applicable dealer commits to execute a contract.
If such bid quotations are not available, such payment will be made in the
Specified Currency. All currency exchange costs will be borne by the holder
of this Note by deductions from such payments.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By:_________________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
CHEMICAL BANK,
as Trustee
By:_________________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series C, having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable
under a Senior Indenture, dated as of April 15, 1989, as supplemented by a
First Supplemental Indenture dated as of May 15, 1991 and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Senior Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed Chemical Bank at its
corporate trust office in The City of New York as the paying agent (the
"Paying Agent," which term includes any additional or successor Paying
Agent appointed by the Issuer) with respect to the Notes. The terms of
individual Notes may vary with respect to interest rates, interest rate
formulas, issue dates, maturity dates, or otherwise, all as provided in the
Senior Indenture. To the extent not inconsistent herewith, the terms of
the Senior Indenture are hereby incorporated by reference herein.
Unless otherwise provided on the face of this Note, this Note
will not be subject to any sinking fund and, unless otherwise provided on the
face hereof in accordance with the provisions of the following two paragraphs,
will not be redeemable or subject to repayment at the option of the holder
prior to maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on or after the
Initial Redemption Date specified on the face hereof on the terms set forth on
the face hereof, together with interest accrued and unpaid hereon to the date
of redemption (except as provided below). If this Note is subject to "Annual
Redemption Percentage Reduction," the Initial Redemption Percentage indicated
on the face hereof will be reduced on each anniversary of the Initial
Redemption Date by the Annual Redemption Percentage Reduction specified on the
face hereof until the redemption price of this Note is 100% of the principal
amount hereof, together with interest accrued and unpaid hereon to the date of
redemption (except as provided below). Notice of redemption shall be mailed
to the registered holders of the Notes designated for redemption at their
addresses as the same shall appear on the Note register not less than 30 nor
more than 60 days prior to the date fixed for redemption, subject to all the
conditions and provisions of the Senior Indenture. In the event of redemption
of this Note in part only, a new Note or Notes for the amount of the
unredeemed portion hereof shall be issued in the name of the holder hereof
upon the cancellation hereof.
Notwithstanding the foregoing, this Note may be redeemed in
accordance with the terms of any Extension Notice, as defined below, sent to
the holder hereof as described below.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional Repayment
Date or Dates specified on the face hereof on the terms set forth herein.
On any Optional Repayment Date, this Note will be repayable in whole or in
part in increments of $1,000 or, if this Note is denominated in a Specified
Currency other than U.S. dollars, in increments of 1,000 units of such
Specified Currency (provided that any remaining principal amount hereof
shall not be less than the minimum authorized denomination hereof) at the
option of the holder hereof at a price equal to 100% of the principal
amount to be repaid, together with interest accrued and unpaid hereon to
the date of repayment (except as provided below). For this Note to be
repaid at the option of the holder hereof, the Paying Agent must receive at
its corporate trust office in the Borough of Manhattan, The City of New
York, at least 15 but not more than 30 days prior to the date of repayment,
(i) this Note with the form entitled "Option to Elect Repayment" below duly
completed or (ii) a telegram, telex, facsimile transmission or a letter
from a member of a national securities exchange or the National Association
of Securities Dealers, Inc. or a commercial bank or a trust company in the
United States setting forth the name of the holder of this Note, the
principal amount hereof, the certificate number of this Note or a
description of this Note's tenor and terms, the principal amount hereof to
be repaid, a statement that the option to elect repayment is being
exercised thereby and a guarantee that this Note, together with the form
entitled "Option to Elect Repayment" duly completed, will be received by
the Paying Agent not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter; provided, that such
telegram, telex, facsimile transmission or letter shall only be effective
if this Note and form duly completed are received by the Paying Agent by
such fifth Business Day. Exercise of such repayment option by the holder
hereof shall be irrevocable. In the event of repayment of this Note in
part only, a new Note or Notes for the amount of the unpaid portion hereof
shall be issued in the name of the holder hereof upon the cancellation
hereof.
If so indicated on the face of this Note, the Issuer has the
option to extend the Original Maturity Date hereof for one or more periods of
one or more whole years (each an "Extension Period") up to but not beyond the
Final Maturity Date specified on the face hereof and in connection therewith
to establish a new interest rate and new redemption provisions for the
Extension Period.
The Issuer may exercise such option by notifying the Paying
Agent of such exercise at least 45 but not more than 60 days prior to the
Original Maturity Date or, if the maturity hereof has already been extended,
prior to the maturity date then in effect (an "Extended Maturity Date"), such
notice to be accompanied by the form of the Extension Notice referred to
below. No later than 38 days prior to the Original Maturity Date or an
Extended Maturity Date, as the case may be (each, a "Maturity Date"), the
Paying Agent will mail to the holder hereof a notice (the "Extension Notice")
relating to such Extension Period, first class mail, postage prepaid, setting
forth (a) the election of the Issuer to extend the maturity of this Note; (b)
the new Extended Maturity Date; (c) the interest rate applicable to the
Extension Period; and (d) the provisions, if any, for redemption during the
Extension Period, including the date or dates on which, the period or periods
during which and the price or prices at which such redemption may occur during
the Extension Period. Upon the mailing by the Paying Agent of an Extension
Notice to the holder of this Note, the maturity hereof shall be extended
automatically, and, except as modified by the Extension Notice and as
described in the next paragraph, this Note will have the same terms it had
prior to the mailing of such Extension Notice.
Notwithstanding the foregoing, not later than 10:00 A.M.,
New York City time, on the twentieth calendar day prior to the Maturity
Date in effect immediately preceding the mailing of the applicable
Extension Notice (or if such day is not a Business Day, not later than
10:00 A.M., New York City time, on the immediately succeeding Business
Day), the Issuer may, at its option, revoke the interest rate provided for
in such Extension Notice and establish a higher interest rate for the
Extension Period by causing the Paying Agent to send notice of such higher
interest rate to the holder of this Note by first class mail, postage
prepaid, or by such other means as shall be agreed between the Issuer and
the Paying Agent. Such notice shall be irrevocable. All Notes with
respect to which the Maturity Date is extended in accordance with an
Extension Notice will bear such higher interest rate for the Extension
Period, whether or not tendered for repayment.
If the Issuer elects to extend the maturity hereof, the
holder of this Note will have the option to require the Issuer to repay
this Note on the Maturity Date in effect immediately preceding the mailing
of the applicable Extension Notice at a price equal to the principal amount
hereof plus any accrued and unpaid interest to such date. In order for
this Note to be so repaid on such Maturity Date, the holder hereof must
follow the procedures set forth above for optional repayment, except that
the period for delivery of this Note or notification to the Paying Agent
shall be at least 25 but not more than 35 days prior to the Maturity Date
in effect immediately preceding the mailing of the applicable Extension
Notice and except that if the holder hereof has tendered this Note for
repayment pursuant to this paragraph he may, by written notice to the
Paying Agent, revoke any such tender for repayment until 3:00 P.M., New
York City time, on the twentieth calendar day prior to the Maturity Date
then in effect (or, if such day is not a Business Day, until 3:00 P.M., New
York City time, on the immediately succeeding Business Day).
Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Unless otherwise provided
on the face hereof, interest payments for this Note will be computed and paid
on the basis of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity
Date (or any redemption or repayment date) does not fall on a Business Day,
payment of interest, premium, if any, or principal otherwise payable on such
date need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date or on the Maturity Date (or any redemption or repayment date), and no
interest on such payment shall accrue for the period from and after the
Interest Payment Date or the Maturity Date (or any redemption or repayment
date) to such next succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without
coupons, and, if denominated in U.S. dollars, is issuable only in
denominations of U.S. $1,000 and any integral multiple of U.S. $1,000 in
excess thereof. If this Note is denominated in a Specified Currency other
than U.S. dollars, then, unless a higher minimum denomination is required
by applicable law, it is issuable only in denominations of the equivalent
of U.S. $1,000 (rounded to an integral multiple of 1,000 units of such
Specified Currency), or any amount in excess thereof which is an integral
multiple of 1,000 units of such Specified Currency, as determined by
reference to the noon dollar buying rate in New York City for cable
transfers of such Specified Currency published by the Federal Reserve Bank
of New York (the "Market Exchange Rate") on the Business Day immediately
preceding the date of issuance; provided, however, in the case of ECUs, the
Market Exchange Rate shall be the rate of exchange determined by the
Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities, or any
successor publication, on the Business Day immediately preceding the date
of issuance.
The Trustee has been appointed registrar for the Notes, and
the Trustee will maintain at its office in The City of New York a register
for the registration and transfer of Notes. This Note may be transferred
at the aforesaid office of the Trustee by surrendering this Note for
cancellation, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and duly executed by the registered holder
hereof in person or by the holder's attorney duly authorized in writing,
and thereupon the Trustee shall issue in the name of the transferee or
transferees, in exchange herefor, a new Note or Notes having identical
terms and provisions and having a like aggregate principal amount in
authorized denominations, subject to the terms and conditions set forth
herein; provided, however, that the Trustee will not be required (i) to
register the transfer of or exchange any Note that has been called for
redemption in whole or in part, except the unredeemed portion of Notes
being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of
such Note not required to be repurchased, or (iii) to register the transfer
of or exchange Notes to the extent and during the period so provided in the
Senior Indenture with respect to the redemption of Notes. Notes are
exchangeable at said office for other Notes of other authorized
denominations of equal aggregate principal amount having identical terms
and provisions. All such exchanges and transfers of Notes will be free of
charge, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge in connection therewith. All Notes
surrendered for exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Trustee and executed by the registered
holder in person or by the holder's attorney duly authorized in writing.
The date of registration of any Note delivered upon any exchange or
transfer of Notes shall be such that no gain or loss of interest results
from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and such Note or evidence of the loss,
theft or destruction thereof (together with the indemnity hereinafter
referred to and such other documents or proof as may be required in the
premises) shall be delivered to the Trustee, a new Note of like tenor will
be issued by the Issuer in exchange for the Note so mutilated or defaced,
or in lieu of the Note so destroyed or lost or stolen, but, in the case of
any destroyed or lost or stolen Note, only upon receipt of evidence
satisfactory to the Trustee and the Issuer that such Note was destroyed or
lost or stolen and, if required, upon receipt also of indemnity
satisfactory to each of them. All expenses and reasonable charges
associated with procuring such indemnity and with the preparation,
authentication and delivery of a new Note shall be borne by the owner of
the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of
Default (as defined in the Senior Indenture) due to the default in payment
of principal of, premium, if any, or interest on, any series of debt
securities issued under the Senior Indenture, including the series of
Senior Medium-Term Notes of which this Note forms a part, or due to the
default in the performance or breach of any other covenant or warranty of
the Issuer applicable to the debt securities of such series but not
applicable to all outstanding debt securities issued under the Senior
Indenture shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of the debt securities of
each affected series (voting as a single class) may then declare the
principal of all debt securities of all such series and interest accrued
thereon to be due and payable immediately and (b) if an Event of Default
due to a default in the performance of any other of the covenants or
agreements in the Senior Indenture applicable to all outstanding debt
securities issued thereunder, including this Note, or due to certain events
of bankruptcy, insolvency and reorganization of the Issuer, shall have
occurred and be continuing, either the Trustee or the holders of not less
than 25% in principal amount of all debt securities issued under the Senior
Indenture then outstanding (treated as one class) may declare the principal
of all such debt securities and interest accrued thereon to be due and
payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt
securities) by the holders of a majority in principal amount of the debt
securities of all affected series then outstanding.
If the face hereof indicates that this Note is subject to
"Modified Payment upon Acceleration," then (i) if the principal hereof is
declared to be due and payable as described in the preceding paragraph, the
amount of principal due and payable with respect to this Note shall be limited
to the aggregate principal amount hereof multiplied by the sum of the Issue
Price specified on the face hereof (expressed as a percentage of the aggregate
principal amount) plus the original issue discount amortized from the Interest
Accrual Date to the date of declaration, which amortization shall be
calculated using the "interest method" (computed in accordance with generally
accepted accounting principles in effect on the date of declaration), (ii) for
the purpose of any vote of securityholders taken pursuant to the Senior
Indenture prior to the acceleration of payment of this Note, the principal
amount hereof shall equal the amount that would be due and payable hereon,
calculated as set forth in clause (i) above, if this Note were declared to be
due and payable on the date of any such vote and (iii) for the purpose of any
vote of securityholders taken pursuant to the Senior Indenture following the
acceleration of payment of this Note, the principal amount hereof shall equal
the amount of principal due and payable with respect to this Note, calculated
as set forth in clause (i) above.
The Senior Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected;
or (b) reduce the aforesaid percentage in principal amount of debt securities
the consent of the holders of which is required for any such supplemental
indenture, without the consent of the holders of each debt security so
affected.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency other
than U.S. dollars and such Specified Currency is not available to the
Issuer for making payments hereon due to the imposition of exchange
controls or other circumstances beyond the control of the Issuer or is no
longer used by the government of the country issuing such currency or for
the settlement of transactions by public institutions within the
international banking community, then the Issuer will be entitled to
satisfy its obligations to the holder of this Note by making such payments
in U.S. dollars on the basis of the Market Exchange Rate on the date of
such payment or, if the Market Exchange Rate is not available on such date,
as of the most recent practicable date; provided, however, that if such
Specified Currency is replaced by a single European currency (expected to
be named the Euro), the payment of principal of, premium, if any, or
interest on any Note denominated in such currency shall be effected in the
new single European currency in conformity with legally applicable measures
taken pursuant to, or by virtue of, the treaty establishing the European
Community (the "EC"), as amended by the treaty on European Union (as so
amended, the "Treaty"). Any payment made under such circumstances in U.S.
dollars (or, if applicable, such new single European currency) where the
required payment is in a Specified Currency other than U.S. dollars will
not constitute an Event of Default.
Subject to the provisions below, the value of the ECU, in which
the Notes may be denominated or may be payable, is equal to the value of the
ECU that is from time to time used as the unit of account of the EC. If the
ECU becomes a currency in its own right in accordance with the Treaty, all
references to ECU in the Notes shall be construed as references to such
currency.
With respect to each due date for the payment of principal of,
or interest on, the Notes on or after the first business day in Brussels on
which the ECU ceases to be used as the unit of account of the EC, and has not
become a currency in its own right replacing all or some of the currencies of
the member States of the EC, the Issuer shall choose a substitute currency
(the "Chosen Currency"), which may be any currency which was, on the last day
on which the ECU was used as the unit of account of the EC, a component
currency of the ECU or U.S. dollars, in which all payments due on or after
that date with respect to the Notes and coupons shall be made. Notice of the
Chosen Currency so selected shall be provided by first class mail to each
holder at the address of such holder which appears on the books maintained by
the registrar and to the Paying Agent. The amount of each payment in such
Chosen Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of the fourth business day in
Brussels prior to the date on which such payment is due.
On the first business day in Brussels on which the ECU ceases
to be used as the unit of account of the EC, and has not become a currency in
its own right replacing all or some of the currencies of the member States of
the EC, the Issuer shall select a Chosen Currency in which all payments with
respect to Notes and coupons having a due date prior thereto but not yet
presented for payment are to be made. The amount of each payment in such
Chosen Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as
of any date (the "Day of Valuation") shall be determined by, or on behalf
of, the Exchange Rate Agent on the following basis. The amounts and
components composing the ECU for this purpose (the "Components") shall be
the amounts and components that composed the ECU as of the last date on
which the ECU was used as the unit of account of the EC. The equivalent of
the ECU in the Chosen Currency shall be calculated by, first, aggregating
the U.S. dollar equivalents of the Components; and then, in the case of a
chosen Currency other than U.S. dollars, using the rate used for
determining the U.S. dollar equivalent of the Components in the Chosen
Currency as set forth below, calculating the equivalent in the Chosen
Currency of such aggregate amount in U.S. dollars.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated on the face hereof.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Issuer, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf,
provided that such quotations were prevailing in the country of issue not
more than two Business Days before such Day of Valuation. If such most
recent quotations were so prevailing in the country of issue more than two
Business Days before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of
cross rates derived from the middle spot delivery quotations for such
component currency and for the U.S. dollar prevailing at 2:30 P.M.,
Brussels time, on such Day of Valuation, as obtained by, or on behalf of,
the Exchange Rate agent from one or more major banks, as selected by the
Issuer, in a country other than the country of issue of such component
currency. Notwithstanding the foregoing, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of such
cross rates if the Issuer or such agent judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent
calculated as provided in the first sentence of this paragraph. Unless
otherwise specified by the Issuer, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations
or for any other reason, the market to be referred to in respect of such
currency shall be that upon which a non-resident issuer of securities
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as aforesaid
of the Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be
such an agency, the Issuer shall keep the Trustee advised of the names and
locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes that such
moneys shall be repaid to the Issuer and any person claiming such moneys shall
thereafter look only to the Issuer for payment thereof and (ii) such moneys
shall be so repaid to the Issuer. Upon such repayment all liability of the
Trustee or such Paying Agent with respect to such moneys shall thereupon
cease, without, however, limiting in any way any obligation that the Issuer
may have to pay the principal of or interest or premium, if any, on this Note
as the same shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on
this Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the registered
holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and none of the Issuer,
the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Senior Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the
above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_____________________________________________________ !
_____________________________________________________ !
_________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE,
OF ASSIGNEE]
_________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
_________________________________________________________________
constituting and appointing such person attorney to transfer
_________________________________________________________________
such note on the books of the Issuer, with full power of
_________________________________________________________________
substitution in the premises.
Dated:_____________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within Note in every particular
without alteration or enlargement or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid: __________________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the
Notes to be issued to the holder for the portion of the within Note not being
repaid (in the absence of any such specification, one such Note will be issued
for the portion not being repaid):
.
Dated:
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as written
upon the face of the within
instrument in every particular
without alteration or enlargement.
EXHIBIT 4.E
[FORM OF FACE OF SECURITY]
Fixed Rate Subordinated Note
REGISTERED REGISTERED
No. FXR [PRINCIPAL AMOUNT]
CUSIP: *
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.*
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE
APPROXIMATE METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR
THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE
DISCOUNT ("OID") RULES.
MORGAN STANLEY GROUP INC.
SUBORDINATED GLOBAL MEDIUM-TERM NOTE, SERIES C
(Fixed Rate)
______________________
* Applies only if this Note is a Registered Global Security.
ORIGINAL INITIAL INTEREST RATE: ORIGINAL
ISSUE DATE: REDEMPTION MATURITY
DATE: DATE:
INTEREST INITIAL APPLICABILITY OF OPTIONAL
ACCRUAL DATE: REDEMPTION MODIFIED PAYMENT REPAYMENT
PERCENTAGE: UPON DATE(S):
ACCELERATION:
TOTAL AMOUNT ANNUAL REDEMPTION If yes, state APPLICABILITY
OF OID: PERCENTAGE Issue Price: OF ANNUAL
REDUCTION: INTEREST
PAYMENTS:
ORIGINAL YIELD INTEREST PAYMENT SPECIFIED EXCHANGE RATE
TO MATURITY: DATE: CURRENCY: AGENT:
INITIAL ACCRUAL INTEREST PAYMENT
PERIOD OID: PERIOD:
APPLICABILITY
OF ISSUER'S
OPTION TO
EXTEND ORIGINAL
MATURITY DATE:
If yes, state Final
Maturity Date:
OTHER PROVISIONS:
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to
, or registered assignees, the principal sum of
on the Original Maturity Date specified above or, if the
maturity hereof is extended in accordance with the procedures set forth below
to an Extended Maturity Date, as defined below, on such Extended Maturity Date
(except to the extent previously redeemed or repaid) and to pay interest
thereon at the Interest Rate per annum specified above or, if the interest
rate hereon is reset or re-established in connection with an extension of
maturity in accordance with the procedures specified on the reverse hereof, at
the interest rate per annum determined pursuant to such procedures, from and
including the Interest Accrual Date specified above until the principal hereof
is paid or duly made available for payment (except as provided below),
monthly, quarterly, semiannually or annually in arrears as specified above as
the Interest Payment Period on each Interest Payment Date (as specified above)
commencing on the Interest Payment Date next succeeding the Interest Accrual
Date specified above, and at maturity (or on any redemption or repayment
date); provided, however, that if the Interest Accrual Date occurs between a
Record Date, as defined below, and the next succeeding Interest Payment Date,
interest payments will commence on the second Interest Payment Date succeeding
the Interest Accrual Date to the registered holder of this Note on the Record
Date with respect to such second Interest Payment Date; and provided, further,
that if this Note is subject to "Annual Interest Payments," interest payments
shall be made annually in arrears and the term "Interest Payment Date" shall
be deemed to mean the first day of March in each year.
Interest on this Note will accrue from and including the
most recent Interest Payment Date to which interest has been paid or duly
provided for, or, if no interest has been paid or duly provided for, from
and including the Interest Accrual Date, until, but excluding the date the
principal hereof has been paid or duly made available for payment (except
as provided below). The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the person in whose name this Note
(or one or more predecessor Notes) is registered at the close of business
on the date 15 calendar days prior to such Interest Payment Date (whether
or not a Business Day) (each such date a "Record Date"); provided,
however, that interest payable at maturity (or on any redemption or
repayment date) will be payable to the person to whom the principal hereof
shall be payable. As used herein, "Business Day" means any day, other than
a Saturday or Sunday, that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to
close in The City of New York and (i) with respect to Notes denominated in
a Specified Currency other than U.S. dollars, Australian dollars or
European Currency Units ("ECUs"), in the principal financial center of the
country of the Specified Currency, (ii) with respect to Notes denominated
in Australian dollars, in Sydney and (iii) with respect to Notes
denominated in ECUs, that is not a non-ECU clearing day, as determined by
the ECU Banking Association in Paris.
Payment of the principal of this Note, any premium and the
interest due at maturity (or on any redemption or repayment date), unless
this Note is denominated in a Specified Currency other than U.S. dollars
and is to be paid in whole or in part in such Specified Currency, will be
made in immediately available funds upon surrender of this Note at the
office or agency of the Paying Agent, as defined on the reverse hereof,
maintained for that purpose in the Borough of Manhattan, The City of New
York, or at such other paying agency as the Issuer may determine, in U.S.
dollars. U.S. dollar payments of interest, other than interest due at
maturity or on any date of redemption or repayment, will be made by U.S.
dollar check mailed to the address of the person entitled thereto as such
address shall appear in the Note register. A holder of U.S. $10,000,000 or
more in aggregate principal amount of Notes having the same Interest
Payment Date, the interest on which is payable in U.S. dollars, shall be
entitled to receive payments of interest, other than interest due at
maturity or on any date of redemption or repayment, by wire transfer of
immediately available funds if appropriate wire transfer instructions have
been received by the Paying Agent in writing not less than 15 calendar days
prior to the applicable Interest Payment Date.
If this Note is denominated in a Specified Currency other than
U.S. dollars, and the holder does not elect (in whole or in part) to receive
payment in U.S. dollars pursuant to the next succeeding paragraph, payments of
interest, principal or any premium with regard to this Note will be made by
wire transfer of immediately available funds to an account maintained by the
holder hereof with a bank located outside the United States if appropriate
wire transfer instructions have been received by the Paying Agent in writing
not less than 15 calendar days prior to the applicable payment date, provided
that, if such wire transfer instructions are not received, such payments will
be made by check payable in such Specified Currency mailed to the address of
the person entitled thereto as such address shall appear in the Note register,
and provided, further, that payment of the principal of this Note, any premium
and the interest due at maturity (or on any redemption or repayment date) will
be made upon surrender of this Note at the office or agency referred to in the
preceding paragraph.
Unless otherwise indicated herein, the holder of this Note, if
denominated in a Specified Currency other than U.S. dollars, may elect to
receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the Record
Date or at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be. Such election shall remain
in effect unless such request is revoked by written notice to the Paying Agent
as to all or a portion of payments on this Note at least five Business Days
prior to such Record Date or at least ten days prior to the Maturity Date or
any redemption or repayment date, as the case may be.
If the holder elects to receive all or a portion of payments of
principal of and any premium and interest on this Note, if denominated in a
Specified Currency other than U.S. dollars, in U.S. dollars, the Exchange Rate
Agent will convert such payments into U.S. dollars. In the event of such an
election, payment in respect of this Note will be based upon the exchange rate
as determined by the Exchange Rate Agent based on the highest bid quotation in
The City of New York received by such Exchange Rate Agent at approximately
11:00 A.M., New York City time, on the second Business Day preceding the
applicable payment date from three recognized foreign exchange dealers (one of
which may be the Exchange Rate Agent unless such Exchange Rate Agent is Morgan
Stanley & Co. Incorporated), for the purchase by the quoting dealer of U.S.
dollars for the Specified Currency for settlement on such payment date in the
amount of the Specified Currency payable in the absence of such election to
such holder and at which the applicable dealer commits to execute a contract.
If such bid quotations are not available, such payment will be made in the
Specified Currency. All currency exchange costs will be borne by the holder
of this Note by deductions from such payments.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place, including,
without limitation, the provisions relating to the subordination of this Note
to the Issuer's Senior Indebtedness, as defined on the reverse hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, as defined on the reverse hereof by
manual signature, this Note shall not be entitled to any benefit under the
Subordinated Indenture, as defined on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By:_______________________________
Title:
AUTHENTICATING AGENT'S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Subordinated Indenture.
CHEMICAL BANK,
as Authenticating Agent
By:_______________________________
Authorized Officer
[REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Subordinated
Global Medium-Term Notes, Series C, having maturities more than nine months
from the date of issue (the "Notes") of the Issuer. The Notes are issuable
under a Subordinated Indenture, dated as of April 15, 1989, as supplemented
by a First Supplemental Indenture dated as of May 15, 1991 and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Subordinated Indenture"), between the Issuer and The First National Bank
of Chicago, as Trustee (the "Trustee," which term includes any successor
trustee under the Subordinated Indenture), to which Subordinated Indenture
and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and
immunities of the Issuer, the Trustee and holders of the Notes and the
terms upon which the Notes are, and are to be, authenticated and delivered.
The Trustee has appointed Chemical Bank as Authenticating Agent (the
"Authenticating Agent," which term includes any successor authenticating
agent appointed by the Trustee) with respect to the Notes, and the Issuer
has appointed Chemical Bank at its corporate trust office in The City of
New York as the paying agent (the "Paying Agent," which term includes any
additional or successor Paying Agent appointed by the Issuer) with respect
to the Notes. The terms of individual Notes may vary with respect to
interest rates, interest rate formulas, issue dates, maturity dates, or
otherwise, all as provided in the Subordinated Indenture. To the extent
not inconsistent herewith, the terms of the Subordinated Indenture are
hereby incorporated by reference herein.
Unless otherwise provided on the face hereof, this Note will
not be subject to any sinking fund and, unless otherwise provided on the
face hereof in accordance with the provisions of the following two
paragraphs, will not be redeemable or subject to repayment at the option of
the holder prior to maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on or after the
Initial Redemption Date specified on the face hereof on the terms set forth
on the face hereof, together with interest accrued and unpaid hereon to the
date of redemption (except as provided below). If this Note is subject to
"Annual Redemption Percentage Reduction," the Initial Redemption Percentage
indicated on the face hereof will be reduced on each anniversary of the
Initial Redemption Date by the Annual Redemption Percentage Reduction
specified on the face hereof until the redemption price of this Note is
100% of the principal amount hereof, together with interest accrued and
unpaid hereon to the date of redemption (except as provided below). Notice
of redemption shall be mailed to the registered holders of the Notes
designated for redemption at their addresses as the same shall appear on
the Note register not less than 30 nor more than 60 days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Subordinated Indenture. In the event of redemption of this Note in part
only, a new Note or Notes for the amount of the unredeemed portion hereof
shall be issued in the name of the holder hereof upon the cancellation
hereof.
Notwithstanding the foregoing, this Note may be redeemed in
accordance with the terms of any Extension Notice, as defined below, sent
to the holder hereof as described below.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional Repayment
Date or Dates specified on the face hereof on the terms set forth herein.
On any Optional Repayment Date, this Note will be repayable in whole or in
part in increments of $1,000 or, if this Note is denominated in a Specified
Currency other than U.S. dollars, in increments of 1,000 units of such
Specified Currency (provided that any remaining principal amount hereof
shall not be less than the minimum authorized denomination hereof) at the
option of the holder hereof at a price equal to 100% of the principal
amount to be repaid, together with interest accrued and unpaid hereon to
the date of repayment (except as provided below). For this Note to be
repaid at the option of the holder hereof, the Paying Agent must receive at
its corporate trust office in the Borough of Manhattan, The City of New
York, at least 15 but not more than 30 days prior to the date of repayment,
(i) this Note with the form entitled "Option to Elect Repayment" below duly
completed or (ii) a telegram, telex, facsimile transmission or a letter
from a member of a national securities exchange or the National Association
of Securities Dealers, Inc. or a commercial bank or a trust company in the
United States setting forth the name of the holder of this Note, the
principal amount hereof, the certificate number of this Note or a
description of this Note's tenor and terms, the principal amount hereof to
be repaid, a statement that the option to elect repayment is being
exercised thereby and a guarantee that this Note, together with the form
entitled "Option to Elect Repayment" duly completed, will be received by
the Paying Agent not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter; provided, that such
telegram, telex, facsimile transmission or letter shall only be effective
if this Note and form duly completed are received by the Paying Agent by
such fifth Business Day. Exercise of such repayment option by the holder
hereof shall be irrevocable. In the event of repayment of this Note in
part only, a new Note or Notes for the amount of the unpaid portion hereof
shall be issued in the name of the holder hereof upon the cancellation
hereof.
If so indicated on the face of this Note, the Issuer has the
option to extend the Original Maturity Date hereof for one or more periods
of one or more whole years (each an "Extension Period") up to but not
beyond the Final Maturity Date specified on the face hereof and in
connection therewith to establish a new interest rate and new redemption
provisions for the Extension Period.
The Issuer may exercise such option by notifying the Paying
Agent of such exercise at least 45 but not more than 60 days prior to the
Original Maturity Date or, if the maturity hereof has already been
extended, prior to the maturity date then in effect (an "Extended Maturity
Date"), such notice to be accompanied by the form of the Extension Notice
referred to below. No later than 38 days prior to the Original Maturity
Date or an Extended Maturity Date, as the case may be (each, a "Maturity
Date"), the Paying Agent will mail to the holder hereof a notice (the
"Extension Notice") relating to such Extension Period, first class mail,
postage prepaid, setting forth (a) the election of the Issuer to extend the
maturity of this Note; (b) the new Extended Maturity Date; (c) the
interest rate applicable to the Extension Period; and (d) the provisions,
if any, for redemption during the Extension Period, including the date or
dates on which, the period or periods during which and the price or prices
at which such redemption may occur during the Extension Period. Upon the
mailing by the Paying Agent of an Extension Notice to the holder of this
Note, the maturity hereof shall be extended automatically, and, except as
modified by the Extension Notice and as described in the next paragraph,
this Note will have the same terms it had prior to the mailing of such
Extension Notice.
Notwithstanding the foregoing, not later than 10:00 A.M.,
New York City time, on the twentieth calendar day prior to the Maturity
Date in effect immediately preceding the mailing of the applicable
Extension Notice (or if such day is not a Business Day, not later than
10:00 A.M., New York City time, on the immediately succeeding Business
Day), the Issuer may, at its option, revoke the interest rate provided for
in such Extension Notice and establish a higher interest rate for the
Extension Period by causing the Paying Agent to send notice of such higher
interest rate to the holder of this Note by first class mail, postage
prepaid, or by such other means as shall be agreed between the Issuer and
the Paying Agent. Such notice shall be irrevocable. All Notes with
respect to which the Maturity Date is extended in accordance with an
Extension Notice will bear such higher interest rate for the Extension
Period, whether or not tendered for repayment.
If the Issuer elects to extend the maturity hereof, the holder
of this Note will have the option to require the Issuer to repay this Note on
the Maturity Date in effect immediately preceding the mailing of the
applicable Extension Notice at a price equal to the principal amount hereof
plus any accrued and unpaid interest to such date. In order for this Note to
be so repaid on such Maturity Date, the holder hereof must follow the
procedures set forth above for optional repayment, except that the period for
delivery of this Note or notification to the Paying Agent shall be at least 25
but not more than 35 days prior to the Maturity Date in effect immediately
preceding the mailing of the applicable Extension Notice and except that if
the holder hereof has tendered this Note for repayment pursuant to this
paragraph he may, by written notice to the Paying Agent, revoke any such
tender for repayment until 3:00 P.M., New York City time, on the twentieth
calendar day prior to the Maturity Date then in effect (or, if such day is not
a Business Day, until 3:00 P.M., New York City time, on the immediately
succeeding Business Day).
Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Unless otherwise provided
on the face hereof, interest payments for this Note will be computed and paid
on the basis of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity
Date (or any redemption or repayment date) does not fall on a Business Day,
payment of interest, premium, if any, or principal otherwise payable on such
date need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date or on the Maturity Date (or any redemption or repayment date), and no
interest on such payment shall accrue for the period from and after the
Interest Payment Date or the Maturity Date (or any redemption or repayment
date) to such next succeeding Business Day.
This Note and all other obligations of the Issuer hereunder
will constitute part of the subordinated debt of the Issuer, will be issued
under the Subordinated Indenture and will be subordinate and junior in right
of payment, to the extent and in the manner set forth in the Subordinated
Indenture, to all "Senior Indebtedness" of the Issuer. The Subordinated
Indenture defines "Senior Indebtedness" as obligations (other than
non-recourse obligations, the debt securities, including this Note, issued
under the Subordinated Indenture or any other obligations specifically
designated as being subordinate in right of payment to Senior Indebtedness)
of, or guaranteed or assumed by, the Issuer for borrowed money or evidenced by
bonds, debentures, notes or other similar instruments, and amendments,
renewals, extensions, modifications and refundings of any such indebtedness or
obligation.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons,
and, if denominated in U.S. dollars, is issuable only in denominations of U.S.
$1,000 and any integral multiple of U.S. $1,000 in excess thereof. If this
Note is denominated in a Specified Currency other than U.S. dollars, then,
unless a higher minimum denomination is required by applicable law, it is
issuable only in denominations of the equivalent of U.S. $1,000 (rounded to an
integral multiple of 1,000 units of such Specified Currency), or any amount in
excess thereof which is an integral multiple of 1,000 units of such Specified
Currency, as determined by reference to the noon dollar buying rate in New
York City for cable transfers of such Specified Currency published by the
Federal Reserve Bank of New York (the "Market Exchange Rate") on the Business
Day immediately preceding the date of issuance; provided, however, in the case
of ECUs, the Market Exchange Rate shall be the rate of exchange determined by
the Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities, or any
successor publication, on the Business Day immediately preceding the date of
issuance.
Chemical Bank has been appointed registrar for the Notes (the
"Registrar," which term includes any successor registrar appointed by the
Issuer), and the Registrar will maintain at its office in The City of New York
a register for the registration and transfer of Notes. This Note may be
transferred at the aforesaid office of the Registrar by surrendering this Note
for cancellation, accompanied by a written instrument of transfer in form
satisfactory to the Registrar and duly executed by the registered holder
hereof in person or by the holder's attorney duly authorized in writing, and
thereupon the Registrar shall issue in the name of the transferee or
transferees, in exchange herefor, a new Note or Notes having identical terms
and provisions and having a like aggregate principal amount in authorized
denominations, subject to the terms and conditions set forth herein; provided,
however, that the Registrar will not be required (i) to register the transfer
of or exchange any Note that has been called for redemption in whole or in
part, except the unredeemed portion of Notes being redeemed in part, (ii) to
register the transfer of or exchange any Note if the holder thereof has
exercised his right, if any, to require the Issuer to repurchase such Note in
whole or in part, except the portion of such Note not required to be
repurchased, or (iii) to register the transfer of or exchange Notes to the
extent and during the period so provided in the Subordinated Indenture with
respect to the redemption of Notes. Notes are exchangeable at said office for
other Notes of other authorized denominations of equal aggregate principal
amount having identical terms and provisions. All such exchanges and
transfers of Notes will be free of charge, but the Issuer may require payment
of a sum sufficient to cover any tax or other governmental charge in
connection therewith. All Notes surrendered for exchange shall be accompanied
by a written instrument of transfer in form satisfactory to the Registrar and
executed by the registered holder in person or by the holder's attorney duly
authorized in writing. The date of registration of any Note delivered upon
any exchange or transfer of Notes shall be such that no gain or loss of
interest results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or
be destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Registrar, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Note so destroyed or lost or stolen, but, in the case of any destroyed or lost
or stolen Note, only upon receipt of evidence satisfactory to the Registrar
and the Issuer that such Note was destroyed or lost or stolen and, if
required, upon receipt also of indemnity satisfactory to each of them. All
expenses and reasonable charges associated with procuring such indemnity and
with the preparation, authentication and delivery of a new Note shall be borne
by the owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Subordinated Indenture provides that, (a) if an Event of
Default (as defined in the Subordinated Indenture) due to the default in
payment of principal of, premium, if any, or interest on, any series of
debt securities issued under the Subordinated Indenture, including the
series of Subordinated Medium-Term Notes of which this Note forms a part,
or due to the default in the performance or breach of any other covenant or
warranty of the Issuer applicable to the debt securities of such series but
not applicable to all outstanding debt securities issued under the
Subordinated Indenture shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in principal amount of the debt
securities of each affected series (voting as a single class) may then
declare the principal of all debt securities of all such series and
interest accrued thereon to be due and payable immediately and (b) if an
Event of Default due to a default in the performance of any other of the
covenants or agreements in the Subordinated Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due
to certain events of bankruptcy, insolvency and reorganization of the
Issuer, shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of all debt securities
issued under the Subordinated Indenture then outstanding (treated as one
class) may declare the principal of all such debt securities and interest
accrued thereon to be due and payable immediately, but upon certain
conditions such declarations may be annulled and past defaults may be
waived (except a continuing default in payment of principal (or premium, if
any) or interest on such debt securities) by the holders of a majority in
principal amount of the debt securities of all affected series then
outstanding.
If the face hereof indicates that this Note is subject to
"Modified Payment upon Acceleration," then (i) if the principal hereof is
declared to be due and payable as described in the preceding paragraph, the
amount of principal due and payable with respect to this Note shall be
limited to the aggregate principal amount hereof multiplied by the sum of
the Issue Price specified on the face hereof (expressed as a percentage of
the aggregate principal amount) plus the original issue discount amortized
from the Interest Accrual Date to the date of declaration, which
amortization shall be calculated using the "interest method" (computed in
accordance with generally accepted accounting principles in effect on the
date of declaration), (ii) for the purpose of any vote of securityholders
taken pursuant to the Subordinated Indenture prior to the acceleration of
payment of this Note, the principal amount hereof shall equal the amount
that would be due and payable hereon, calculated as set forth in clause (i)
above, if this Note were declared to be due and payable on the date of any
such vote and (iii) for the purpose of any vote of securityholders taken
pursuant to the Subordinated Indenture following the acceleration of
payment of this Note, the principal amount hereof shall equal the amount of
principal due and payable with respect to this Note, calculated as set
forth in clause (i) above.
The Subordinated Indenture permits the Issuer and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the debt securities of all series issued
under the Subordinated Indenture then outstanding and affected (voting as
one class), to execute supplemental indentures adding any provisions to or
changing in any manner the rights of the holders of each series so
affected; provided that the Issuer and the Trustee may not, without the
consent of the holder of each outstanding debt security affected thereby,
(a) extend the final maturity of any such debt security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any amount payable on redemption or
repayment thereof, or change the currency of payment thereof, or impair or
affect the rights of any holder to institute suit for the payment thereof
without the consent of the holder of each debt security so affected; or (b)
reduce the aforesaid percentage in principal amount of debt securities the
consent of the holders of which is required for any such supplemental
indenture, without the consent of the holders of each debt security so
affected; provided, however, that neither this Note nor the Subordinated
Indenture may be amended to alter the subordination provisions hereof or
thereof without the written consent of each holder of Senior Indebtedness
then outstanding that would be adversely affected thereby.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency other
than U.S. dollars and such Specified Currency is not available to the
Issuer for making payments hereon due to the imposition of exchange
controls or other circumstances beyond the control of the Issuer or is no
longer used by the government of the country issuing such currency or for
the settlement of transactions by public institutions within the
international banking community, then the Issuer will be entitled to
satisfy its obligations to the holder of this Note by making such payments
in U.S. dollars on the basis of the Market Exchange Rate on the date of
such payment or, if the Market Exchange Rate is not available on such date,
as of the most recent practicable date provided, however, that if such
Specified Currency is replaced by a single European currency (expected to
be named the Euro), the payment of principal of, premium, if any, or
interest on any Note denominated in such currency shall be effected in the
new single European currency in conformity with legally applicable measures
taken pursuant to, or by virtue of, the treaty establishing the European
Community (the "EC"), as amended by the treaty on European Union (as so
amended, the "Treaty"). Any payment made under such circumstances in U.S.
dollars (or, if applicable, in such new single European currency) where the
required payment is in a Specified Currency other than U.S. dollars will
not constitute an Event of Default.
Subject to the provisions below, the value of the ECU, in which
the Notes may be denominated or may be payable, is equal to the value of the
ECU that is from time to time used as the unit of account of the EC. If the
ECU becomes a currency in its own right in accordance with the Treaty, all
references to ECU in the Notes shall be construed as references to such
currency.
With respect to each due date for the payment of principal
of, or interest on, the Notes on or after the first business day in
Brussels on which the ECU ceases to be used as the unit of account of the
EC, and has not become a currency in its own right replacing all or some of
the currencies of the member States of the EC, the Issuer shall choose a
substitute currency (the "Chosen Currency"), which may be any currency
which was, on the last day on which the ECU was used as the unit of account
of the EC, a component currency of the ECU or U.S. dollars, in which all
payments due on or after that date with respect to the Notes and coupons
shall be made. Notice of the Chosen Currency so selected shall be provided
by first class mail to each holder at the address of such holder which
appears on the books maintained by the registrar and to the Paying Agent.
The amount of each payment in such Chosen Currency shall be computed on the
basis of the equivalent of the ECU in that currency, determined as
described below, as of the fourth business day in Brussels prior to the
date on which such payment is due.
On the first business day in Brussels on which the ECU
ceases to be used as the unit of account of the EC, and has not become a
currency in its own right replacing all or some of the currencies of the
member States of the EC, the Issuer shall select a Chosen Currency in which
all payments with respect to Notes and coupons having a due date prior
thereto but not yet presented for payment are to be made. The amount of
each payment in such Chosen Currency shall be computed on the basis of the
equivalent of the ECU in that currency, determined as described below, as
of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as
of any date (the "Day of Valuation") shall be determined by, or on behalf
of, the Exchange Rate Agent on the following basis. The amounts and
components composing the ECU for this purpose (the "Components") shall be
the amounts and components that composed the ECU as of the last date on
which the ECU was used as the unit of account of the EC. The equivalent of
the ECU in the Chosen Currency shall be calculated by, first, aggregating
the U.S. dollar equivalents of the Components; and then, in the case of a
chosen Currency other than U.S. dollars, using the rate used for
determining the U.S. dollar equivalent of the Components in the Chosen
Currency as set forth below, calculating the equivalent in the Chosen
Currency of such aggregate amount in U.S. dollars.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated on the face hereof.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Issuer, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf,
provided that such quotations were prevailing in the country of issue not
more than two Business Days before such Day of Valuation. If such most
recent quotations were so prevailing in the country of issue more than two
Business Days before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of
cross rates derived from the middle spot delivery quotations for such
component currency and for the U.S. dollar prevailing at 2:30 P.M.,
Brussels time, on such Day of Valuation, as obtained by, or on behalf of,
the Exchange Rate agent from one or more major banks, as selected by the
Issuer, in a country other than the country of issue of such component
currency. Notwithstanding the foregoing, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of such
cross rates if the Issuer or such agent judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent
calculated as provided in the first sentence of this paragraph. Unless
otherwise specified by the Issuer, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations
or for any other reason, the market to be referred to in respect of such
currency shall be that upon which a non-resident issuer of securities
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the
specified office of a paying agent in the country of the Chosen Currency,
or, if none, or at the option of the holder, at the specified office of any
Paying Agent either by a check drawn on, or by transfer to an account
maintained by the holder with, a bank in the principal financial center of
the country of the Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as aforesaid
of the Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be
such an agency, the Issuer shall keep the Trustee advised of the names and
locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes that such
moneys shall be repaid to the Issuer and any person claiming such moneys shall
thereafter look only to the Issuer for payment thereof and (ii) such moneys
shall be so repaid to the Issuer. Upon such repayment all liability of the
Trustee or such Paying Agent with respect to such moneys shall thereupon
cease, without, however, limiting in any way any obligation that the Issuer
may have to pay the principal of or interest or premium, if any, on this Note
as the same shall become due.
No provision of this Note or of the Subordinated Indenture
shall alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the registered
holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and none of the Issuer,
the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Subordinated
Indenture or any indenture supplemental thereto, against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Issuer or of any successor corporation, either directly or through the Issuer
or any successor corporation, whether by virtue of any constitution, statute
or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of
the consideration for the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the
Subordinated Indenture and not otherwise defined herein shall have the
meanings assigned to them in the Subordinated Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the
above list.
____________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_________________________________________________
_______________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE,
OF ASSIGNEE]
_______________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
_______________________________________________________________
constituting and appointing such person attorney to transfer
_______________________________________________________________
such note on the books of the Issuer, with full power of
_______________________________________________________________
substitution in the premises.
Dated:_____________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within Note in every particular
without alteration or enlargement or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid: ; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the
Notes to be issued to the holder for the portion of the within Note not being
repaid (in the absence of any such specification, one such Note will be issued
for the portion not being repaid):
____________________________.
_____________________________________
Dated:_____________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as written
upon the face of the within
instrument in every particular
without alteration or enlargement.
EXHIBIT 4.F
[FORM OF FACE OF PRINCIPAL EXCHANGE RATE LINKED SECURITY]
PRINCIPAL EXCHANGE RATE LINKED SECURITY (PERLS)
REGISTERED REGISTERED
No. CUSIP: *
Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository Trust Company
and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.*
MORGAN STANLEY GROUP INC.
PRINCIPAL EXCHANGE RATE LINKED SECURITIES (PERLS)
GLOBAL MEDIUM TERM NOTES, SERIES C
As used herein, the following terms shall have the
following meanings:
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE:
MATURITY DATE: INTEREST PAYMENT DATES:
INTEREST RATE: per annum EXCHANGE RATE AGENT:
INTEREST PAYMENT
PERIODS:
DENOMINATED CURRENCY FACE AMOUNT
(including Financial (in Denominated
Center(s) for Denominated Currency):
Currency, if any):
FIXED AMOUNT OF INDEXED
INDEXED CURRENCY CURRENCY (for this Note):
(including Financial
Center(s) for Indexed CONVERSION REFERENCE AMOUNT
Currency, if any): (aggregate fixed amount
of Indexed Currency
PAYMENT CURRENCY to be used as reference
(including Financial amount for currency
Center(s) for Payment valuations):
Currency, if any):
REFERENCE DEALERS: AUTHORIZED DENOMINATIONS
(if other than U.S.
$100,000 and integral
multiples of U.S. $1,000
in excess thereof):
OTHER PROVISIONS:
____________
* Applies only if this Note is a Registered Global Security.
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to , or registered assigns, on the Maturity Date the
Payment Currency equivalent on the Maturity Date of the Fixed Amount of
Indexed Currency determined in accordance with the procedures described
below and to pay interest in the Denominated Currency based on the Face
Amount hereof at the Interest Rate from and including the Interest Accrual
Date until the principal amount due hereunder is paid or duly made
available for payment, monthly, quarterly, semiannually or annually in
arrears as specified above as the Interest Payment Period on each Interest
Payment Date (as specified above), commencing on the Interest Payment Date
next succeeding the Interest Accrual Date, and on the Maturity Date, except
as provided herein.
Interest on this Note will accrue from and including the
most recent Interest Payment Date to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for, from
and including the Interest Accrual Date, until, but excluding the date the
principal in respect of this Note has been paid or duly made available for
payment (except as provided below). The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will,
subject to certain exceptions described herein, be paid in the Denominated
Currency (unless the Denominated Currency is a currency other than U.S.
dollars and the holder hereof has elected, as described below, to be paid
in U.S. dollars) to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the date 15
calendar days prior to such Interest Payment Date (whether or not a
Business Day, as defined on the reverse hereof) (each such date a "Record
Date"); provided that interest payable on the Maturity Date will be payable
to the person to whom the principal hereof shall be payable. Payments of
interest hereon will be made by wire transfer of immediately available
funds (which, if the Denominated Currency is not U.S. dollars, and the
holder hereof has not elected to be paid in U.S. dollars, as described
below, will be made to an account maintained by the holder hereof with a
bank located outside the United States) if appropriate wire transfer
instructions have been received by the Paying Agent, as defined on the
reverse hereof, in writing not less than 15 calendar days prior to the
applicable Interest Payment Date. If such wire transfer instructions are
not so received, such interest payments, other than the interest payment
due on the Maturity Date, will be made by check payable in the Denominated
Currency, mailed to the address of the person entitled thereto as such
address shall appear in the Note register.
Subject to certain exceptions described herein, payment of
the principal in respect of this Note will be made in immediately available
funds in the Payment Currency (or in U.S. dollars if the Payment Currency
is a currency other than U.S. dollars and the holder hereof has elected, as
described below, to be paid in U.S. dollars) and payment of the interest
due hereon on the Maturity Date will be made in immediately available funds
in the Denominated Currency (or in U.S. dollars if the Denominated Currency
is a currency other than U.S. dollars and the holder hereof has elected, as
described below, to be paid in U.S. dollars), in each case upon surrender
of this Note at the office or agency of the Paying Agent maintained for
that purpose in the Borough of Manhattan, The City of New York, if this
Note is presented to the Paying Agent in time for it to make such payments
in accordance with its normal procedures.
The Payment Currency equivalent of any Indexed Currency
amount on any date shall be determined by the Exchange Rate Agent based on
the arithmetic mean of the quotations obtained by such agent from the
Reference Dealers at 11:00 a.m. (New York City time) on the second
Exchange Rate Day (as defined on the reverse hereof) preceding such date
for the purchase by the Reference Dealers of the Conversion Reference
Amount of the Indexed Currency with the Payment Currency for settlement on
such date; provided that if there is no cross-exchange rate available in
New York City between the Indexed Currency and the Payment Currency, the
quotations shall be calculated by the Exchange Rate Agent at the time
referred to above using the U.S. dollar equivalent of the Indexed Currency
and the Payment Currency as the basis for comparing the values of such
currencies; provided further that if the Payment Currency and the Indexed
Currency are identical, then the Payment Currency equivalent of any Indexed
Currency amount shall be such amount.
Unless otherwise indicated herein, if the Denominated
Currency of this Note is a currency other than U.S. dollars, or if the
Payment Currency is a currency other than U.S dollars, the holder may elect
to receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the
Record Date or at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be. Such election shall
remain in effect unless such request is revoked by written notice to the
Paying Agent as to all or a portion of payments on this Note at least five
Business Days prior to such Record Date or at least ten days prior to the
Maturity Date or any redemption or repayment date, as the case may be.
In the event of such an election, the Exchange Rate Agent
will convert such payments into U.S. dollars and payment in respect of this
Note will be based upon the exchange rate as determined by the Exchange
Rate Agent based on the highest bid quotation in The City of New York
received by such Exchange Rate Agent at approximately 11:00 A.M., New York
City time, on the second Business Day preceding the applicable payment date
from three recognized foreign exchange dealers (one of which may be the
Exchange Rate Agent unless such Exchange Rate Agent is Morgan Stanley & Co.
Incorporated), for the purchase by the quoting dealer of U.S. dollars for
the Denominated Currency or Payment Currency, as the case may be, for
settlement on such payment date in the amount of the Denominated Currency
or Payment Currency, as the case may be, payable in the absence of such an
election to such holder and at which the applicable dealer commits to
execute a contract. If such bid quotations are not available, such payment
will be made in the Denominated or Payment Currency. All currency exchange
costs will be borne by the holder of this Note by deductions from such
payments.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By _______________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
CHEMICAL BANK,
as Trustee
By _______________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series C, having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable
under a Senior Indenture, dated as of April 15, 1989, as supplemented by a
First Supplemental Indenture dated as of May 15, 1991 and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Senior Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed Chemical Bank at its
corporate trust office in The City of New York as the paying agent (the
"Paying Agent," which term includes any additional or successor Paying
Agent appointed by the Issuer) with respect to the Notes. The terms of
individual Notes may vary with respect to interest rates, interest rate
formulas, issue dates, maturity dates, or otherwise, all as provided in the
Senior Indenture. To the extent not inconsistent herewith, the terms of
the Senior Indenture are hereby incorporated by reference herein.
Unless otherwise provided on the face hereof, this Note will
not be subject to any sinking fund and will not be redeemable or subject to
repayment at the option of the holder prior to maturity.
Interest payments on this Note will include interest accrued
to but excluding the Interest Payment Dates or the Maturity Date, as the
case may be. Unless otherwise provided on the face hereof, interest
payments for this Note will be computed and paid on the basis of a 360-day
year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity
Date does not fall on a Business Day, payment of interest or principal
otherwise payable on such date need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made
on the Interest Payment Date or on the Maturity Date, and no interest on such
payment shall accrue for the period from and after the Interest Payment Date
or the Maturity Date to such next succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons,
and, if the Denominated Currency is U.S. dollars, is issuable only in
denominations of U.S. $100,000 and any integral multiple of U.S. $1,000 in
excess thereof, unless a higher minimum denomination is specified on the face
hereof. If the Denominated Currency is not U.S. dollars, then, unless a
higher minimum denomination is specified on the face hereof, it is issuable
only in denominations of the equivalent of U.S. $100,000 (rounded to an
integral multiple of 1,000 units of the Denominated Currency), or any amount
in excess thereof which is an integral multiple of 1,000 units of the
Denominated Currency, as determined by reference to the noon dollar buying
rate in New York City for cable transfers of the Denominated Currency
published by the Federal Reserve Bank of New York (the "Market Exchange Rate")
on the Business Day immediately preceding the date of issuance; provided,
however, in the case of ECUs, the Market Exchange Rate shall be the rate of
exchange determined by the Commission of the European Communities (or any
successor thereto) as published in the Official Journal of the European
Communities, or any successor publication, on the Business Day immediately
preceding the date of issuance.
The Trustee has been appointed registrar for the Notes, and the
Trustee will maintain at its office in The City of New York a register for the
registration and transfer of Notes. This Note may be transferred at the
aforesaid office of the Trustee by surrendering this Note for cancellation,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and duly executed by the registered holder hereof in person or by the
holder's attorney duly authorized in writing, and thereupon the Trustee shall
issue in the name of the transferee or transferees, in exchange herefor, a new
Note or Notes having identical terms and provisions and having an aggregate
Fixed Amount of Indexed Currency and Face Amount, in authorized denominations,
equal to the respective amounts set forth on the face of this Note, subject to
the terms and conditions set forth herein. Notes are exchangeable at said
office for other Notes of other authorized denominations having an aggregate
Fixed Amount of Indexed Currency and Face Amount equal to the respective
amounts set forth on the face of this Note and having otherwise identical
terms and provisions. All such exchanges and transfers of Notes will be free
of charge, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge in connection therewith. All Notes
surrendered for exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Trustee and executed by the registered
holder in person or by the holder's attorney duly authorized in writing. The
date of registration of any Note delivered upon any exchange or transfer of
Notes shall be such that no gain or loss of interest results from such
exchange or transfer.
In case any Note shall at any time become mutilated, defaced or
be destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Note so destroyed or lost or stolen, but, in the case of any destroyed or lost
or stolen Note, only upon receipt of evidence satisfactory to the Trustee and
the Issuer that such Note was destroyed or lost or stolen and, if required,
upon receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt securities
issued under the Senior Indenture, including the series of Senior Medium-Term
Notes of which this Note forms a part, or due to the default in the
performance or breach of any other covenant or warranty of the Issuer
applicable to the debt securities of such series but not applicable to all
outstanding debt securities issued under the Senior Indenture shall have
occurred and be continuing, either the Trustee or the holders of not less than
25% in principal amount of the debt securities of each affected series (voting
as a single class) may then declare the principal of all debt securities of
all such series and interest accrued thereon to be due and payable immediately
and (b) if an Event of Default due to a default in the performance of any
other of the covenants or agreements in the Senior Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due to
certain events of bankruptcy, insolvency and reorganization of the Issuer,
shall have occurred and be continuing, either the Trustee or the holders of
not less than 25% in principal amount of all debt securities issued under the
Senior Indenture then outstanding (treated as one class) may declare the
principal of all such debt securities and interest accrued thereon to be due
and payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt securities)
by the holders of a majority in principal amount of the debt securities of all
affected series then outstanding.
If the principal of this Note is declared to be due and payable
prior to the Maturity Date, then (i) the amount payable with respect to this
Note shall be paid in the Denominated Currency and shall equal the Face Amount
hereof plus accrued interest to but excluding the date of payment, (ii) for
the purpose of any vote of securityholders taken pursuant to the Senior
Indenture prior to the acceleration of payment of this Note, the principal
amount hereof shall equal the amount that would be due and payable hereon,
calculated as set forth in clause (i) above, if this Note were declared to be
due and payable on the date of any such vote (converted, if necessary, into
U.S. dollars using the most recent Market Exchange Rate available on such
date) and (iii) for the purpose of any vote of securityholders taken pursuant
to the Senior Indenture following the acceleration of payment of this Note,
the principal amount hereof shall equal the amount of principal due and
payable with respect to this Note, calculated as set forth in clause (i) above
(converted, if necessary, into U.S. dollars using the most recent Market
Exchange Rate available on the date of such vote).
The Senior Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected;
or (b) reduce the aforesaid percentage in principal amount of debt securities
the consent of the holders of which is required for any such supplemental
indenture, without the consent of the holders of each debt security so
affected.
Except as set forth below, if the principal of, or interest on,
this Note is payable in a Payment Currency or a Denominated Currency, as the
case may be, other than U.S. dollars and such currency is not available to the
Issuer for making payments hereon due to the imposition of exchange controls
or other circumstances beyond the control of the Issuer or is no longer used
by the government of the country issuing such currency or for the settlement
of transactions by public institutions within the international banking
community, then the Issuer will be entitled to satisfy its obligations to the
holder of this Note by making such payments in U.S. dollars on the basis of
the Market Exchange Rate on the date of such payment or, if the Market
Exchange Rate is not available on such date, as of the most recent practicable
date; provided, however, that if such Payment Currency or Denominated Currency
is replaced by a single European currency (expected to be named the Euro), the
payment of principal of, premium, if any, or interest on any Note denominated
in such currency shall be effected in the new single European currency in
conformity with legally applicable measures taken pursuant to, or by virtue
of, the treaty establishing the European Community (the "EC"), as amended by
the treaty on European Union (as so amended, the "Treaty"). Any payment made
under such circumstances in U.S. dollars (or, if applicable, such new single
European currency) where the required payment is in a currency other than U.S.
dollars will not constitute an Event of Default.
Subject to the provisions below, the value of the ECU, in which
the Notes may be denominated or may be payable, is equal to the value of the
ECU that is from time to time used as the unit of account of the EC. If the
ECU becomes a currency in its own right in accordance with the Treaty, all
references to ECU in the Notes shall be construed as references to such
currency.
With respect to each due date for the payment of principal of,
or interest on, the Notes on or after the first business day in Brussels on
which the ECU ceases to be used as the unit of account of the EC, and has not
become a currency in its own right replacing all or some of the currencies of
the member States of the EC, the Issuer shall choose a substitute currency
(the "Chosen Currency"), which may be any currency which was, on the last day
on which the ECU was used as the unit of account of the EC, a component
currency of the ECU or U.S. dollars, in which all payments due on or after
that date with respect to the Notes and coupons shall be made. Notice of the
Chosen Currency so selected shall be provided by first class mail to each
holder at the address of such holder which appears on the books maintained by
the registrar and to the Paying Agent. The amount of each payment in such
Chosen Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of the fourth business day in
Brussels prior to the date on which such payment is due.
On the first business day in Brussels on which the ECU ceases
to be used as the unit of account of the EC, and has not become a currency in
its own right replacing all or some of the currencies of the member States of
the EC, the Issuer shall select a Chosen Currency in which all payments with
respect to Notes and coupons having a due date prior thereto but not yet
presented for payment are to be made. The amount of each payment in such
Chosen Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as
of any date (the "Day of Valuation") shall be determined by, or on behalf
of, the Exchange Rate Agent on the following basis. The amounts and
components composing the ECU for this purpose (the "Components") shall be
the amounts and components that composed the ECU as of the last date on
which the ECU was used as the unit of account of the EC. The equivalent of
the ECU in the Chosen Currency shall be calculated by, first, aggregating
the U.S. dollar equivalents of the Components; and then, in the case of a
chosen Currency other than U.S. dollars, using the rate used for
determining the U.S. dollar equivalent of the Components in the Chosen
Currency as set forth below, calculating the equivalent in the Chosen
Currency of such aggregate amount in U.S. dollars.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated on the face hereof.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Issuer, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf,
provided that such quotations were prevailing in the country of issue not
more than two Business Days before such Day of Valuation. If such most
recent quotations were so prevailing in the country of issue more than two
Business Days before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of
cross rates derived from the middle spot delivery quotations for such
component currency and for the U.S. dollar prevailing at 2:30 P.M.,
Brussels time, on such Day of Valuation, as obtained by, or on behalf of,
the Exchange Rate agent from one or more major banks, as selected by the
Issuer, in a country other than the country of issue of such component
currency. Notwithstanding the foregoing, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of such
cross rates if the Issuer or such agent judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent
calculated as provided in the first sentence of this paragraph. Unless
otherwise specified by the Issuer, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations
or for any other reason, the market to be referred to in respect of such
currency shall be that upon which a non-resident issuer of securities
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and interest on this Note as herein provided in the Borough of Manhattan, The
City of New York, and an office or agency in said Borough of Manhattan for the
registration, transfer and exchange as aforesaid of the Notes. The Issuer may
designate other agencies for the payment of said principal and interest at
such place or places (subject to applicable laws and regulations) as the
Issuer may decide. So long as there shall be such an agency, the Issuer shall
keep the Trustee advised of the names and locations of such agencies, if any
are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest on any
Notes that remain unclaimed at the end of two years after such principal or
interest shall have become due and payable (whether at maturity or otherwise),
(i) the Trustee or such Paying Agent shall notify the holders of such Notes
that such moneys shall be repaid to the Issuer and any person claiming such
moneys shall thereafter look only to the Issuer for payment thereof and (ii)
such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease, without, however, limiting in any way any obligation
that the Issuer may have to pay the principal of or interest on this Note as
the same shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and none of the Issuer,
the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Note, for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Senior Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Issuer or of any successor
corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day" means any day, other than a
Saturday or Sunday or a day on which banking institutions in New York City are
authorized or required by law or executive order to close; provided that when
a payment is due on such day in a currency other than U.S. dollars (a "Foreign
Currency") such day must also be a business day in each city designated as a
Financial Center for the Foreign Currency and, if such Foreign Currency is
ECU, such day must not be a non-ECU clearing day, as determined by the ECU
Banking Association in Paris;
(b) the term "Exchange Rate Day" means any day other than a
Saturday or Sunday or a day on which banking institutions in New York City are
authorized or required by law or executive order to close and which is a
business day in each of the cities designated as a Financial Center for the
currencies being converted; provided that if any such currency is ECU, such
day must not be a non-ECU clearing day, as determined by the ECU Banking
Association in Paris; and
(c) all other terms used in this Note which are defined in the
Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_________________________________________________
_________________________________________________
_______________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE]
_______________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
_______________________________________________________________
constituting and appointing such person attorney to transfer
_______________________________________________________________
such note on the books of the Issuer, with full power of
_______________________________________________________________
substitution in the premises.
Dated:_____________________ NOTICE: The signature to this assignment
must correspond with the name
as written upon the face of the
within Note in every particular
without alteration or enlargement
or any change whatsoever.
EXHIBIT 4.G
[FORM OF FACE OF REVERSE PRINCIPAL EXCHANGE RATE LINKED SECURITY]
REVERSE PRINCIPAL EXCHANGE RATE LINKED SECURITY
(REVERSE PERLS)
REGISTERED REGISTERED
No. CUSIP: *
Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository Trust Company
and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.*
MORGAN STANLEY GROUP INC.
REVERSE PRINCIPAL EXCHANGE RATE LINKED SECURITIES
(REVERSE PERLS)
GLOBAL MEDIUM TERM NOTES, SERIES C
As used herein, the following terms shall have the following
meanings:
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE:
MATURITY DATE: FACE AMOUNT
(in Denominated
INTEREST RATE: per annum Currency):
DENOMINATED CURRENCY FIXED AMOUNT OF FIRST
(including Financial INDEXED CURRENCY
Center(s) for Denominated (for this Note):
Currency, if any):
FIXED AMOUNT OF SECOND
FIRST INDEXED CURRENCY INDEXED CURRENCY
(including Financial (for this Note):
Center(s) for First Indexed
Currency, if any):
SECOND INDEXED CURRENCY FIRST CONVERSION REFERENCE
(including Financial AMOUNT (aggregate fixed
Center(s) for Second Indexed amount of First Indexed
Currency, if any): Currency to be used as
reference amount for
PAYMENT CURRENCY currency valuations):
(including Financial
Center(s) for Payment SECOND CONVERSION REFERENCE
Currency, if any): AMOUNT (aggregate fixed
amount of Second Indexed
INTEREST PAYMENT DATES: Currency to be used as
reference amount for
INTEREST PAYMENT PERIODS: currency valuations):
EXCHANGE RATE AGENT: AUTHORIZED DENOMINATIONS
(if other than U.S. $100,000
REFERENCE DEALERS FOR and integral multiples of
FIRST INDEXED CURRENCY: U.S. $1,000 in excess thereof)
REFERENCE DEALERS FOR
SECOND INDEXED CURRENCY:
OTHER PROVISIONS:
__________
(*)Applies only if this Note is a Registered Global Security.
Morgan Stanley Group Inc., a Delaware corporation (together with its
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to , or registered assigns, on the Maturity Date the
Payment Currency equivalent on the Maturity Date of the Fixed Amount of First
Indexed Currency minus the Payment Currency equivalent on the Maturity Date of
the Fixed Amount of Second Indexed Currency determined in accordance with the
procedures described below and to pay interest in the Denominated Currency
based on the Face Amount hereof at the Interest Rate from and including the
Interest Accrual Date until the principal amount due hereunder is paid or duly
made available for payment, monthly, quarterly, semiannually or annually in
arrears as specified above as the Interest Payment Period on each Interest
Payment Date (as specified above), commencing on the Interest Payment Date
next succeeding the Interest Accrual Date, and on the Maturity Date, except as
provided herein; provided that the minimum amount payable in respect of
principal at maturity shall be zero.
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for or,
if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until, but excluding the date the principal in respect
of this Note has been paid or duly made available for payment (except as
provided below). The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
described herein, be paid in the Denominated Currency (unless the Denominated
Currency is a currency other than U.S. dollars and the holder has elected, as
described below, to be paid in U.S. dollars) to the person in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on the date 15 calendar days prior to such Interest Payment Date (whether or
not a Business Day, as defined on the reverse hereof) (each such date a
"Record Date"); provided that interest payable on the Maturity Date will be
payable to the person to whom the principal hereof shall be payable. Payments
of interest hereon will be made by wire transfer of immediately available
funds (which, if the Denominated Currency is not U.S. dollars and the holder
hereof has not elected to be paid in U.S. dollars, as described below, will
be made to an account maintained by the holder hereof with a bank located
outside the United States) if appropriate wire transfer instructions have been
received by the Paying Agent, as defined on the reverse hereof, in writing not
less than 15 calendar days prior to the applicable Interest Payment Date. If
such wire transfer instructions are not so received, such interest payments,
other than the interest payment due on the Maturity Date, shall be made by
check payable in the Denominated Currency, mailed to the address of the person
entitled thereto as such address shall appear in the Note register.
Subject to certain exceptions described herein, payment of the
principal in respect of this Note will be made in immediately available funds
in the Payment Currency (or in U.S. dollars if the Payment Currency is a
currency other than U.S. dollars and the holder has elected, as described
below, to be paid in U.S. dollars) and payment of the interest due hereon on
the Maturity Date will be made in immediately available funds in the
Denominated Currency (or in U.S. dollars if the Denominated Currency is a
currency other than U.S. dollars and the holder has elected, as described
below, to be paid in U.S. dollars), in each case upon surrender of this Note
at the office or agency of the Paying Agent maintained for that purpose in the
Borough of Manhattan, The City of New York, if this Note is presented to the
Paying Agent in time for it to make such payments in accordance with its
normal procedures.
The Payment Currency equivalent of any First Indexed Currency amount
on any date shall be determined by the Exchange Rate Agent based on the
arithmetic mean of the quotations obtained by such agent from the Reference
Dealers for the First Indexed Currency at 11:00 a.m. (New York City time) on
the second Exchange Rate Day (as defined on the reverse hereof) preceding such
date for the purchase by such Reference Dealers of the First Conversion
Reference Amount of the First Indexed Currency with the Payment Currency for
settlement on such date; provided that if there is no cross-exchange rate
available in New York City between the First Indexed Currency and the Payment
Currency, the quotations shall be calculated by the Exchange Rate Agent at the
time referred to above using the U.S. dollar equivalent of the First Indexed
Currency and the Payment Currency as the basis for comparing the values of
such currencies; provided further that if the Payment Currency and the First
Indexed Currency are identical, then the Payment Currency equivalent of any
First Indexed Currency amount shall be such amount.
The Payment Currency equivalent of any Second Indexed Currency
amount on any date shall be determined by the Exchange Rate Agent based on
the arithmetic mean of the quotations obtained by such agent from the
Reference Dealers for the Second Indexed Currency at 11:00 a.m. (New York
City time) on the second Exchange Rate Day (as defined on the reverse
hereof) preceding such date for the sale by such Reference Dealers of the
Second Conversion Reference Amount of the Second Indexed Currency for the
Payment Currency for settlement on such date; provided that if there is no
cross-exchange rate available in New York City between the Second Indexed
Currency and the Payment Currency, the quotations shall be calculated by
the Exchange Rate Agent at the time referred to above using the U.S. dollar
equivalent of the Second Indexed Currency and the Payment Currency as the
basis for comparing the values of such currencies; provided further that if
the Payment Currency and the Second Indexed Currency are identical, then
the Payment Currency equivalent of any Second Indexed Currency amount shall
be such amount.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless otherwise indicated herein, if the Denominated Currency of
this Note is a currency other than U.S. dollars, or if the Payment Currency
is a currency other than U.S dollars, the holder hereof may elect to
receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the
Record Date or at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be. Such election shall
remain in effect unless such request is revoked by written notice to the
Paying Agent as to all or a portion of payments on this Note at least five
Business Days prior to such Record Date or at least ten days prior to the
Maturity Date or any redemption or repayment date, as the case may be.
In the event of such an election, the Exchange Rate Agent will
convert such payments into U.S. dollars and payment in respect of this Note
will be based upon the exchange rate as determined by the Exchange Rate Agent
based on the highest bid quotation in The City of New York received by such
Exchange Rate Agent at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of which may be the Exchange Rate
Agent unless such Exchange Rate Agent is Morgan Stanley & Co. Incorporated),
for the purchase by the quoting dealer of U.S. dollars for the Denominated or
Payment Currency for settlement on such payment date in the amount of the
Denominated or Payment Currency payable in the absence of such an election to
such holder and at which the applicable dealer commits to execute a contract.
If such bid quotations are not available, such payment will be made in the
Denominated or Payment Currency. All currency exchange costs will be borne by
the holder of this Note by deductions from such payments.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By _________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
CHEMICAL BANK,
as Trustee
By _______________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series C, having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable
under a Senior Indenture, dated as of April 15, 1989, as supplemented by a
First Supplemental Indenture dated as of May 15, 1991 and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Senior Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed Chemical Bank at its
corporate trust office in The City of New York as the paying agent (the
"Paying Agent," which term includes any additional or successor Paying
Agent appointed by the Issuer) with respect to the Notes. The terms of
individual Notes may vary with respect to interest rates, interest rate
formulas, issue dates, maturity dates, or otherwise, all as provided in the
Senior Indenture. To the extent not inconsistent herewith, the terms of
the Senior Indenture are hereby incorporated by reference herein.
Unless otherwise provided on the face hereof, this Note will not be
subject to any sinking fund and will not be redeemable or subject to repayment
at the option of the holder prior to maturity.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date, as the case may be.
Unless otherwise provided on the face hereof, interest payments for this Note
will be computed and paid on the basis of a 360-day year of twelve 30-day
months.
In the case where the Interest Payment Date or the Maturity Date
does not fall on a Business Day, payment of interest or principal otherwise
payable on such date need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on the
Interest Payment Date or on the Maturity Date, and no interest on such payment
shall accrue for the period from and after the Interest Payment Date or the
Maturity Date to such next succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and, if
the Denominated Currency is U.S. dollars, is issuable only in denominations of
U.S. $100,000 and any integral multiple of U.S. $1,000 in excess thereof,
unless a higher minimum denomination is specified on the face hereof. If the
Denominated Currency is not U.S. dollars, then, unless a higher minimum
denomination is specified on the face hereof, it is issuable only in
denominations of the equivalent of U.S. $100,000 (rounded to an integral
multiple of 1,000 units of the Denominated Currency), or any amount in excess
thereof which is an integral multiple of 1,000 units of the Denominated
Currency, as determined by reference to the noon dollar buying rate in New
York City for cable transfers of the Denominated Currency published by the
Federal Reserve Bank of New York (the "Market Exchange Rate") on the Business
Day immediately preceding the date of issuance; provided, however, in the case
of ECUs, the Market Exchange Rate shall be the rate of exchange determined by
the Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities, or any
successor publication, on the Business Day immediately preceding the date of
issuance.
The Trustee has been appointed registrar for the Notes, and the
Trustee will maintain at its office in The City of New York a register for the
registration and transfer of Notes. This Note may be transferred at the
aforesaid office of the Trustee by surrendering this Note for cancellation,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and duly executed by the registered holder hereof in person or by the
holder's attorney duly authorized in writing, and thereupon the Trustee shall
issue in the name of the transferee or transferees, in exchange herefor, a new
Note or Notes having identical terms and provisions and having an aggregate
Fixed Amount of First Indexed Currency, Fixed Amount of Second Indexed
Currency and Face Amount, in authorized denominations, equal to the respective
amounts set forth on the face of this Note, subject to the terms and
conditions set forth herein. Notes are exchangeable at said office for other
Notes of other authorized denominations having an aggregate Fixed Amount of
First Indexed Currency, Fixed Amount of Second Indexed Currency and Face
Amount equal to the respective amounts set forth on the face of this Note and
having otherwise identical terms and provisions. All such exchanges and
transfers of Notes will be free of charge, but the Issuer may require payment
of a sum sufficient to cover any tax or other governmental charge in
connection therewith. All Notes surrendered for exchange shall be accompanied
by a written instrument of transfer in form satisfactory to the Trustee and
executed by the registered holder in person or by the holder's attorney duly
authorized in writing. The date of registration of any Note delivered upon
any exchange or transfer of Notes shall be such that no gain or loss of
interest results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Note so destroyed or lost or stolen, but, in the case of any destroyed or lost
or stolen Note, only upon receipt of evidence satisfactory to the Trustee and
the Issuer that such Note was destroyed or lost or stolen and, if required,
upon receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default (as
defined in the Senior Indenture) due to the default in payment of principal
of, premium, if any, or interest on, any series of debt securities issued
under the Senior Indenture, including the series of Senior Medium-Term Notes
of which this Note forms a part, or due to the default in the performance or
breach of any other covenant or warranty of the Issuer applicable to the debt
securities of such series but not applicable to all outstanding debt
securities issued under the Senior Indenture shall have occurred and be
continuing, either the Trustee or the holders of not less than 25% in
principal amount of the debt securities of each affected series (voting as a
single class) may then declare the principal of all debt securities of all
such series and interest accrued thereon to be due and payable immediately and
(b) if an Event of Default due to a default in the performance of any other of
the covenants or agreements in the Senior Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due to
certain events of bankruptcy, insolvency and reorganization of the Issuer,
shall have occurred and be continuing, either the Trustee or the holders of
not less than 25% in principal amount of all debt securities issued under the
Senior Indenture then outstanding (treated as one class) may declare the
principal of all such debt securities and interest accrued thereon to be due
and payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt securities)
by the holders of a majority in principal amount of the debt securities of all
affected series then outstanding.
If the principal of this Note is declared to be due and payable
prior to the Maturity Date, then (i) the amount payable with respect to this
Note shall be paid in the Denominated Currency and shall equal the Face Amount
hereof plus accrued interest to but excluding the date of payment, (ii) for
the purpose of any vote of securityholders taken pursuant to the Senior
Indenture prior to the acceleration of payment of this Note, the principal
amount hereof shall equal the amount that would be due and payable hereon,
calculated as set forth in clause (i) above, if this Note were declared to be
due and payable on the date of any such vote (converted, if necessary, into
U.S. dollars using the most recent Market Exchange Rate available on such
date) and (iii) for the purpose of any vote of securityholders taken pursuant
to the Senior Indenture following the acceleration of payment of this Note,
the principal amount hereof shall equal the amount of principal due and
payable with respect to this Note, calculated as set forth in clause (i) above
(converted, if necessary, into U.S. dollars using the most recent Market
Exchange Rate available on the date of such vote).
The Senior Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected;
or (b) reduce the aforesaid percentage in principal amount of debt securities
the consent of the holders of which is required for any such supplemental
indenture, without the consent of the holders of each debt security so
affected.
Except as set forth below, if the principal of, or interest on, this
Note is payable in a Payment Currency or a Denominated Currency, as the case
may be, other than U.S. dollars and such currency is not available to the
Issuer for making payments hereon due to the imposition of exchange controls
or other circumstances beyond the control of the Issuer or is no longer used
by the government of the country issuing such currency or for the settlement
of transactions by public institutions within the international banking
community, then the Issuer will be entitled to satisfy its obligations to the
holder of this Note by making such payments in U.S. dollars on the basis of
the Market Exchange Rate on the date of such payment or, if the Market
Exchange Rate is not available on such date, as of the most recent practicable
date; provided, however, that if such Payment Currency or Denominated is
replaced by a single European currency (expected to be named the Euro), the
payment of principal of, premium, if any, or interest on any Note denominated
in such currency shall be effected in the new single European currency in
conformity with legally applicable measures taken pursuant to, or by virtue
of, the treaty establishing the European Community (the "EC"), as amended by
the treaty on European Union (as so amended, the "Treaty"). Any payment made
under such circumstances in U.S. dollars (or, if applicable, such new single
European currency) where the required payment is in a currency other than U.S.
dollars will not constitute an Event of Default.
Subject to the provisions below, the value of the ECU, in which
the Notes may be denominated or may be payable, is equal to the value of the
ECU that is from time to time used as the unit of account of the EC. If the
ECU becomes a currency in its own right in accordance with the Treaty, all
references to ECU in the Notes shall be construed as references to such
currency.
With respect to each due date for the payment of principal of,
or interest on, the Notes on or after the first business day in Brussels on
which the ECU ceases to be used as the unit of account of the EC, and has not
become a currency in its own right replacing all or some of the currencies of
the member States of the EC, the Issuer shall choose a substitute currency
(the "Chosen Currency"), which may be any currency which was, on the last day
on which the ECU was used as the unit of account of the EC, a component
currency of the ECU or U.S. dollars, in which all payments due on or after
that date with respect to the Notes and coupons shall be made. Notice of the
Chosen Currency so selected shall be provided by first class mail to each
holder at the address of such holder which appears on the books maintained by
the registrar and to the Paying Agent. The amount of each payment in such
Chosen Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of the fourth business day in
Brussels prior to the date on which such payment is due.
On the first business day in Brussels on which the ECU ceases
to be used as the unit of account of the EC, and has not become a currency in
its own right replacing all or some of the currencies of the member States of
the EC, the Issuer shall select a Chosen Currency in which all payments with
respect to Notes and coupons having a due date prior thereto but not yet
presented for payment are to be made. The amount of each payment in such
Chosen Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as
of any date (the "Day of Valuation") shall be determined by, or on behalf
of, the Exchange Rate Agent on the following basis. The amounts and
components composing the ECU for this purpose (the "Components") shall be
the amounts and components that composed the ECU as of the last date on
which the ECU was used as the unit of account of the EC. The equivalent of
the ECU in the Chosen Currency shall be calculated by, first, aggregating
the U.S. dollar equivalents of the Components; and then, in the case of a
chosen Currency other than U.S. dollars, using the rate used for
determining the U.S. dollar equivalent of the Components in the Chosen
Currency as set forth below, calculating the equivalent in the Chosen
Currency of such aggregate amount in U.S. dollars.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated on the face hereof.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Issuer, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf,
provided that such quotations were prevailing in the country of issue not
more than two Business Days before such Day of Valuation. If such most
recent quotations were so prevailing in the country of issue more than two
Business Days before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of
cross rates derived from the middle spot delivery quotations for such
component currency and for the U.S. dollar prevailing at 2:30 P.M.,
Brussels time, on such Day of Valuation, as obtained by, or on behalf of,
the Exchange Rate agent from one or more major banks, as selected by the
Issuer, in a country other than the country of issue of such component
currency. Notwithstanding the foregoing, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of such
cross rates if the Issuer or such agent judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent
calculated as provided in the first sentence of this paragraph. Unless
otherwise specified by the Issuer, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations
or for any other reason, the market to be referred to in respect of such
currency shall be that upon which a non-resident issuer of securities
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Company or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of the Note and coupons,
if any.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and interest on this Note as herein provided in the Borough of Manhattan, The
City of New York, and an office or agency in said Borough of Manhattan for the
registration, transfer and exchange as aforesaid of the Notes. The Issuer may
designate other agencies for the payment of said principal and interest at
such place or places (subject to applicable laws and regulations) as the
Issuer may decide. So long as there shall be such an agency, the Issuer shall
keep the Trustee advised of the names and locations of such agencies, if any
are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest on any
Notes that remain unclaimed at the end of two years after such principal or
interest shall have become due and payable (whether at maturity or otherwise),
(i) the Trustee or such Paying Agent shall notify the holders of such Notes
that such moneys shall be repaid to the Issuer and any person claiming such
moneys shall thereafter look only to the Issuer for payment thereof and (ii)
such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease, without, however, limiting in any way any obligation
that the Issuer may have to pay the principal of or interest on this Note as
the same shall become due.
No provision of this Note or of the Senior Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to
pay the principal of and interest on this Note at the time, place, and rate,
and in the coin or currency, herein prescribed unless otherwise agreed between
the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat
the holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Senior Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Issuer or of any successor
corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day" means any day, other than a Saturday or
Sunday or a day on which banking institutions in New York City are authorized
or required by law or executive order to close; provided that when a payment
is due on such day in a currency other than U.S. dollars (a "Foreign
Currency") such day must also be a business day in each city designated as a
Financial Center for the Foreign Currency and, if such Foreign Currency is
ECU, such day must not be a non-ECU clearing day, as determined by the ECU
Banking Association in Paris;
(b) the term "Exchange Rate Day" means any day other than a
Saturday or Sunday or a day on which banking institutions in New York City are
authorized or required by law or executive order to close and which is a
business day in each of the cities designated as a Financial Center for the
currencies being converted; provided that if any such currency is ECU, such
day must not be a non-ECU clearing day, as determined by the ECU Banking
Association in Paris; and
(c) all other terms used in this Note which are defined in the
Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the above
list.
___________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_______________________________________
______________________________________________________________________________
______________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE]
______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
______________________________________________________________________________
constituting and appointing such person attorney to transfer
______________________________________________________________________________
such note on the books of the Issuer, with full power of
______________________________________________________________________________
substitution in the premises.
Dated:_____________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within Note in every particular
without alteration or enlargement or any change whatsoever.
EXHIBIT 4.H
[FORM OF FACE OF MULTICURRENCY PRINCIPAL
EXCHANGE RATE LINKED SECURITY]
MULTICURRENCY PRINCIPAL EXCHANGE RATE LINKED SECURITY
(MULTICURRENCY PERLS)
REGISTERED REGISTERED
No. CUSIP: *
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York,
New York) to the issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.*
MORGAN STANLEY GROUP INC.
MULTICURRENCY PRINCIPAL EXCHANGE RATE LINKED SECURITIES
(MULTICURRENCY PERLS)
GLOBAL MEDIUM TERM NOTES, SERIES C
As used herein, the following terms shall have the
following meanings:
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE:
MATURITY DATE: FACE AMOUNT
(in Denominated
INTEREST RATE: per annum Currency):
INTEREST PAYMENT PERIODS:
DENOMINATED CURRENCY FIXED AMOUNT OF FIRST
(including Financial INDEXED CURRENCY
Center(s) for Denominated (for this Note):
Currency, if any):
FIXED AMOUNT OF SECOND
FIRST INDEXED CURRENCY INDEXED CURRENCY
(including Financial (for this Note):
Center(s) for First Indexed
Currency, if any): FIXED AMOUNT OF THIRD
INDEXED CURRENCY
(for this Note):
SECOND INDEXED CURRENCY FIRST CONVERSION REFERENCE
(including Financial AMOUNT (aggregate fixed
Center(s) for Second Indexed amount of First Indexed
Currency, if any): Currency to be used as
reference amount for
THIRD INDEXED CURRENCY currency valuations):
(including Financial
Center(s) for Third Indexed SECOND CONVERSION REFERENCE
Currency, if any): AMOUNT (aggregate fixed
amount of Second Indexed
PAYMENT CURRENCY Currency to be used as
(including Financial reference amount for
Center(s) for Payment currency valuations):
Currency, if any):
THIRD CONVERSION REFERENCE
INTEREST PAYMENT DATES: AMOUNT (aggregate fixed
amount of Third Indexed
EXCHANGE RATE AGENT: Currency to be used as
reference amount for
REFERENCE DEALERS FOR FIRST currency valuations):
INDEXED CURRENCY:
AUTHORIZED DENOMINATIONS
REFERENCE DEALERS FOR SECOND (if other than U.S.
INDEXED CURRENCY: $100,000 and integral
multiples of U.S. $1,000
REFERENCE DEALERS FOR THIRD in excess thereof):
INDEXED CURRENCY:
OTHER PROVISIONS:
____________
* Applies only if this Note is a Registered Global Security.
Morgan Stanley Group Inc., a Delaware corporation (together with
its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to or registered assigns, on the Maturity Date the Payment
Currency equivalent on the Maturity Date of the Fixed Amount of First
Indexed Currency [plus or minus] the Payment Currency equivalent on the
Maturity Date of the Fixed Amount of Second Indexed Currency [plus or
minus] the Payment Currency equivalent on the Maturity Date of the Fixed
Amount of Third Indexed Currency determined in accordance with the
procedures described below and to pay interest in the Denominated Currency
based on the Face Amount hereof at the Interest Rate from and including the
Interest Accrual Date until the principal amount due hereunder is paid or
duly made available for payment, monthly, quarterly, semiannually or
annually in arrears as specified above as the Interest Payment Period on
each Interest Payment Date (as specified above), commencing on the Interest
Payment Date next succeeding the Interest Accrual Date and ending on the
Maturity Date, except as provided herein; provided that the minimum amount
payable in respect of principal at maturity shall be zero.
Interest on this Note will accrue from and including the most
recent Interest Payment Date to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for, from
and including the Interest Accrual Date, until the principal in respect of
this Note has been paid or duly made available for payment (except as
provided below). The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid in the Denominated Currency (unless
the Denominated Currency is a currency other than U.S. dollars and the
holder has elected, as described below, to be paid in U.S. dollars) to the
person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the date 15 calendar days prior to
such Interest Payment Date (whether or not a Business Day, as defined on
the reverse hereof) (each such date a "Record Date"); provided that
interest payable on the Maturity Date will be payable to the person to whom
the principal hereof shall be payable. Payments of interest hereon will be
made by wire transfer of immediately available funds (which, if the
Denominated Currency is not U.S. dollars and the holder hereof has not
elected to be paid in U.S. dollars, as described below, will be made to an
account maintained by the holder hereof with a bank located outside the
United States) if appropriate wire transfer instructions have been received
by the Paying Agent, as defined on the reverse hereof, in writing not less
than 15 calendar days prior to the applicable Interest Payment Date. If
such wire transfer instructions are not so received, such interest
payments, other than the interest payment due on the Maturity Date, will be
made by check payable in the Denominated Currency, mailed to the address of
the person entitled thereto as such address shall appear in the Note
register.
Subject to certain exceptions described herein, payment of the
principal in respect of this Note will be made in immediately available funds
in the Payment Currency (or in U.S. dollars if the Payment Currency is a
currency other than U.S. dollars and the holder has elected, as described
below, to be paid in U.S. dollars) and payment of the interest due hereon on
the Maturity Date will be made in immediately available funds in the
Denominated Currency (or in U.S. dollars if the Denominated Currency is a
currency other than U.S. dollars and the holder has elected, as described
below, to be paid in U.S. dollars), in each case upon surrender of this Note
at the office or agency of the Paying Agent maintained for that purpose in the
Borough of Manhattan, The City of New York, if this Note is presented to the
Paying Agent in time for it to make such payments in accordance with its
normal procedures.
The Payment Currency equivalent of any First Indexed Currency
amount on any date shall be determined by the Exchange Rate Agent based on
the arithmetic mean of the quotations obtained by such agent from the
Reference Dealers for the First Indexed Currency at 11:00 a.m. (New York
City time) on the second Exchange Rate Day (as defined on the reverse
hereof) preceding such date for the purchase by such Reference Dealers of
the First Conversion Reference Amount of the First Indexed Currency with
the Payment Currency for settlement on such date; provided that if there is
no cross-exchange rate available in New York City between the First Indexed
Currency and the Payment Currency, the quotations shall be calculated by
the Exchange Rate Agent at the time referred to above using the U.S. dollar
equivalent of the First Indexed Currency and the Payment Currency as the
basis for comparing the values of such currencies; provided further that if
the Payment Currency and the First Indexed Currency are identical, then the
Payment Currency equivalent of any First Indexed Currency amount shall be
such amount.
The Payment Currency equivalent of any Second Indexed Currency
amount on any date shall be determined by the Exchange Rate Agent based on
the arithmetic mean of the quotations obtained by such agent from the
Reference Dealers for the Second Indexed Currency at 11:00 a.m. (New York
City time) on the second Exchange Rate Day (as defined on the reverse
hereof) preceding such date for the [purchase/sale] by such Reference
Dealers of the Second Conversion Reference Amount of the Second Indexed
Currency [with/for] the Payment Currency for settlement on such date;
provided that if there is no cross-exchange rate available in New York City
between the Second Indexed Currency and the Payment Currency, the
quotations shall be calculated by the Exchange Rate Agent at the time
referred to above using the U.S. dollar equivalent of the Second Indexed
Currency and the Payment Currency as the basis for comparing the values of
such currencies; provided further that if the Payment Currency and the
Second Indexed Currency are identical, then the Payment Currency equivalent
of any Second Indexed Currency amount shall be such amount.
The Payment Currency equivalent of any Third Indexed Currency
amount on any date shall be determined by the Exchange Rate Agent based on
the arithmetic mean of the quotations obtained by such agent from the
Reference Dealers for the Third Indexed Currency at 11:00 a.m. (New York
City time) on the second Exchange Rate Day (as defined on the reverse
hereof) preceding such date for the [purchase/sale] by such Reference
Dealers of the Third Conversion Reference Amount of the Third Indexed
Currency [with/for] the Payment Currency for settlement on such date;
provided that if there is no cross-exchange rate available in New York City
between the Third Indexed Currency and the Payment Currency, the quotations
shall be calculated by the Exchange Rate Agent at the time referred to
above using the U.S. dollar equivalent of the Third Indexed Currency and
the Payment Currency as the basis for comparing the values of such
currencies; provided further that if the Payment Currency and the Third
Indexed Currency are identical, then the Payment Currency equivalent of any
Third Indexed Currency amount shall be such amount.
Unless otherwise indicated herein, if the Denominated
Currency of this Note is a currency other than U.S. dollars, or if the
Payment Currency is a currency other than U.S dollars, the holder hereof
may elect to receive all or a portion of payments on this Note in U.S.
dollars by transmitting a written request to the Paying Agent, on or prior
to the Record Date or at least ten Business Days prior to the Maturity Date
or any redemption or repayment date, as the case may be. Such election
shall remain in effect unless such request is revoked by written notice to
the Paying Agent as to all or a portion of payments on this Note at least
five Business Days prior to such Record Date or at least ten days prior to
the Maturity Date or any redemption or repayment date, as the case may be.
In the event of such an election, the Exchange Rate Agent
will convert such payments into U.S. dollars and payment in respect of this
Note will be based upon the exchange rate as determined by the Exchange
Rate Agent based on the highest bid quotation in The City of New York
received by such Exchange Rate Agent at approximately 11:00 A.M., New York
City time, on the second Business Day preceding the applicable payment date
from three recognized foreign exchange dealers (one of which may be the
Exchange Rate Agent unless such Exchange Rate Agent is Morgan Stanley & Co.
Incorporated), for the purchase by the quoting dealer of U.S. dollars for
the Denominated or Payment Currency for settlement on such payment date in
the amount of the Denominated or Payment Currency payable in the absence of
such an election to such holder and at which the applicable dealer commits
to execute a contract. If such bid quotations are not available, such
payment will be made in the Denominated or Payment Currency. All currency
exchange costs will be borne by the holder of this Note by deductions from
such payments.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Senior Indenture, as defined on
the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By _______________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
CHEMICAL BANK,
as Trustee
By _______________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series C, having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable
under a Senior Indenture, dated as of April 15, 1989, as supplemented by a
First Supplemental Indenture dated as of May 15, 1991 and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Senior Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed Chemical Bank at its
corporate trust office in The City of New York as the paying agent (the
"Paying Agent," which term includes any additional or successor Paying
Agent appointed by the Issuer) with respect to the Notes. The terms of
individual Notes may vary with respect to interest rates, interest rate
formulas, issue dates, maturity dates, or otherwise, all as provided in the
Senior Indenture. To the extent not inconsistent herewith, the terms of
the Senior Indenture are hereby incorporated by reference herein.
Unless otherwise provided on the face hereof, this Note will not
be subject to any sinking fund and will not be redeemable or subject to
repayment at the option of the holder prior to maturity.
Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or the Maturity Date, as the case
may be. Unless otherwise provided on the face hereof, interest payments
for this Note will be computed and paid on the basis of a 360-day year of
twelve 30-day months.
In the case where the Interest Payment Date or the Maturity Date
does not fall on a Business Day, payment of interest or principal otherwise
payable on such date need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date or on the Maturity Date, and no interest shall
accrue for the period from and after the Interest Payment Date or the
Maturity Date to such next succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and, if
the Denominated Currency is U.S. dollars, is issuable only in denominations
of U.S. $100,000 and any integral multiple of U.S. $1,000 in excess
thereof, unless a higher minimum denomination is specified on the face
hereof. If the Denominated Currency is not U.S. dollars, then, unless a
higher minimum denomination is specified on the face hereof, it is issuable
only in denominations of the equivalent of U.S. $100,000 (rounded to an
integral multiple of 1,000 units of the Denominated Currency), or any
amount in excess thereof which is an integral multiple of 1,000 units of
the Denominated Currency, as determined by reference to the noon dollar
buying rate in New York City for cable transfers of the Denominated
Currency published by the Federal Reserve Bank of New York (the "Market
Exchange Rate") on the Business Day immediately preceding the date of
issuance; provided, however, in the case of ECUs, the Market Exchange Rate
shall be the rate of exchange determined by the Commission of the European
Communities (or any successor thereto) as published in the Official Journal
of the European Communities, or any successor publication, on the Business
Day immediately preceding the date of issuance.
The Trustee has been appointed registrar for the Notes, and the
Trustee will maintain at its office in The City of New York a register for
the registration and transfer of Notes. This Note may be transferred at
the aforesaid office of the Trustee by surrendering this Note for
cancellation, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and duly executed by the registered holder
hereof in person or by the holder's attorney duly authorized in writing,
and thereupon the Trustee shall issue in the name of the transferee or
transferees, in exchange herefor, a new Note or Notes having identical
terms and provisions and having an aggregate Fixed Amount of First Indexed
Currency, Fixed Amount of Second Indexed Currency, Fixed Amount of Third
Indexed Currency and Face Amount, in authorized denominations, equal to the
respective amounts set forth on the face of this Note, subject to the terms
and conditions set forth herein. Notes are exchangeable at said office for
other Notes of other authorized denominations having an aggregate Fixed
Amount of First Indexed Currency, Fixed Amount of Second Indexed Currency,
Fixed Amount of Third Indexed Currency and Face Amount equal to the
respective amounts set forth on the face of this Note and having otherwise
identical terms and provisions. All such exchanges and transfers of Notes
will be free of charge, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge in connection
therewith. All Notes surrendered for exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Trustee and
executed by the registered holder in person or by the holder's attorney
duly authorized in writing. The date of registration of any Note delivered
upon any exchange or transfer of Notes shall be such that no gain or loss
of interest results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or
be destroyed, lost or stolen and such Note or evidence of the loss, theft
or destruction thereof (together with the indemnity hereinafter referred to
and such other documents or proof as may be required in the premises) shall
be delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Note so destroyed or lost or stolen, but, in the case of any destroyed or
lost or stolen Note, only upon receipt of evidence satisfactory to the
Trustee and the Issuer that such Note was destroyed or lost or stolen and,
if required, upon receipt also of indemnity satisfactory to each of them.
All expenses and reasonable charges associated with procuring such
indemnity and with the preparation, authentication and delivery of a new
Note shall be borne by the owner of the Note mutilated, defaced, destroyed,
lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default (as
defined in the Senior Indenture) due to the default in payment of principal
of, premium, if any, or interest on, any series of debt securities issued
under the Senior Indenture, including the series of Senior Medium-Term
Notes of which this Note forms a part, or due to the default in the
performance or breach of any other covenant or warranty of the Issuer
applicable to the debt securities of such series but not applicable to all
outstanding debt securities issued under the Senior Indenture shall have
occurred and be continuing, either the Trustee or the holders of not less
than 25% in principal amount of the debt securities of each affected series
(voting as a single class) may then declare the principal of all debt
securities of all such series and interest accrued thereon to be due and
payable immediately and (b) if an Event of Default due to a default in the
performance of any other of the covenants or agreements in the Senior
Indenture applicable to all outstanding debt securities issued thereunder,
including this Note, or due to certain events of bankruptcy, insolvency and
reorganization of the Issuer, shall have occurred and be continuing, either
the Trustee or the holders of not less than 25% in principal amount of all
debt securities issued under the Senior Indenture then outstanding (treated
as one class) may declare the principal of all such debt securities and
interest accrued thereon to be due and payable immediately, but upon
certain conditions such declarations may be annulled and past defaults may
be waived (except a continuing default in payment of principal (or premium,
if any) or interest on such debt securities) by the holders of a majority
in principal amount of the debt securities of all affected series then
outstanding.
If the principal of this Note is declared to be due and payable
prior to the Maturity Date, then (i) the amount payable with respect to
this Note shall be paid in the Denominated Currency and shall equal the
Face Amount hereof plus accrued interest to but excluding the date of
payment, (ii) for the purpose of any vote of securityholders taken pursuant
to the Senior Indenture prior to the acceleration of payment of this Note,
the principal amount hereof shall equal the amount that would be due and
payable hereon, calculated as set forth in clause (i) above, if this Note
were declared to be due and payable on the date of any such vote
(converted, if necessary, into U.S. dollars using the most recent Market
Exchange Rate available on such date) and (iii) for the purpose of any vote
of securityholders taken pursuant to the Senior Indenture following the
acceleration of payment of this Note, the principal amount hereof shall
equal the amount of principal due and payable with respect to this Note,
calculated as set forth in clause (i) above (converted, if necessary, into
U.S. dollars using the most recent Market Exchange Rate available on the
date of such vote).
The Senior Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected;
or (b) reduce the aforesaid percentage in principal amount of debt securities
the consent of the holders of which is required for any such supplemental
indenture, without the consent of the holders of each debt security so
affected.
Except as set forth below, if the principal of, or interest on, this
Note is payable in a Payment Currency or a Denominated Currency, as the case
may be, other than U.S. dollars and such currency is not available to the
Issuer for making payments hereon due to the imposition of exchange controls
or other circumstances beyond the control of the Issuer or is no longer used
by the government of the country issuing such currency or for the settlement
of transactions by public institutions within the international banking
community, then the Issuer will be entitled to satisfy its obligations to the
holder of this Note by making such payments in U.S. dollars on the basis of
the Market Exchange Rate on the date of such payment or, if the Market
Exchange Rate is not available on such date, as of the most recent practicable
date; provided, however, that if such Payment Currency or Denominated Currency
is replaced by a single European currency (expected to be named the Euro), the
payment of principal of, premium, if any, or interest on any Note denominated
in such currency shall be effected in the new single European currency in
conformity with legally applicable measures taken pursuant to, or by virtue
of, the treaty establishing the European Community (the "EC"), as amended by
the treaty on European Union (the "Treaty"). Any payment made under such
circumstances in U.S. dollars (or, if applicable, such new single European
currency) where the required payment is in a currency other than U.S. dollars
will not constitute an Event of Default.
Subject to the provisions below, the value of the ECU, in which
the Notes may be denominated or may be payable, is equal to the value of the
ECU that is from time to time used as the unit of account of the EC. If the
ECU becomes a currency in its own right in accordance with the Treaty, all
references to ECU in the Notes shall be construed as references to such
currency.
With respect to each due date for the payment of principal of,
or interest on, the Notes on or after the first business day in Brussels on
which the ECU ceases to be used as the unit of account of the EC, and has not
become a currency in its own right replacing all or some of the currencies of
the member States of the EC, the Issuer shall choose a substitute currency
(the "Chosen Currency"), which may be any currency which was, on the last day
on which the ECU was used as the unit of account of the EC, a component
currency of the ECU or U.S. dollars, in which all payments due on or after
that date with respect to the Notes and coupons shall be made. Notice of the
Chosen Currency so selected shall be provided by first class mail to each
holder at the address of such holder which appears on the books maintained by
the registrar and to the Paying Agent. The amount of each payment in such
Chosen Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of the fourth business day in
Brussels prior to the date on which such payment is due.
On the first business day in Brussels on which the ECU ceases
to be used as the unit of account of the EC, and has not become a currency in
its own right replacing all or some of the currencies of the member States of
the EC, the Issuer shall select a Chosen Currency in which all payments with
respect to Notes and coupons having a due date prior thereto but not yet
presented for payment are to be made. The amount of each payment in such
Chosen Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as
of any date (the "Day of Valuation") shall be determined by, or on behalf
of, the Exchange Rate Agent on the following basis. The amounts and
components composing the ECU for this purpose (the "Components") shall be
the amounts and components that composed the ECU as of the last date on
which the ECU was used as the unit of account of the EC. The equivalent of
the ECU in the Chosen Currency shall be calculated by, first, aggregating
the U.S. dollar equivalents of the Components; and then, in the case of a
chosen Currency other than U.S. dollars, using the rate used for
determining the U.S. dollar equivalent of the Components in the Chosen
Currency as set forth below, calculating the equivalent in the Chosen
Currency of such aggregate amount in U.S. dollars.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated on the face hereof.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Issuer, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf,
provided that such quotations were prevailing in the country of issue not
more than two Business Days before such Day of Valuation. If such most
recent quotations were so prevailing in the country of issue more than two
Business Days before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of
cross rates derived from the middle spot delivery quotations for such
component currency and for the U.S. dollar prevailing at 2:30 P.M.,
Brussels time, on such Day of Valuation, as obtained by, or on behalf of,
the Exchange Rate agent from one or more major banks, as selected by the
Issuer, in a country other than the country of issue of such component
currency. Notwithstanding the foregoing, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of such
cross rates if the Issuer or such agent judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent
calculated as provided in the first sentence of this paragraph. Unless
otherwise specified by the Issuer if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations
or for any other reason, the market to be referred to in respect of such
currency shall be that upon which a non-resident issuer of securities
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and interest on this Note as herein provided in the Borough of Manhattan, The
City of New York, and an office or agency in said Borough of Manhattan for the
registration, transfer and exchange as aforesaid of the Notes. The Issuer may
designate other agencies for the payment of said principal and interest at
such place or places (subject to applicable laws and regulations) as the
Issuer may decide. So long as there shall be such an agency, the Issuer shall
keep the Trustee advised of the names and locations of such agencies, if any
are so designated.
With respect to moneys paid by the Issuer and held by the Trustee
or any Paying Agent for payment of the principal of or interest on any
Notes that remain unclaimed at the end of two years after such principal or
interest shall have become due and payable (whether at maturity or
otherwise), (i) the Trustee or such Paying Agent shall notify the holders
of such Notes that such moneys shall be repaid to the Issuer and any person
claiming such moneys shall thereafter look only to the Issuer for payment
thereof and (ii) such moneys shall be so repaid to the Issuer. Upon such
repayment all liability of the Trustee or such Paying Agent with respect to
such moneys shall thereupon cease, without, however, limiting in any way
any obligation that the Issuer may have to pay the principal of or interest
on this Note as the same shall become due.
No provision of this Note or of the Senior Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to
pay the principal of and interest on this Note at the time, place, and rate,
and in the coin or currency, herein prescribed unless otherwise agreed between
the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat
the holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Senior Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Issuer or of any successor
corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day" means any day, other than a Saturday or
Sunday or a day on which banking institutions in New York City are authorized
or required by law or executive order to close; provided that when a payment
is due on such day in a currency other than U.S. dollars (a "Foreign
Currency") such day must also be a business day in each city designated as a
Financial Center for the Foreign Currency and, if such Foreign Currency is
ECU, such day must not be a non-ECU clearing day, as determined by the ECU
Banking Association in Paris;
(b) the term "Exchange Rate Day" means any day other than a
Saturday or Sunday or a day on which banking institutions in New York City are
authorized or required by law or executive order to close and which is a
business day in each of the cities designated as a Financial Center for the
currencies being converted; provided that if any such currency is ECU, such
day must not be a non-ECU clearing day, as determined by the ECU Banking
Association in Paris; and
(c) all other terms used in this Note which are defined in the
Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_________________________________________________
_________________________________________________
_______________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE]
_______________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
_______________________________________________________________
constituting and appointing such person attorney to transfer
_______________________________________________________________
such note on the books of the Issuer, with full power of
_______________________________________________________________
substitution in the premises.
Dated:_____________________ NOTICE: The signature to this assignment
must correspond with the name
as written upon the face of the
within Note in every particular
without alteration or enlargement
or any change whatsoever.
EXHIBIT 4.I
[FORM OF FACE OF SECURITY]
Fixed Rate Amortizing Senior Note
REGISTERED REGISTERED
No. AMZ ___ [PRINCIPAL AMOUNT]
CUSIP: *
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.*
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE
APPROXIMATE METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR
THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE
DISCOUNT ("OID") RULES.
________
(*) Applies only if this Note is a Registered Global Security.
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Fixed Rate Amortizing)
<TABLE>
<S> <C> <C> <C>
ORIGINAL INITIAL REDEMPTION INTEREST RATE: MATURITY
ISSUE DATE: DATE: DATE:
SPECIFIED
INTEREST INITIAL REDEMPTION CURRENCY: OPTIONAL
ACCRUAL PERCENTAGE: REPAYMENT
DATE: DATE(S):
TOTAL ANNUAL REDEMPTION INSTALLMENT
AMOUNT PERCENTAGE PAYMENT DATES: NO. OF
OF OID: REDUCTION: INSTALLMENTS:
ORIGINAL YIELD EXCHANGE RATE AGENT
TO MATURITY: OTHER PROVISIONS:
INITIAL ACCRUAL
PERIOD OID:
</TABLE>
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to
, or registered assignees, the principal sum of
, together with interest on any outstanding portion of
such principal sum at the Interest Rate per annum specified above, from and
including the Interest Accrual Date specified above until payment of such
principal sum has been made or duly provided for, in the number of
installments (except to the extent this Note has been previously redeemed or
repaid at the option of the holder) set forth above (each, an "Installment")
of an amount for each $1,000.00, or if this Note is denominated in a Specified
Currency other than U.S. dollars, for each 1,000 units of such Specified
Currency, principal amount as set forth on Schedule I hereto, on each
Installment Payment Date specified above, commencing with the Installment
Payment Date immediately following the Original Issue Date shown above, and at
maturity (or on any redemption or optional repayment date); provided, however,
that, notwithstanding the provisions of Schedule I, if the Interest Accrual
Date occurs between a Record Date, as defined below, and the next succeeding
Installment Payment Date, payments of principal and interest will commence on
the second Installment Payment Date succeeding the Interest Accrual Date and
interest accrued from the Interest Accrual Date to such second Installment
Payment Date plus any principal scheduled to be paid on a prior Installment
Payment Date will be paid to the registered holder of this Note on the Record
Date with respect to such second Installment Payment Date. Each Installment
shall constitute both a payment of interest and a partial repayment of
principal, allocated as set forth in Schedule I hereto. Installments will be
applied first to interest due and payable hereon and then to the reduction of
the unpaid principal amount hereof.
Interest on this Note will accrue from and including the
most recent Installment Payment Date to which interest has been paid or
duly provided for, or, if no interest has been paid or duly provided for,
from and including the Interest Accrual Date, until but excluding the date
the principal hereof has been paid or duly made available for payment
(except as provided below). The interest so payable, and punctually paid
or duly provided for, on any Installment Payment Date (together with the
principal payable on such Installment Payment Date) will, subject to
certain exceptions described herein, be paid to the person in whose name
this Note (or one or more predecessor Notes) is registered at the close of
business on the date 15 calendar days prior to such Installment Payment
Date (whether or not a Business Day) (each such date a "Record Date"),
except if and to the extent the Issuer shall default in the payment of the
Installment due on such Installment Payment Date, in which case such
defaulted Installment shall be paid to the person in whose name this Note
is registered at the close of business on a subsequent Record Date (which
shall be not less than five Business Days prior to the date of payment of
such defaulted Installment) established by notice given by mail by or on
behalf of the Issuer to the holders of Notes not less than 15 days
preceding such subsequent Record Date; provided, however, that interest
payable at maturity (or on any redemption or optional repayment date) will
be payable to the person to whom the principal hereof shall be payable.
"Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in
The City of New York and (i) if this Note is denominated in a Specified
Currency other than U.S. dollars, Australian dollars or European Currency
Units ("ECUs"), in the principal financial center of the country of the
Specified Currency, (ii) if this Note is denominated in Australian dollars,
in Sydney and (iii) if this Note is denominated in ECUs, that is not a non-
ECU clearing day, as determined by the ECU Banking Association in Paris.
Payment of the principal of and premium, if any, and
interest on this Note due on the Maturity Date (or on any date of
redemption or optional repayment hereof), unless this Note is denominated
in a Specified Currency other than U.S. dollars and is to be paid in whole
or in part in such Specified Currency, will be made in immediately
available funds to the registered holder hereof on such date upon surrender
of this Note at the office or agency of the Paying Agent, as defined on the
reverse hereof, maintained for that purpose in the Borough of Manhattan,
The City of New York, or at such other paying agency as the Issuer may
determine in U.S. dollars. U.S. dollar payments of principal and interest,
other than principal and interest due at maturity or on any date of
redemption or optional repayment, will be made by U.S. dollar check mailed
to the address of the person entitled thereto as such address shall appear
in the Note register. A holder of U.S. $10,000,000 or more in aggregate
principal amount of Notes having the same Installment Payment Date, the
interest on which is payable in U.S. dollars, shall be entitled to receive
payments of principal and interest, other than principal and interest due
at maturity or on any date of redemption or optional repayment, by wire
transfer of immediately available funds if appropriate wire transfer
instructions have been received by the Paying Agent in writing not less
than 15 calendar days prior to the applicable Installment Payment Date.
If this Note is denominated in a Specified Currency other
than U.S. dollars, and the holder does not elect (in whole or in part) to
receive payment in U.S. dollars pursuant to the next succeeding paragraph,
payments of interest, principal or any premium with regard to this Note
will be made by wire transfer of immediately available funds to an account
maintained by the holder hereof with a bank located outside the United
States if appropriate wire transfer instructions have been received by the
Paying Agent in writing not less than 15 calendar days prior to the
applicable payment date, provided that, if such wire transfer instructions
are not received, such payments will be made by check payable in such
Specified Currency mailed to the address of the person entitled thereto as
such address shall appear in the Note register, and provided, further, that
payment of the principal of this Note, any premium and the interest due at
maturity (or on any redemption or repayment date) will be made upon
surrender of this Note at the office or agency referred to in the preceding
paragraph.
Unless otherwise indicated herein, the holder of this Note,
if denominated in a Specified Currency other than U.S. dollars, may elect
to receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the
Record Date or at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be. Such election shall
remain in effect unless such request is revoked by written notice to the
Paying Agent as to all or a portion of payments on this Note at least five
Business Days prior to such Record Date or at least ten days prior to the
Maturity Date or any redemption or repayment date, as the case may be.
If the holder elects to receive all or a portion of payments
of principal of and any premium and interest on this Note, if denominated
in a Specified Currency other than U.S. dollars, in U.S. dollars, the
Exchange Rate Agent will convert such payments into U.S. dollars. In the
event of such an election, payment in respect of this Note will be based
upon the exchange rate as determined by the Exchange Rate Agent based on
the highest bid quotation in The City of New York received by such Exchange
Rate Agent at approximately 11:00 A.M., New York City time, on the second
Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent
unless such Exchange Rate Agent is Morgan Stanley & Co. Incorporated), for
the purchase by the quoting dealer of U.S. dollars for the Specified
Currency for settlement on such payment date in the amount of the Specified
Currency payable in the absence of such an election to such holder and at
which the applicable dealer commits to execute a contract. If such bid
quotations are not available, such payment will be made in the Specified
Currency. All currency exchange costs will be borne by the holder of this
Note by deductions from such payments.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By: _____________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
CHEMICAL BANK,
as Trustee
By: _____________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series C, having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable
under a Senior Indenture, dated as of April 15, 1989, as supplemented by a
First Supplemental Indenture dated as of May 15, 1991 and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Senior Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed Chemical Bank at its
corporate trust office in The City of New York as the paying agent (the
"Paying Agent," which term includes any additional or successor Paying
Agent appointed by the Issuer) with respect to the Notes. The terms of
individual Notes may vary with respect to interest rates, interest rate
formulas, issue dates, maturity dates, or otherwise, all as provided in the
Senior Indenture. To the extent not inconsistent herewith, the terms of
the Senior Indenture are hereby incorporated by reference herein.
Unless otherwise provided on the face hereof, this Note will
not be subject to any sinking fund and, unless otherwise provided on the
face hereof in accordance with the provisions of the following two
paragraphs, will not be redeemable or subject to repayment at the option of
the holder prior to maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on or after the
Initial Redemption Date specified on the face hereof on the terms set forth
on the face hereof, together with interest accrued and unpaid hereon to the
date of redemption (except as provided below). If this Note is subject to
"Annual Redemption Percentage Reduction," the Initial Redemption Percentage
indicated on the face hereof will be reduced on each anniversary of the
Initial Redemption Date by the Annual Redemption Percentage Reduction
specified on the face hereof until the redemption price of this Note is
100% of the principal amount hereof, together with interest accrued and
unpaid hereon to the date of redemption (except as provided below). Notice
of redemption shall be mailed to the registered holders of the Notes
designated for redemption at their addresses as the same shall appear on
the Note register not less than 30 nor more than 60 days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Senior Indenture. In the event of redemption of this Note in part only, a
new Note or Notes for the amount of the unredeemed portion hereof shall be
issued in the name of the holder hereof upon the cancellation hereof.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional Repayment
Date or Dates specified on the face hereof on the terms set forth herein.
On any Optional Repayment Date, this Note will be repayable in whole or in
part in increments of $1,000 or, if this Note is denominated in a Specified
Currency other than U.S. dollars, in increments of 1,000 units of such
Specified Currency (provided that any remaining principal amount hereof
shall not be less than the minimum authorized denomination hereof) at the
option of the holder hereof at a price equal to 100% of the principal
amount to be repaid, together with interest accrued and unpaid hereon to
the date of repayment (except as provided below). For this Note to be
repaid at the option of the holder hereof, the Paying Agent must receive at
its corporate trust office in the Borough of Manhattan, The City of New
York, at least 15 but not more than 30 days prior to the date of repayment,
(i) this Note with the form entitled "Option to Elect Repayment" below duly
completed or (ii) a telegram, telex, facsimile transmission or a letter
from a member of a national securities exchange or the National Association
of Securities Dealers, Inc. or a commercial bank or a trust company in the
United States setting forth the name of the holder of this Note, the
principal amount hereof, the certificate number of this Note or a
description of this Note's tenor and terms, the principal amount hereof to
be repaid, a statement that the option to elect repayment is being
exercised thereby and a guarantee that this Note, together with the form
entitled "Option to Elect Repayment" duly completed, will be received by
the Paying Agent not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter; provided, that such
telegram, telex, facsimile transmission or letter shall only be effective
if this Note and form duly completed are received by the Paying Agent by
such fifth Business Day. Exercise of such repayment option by the holder
hereof shall be irrevocable. In the event of repayment of this Note in
part only, a new Note or Notes for the amount of the unpaid portion hereof
shall be issued in the name of the holder hereof upon the cancellation
hereof.
Interest payments on this Note will include interest accrued to
but excluding the Installment Payment Dates or the Maturity Date (or any
earlier redemption or optional repayment date), as the case may be. Unless
otherwise provided on the face hereof, interest payments for this Note will be
computed and paid on the basis of a 360-day year of twelve 30-day months.
In the case where the Installment Payment Date or the Maturity
Date (or any redemption or optional repayment date) does not fall on a
Business Day, payment of principal and interest, and premium, if any,
otherwise payable on such date need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made
on the Installment Payment Date or on the Maturity Date (or any redemption or
optional repayment date), and no interest on such payment shall accrue for the
period from and after the Installment Payment Date or the Maturity Date (or
any redemption or optional repayment date) to such next succeeding Business
Day.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons,
and, if denominated in U.S. dollars, is issuable only in denominations of U.S.
$1,000 and any integral multiple of U.S. $1,000 in excess thereof. If this
Note is denominated in a Specified Currency other than U.S. dollars, then,
unless a higher minimum denomination is required by applicable law, it is
issuable only in denominations of the equivalent of U.S. $1,000 (rounded to an
integral multiple of 1,000 units of such Specified Currency), or any amount in
excess thereof which is an integral multiple of 1,000 units of such Specified
Currency, as determined by reference to the noon dollar buying rate in New
York City for cable transfers of such Specified Currency published by the
Federal Reserve Bank of New York (the "Market Exchange Rate") on the Business
Day immediately preceding the date of issuance; provided, however, in the case
of ECUs, the Market Exchange Rate shall be the rate of exchange determined by
the Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities, or any
successor publication, on the Business Day immediately preceding the date of
issuance.
The Trustee has been appointed registrar for the Notes, and
the Trustee will maintain at its office in The City of New York a register
for the registration and transfer of Notes. This Note may be transferred
at the aforesaid office of the Trustee by surrendering this Note for
cancellation, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and duly executed by the registered holder
hereof in person or by the holder's attorney duly authorized in writing,
and thereupon the Trustee shall issue in the name of the transferee or
transferees, in exchange herefor, a new Note or Notes having identical
terms and provisions and having a like aggregate principal amount in
authorized denominations, subject to the terms and conditions set forth
herein; provided, however, that the Trustee will not be required (i) to
register the transfer of or exchange any Note that has been called for
redemption in whole or in part, except the unredeemed portion of Notes
being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of
such Note not required to be repurchased, or (iii) to register the transfer
of or exchange Notes to the extent and during the period so provided in the
Senior Indenture with respect to the redemption of Notes. Notes are
exchangeable at said office for other Notes of other authorized
denominations of equal aggregate principal amount having identical terms
and provisions. All such exchanges and transfers of Notes will be free of
charge, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge in connection therewith. All Notes
surrendered for exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Trustee and executed by the registered
holder in person or by the holder's attorney duly authorized in writing.
The date of registration of any Note delivered upon any exchange or
transfer of Notes shall be such that no gain or loss of interest results
from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and such Note or evidence of the loss,
theft or destruction thereof (together with the indemnity hereinafter
referred to and such other documents or proof as may be required in the
premises) shall be delivered to the Trustee, a new Note of like tenor will
be issued by the Issuer in exchange for the Note so mutilated or defaced,
or in lieu of the Note so destroyed or lost or stolen, but, in the case of
any destroyed or lost or stolen Note, only upon receipt of evidence
satisfactory to the Trustee and the Issuer that such Note was destroyed or
lost or stolen and, if required, upon receipt also of indemnity
satisfactory to each of them. All expenses and reasonable charges
associated with procuring such indemnity and with the preparation,
authentication and delivery of a new Note shall be borne by the owner of
the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of
Default (as defined in the Senior Indenture) due to the default in payment
of principal of, premium, if any, or interest on, any series of debt
securities issued under the Senior Indenture, including the series of
Senior Medium-Term Notes of which this Note forms a part, or due to the
default in the performance or breach of any other covenant or warranty of
the Issuer applicable to the debt securities of such series but not
applicable to all outstanding debt securities issued under the Senior
Indenture shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of the debt securities of
each affected series (voting as a single class) may then declare the
principal of all debt securities of all such series and interest accrued
thereon to be due and payable immediately and (b) if an Event of Default
due to a default in the performance of any other of the covenants or
agreements in the Senior Indenture applicable to all outstanding debt
securities issued thereunder, including this Note, or due to certain events
of bankruptcy, insolvency and reorganization of the Issuer, shall have
occurred and be continuing, either the Trustee or the holders of not less
than 25% in principal amount of all debt securities issued under the Senior
Indenture then outstanding (treated as one class) may declare the principal
of all such debt securities and interest accrued thereon to be due and
payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt
securities) by the holders of a majority in principal amount of the debt
securities of all affected series then outstanding.
The Senior Indenture permits the Issuer and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the debt securities of all series issued under the
Senior Indenture then outstanding and affected (voting as one class), to
execute supplemental indentures adding any provisions to or changing in any
manner the rights of the holders of each series so affected; provided that
the Issuer and the Trustee may not, without the consent of the holder of
each outstanding debt security affected thereby, (a) extend the final
maturity of any such debt security, or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of interest thereon, or
reduce any amount payable on redemption or optional repayment thereof, or
change the currency of payment thereof, or impair or affect the rights of
any holder to institute suit for the payment thereof without the consent of
the holder of each debt security so affected; or (b) reduce the aforesaid
percentage in principal amount of debt securities the consent of the
holders of which is required for any such supplemental indenture, without
the consent of the holders of each debt security so affected.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency other
than U.S. dollars and such Specified Currency is not available to the
Issuer for making payments hereon due to the imposition of exchange
controls or other circumstances beyond the control of the Issuer or is no
longer used by the government of the country issuing such currency or for
the settlement of transactions by public institutions within the
international banking community, then the Issuer will be entitled to
satisfy its obligations to the holder of this Note by making such payments
in U.S. dollars on the basis of the Market Exchange Rate on the date of
such payment or, if the Market Exchange Rate is not available on such date,
as of the most recent practicable date; provided, however, that if such
Specified Currency is replaced by a single European currency (expected to
be named the Euro), the payment of principal of, premium, if any, or
interest on any Note denominated in such currency shall be effected in the
new single European currency in conformity with legally applicable measures
taken pursuant to, or by virtue of, the treaty establishing the European
Community (the "EC"), as amended by the treaty on European Union (as so
amended, the "Treaty"). Any payment made under such circumstances in U.S.
dollars (or, if applicable, such new single European currency) where the
required payment is in a Specified Currency other than U.S. dollars will
not constitute an Event of Default.
Subject to the provisions below, the value of the ECU, in which
the Notes may be denominated or may be payable, is equal to the value of the
ECU that is from time to time used as the unit of account of the EC. If the
ECU becomes a currency in its own right in accordance with the Treaty, all
references to ECU in the Notes shall be construed as references to such
currency.
With respect to each due date for the payment of principal of,
or interest on, the Notes on or after the first business day in Brussels on
which the ECU ceases to be used as the unit of account of the EC, and has not
become a currency in its own right replacing all or some of the currencies of
the member States of the EC, the Issuer shall choose a substitute currency
(the "Chosen Currency"), which may be any currency which was, on the last day
on which the ECU was used as the unit of account of the EC, a component
currency of the ECU or U.S. dollars, in which all payments due on or after
that date with respect to the Notes and coupons shall be made. Notice of the
Chosen Currency so selected shall be provided by first class mail to each
holder at the address of such holder which appears on the books maintained by
the registrar and to the Paying Agent. The amount of each payment in such
Chosen Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of the fourth business day in
Brussels prior to the date on which such payment is due.
On the first business day in Brussels on which the ECU ceases
to be used as the unit of account of the EC, and has not become a currency in
its own right replacing all or some of the currencies of the member States of
the EC, the Issuer shall select a Chosen Currency in which all payments with
respect to Notes and coupons having a due date prior thereto but not yet
presented for payment are to be made. The amount of each payment in such
Chosen Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as of
any date (the "Day of Valuation") shall be determined by, or on behalf of, the
Exchange Rate Agent on the following basis. The amounts and components
composing the ECU for this purpose (the "Components") shall be the amounts and
components that composed the ECU as of the last date on which the ECU was used
as the unit of account of the EC. The equivalent of the ECU in the Chosen
Currency shall be calculated by, first, aggregating the U.S. dollar
equivalents of the Components; and then, in the case of a chosen Currency
other than U.S. dollars, using the rate used for determining the U.S. dollar
equivalent of the Components in the Chosen Currency as set forth below,
calculating the equivalent in the Chosen Currency of such aggregate amount in
U.S. dollars.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated on the face hereof. The U.S. dollar
equivalent of each of the Components shall be determined by, or on behalf of,
the Exchange Rate Agent on the basis of the middle spot delivery quotations
prevailing at 2:30 P.M., Brussels time, on the Day of Valuation, as obtained
by, or on behalf of, the Exchange Rate Agent from one or more major banks, as
selected by the Issuer, in the country of issue of the component currency in
question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf, provided
that such quotations were prevailing in the country of issue not more than two
Business Days before such Day of Valuation. If such most recent quotations
were so prevailing in the country of issue more than two Business Days before
such Day of Valuation, the Exchange Rate Agent shall determine the U.S. dollar
equivalent of such Component on the basis of cross rates derived from the
middle spot delivery quotations for such component currency and for the U.S.
dollar prevailing at 2:30 P.M., Brussels time, on such Day of Valuation, as
obtained by, or on behalf of, the Exchange Rate agent from one or more major
banks, as selected by the Issuer, in a country other than the country of issue
of such component currency. Notwithstanding the foregoing, the Exchange Rate
Agent shall determine the U.S. dollar equivalent of such Component on the
basis of such cross rates if the Issuer or such agent judges that the
equivalent so calculated is more representative than the U.S. dollar
equivalent calculated as provided in the first sentence of this paragraph.
Unless otherwise specified by the Issuer, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations or
for any other reason, the market to be referred to in respect of such currency
shall be that upon which a non-resident issuer of securities denominated in
such currency would purchase such currency in order to make payments in
respect of such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as aforesaid
of the Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be
such an agency, the Issuer shall keep the Trustee advised of the names and
locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes that
such moneys shall be repaid to the Issuer and any person claiming such
moneys shall thereafter look only to the Issuer for payment thereof and
(ii) such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease, without, however, limiting in any way any obligation
that the Issuer may have to pay the principal of or interest or premium, if
any, on this Note as the same shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Note at the times, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the registered
holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and none of the Issuer,
the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Senior Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the
above list.
__________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_________________________________________________
_________________________________________________
_______________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE]
_______________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
_______________________________________________________________
constituting and appointing such person attorney to transfer
_______________________________________________________________
such note on the books of the Issuer, with full power of
_______________________________________________________________
substitution in the premises.
Dated:_____________________ ____________________________________________
NOTICE: The signature to this assignment
must correspond with the name
as written upon the face of the
within Note in every particular
without alteration or enlargement
or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and
instructs the Issuer to repay the within Note (or portion thereof specified
below) pursuant to its terms at a price equal to the principal amount thereof,
together with interest to the Optional Repayment Date, to the undersigned at
___________________________________________________________
___________________________________________________________
___________________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid: __________________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the
Notes to be issued to the holder for the portion of the within Note not being
repaid (in the absence of any such specification, one such Note will be issued
for the portion not being repaid):
____________________________.
Dated:_____________ ___________________________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as written
upon the face of the within
instrument in every particular
without alteration or enlargement.
[Attach "sch.1" (print in elite)]
EXHIBIT 4.J
[FORM OF FACE OF SECURITY]
Floating Rate Senior Note
REGISTERED
No. FLR [PRINCIPAL AMOUNT]
CUSIP: *
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York,
New York) to the issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.(*)
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY"
AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD)
SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING
THE FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
<TABLE>
<S> <C> <C>
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Floating Rate)
BASE RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
INDEX MATURITY: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
SPREAD (PLUS OR MINUS): INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
ALTERNATE RATE INITIAL INTEREST RESET DATE: INTEREST RESET PERIOD:
EVENT SPREAD:
SPREAD MULTIPLIER: MAXIMUM INTEREST RATE: INTEREST RESET DATES:
REPORTING SERVICE: MINIMUM INTEREST RATE: CALCULATION AGENT:
INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
INDEX CURRENCY: INITIAL REDEMPTION TOTAL AMOUNT OF OID:
PERCENTAGE
EXCHANGE RATE AGENT: ANNUAL REDEMPTION ORIGINAL YIELD TO MATURITY:
PERCENTAGE REDUCTION:
OTHER PROVISIONS: OPTIONAL REPAYMENT DATE(S): INITIAL ACCRUAL PERIOD OID:
DESIGNATED CMT TELERATE
PAGE
DESIGNATED CMT MATURITY
INDEX
__________
(*) Applies only if this Note is a Registered Global Security.
</TABLE>
Morgan Stanley Group Inc., a Delaware corporation (together with its
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to
, or registered assignees, the principal sum of
on the Maturity Date specified above (except to the extent redeemed or
repaid prior to the Maturity Date) and to pay interest thereon, from and
including the Interest Accrual Date specified above at a rate per annum
equal to the Initial Interest Rate specified above until the Initial
Interest Reset Date specified above, and thereafter at a rate per annum
determined in accordance with the provisions specified on the reverse
hereof until the principal hereof is paid or duly made available for
payment. The Issuer will pay interest in arrears monthly, quarterly,
semiannually or annually as specified above as the Interest Payment Period
on each Interest Payment Date (as specified above), commencing with the
first Interest Payment Date next succeeding the Interest Accrual Date
specified above, and on the Maturity Date (or any redemption or repayment
date); provided, however, that if the Interest Accrual Date occurs between
a Record Date, as defined below, and the next succeeding Interest Payment
Date, interest payments will commence on the second Interest Payment Date
succeeding the Interest Accrual Date to the registered holder of this Note
on the Record Date with respect to such second Interest Payment Date; and
provided, further, that if an Interest Payment Date (other than the
Maturity Date or redemption or repayment date) would fall on a day that is
not a Business Day, as defined on the reverse hereof, such Interest Payment
Date shall be the following day that is a Business Day, except that if the
Base Rate specified above is LIBOR and such next Business Day falls in the
next calendar month, such Interest Payment Date shall be the immediately
preceding day that is a Business Day; and provided, further, that if the
Maturity Date or redemption or repayment date would fall on a day that is
not a Business Day, such payment shall be made on the following day that is
a Business Day and no interest shall accrue for the period from and after
such Maturity Date or redemption or repayment date.
Interest on this Note will accrue from and including the most
recent date to which interest has been paid or duly provided for, or, if no
interest has been paid or duly provided for, from and including the
Interest Accrual Date, until, but excluding the date the principal hereof
has been paid or duly made available for payment. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date
will, subject to certain exceptions described herein, be paid to the person
in whose name this Note (or one or more predecessor Notes) is registered at
the close of business on the date 15 calendar days prior to such Interest
Payment Date (whether or not a Business Day) (each such date a "Record
Date"); provided, however, that interest payable on the Maturity Date (or
any redemption or repayment date) will be payable to the person to whom the
principal hereof shall be payable.
Payment of the principal of this Note, any premium and the
interest due at the Maturity Date (or any redemption or repayment date),
unless this Note is denominated in a Specified Currency other than U.S.
dollars and is to be paid in whole or in part in such Specified Currency,
will be made in immediately available funds upon surrender of this Note at
the office or agency of the Paying Agent, as defined on the reverse hereof,
maintained for that purpose in the Borough of Manhattan, The City of New
York, or at such other paying agency as the Issuer may determine, in U.S.
dollars. U.S. dollar payments of interest, other than interest due at
maturity or any date of redemption or repayment, will be made by U.S.
dollar check mailed to the address of the person entitled thereto as such
address shall appear in the Note register. A holder of U.S. $10,000,000
(or the equivalent in the Specified Currency) or more in aggregate
principal amount of Notes having the same Interest Payment Date, the
interest on which is payable in U.S. dollars, shall be entitled to receive
payments of interest, other than interest due at maturity or any date of
redemption or repayment, by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received by the Paying
Agent in writing not less than 15 calendar days prior to the applicable
Interest Payment Date.
If this Note is denominated in a Specified Currency other
than U.S. dollars, and the holder does not elect (in whole or in part) to
receive payment in U.S. dollars pursuant to the next succeeding paragraph,
payments of interest, principal or any premium with regard to this Note
will be made by wire transfer of immediately available funds to an account
maintained by the holder hereof with a bank located outside the United
States if appropriate wire transfer instructions have been received by the
Paying Agent in writing not less than 15 calendar days prior to the
applicable payment date, provided that, if such wire transfer instructions
are not received, such payments will be made by check payable in such
Specified Currency mailed to the address of the person entitled thereto as
such address shall appear in the Note register, and provided, further, that
payment of the principal of this Note, any premium and the interest due at
maturity (or on any redemption or repayment date) will be made upon
surrender of this Note at the office or agency referred to in the preceding
paragraph.
Unless otherwise indicated herein, the holder of this Note,
if denominated in a Specified Currency other than U.S. dollars, may elect
to receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the
fifth Business Day after such Record Date or at least ten Business Days
prior to the Maturity Date or any redemption or repayment date, as the case
may be. Such election shall remain in effect unless such request is
revoked by written notice to the Paying Agent as to all or a portion of
payments on this Note at least five Business Days prior to such Record Date
or at least ten days prior to the Maturity Date or any redemption or
repayment date, as the case may be.
If the holder elects to receive all or a portion of payments
of principal of and any premium and interest on this Note, if denominated
in a Specified Currency other than U.S. dollars, in U.S. dollars, the
Exchange Rate Agent will convert such payments into U.S. dollars. In the
event of such an election, payment in respect of this Note will be based
upon the exchange rate as determined by the Exchange Rate Agent based on
the highest bid quotation in The City of New York received by such Exchange
Rate Agent at approximately 11:00 A.M., New York City time, on the second
Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent
unless such Exchange Rate Agent is Morgan Stanley & Co. Incorporated), for
the purchase by the quoting dealer of U.S. dollars for the Specified
Currency for settlement on such payment date in the amount of the Specified
Currency payable in the absence of such an election to such holder and at
which the applicable dealer commits to execute a contract. If such bid
quotations are not available, such payment will be made in the Specified
Currency. All currency exchange costs will be borne by the holder of this
Note by deductions from such payments.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Senior Indenture, as defined on
the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By _______________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Senior Indenture.
CHEMICAL BANK, as Trustee
By _______________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series C, having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable
under a Senior Indenture, dated as of April 15, 1989, as supplemented by a
First Supplemental Indenture dated as of May 15, 1991 and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Senior Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed Chemical Bank at its
corporate trust office in The City of New York as the paying agent (the
"Paying Agent," which term includes any additional or successor Paying
Agent appointed by the Issuer) with respect to the Notes. The terms of
individual Notes may vary with respect to interest rates, interest rate
formulas, issue dates, maturity dates, or otherwise, all as provided in the
Senior Indenture. To the extent not inconsistent herewith, the terms of
the Senior Indenture are hereby incorporated by reference herein.
Unless otherwise indicated on the face of this Note, this Note
will not be subject to any sinking fund and, unless otherwise provided on
the face hereof in accordance with the provisions of the following two
paragraphs, will not be redeemable or subject to repayment at the option of
the holder prior to maturity.
Unless otherwise indicated on the face of this Note, this Note
may not be redeemed prior to the Maturity Date. If so indicated on the
face of this Note, this Note may be redeemed in whole or in part at the
option of the Issuer on or after the Initial Redemption Date specified on
the face hereof on the terms set forth on the face hereof, together with
interest accrued and unpaid hereon to the date of redemption. If this Note
is subject to "Annual Redemption Percentage Reduction," the Initial
Redemption Percentage indicated on the face hereof will be reduced on each
anniversary of the Initial Redemption Date by the Annual Redemption
Percentage Reduction specified on the face hereof until the redemption
price of this Note is 100% of the principal amount hereof, together with
interest accrued and unpaid hereon to the date of redemption. Notice of
redemption shall be mailed to the registered holders of the Notes
designated for redemption at their addresses as the same shall appear on
the Note register not less than 30 nor more than 60 days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Senior Indenture. In the event of redemption of this Note in part only, a
new Note or Notes for the amount of the unredeemed portion hereof shall be
issued in the name of the holder hereof upon the cancellation hereof.
Unless otherwise indicated on the face of this Note, this Note
shall not be subject to repayment at the option of the holder prior to the
Maturity Date. If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional Repayment
Date or Dates specified on the face hereof on the terms set forth herein.
On any Optional Repayment Date, this Note will be repayable in whole or in
part in increments of $1,000 or, if this Note is denominated in a Specified
Currency other than U.S. dollars, in increments of 1,000 units of such
Specified Currency (provided that any remaining principal amount hereof
shall not be less than the minimum authorized denomination hereof) at the
option of the holder hereof at a price equal to 100% of the principal
amount to be repaid, together with interest accrued and unpaid hereon to
the date of repayment. For this Note to be repaid at the option of the
holder hereof, the Paying Agent must receive at its corporate trust office
in the Borough of Manhattan, The City of New York, at least 15 but not more
than 30 days prior to the date of repayment, (i) this Note with the form
entitled "Option to Elect Repayment" below duly completed or (ii) a
telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange or the National Association of Securities
Dealers, Inc. or a commercial bank or a trust company in the United States
setting forth the name of the holder of this Note, the principal amount
hereof, the certificate number of this Note or a description of this Note's
tenor and terms, the principal amount hereof to be repaid, a statement that
the option to elect repayment is being exercised thereby and a guarantee
that this Note, together with the form entitled "Option to Elect Repayment"
duly completed, will be received by the Paying Agent not later than the
fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter; provided, that such telegram, telex, facsimile
transmission or letter shall only be effective if this Note and form duly
completed are received by the Paying Agent by such fifth Business Day.
Exercise of such repayment option by the holder hereof shall be
irrevocable. In the event of repayment of this Note in part only, a new
Note or Notes for the amount of the unpaid portion hereof shall be issued
in the name of the holder hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in accordance
with the applicable provisions below by reference to the Base Rate shown on
the face hereof based on the Index Maturity, if any, shown on the face
hereof (i) plus or minus the Spread, if any, and/or (ii) multiplied by the
Spread Multiplier, if any, specified on the face hereof. Commencing with
the Initial Interest Reset Date specified on the face hereof, the rate at
which interest on this Note is payable shall be reset as of each Interest
Reset Date (as used herein, the term "Interest Reset Date" shall include
the Initial Interest Reset Date). The determination of the rate of
interest at which this Note will be reset on any Interest Reset Date shall
be made on the Interest Determination Date (as defined below) pertaining to
such Interest Reset Date. The Interest Reset Dates will be the Interest
Reset Dates specified on the face hereof; provided, however, that the
interest rate in effect for the period from the Interest Accrual Date to
the Initial Interest Reset Date will be the Initial Interest Rate. If any
Interest Reset Date would otherwise be a day that is not a Business Day,
such Interest Reset Date shall be postponed to the next succeeding day that
is a Business Day, except that if the Base Rate specified on the face
hereof is LIBOR and such Business Day is in the next succeeding calendar
month, such Interest Reset Date shall be the next preceding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in
The City of New York and (i) if this Note bears interest calculated by
reference to LIBOR that is also a London Banking Day, (ii) if this Note is
denominated in a Specified Currency other than U.S. dollars, Australian
dollars or ECUs, in the principal financial center of the country of the
Specified Currency, (iii) if this Note is denominated in Australian
dollars, in Sydney and (iv) if this Note is denominated in ECUs, that is
not a non-ECU clearing day, as determined by the ECU Banking Association in
Paris.
The Interest Determination Date pertaining to an Interest Reset
Date for Notes bearing interest calculated by reference to the CD Rate,
Commercial Paper Rate, Federal Funds Rate, Prime Rate and CMT Rate will be
the second Business Day next preceding such Interest Reset Date. The
Interest Determination Date pertaining to an Interest Reset Date for Notes
bearing interest calculated by reference to LIBOR shall be the second
London Banking Day preceding such Interest Reset Date, except that the
Interest Determination Date pertaining to an Interest Reset Date for a
LIBOR Note for which the Index Currency is pounds sterling will be such
Interest Reset Date. As used herein, "London Banking Day" means any day on
which dealings in deposits in the Index Currency (as defined herein) are
transacted in the London interbank market. The Interest Determination Date
pertaining to an Interest Reset Date for Notes bearing interest calculated
by reference to the Treasury Rate shall be the day of the week in which
such Interest Reset Date falls on which Treasury bills normally would be
auctioned; provided, however, that if as a result of a legal holiday an
auction is held on the Friday of the week preceding such Interest Reset
Date, the related Interest Determination Date shall be such preceding
Friday; and provided, further, that if an auction shall fall on any
Interest Reset Date, then the Interest Reset Date shall instead be the
first Business Day following the date of such auction.
Unless otherwise specified on the face hereof, the
"Calculation Date" pertaining to an Interest Determination Date will be the
earlier of (i) the tenth calendar day after such Interest Determination
Date or, if such day is not a Business Day, the next succeeding Business
Day, or (ii) the Business Day preceding the applicable Interest Payment
Date or Maturity Date (or, with respect to any principal amount to be
redeemed or repaid, any redemption or repayment date), as the case may be.
Determination of CD Rate. If the Base Rate specified on the face
hereof is the CD Rate, the CD Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate on
such date for negotiable certificates of deposit having the Index Maturity
specified on the face hereof as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates," or any successor publication of the Board of Governors of the
Federal Reserve System ("H.15(519)"), under the heading "CDs (Secondary
Market)," or, if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the CD
Rate will be the rate on such Interest Determination Date for negotiable
certificates of deposit of the Index Maturity specified on the face hereof
as published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 P.M. Quotations for U.S. Government
Securities" ("Composite Quotations") under the heading "Certificates of
Deposit." If neither of such rates is published by 3:00 P.M., New York City
time, on such Calculation Date, then the CD Rate on such Interest
Determination Date will be calculated by the Calculation Agent referred to
on the face hereof and will be the arithmetic mean of the secondary market
offered rates as of 10:00 A.M., New York City time, on such Interest
Determination Date for certificates of deposit in an amount that is
representative of a single transaction at that time with a remaining
maturity closest to the Index Maturity specified on the face hereof of
three leading nonbank dealers in negotiable U.S. dollar certificates of
deposit in The City of New York selected by the Calculation Agent for
negotiable certificates of deposit of major United States money center
banks; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the CD
Rate in effect for the applicable period will be the same as the CD Rate
for the immediately preceding Interest Reset Period (or, if there was no
such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate
specified on the face hereof is the Commercial Paper Rate, the Commercial
Paper Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the Money Market Yield (as defined herein)
of the rate on such date for commercial paper having the Index Maturity
specified on the face hereof, as such rate shall be published in H.15(519)
under the heading "Commercial Paper," or if not so published prior to 9:00
A.M., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the Commercial Paper Rate shall be the Money
Market Yield of the rate on such Interest Determination Date for commercial
paper of the Index Maturity specified on the face hereof as published in
Composite Quotations under the heading "Commercial Paper." If neither of
such rates is published by 3:00 P.M., New York City time, on such
Calculation Date, then the Commercial Paper Rate shall be the Money Market
Yield of the arithmetic mean of the offered rates as of 11:00 A.M., New
York City time, on such Interest Determination Date of three leading
dealers in commercial paper in The City of New York selected by the
Calculation Agent for commercial paper of the Index Maturity specified on
the face hereof, placed for an industrial issuer whose bond rating is "AA,"
or the equivalent, from a nationally recognized rating agency; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting as mentioned in this sentence, the Commercial Paper Rate in
effect for the applicable period will be the same as the Commercial Paper
Rate for the immediately preceding Interest Reset Period (or, if there was
no such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in accordance
with the following formula:
Money Market Yield = D x 360
---------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the Index Maturity specified on the face hereof.
Determination of Federal Funds Rate. If the Base Rate specified
on the face hereof is the Federal Funds Rate, the Federal Funds Rate with
respect to this Note shall be determined on each Interest Determination
Date and shall be the rate on such date for Federal Funds as published in
H.15(519) under the heading "Federal Funds (Effective)," or, if not so
published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the Federal Funds Rate will
be the rate on such Interest Determination Date as published in Composite
Quotations under the heading "Federal Funds/Effective Rate." If neither of
such rates is published by 3:00 P.M., New York City time, on such
Calculation Date, the Federal Funds Rate for such Interest Determination
Date will be calculated by the Calculation Agent and will be the arithmetic
mean of the rates for the last transaction in overnight Federal funds as of
11:00 A.M., New York City time, on such Interest Determination Date
arranged by three leading brokers in Federal funds transactions in The City
of New York selected by the Calculation Agent; provided, however, that if
the brokers selected as aforesaid by the Calculation Agent are not quoting
as mentioned in this sentence, the Federal Funds Rate in effect for the
applicable period will be the same as the Federal Funds Rate for the
immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable hereon shall be the
Initial Interest Rate).
Determination of LIBOR. If the Base Rate specified on the face
hereof is LIBOR, LIBOR with respect to this Note shall be determined on
each Interest Determination Date as follows:
(i) As of the Interest Determination Date, the Calculation
Agent will determine (a) if "LIBOR Reuters" is specified as the
Reporting Service on the face hereof, the arithmetic mean of the
offered rates (unless the specified Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in
which case such single rate shall be used) for deposits in the
Index Currency for the period of the Index Maturity specified on
the face hereof, commencing on the second London Banking Day
immediately following such Interest Determination Date, which
appear on the Designated LIBOR Page at approximately 11:00 A.M.,
London time, on such Interest Determination Date, if at least two
such offered rates appear (unless, as aforesaid, only a single
rate is required) on such Designated LIBOR Page, or (b) if "LIBOR
Telerate" is specified as the Reporting Service on the face
hereof, the rate for deposits in the Index Currency for the period
of the Index Maturity, each as designated on the face hereof,
commencing on the second London Banking Day following such
Interest Determination Date (or, if pounds sterling is the Index
Currency, commencing on such Interest Determination Date), that
appears on the Designated LIBOR Page at approximately 11:00 A.M.,
London time, on such Interest Determination Date. If fewer than
two offered rates appear (if "LIBOR Reuters" is specified as the
Reporting Service on the face hereof and calculation of LIBOR is
based on the arithmetic mean of the offered rates) or if no rate
appears (if the Reporting Service on the face hereof specifies
either (x) "LIBOR Reuters" and the Designated LIBOR Page by its
terms provides only for a single rate or (y) "LIBOR Telerate"),
LIBOR in respect of that Interest Determination Date will be
determined as if the parties had specified the rate described in
(ii) below.
(ii) With respect to an Interest Determination Date on which
fewer than two offered rates appear (if "LIBOR Reuters" is
specified as the Reporting Service on the face hereof and
calculation of LIBOR is based on the arithmetic mean of the
offered rates) or no rate appears (if the Reporting Service on the
face hereof specifies either (x) "LIBOR Reuters" and the
Designated LIBOR Page by its terms provides only for a single rate
or (y) "LIBOR Telerate"), the Calculation Agent will request the
principal London offices of each of four major reference banks in
the London interbank market, as selected by the Calculation Agent
(after consultation with the Issuer), to provide the Calculation
Agent with its offered quotations for deposits in the Index
Currency for the period of the Index Maturity specified on the
face hereof, commencing on the second London Banking Day
immediately following such Interest Determination Date (or, if
pounds sterling is the Index Currency, commencing on such Interest
Determination Date), to prime banks in the London interbank market
at approximately 11:00 A.M., London time, on such Interest
Determination Date and in a principal amount equal to an amount of
not less than U.S.$1 million (or the equivalent in the Index
Currency, if the Index Currency is not the U.S. dollar) that is
representative of a single transaction in such Index Currency in
such market at such time. If at least two such quotations are
provided, LIBOR determined on such Interest Determination Date
will be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR determined on such Interest
Determination Date will be the arithmetic mean of rates quoted at
approximately 11:00 A.M. (or such other time specified on the
face hereof), in the applicable principal financial center for the
country of the Index Currency on such Interest Determination Date,
by three major banks in such principal financial center selected
by the Calculation Agent (after consultation with the Issuer) on
such Interest Determination Date for loans in the Index Currency
to leading European banks, for the period of the Index Maturity
specified on the face hereof commencing on the second London
Banking Day immediately following such Interest Determination Date
(or, if pounds sterling is the Index Currency, commencing on such
Interest Determination Date) and in a principal amount of not less
than U.S.$1 million (or the equivalent in the Index Currency, if
the Index Currency is not the U.S. dollar) that is representative
of a single transaction in such Index Currency in such market at
such time; provided, however, that if the banks selected as
aforesaid by the Calculation Agent are not quoting rates as
mentioned in this sentence, "LIBOR" for such Interest Reset Period
will be the same as LIBOR for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the
rate of interest payable on the LIBOR Notes for which LIBOR is
being determined shall be the Initial Interest Rate). "Index
Currency" means the currency (including composite currencies)
specified as Index Currency on the face hereof. If no such
currency is specified as Index Currency on the face hereof, the
Index Currency shall be U.S. dollars. "Designated LIBOR Page"
means either (a) if "LIBOR Reuters" is designated as the Reporting
Service on the face hereof, the display on the Reuters Monitor
Money Rates Service for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency,
or (b) if "LIBOR Telerate" is designated as the Reporting Service
on the face hereof, the display on the Dow Jones Telerate Service
for the purpose of displaying the London interbank rates of major
banks for the applicable Index Currency. If neither LIBOR Reuters
nor LIBOR Telerate is specified as the Reporting Service on the
face hereof, LIBOR for the applicable Index Currency will be
determined as if LIBOR Telerate (and, if the U.S. dollar is the
Index Currency, Page 3750) had been specified.
Determination of Prime Rate. If the Base Rate specified on the
face hereof is the Prime Rate, the Prime Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
rate set forth in H.15(519) for such date opposite the caption "Bank Prime
Loan." If such rate is not yet published by 9:00 A.M., New York City time,
on the Calculation Date pertaining to such Interest Determination Date, the
Prime Rate for such Interest Determination Date will be the arithmetic mean
of the rates of interest publicly announced by each bank named on the
Reuters Screen USPRIME 1 Page (as defined below) as such bank's prime rate
or base lending rate as in effect for such Interest Determination Date as
quoted on the Reuters Screen USPRIME 1 Page on such Interest Determination
Date, or, if fewer than four such rates appear on the Reuters Screen
USPRIME 1 Page for such Interest Determination Date, the rate shall be the
arithmetic mean of the prime rates quoted on the basis of the actual number
of days in the year divided by 360 as of the close of business on such
Interest Determination Date by at least two of the three major money center
banks in The City of New York selected by the Calculation Agent from which
quotations are requested. If fewer than two quotations are provided, the
Prime Rate shall be calculated by the Calculation Agent and shall be
determined as the arithmetic mean on the basis of the prime rates in The
City of New York by the appropriate number of substitute banks or trust
companies organized and doing business under the laws of the United States,
or any State thereof, in each case having total equity capital of at least
U.S. $500 million and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent to quote such
rate or rates; provided, however, that if the banks or trust companies
selected as aforesaid by the Calculation Agent are not quoting rates as set
forth above, the "Prime Rate" in effect for such Interest Reset Period will
be the same as the Prime Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate).
"Reuters Screen USPRIME 1 Page" means the display designated
as Page "USPRIME 1" on the Reuters Monitor Money Rates Service (or such
other page as may replace the USPRIME 1 Page on that service for the
purpose of displaying prime rates or base lending rates of major United
States banks).
Determination of Treasury Rate. If the Base Rate specified on
the face hereof is the Treasury Rate, the Treasury Rate with respect to
this Note shall be determined on each Interest Determination Date and shall
be the rate for the auction held on such date of direct obligations of the
United States ("Treasury Bills") having the Index Maturity specified on the
face hereof, as published in H.15(519) under the heading "Treasury Bills--
auction average (investment)," or if not so published by 9:00 A.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the auction average rate on such Interest Determination
Date (expressed as a bond equivalent, on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) as otherwise announced
by the United States Department of the Treasury. In the event that the
results of the auction of Treasury Bills having the Index Maturity
specified on the face hereof are not published or reported as provided
above by 3:00 P.M., New York City time, on such Calculation Date or if no
such auction is held on such Interest Determination Date, then the Treasury
Rate shall be calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) calculated using the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
P.M., New York City time, on such Interest Determination Date, of three
leading primary United States government securities dealers selected by the
Calculation Agent for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified on the face hereof; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting as mentioned in this sentence, the Treasury Rate for such
Interest Reset Date will be the same as the Treasury Rate for the
immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable hereon shall be the
Initial Interest Rate).
Determination of CMT Rate. If the Base Rate specified on
the face hereof is the CMT Rate, the CMT Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
rate displayed for the Index Maturity specified on the face hereof on the
Designated CMT Telerate Page under the caption "Daily Treasury Constant
Maturities and Money Markets/Federal Reserve Board Release H.15," under the
column for the Designated CMT Maturity Index for (i) if the Designated CMT
Telerate Page is 7055, the rate on such Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the week or the month, as
applicable, ended immediately preceding the week in which the related
Interest Determination Date occurs. If such rate is no longer displayed on
the relevant page, or is not displayed by 3:00 P.M., New York City time, on
the Calculation Date pertaining to such Interest Determination Date, then
the CMT Rate for such Interest Determination Date will be such Treasury
Constant Maturity rate for the Designated CMT Maturity Index as published
in the relevant H.15(519). If such rate is no longer published, or is not
published by 3:00 P.M., New York City time, on the related Calculation
Date, then the CMT Rate for such Interest Determination Date will be such
Treasury Constant Maturity rate for the Designated CMT Maturity Index (or
other United States Treasury rate for the Designated CMT Maturity Index)
for the Interest Determination Date with respect to the related Interest
Reset Date as may then be published by either the Board of Governors of the
Federal Reserve System or the United States Department of the Treasury that
the Calculation Agent determines to be comparable to the rate formerly
displayed on the Designated CMT Telerate Page and published in the relevant
H.15(519). If such information is not provided by 3:00 P.M., New York
time, on the related Calculation Date, then the CMT Rate for the Interest
Determination Date will be calculated by the Calculation Agent and will be
a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City
time, on the Interest Determination Date reported, according to their
written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in The City of New York
(which may include affiliates of the Issuer) selected by the Calculation
Agent (from five such Reference Dealers selected by the Calculation Agent,
after consultation with the Issuer), and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation
(or, in the event of equality, one of the lowest), for the most recently
issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the
Designated CMT Maturity Index and remaining term to maturity of not less
than such Designated CMT Maturity Index minus one year. If the Calculation
Agent cannot obtain three such Treasury Notes quotations, the CMT Rate for
such Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity based on the arithmetic mean of the
secondary market offer side prices as of approximately 3:30 P.M., New York
City time, on the Interest Determination Date of three Reference Dealers in
The City of New York (from five such Reference Dealers selected by the
Calculation Agent, after consultation with the Issuer, and eliminating the
highest quotation (or, in the event of equality, one of the highest) and
the lowest quotation (or, in the event of equality, one of the lowest)),
for Treasury Notes with an original maturity of the number of years that is
the next highest to the Designated CMT Maturity Index and a remaining term
to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100,000,000. If three or four (and not five) of such
Reference Dealers are quoting as described above, then the CMT Rate will be
based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers selected by the
Calculation Agent are quoting as described herein, the CMT Rate for such
Interest Reset Date will be the same as the CMT Rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset
Period, the rate of interest payable hereon shall be the Initial Interest
Rate). If two Treasury Notes with an original maturity as described in the
second preceding sentence have remaining terms to maturity equally close to
the Designated CMT Maturity Index, the quotes for the Treasury note with
the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow
Jones Telerate Service specified on the face hereof (or any other page as may
replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)), for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519). If no such page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" shall be the original period to
maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be two years.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing on
or before each Calculation Date. The interest rate on this Note will in no
event be higher than the maximum rate permitted by New York law, as the same
may be modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next
Interest Reset Date.
Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or the Maturity Date (or any
earlier redemption or repayment date), as the case may be. Accrued
interest hereon shall be an amount calculated by multiplying the face
amount hereof by an accrued interest factor. Such accrued interest factor
shall be computed by adding the interest factor calculated for each day in
the period for which interest is being paid. The interest factor for each
such date shall be computed by dividing the interest rate applicable to
such day by 360 if the Base Rate is CD Rate, Commercial Paper Rate, Federal
Funds Rate, Prime Rate or LIBOR, as specified on the face hereof, or by the
actual number of days in the year if the Base Rate is the Treasury Rate or
the CMT Rate, as specified on the face hereof. All percentages resulting
from any calculation of the rate of interest on this Note will be rounded,
if necessary, to the nearest one hundred-thousandth of a percentage point
(.0000001), with five one-millionths of a percentage point rounded upward,
and all dollar amounts used in or resulting from such calculation on this
Note will be rounded to the nearest cent (with one-half cent rounded
upward). The interest rate in effect on any Interest Reset Date will be
the applicable rate as reset on such date. The interest rate applicable to
any other day is the interest rate from the immediately preceding Interest
Reset Date (or, if none, the Initial Interest Rate).
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and, if
denominated in U.S. dollars, is issuable only in denominations of U.S.
$1,000 and any integral multiple of U.S. $1,000 in excess thereof. If this
Note is denominated in a Specified Currency other than U.S. dollars, then,
unless a higher minimum denomination is required by applicable law, it is
issuable only in denominations of the equivalent of U.S. $1,000 (rounded to
an integral multiple of 1,000 units of such Specified Currency), or any
amount in excess thereof which is an integral multiple of 1,000 units of
such Specified Currency, as determined by reference to the noon dollar
buying rate in New York City for cable transfers of such Specified Currency
published by the Federal Reserve Bank of New York (the "Market Exchange
Rate") on the Business Day immediately preceding the date of issuance;
provided, however, in the case of ECUs, the Market Exchange Rate shall be
the rate of exchange determined by the Commission of the European
Communities (or any successor thereto) as published in the Official Journal
of the European Communities, or any successor publication, on the Business
Day immediately preceding the date of issuance.
The Trustee has been appointed registrar for the Notes, and the
Trustee will maintain at its office in The City of New York a register for
the registration and transfer of Notes. This Note may be transferred at
the aforesaid office of the Trustee by surrendering this Note for
cancellation, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and duly executed by the registered holder
hereof in person or by the holder's attorney duly authorized in writing,
and thereupon the Trustee shall issue in the name of the transferee or
transferees, in exchange herefor, a new Note or Notes having identical
terms and provisions and having a like aggregate principal amount in
authorized denominations, subject to the terms and conditions set forth
herein; provided, however, that the Trustee will not be required (i) to
register the transfer of or exchange any Note that has been called for
redemption in whole or in part, except the unredeemed portion of Notes
being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of
such Note not required to be repurchased, or (iii) to register the transfer
of or exchange Notes to the extent and during the period so provided in the
Senior Indenture with respect to the redemption of Notes. Notes are
exchangeable at said office for other Notes of other authorized
denominations of equal aggregate principal amount having identical terms
and provisions. All such exchanges and transfers of Notes will be free of
charge, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge in connection therewith. All Notes
surrendered for exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Trustee and executed by the registered
holder in person or by the holder's attorney duly authorized in writing.
The date of registration of any Note delivered upon any exchange or
transfer of Notes shall be such that no gain or loss of interest results
from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or
be destroyed, lost or stolen and such Note or evidence of the loss, theft
or destruction thereof (together with the indemnity hereinafter referred to
and such other documents or proof as may be required in the premises) shall
be delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Note so destroyed or lost or stolen, but, in the case of any destroyed or
lost or stolen Note, only upon receipt of evidence satisfactory to the
Trustee and the Issuer that such Note was destroyed or lost or stolen and,
if required, upon receipt also of indemnity satisfactory to each of them.
All expenses and reasonable charges associated with procuring such
indemnity and with the preparation, authentication and delivery of a new
Note shall be borne by the owner of the Note mutilated, defaced, destroyed,
lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt
securities issued under the Senior Indenture, including the series of
Senior Medium-Term Notes of which this Note forms a part, or due to the
default in the performance or breach of any other covenant or warranty of
the Issuer applicable to the debt securities of such series but not
applicable to all outstanding debt securities issued under the Senior
Indenture shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of the debt securities of
each affected series (voting as a single class) may then declare the
principal of all debt securities of all such series and interest accrued
thereon to be due and payable immediately and (b) if an Event of Default
due to a default in the performance of any other of the covenants or
agreements in the Senior Indenture applicable to all outstanding debt
securities issued thereunder, including this Note, or due to certain events
of bankruptcy, insolvency and reorganization of the Issuer, shall have
occurred and be continuing, either the Trustee or the holders of not less
than 25% in principal amount of all debt securities issued under the Senior
Indenture then outstanding (treated as one class) may declare the principal
of all such debt securities and interest accrued thereon to be due and
payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt
securities) by the holders of a majority in principal amount of the debt
securities of all affected series then outstanding.
The Senior Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior
Indenture then outstanding and affected (voting as one class), to execute
supplemental indentures adding any provisions to or changing in any manner
the rights of the holders of each series so affected; provided that the
Issuer and the Trustee may not, without the consent of the holder of each
outstanding debt security affected thereby, (a) extend the final maturity
of any such debt security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or
reduce any amount payable on redemption or repayment thereof, or change the
currency of payment thereof, or impair or affect the rights of any holder
to institute suit for the payment thereof without the consent of the holder
of each debt security so affected; or (b) reduce the aforesaid percentage
in principal amount of debt securities the consent of the holders of which
is required for any such supplemental indenture, without the consent of the
holders of each debt security so affected.
Except as set forth below, if the principal of, premium, if any,
or interest on, this Note is payable in a Specified Currency other than
U.S. dollars and such Specified Currency is not available to the Issuer for
making payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking
community, then the Issuer will be entitled to satisfy its obligations to
the holder of this Note by making such payments in U.S. dollars on the
basis of the Market Exchange Rate on the date of such payment or, if the
Market Exchange Rate is not available on such date, as of the most recent
practicable date; provided, however, that if such Specified Currency is
replaced by a single European currency (expected to be named the Euro), the
payment of principal of, premium, if any, or interest on any Note
denominated in such currency shall be effected in the new single European
currency in conformity with legally applicable measures taken pursuant to,
or by virtue of, the treaty establishing the European Community (the "EC"),
as amended by the treaty on European Union (as so amended, the "Treaty").
Any payment made under such circumstances in U.S. dollars (or, if
applicable, such new single European currency) where the required payment
is in a Specified Currency other than U.S. dollars will not constitute an
Event of Default.
Subject to the provisions below, the value of the ECU, in
which the Notes may be denominated or may be payable, is equal to the value
of the ECU that is from time to time used as the unit of account of the EC.
If the ECU becomes a currency in its own right in accordance with the
Treaty, all references to ECU in the Notes shall be construed as references
to such currency.
With respect to each due date for the payment of principal
of, or interest on, the Notes on or after the first business day in
Brussels on which the ECU ceases to be used as the unit of account of the
EC, and has not become a currency in its own right replacing all or some of
the currencies of the member States of the EC, the Company shall choose a
substitute currency (the "Chosen Currency"), which may be any currency
which was, on the last day on which the ECU was used as the unit of account
of the EC, a component currency of the ECU or U.S. dollars, in which all
payments due on or after that date with respect to the Notes and coupons
shall be made. Notice of the Chosen Currency so selected shall be provided
by first class mail to each holder at the address of such holder which
appears on the books maintained by the registrar. The amount of each
payment in such Chosen Currency shall be computed on the basis of the
equivalent of the ECU in that currency, determined as described below, as
of the fourth business day in Brussels prior to the date on which such
payment is due.
On the first business day in Brussels on which the ECU
ceases to be used as the unit of account of the EC, and has not become a
currency in its own right replacing all or some of the currencies of the
member States of the EC, the Company shall select a Chosen Currency in
which all payments with respect to Notes and coupons having a due date
prior thereto but not yet presented for payment with respect to Notes and
coupons having a due date prior thereto but not yet presented for payment
are to be made. The amount of each payment in such Chosen Currency shall
be computed on the basis of the equivalent of the ECU in that currency,
determined as described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as
of any date (the "Day of Valuation") shall be determined by, or on behalf
of, the Exchange Rate Agent on the following basis. The amounts and
components composing the ECU for this purpose (the "Components") shall be
the amounts and components that composed the ECU as of the last date on
which the ECU was used as the unit of account of the EC. The equivalent of
the ECU in the Chosen Currency shall be calculated by, first, aggregating
the U.S. dollar equivalents of the Components; and then, in the case of a
Chosen Currency other than U.S. dollars, using the rate used for
determining the U.S. dollar equivalent of the Components in the Chosen
Currency as set forth below, calculating the equivalent in the Chosen
Currency of such aggregate amount in U.S. dollars.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated on the face hereof.
The U.S. dollar equivalent of each of the Components shall
be determined by, or on behalf of, the Exchange Rate Agent on the basis of
the middle spot delivery quotations prevailing at 2:30 P.M., Brussels time,
on the Day of Valuation, as obtained by, or on behalf of, the Exchange Rate
Agent from one or more major banks, as selected by the Company, in the
country of issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf,
provided that such quotations were prevailing in the country of issue not
more than two Business Days before such Day of Valuation. If such most
recent quotations were so prevailing in the country of issue more than two
Business Days before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of
cross rates derived from the middle spot delivery quotations for such
component currency and for the U.S. dollar prevailing at 2:30 P.M.,
Brussels time, on such Day of Valuation, as obtained by, or on behalf of,
the Exchange Rate Agent from one or more major banks, as selected by the
Company, in a country other than the country of issue of such component
currency. Notwithstanding the foregoing, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of such
cross rates if the Company or such agent judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent
calculated as provided in the first sentence of this paragraph. Unless
otherwise specified by the Company, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations
or for any other reason, the market to be referred to in respect of such
currency shall be that upon which a non-resident issuer of securities
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the
specified office of a paying agent in the country of the Chosen Currency,
or, if none, or at the option of the holder, at the specified office of any
Paying Agent either by a check drawn on, or by transfer to an account
maintained by the holder with, a bank in the principal financial center of
the country of the Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Company or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive to the extent permitted by law for all purposes and binding on the
holder of this Note and coupons, if any.
So long as this Note shall be outstanding, the Issuer will cause
to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as
aforesaid of the Notes. The Issuer may designate other agencies for the
payment of said principal, premium and interest at such place or places
(subject to applicable laws and regulations) as the Issuer may decide. So
long as there shall be such an agency, the Issuer shall keep the Trustee
advised of the names and locations of such agencies, if any are so
designated.
With respect to moneys paid by the Issuer and held by the Trustee
or any Paying Agent for payment of the principal of or interest or premium,
if any, on any Notes that remain unclaimed at the end of two years after
such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes that
such moneys shall be repaid to the Issuer and any person claiming such
moneys shall thereafter look only to the Issuer for payment thereof and
(ii) such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease, without, however, limiting in any way any obligation
that the Issuer may have to pay the principal of or interest or premium, if
any, on this Note as the same shall become due.
No provision of this Note or of the Senior Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat
the holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note, for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the Senior
Indenture or any indenture supplemental thereto, against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Issuer or of any successor corporation, either directly or through the
Issuer or any successor corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment or penalty
or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and
released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned
to them in the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entirety
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the above list.
__________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_________________________________________________
_________________________________________________
_______________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE,
OF ASSIGNEE]
_______________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
_______________________________________________________________
constituting and appointing such person attorney to transfer
_______________________________________________________________
such note on the books of the Issuer, with full power of
_______________________________________________________________
substitution in the premises.
Dated:_____________________ ____________________________________________
NOTICE: The signature to this assignment
must correspond with the name
as written upon the face of the
within Note in every particular
without alteration or enlargement
or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the Optional Repayment Date, to the undersigned at
__________________________________________________________
__________________________________________________________
__________________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid:
__________________; and specify the denomination or denominations (which shall
not be less than the minimum authorized denomination) of the Notes to be
issued to the holder for the portion of the within Note not being repaid (in
the absence of any such specification, one such Note will be issued for the
portion not being repaid): __________________________.
Dated:_____________ ___________________________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as written
upon the face of the within
instrument in every particular
without alteration or enlargement.
EXHIBIT 4.K
[FORM OF FACE OF SECURITY]
Floating Rate Subordinated Note
REGISTERED REGISTERED
No. FLR [PRINCIPAL AMOUNT]
CUSIP: *
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York,
New York) to the issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.(*)
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET
FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
<TABLE>
MORGAN STANLEY GROUP INC.
SUBORDINATED GLOBAL MEDIUM-TERM NOTE, SERIES C
(Floating Rate)
<S> <C> <C>
BASE RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
INDEX MATURITY: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
SPREAD (PLUS OR MINUS): INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
ALTERNATE RATE EVENT INITIAL INTEREST RESET DATE: INTEREST RESET PERIOD:
SPREAD:
SPREAD MULTIPLIER: MAXIMUM INTEREST RATE: INTEREST RESET DATES:
REPORTING SERVICE: MINIMUM INTEREST RATE: CALCULATION AGENT:
INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
EXCHANGE RATE AGENT: INITIAL REDEMPTION TOTAL AMOUNT OF OID:
PERCENTAGE:
INDEX CURRENCY ANNUAL REDEMPTION ORIGINAL YIELD TO MATURITY:
PERCENTAGE REDUCTION:
OTHER PROVISIONS: OPTIONAL REPAYMENT DATE(S): INITIAL ACCRUAL PERIOD OID:
DESIGNATED CMT TELERATE DESIGNATED CMT MATURITY
PAGE: INDEX:
____________
(*) Applies only if this Note is a Registered Global Security.
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to
, or registered assignees, the principal sum of
on the Maturity Date specified above (except to the extent redeemed or
repaid prior to the Maturity Date) and to pay interest thereon, from and
including the Interest Accrual Date specified above at a rate per annum
equal to the Initial Interest Rate specified above until the Initial
Interest Reset Date specified above, and thereafter at a rate per annum
determined in accordance with the provisions specified on the reverse
hereof until the principal hereof is paid or duly made available for
payment. The Issuer will pay interest in arrears monthly, quarterly,
semiannually or annually as specified above as the Interest Payment Period
on each Interest Payment Date (as specified above), commencing with the
first Interest Payment Date next succeeding the Interest Accrual Date
specified above, and on the Maturity Date (or any redemption or repayment
date); provided, however, that if the Interest Accrual Date occurs between
a Record Date, as defined below, and the next succeeding Interest Payment
Date, interest payments will commence on the second Interest Payment Date
succeeding the Interest Accrual Date to the registered holder of this Note
on the Record Date with respect to such second Interest Payment Date; and
provided, further, that if an Interest Payment Date (other than the
Maturity Date or redemption or repayment date) would fall on a day that is
not a Business Day, as defined on the reverse hereof, such Interest Payment
Date shall be the following day that is a Business Day, except that if the
Base Rate specified above is LIBOR and such next Business Day falls in the
next calendar month, such Interest Payment Date shall be the immediately
preceding day that is a Business Day; and provided, further, that if the
Maturity Date or redemption or repayment date would fall on a day that is
not a Business Day, such Maturity Date or redemption or repayment date
shall be on the following day that is a Business Day and no interest shall
accrue for the period from and after such Maturity Date or redemption or
repayment date.
Interest on this Note will accrue from and including the
most recent date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until but excluding the date the principal hereof
has been paid or duly made available for payment. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date
will, subject to certain exceptions described herein, be paid to the person
in whose name this Note (or one or more predecessor Notes) is registered at
the close of business on the date 15 calendar days prior to such Interest
Payment Date (whether or not a Business Day) (each such date a "Record
Date"); provided, however, that interest payable on the Maturity Date (or
any redemption or repayment date) will be payable to the person to whom the
principal hereof shall be payable.
Payment of the principal of this Note, any premium and the
interest due at the Maturity Date (or any redemption or repayment date),
unless this Note is denominated in a Specified Currency other than U.S.
dollars and is to be paid in whole or in part in such Specified Currency,
will be made in immediately available funds upon surrender of this Note at
the office or agency of the Paying Agent, as defined on the reverse hereof,
maintained for that purpose in the Borough of Manhattan, The City of New
York, or at such other paying agency as the Issuer may determine, in U.S.
dollars. U.S. dollar payments of interest, other than interest due at
maturity or any date of redemption or repayment, will be made by U.S.
dollar check mailed to the address of the person entitled thereto as such
address shall appear in the Note register. A holder of U.S. $10,000,000 or
more in aggregate principal amount of Notes having the same Interest
Payment Date, the interest on which is payable in U.S. dollars, shall be
entitled to receive payments of interest, other than interest due at
maturity or any date of redemption or repayment, by wire transfer of
immediately available funds if appropriate wire transfer instructions have
been received by the Paying Agent in writing not less than 15 calendar days
prior to the applicable Interest Payment Date.
If this Note is denominated in a Specified Currency other
than U.S. dollars, and the holder does not elect (in whole or in part) to
receive payment in U.S. dollars pursuant to the next succeeding paragraph,
payments of interest, principal or any premium with regard to this Note
will be made by wire transfer of immediately available funds to an account
maintained by the holder hereof with a bank located outside the United
States if appropriate wire transfer instructions have been received by the
Paying Agent in writing not less than 15 calendar days prior to the
applicable payment date, provided that, if such wire transfer instructions
are not received, such payments will be made by check payable in such
Specified Currency mailed to the address of the person entitled thereto as
such address shall appear in the Note register, and provided, further, that
payment of the principal of this Note, any premium and the interest due at
maturity (or on any redemption or repayment date) will be made upon
surrender of this Note at the office or agency referred to in the preceding
paragraph.
Unless otherwise indicated herein, the holder of this Note,
if denominated in a Specified Currency other than U.S. dollars, may elect
to receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the
Record Date or at least ten Business Days prior to the Maturity Date or on
any redemption or repayment date, as the case may be. Such election shall
remain in effect unless such request is revoked by written notice to the
Paying Agent as to all or a portion of payments on this Note at least five
Business Days prior to such Record Date or at least ten days prior to the
Maturity Date or any redemption or repayment date, as the case may be.
If the holder elects to receive all or a portion of payments
of principal of and any premium and interest on this Note, if denominated
in a Specified Currency other than U.S. dollars, in U.S. dollars, the
Exchange Rate Agent will convert such payments into U.S. dollars. In the
event of such an election, payment in respect of this Note will be based
upon the exchange rate as determined by the Exchange Rate Agent based on
the highest bid quotation in The City of New York received by such Exchange
Rate Agent at approximately 11:00 A.M., New York City time, on the second
Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent
unless such Exchange Rate Agent is Morgan Stanley & Co. Incorporated), for
the purchase by the quoting dealer of U.S. dollars for the Specified
Currency for settlement on such payment date in the amount of the Specified
Currency payable in the absence of such an election to such holder and at
which the applicable dealer commits to execute a contract. If such bid
quotations are not available, such payment will be made in the Specified
Currency. All currency exchange costs will be borne by the holder of this
Note by deductions from such payments.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place, including,
without limitation, the provisions relating to the subordination of this
Note to the Issuer's Senior Indebtedness, as defined on the reverse hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent referred to on the reverse hereof by
manual signature, this Note shall not be entitled to any benefit under the
Subordinated Indenture, as defined on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By______________________________
Title:
AUTHENTICATING AGENT'S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Subordinated Indenture.
CHEMICAL BANK,
as Authenticating Agent
By ______________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Subordinated
Global Medium-Term Notes, Series C, having maturities more than nine months
from the date of issue (the "Notes") of the Issuer. The Notes are issuable
under a Subordinated Indenture, dated as of April 15, 1989, as supplemented
by a First Supplemental Indenture dated as of May 15, 1991 and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Subordinated Indenture"), between the Issuer and The First National Bank
of Chicago, as Trustee (the "Trustee," which term includes any successor
trustee under the Subordinated Indenture), to which Subordinated Indenture
and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and
immunities of the Issuer, the Trustee and holders of the Notes and the
terms upon which the Notes are, and are to be, authenticated and delivered.
The Trustee has appointed Chemical Bank as Authenticating Agent (the
"Authenticating Agent," which term includes any successor authenticating
agent appointed by the Trustee) with respect to the Notes, and the Issuer
has appointed Chemical Bank at its corporate trust office in The City of
New York as the paying agent (the "Paying Agent," which term includes any
additional or successor Paying Agent appointed by the Issuer) with respect
to the Notes. The terms of individual Notes may vary with respect to
interest rates, interest rate formulas, issue dates, maturity dates, or
otherwise, all as provided in the Subordinated Indenture. To the extent
not inconsistent herewith, the terms of the Subordinated Indenture are
hereby incorporated by reference herein.
Unless otherwise provided on the face hereof, this Note will
not be subject to any sinking fund and, unless otherwise provided on the face
hereof in accordance with the provisions of the following two paragraphs, will
not be redeemable or subject to repayment at the option of the holder prior to
maturity.
Unless otherwise indicated on the face of this Note, this
Note may not be redeemed prior to the Maturity Date. If so indicated on
the face of this Note, this Note may be redeemed in whole or in part at the
option of the Issuer on or after the Initial Redemption Date specified on
the face hereof on the terms set forth on the face hereof, together with
interest accrued and unpaid hereon to the date of redemption. If this Note
is subject to "Annual Redemption Percentage Reduction," the Initial
Redemption Percentage indicated on the face hereof will be reduced on each
anniversary of the Initial Redemption Date by the Annual Redemption
Percentage Reduction specified on the face hereof until the redemption
price of this Note is 100% of the principal amount hereof, together with
interest accrued and unpaid hereon to the date of redemption. Notice of
redemption shall be mailed to the registered holders of the Notes
designated for redemption at their addresses as the same shall appear on
the Note register not less than 30 nor more than 60 days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Subordinated Indenture. In the event of redemption of this Note in part
only, a new Note or Notes for the amount of the unredeemed portion hereof
shall be issued in the name of the holder hereof upon the cancellation
hereof.
Unless otherwise indicated on the face of this Note, this
Note shall not be subject to repayment at the option of the holder prior to
the Maturity Date. If so indicated on the face of this Note, this Note
will be subject to repayment at the option of the holder on the Optional
Repayment Date or Dates specified on the face hereof on the terms set forth
herein. On any Optional Repayment Date, this Note will be repayable in
whole or in part in increments of $1,000 or, if this Note is denominated in
a Specified Currency other than U.S. dollars, in increments of 1,000 units
of such Specified Currency (provided that any remaining principal amount
hereof shall not be less than the minimum authorized denomination hereof)
at the option of the holder hereof at a price equal to 100% of the
principal amount to be repaid, together with interest accrued and unpaid
hereon to the date of repayment. For this Note to be repaid at the option
of the holder hereof, the Paying Agent must receive at its corporate trust
office in the Borough of Manhattan, The City of New York, at least 15 but
not more than 30 days prior to the date of repayment, (i) this Note with
the form entitled "Option to Elect Repayment" below duly completed or (ii)
a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange or the National Association of Securities
Dealers, Inc. or a commercial bank or a trust company in the United States
setting forth the name of the holder of this Note, the principal amount
hereof, the certificate number of this Note or a description of this Note's
tenor and terms, the principal amount hereof to be repaid, a statement that
the option to elect repayment is being exercised thereby and a guarantee
that this Note, together with the form entitled "Option to Elect Repayment"
duly completed, will be received by the Paying Agent not later than the
fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter; provided, that such telegram, telex, facsimile
transmission or letter shall only be effective if this Note and form duly
completed are received by the Paying Agent by such fifth Business Day.
Exercise of such repayment option by the holder hereof shall be
irrevocable. In the event of repayment of this Note in part only, a new
Note or Notes for the amount of the unpaid portion hereof shall be issued
in the name of the holder hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in
accordance with the applicable provisions below by reference to the Base
Rate shown on the face hereof based on the Index Maturity, if any, shown on
the face hereof (i) plus or minus the Spread, if any, and/or (ii)
multiplied by the Spread Multiplier, if any, specified on the face hereof.
Commencing with the Initial Interest Reset Date specified on the face
hereof, the rate at which interest on this Note is payable shall be reset
as of each Interest Reset Date (as used herein, the term "Interest Reset
Date" shall include the Initial Interest Reset Date). The determination of
the rate of interest at which this Note will be reset on any Interest Reset
Date shall be made on the Interest Determination Date (as defined below)
pertaining to such Interest Reset Date. The Interest Reset Dates will be
the Interest Reset Dates specified on the face hereof; provided, however,
that the interest rate in effect for the period from the Interest Accrual
Date to the Initial Interest Reset Date will be the Initial Interest Rate.
If any Interest Reset Date would otherwise be a day that is not a Business
Day, such Interest Reset Date shall be postponed to the next succeeding day
that is a Business Day, except that if the Base Rate specified on the face
hereof is LIBOR and such Business Day is in the next succeeding calendar
month, such Interest Reset Date shall be the next preceding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in
The City of New York and (i) if this Note bears interest calculated by
reference to LIBOR that is also a London Banking Day, (ii) if this Note is
denominated in a Specified Currency other than U.S. dollars, Australian
dollars or ECUs, in the principal financial center of the country of the
Specified Currency, (iii) if this Note is denominated in Australian
dollars, in Sydney and (iv) if this Note is denominated in ECUs, that is
not a non-ECU clearing day, as determined by the ECU Banking Association in
Paris.
The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to the CD
Rate, Commercial Paper Rate, Federal Funds Rate, Prime Rate and CMT Rate
will be the second Business Day next preceding such Interest Reset Date.
The Interest Determination Date pertaining to an Interest Reset Date for
Notes bearing interest calculated by reference to LIBOR shall be the second
London Banking Day preceding such Interest Reset Date, except that the
Interest Determination Date pertaining to an Interest Reset Date for a
LIBOR Note for which the Index Currency is pounds sterling will be such
Interest Reset Date. As used herein, "London Banking Day" means any day on
which dealings in deposits in the Index Currency (as defined herein) are
transacted in the London interbank market. The Interest Determination Date
pertaining to an Interest Reset Date for Notes bearing interest calculated
by reference to the Treasury Rate shall be the day of the week in which
such Interest Reset Date falls on which Treasury bills normally would be
auctioned; provided, however, that if as a result of a legal holiday an
auction is held on the Friday of the week preceding such Interest Reset
Date, the related Interest Determination Date shall be such preceding
Friday; and provided, further, that if an auction shall fall on any
Interest Reset Date, then the Interest Reset Date shall instead be the
first Business Day following the date of such auction.
Unless otherwise specified on the face hereof, the
"Calculation Date" pertaining to an Interest Determination Date will be the
earlier of (i) the tenth calendar day after such Interest Determination
Date or, if such day is not a Business Day, the next succeeding Business
Day, or (ii) the Business Day preceding the applicable Interest Payment
Date or Maturity Date (or, with respect to any principal amount to be
redeemed or repaid, any redemption or repayment date), as the case may be.
Determination of CD Rate. If the Base Rate specified on the
face hereof is the CD Rate, the CD Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate on
such date for negotiable certificates of deposit having the Index Maturity
specified on the face hereof as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates," or any successor publication of the Board of Governors of the
Federal Reserve System ("H.15(519)"), under the heading "CDs (Secondary
Market)," or, if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the CD
Rate will be the rate on such Interest Determination Date for negotiable
certificates of deposit of the Index Maturity specified on the face hereof
as published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 P.M. Quotations for U.S. Government
Securities" ("Composite Quotations") under the heading "Certificates of
Deposit." If neither of such rates is published by 3:00 P.M., New York City
time, on such Calculation Date, then the CD Rate on such Interest
Determination Date will be calculated by the Calculation Agent referred to
on the face hereof and will be the arithmetic mean of the secondary market
offered rates as of 10:00 A.M., New York City time, on such Interest
Determination Date for certificates of deposit in an amount that is
representative of a single transaction at that time with a remaining
maturity closest to the Index Maturity specified on the face hereof of
three leading nonbank dealers in negotiable U.S. dollar certificates of
deposit in The City of New York selected by the Calculation Agent for
negotiable certificates of deposit of major United States money center
banks; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the CD
Rate in effect for the applicable period will be the same as the CD Rate
for the immediately preceding Interest Reset Period (or, if there was no
such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate
specified on the face hereof is the Commercial Paper Rate, the Commercial
Paper Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the Money Market Yield (as defined herein)
of the rate on such date for commercial paper having the Index Maturity
specified on the face hereof, as such rate shall be published in H.15(519)
under the heading "Commercial Paper," or if not so published prior to 9:00
A.M., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the Commercial Paper Rate shall be the Money
Market Yield of the rate on such Interest Determination Date for commercial
paper of the Index Maturity specified on the face hereof as published in
Composite Quotations under the heading "Commercial Paper." If neither of
such rates is published by 3:00 P.M., New York City time, on such
Calculation Date, then the Commercial Paper Rate shall be the Money Market
Yield of the arithmetic mean of the offered rates as of 11:00 A.M., New
York City time, on such Interest Determination Date of three leading
dealers in commercial paper in The City of New York selected by the
Calculation Agent for commercial paper of the Index Maturity specified on
the face hereof, placed for an industrial issuer whose bond rating is "AA,"
or the equivalent, from a nationally recognized rating agency; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting as mentioned in this sentence, the Commercial Paper Rate in
effect for the applicable period will be the same as the Commercial Paper
Rate for the immediately preceding Interest Reset Period (or, if there was
no such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in
accordance with the following formula:
Money Market Yield = D x 360
---------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the Index Maturity specified on the face hereof.
Determination of Federal Funds Rate. If the Base Rate
specified on the face hereof is the Federal Funds Rate, the Federal Funds
Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the rate on such date for Federal Funds as
published in H.15(519) under the heading "Federal Funds (Effective)," or,
if not so published by 9:00 A.M., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, the Federal Funds Rate
will be the rate on such Interest Determination Date as published in
Composite Quotations under the heading "Federal Funds/Effective Rate." If
neither of such rates is published by 3:00 P.M., New York City time, on
such Calculation Date, the Federal Funds Rate for such Interest
Determination Date will be calculated by the Calculation Agent and will be
the arithmetic mean of the rates for the last transaction in overnight
Federal funds as of 11:00 A.M., New York City time, on such Interest
Determination Date arranged by three leading brokers in Federal funds
transactions in The City of New York selected by the Calculation Agent;
provided, however, that if the brokers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the
Federal Funds Rate in effect for the applicable period will be the same as
the Federal Funds Rate for the immediately preceding Interest Reset Period
(or, if there was no such Interest Reset Period, the rate of interest
payable hereon shall be the Initial Interest Rate).
Determination of LIBOR. If the Base Rate specified on the
face hereof is LIBOR, LIBOR with respect to this Note shall be determined
on each Interest Determination Date as follows:
(i) As of the Interest Determination Date, the Calculation
Agent will determine (a) if "LIBOR Reuters" is specified as the
Reporting Service on the face hereof, the arithmetic mean of the
offered rates (unless the specified Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in
which case such single rate shall be used) for deposits in the
London interbank market in the Index Currency for the period of
the Index Maturity specified on the face hereof, commencing on the
second London Banking Day immediately following such Interest
Determination Date, which appear on the Designated LIBOR Page at
approximately 11:00 A.M., London time, on such Interest
Determination Date, if at least two such offered rates appear
(unless, as aforesaid, only a single rate is required) on such
Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified as
the Reporting Service on the face hereof, the rate for deposits in
the Index Currency for the period of the Index Maturity, each as
designated on the face hereof, commencing on the second London
Banking Day following such Interest Determination Date (or, if
pounds sterling is the Index Currency, commencing on such Interest
Determination Date), that appears on the Designated LIBOR Page at
approximately 11:00 A.M., London time, on such Interest
Determination Date. If fewer than two offered rates appear (if
"LIBOR Reuters" is specified as the Reporting Service on the face
hereof and calculation of LIBOR is based on the arithmetic mean of
the offered rates) or if no rate appears (if the Reporting Service
on the face hereof specifies either (x) "LIBOR Reuters" and the
Designated LIBOR Page by its terms provides only for a single rate
or (y) "LIBOR Telerate"), LIBOR in respect of that Interest
Determination Date will be determined as if the parties had
specified the rate described in (ii) below.
(ii) With respect to an Interest Determination Date on which
fewer than two offered rates appear (if "LIBOR Reuters" is
specified as the Reporting Service on the face hereof and
calculation of LIBOR is based on the arithmetic mean of the
offered rates) or no rate appears (if the Reporting Service on the
face hereof specifies either (x) "LIBOR Reuters" and the
Designated LIBOR Page by its terms provides only for a single rate
or (y) "LIBOR Telerate"), the Calculation Agent will request the
principal London offices of each of four major reference banks in
the London interbank market, as selected by the Calculation Agent
(after consultation with the Issuer), to provide the Calculation
Agent with its offered quotations for deposits in the Index
Currency for the period of the Index Maturity specified on the
face hereof, commencing on the second London Banking Day
immediately following such Interest Determination Date (or, if
pounds sterling is the Index Currency, commencing on such Interest
Determination Date), to prime banks in the London interbank market
at approximately 11:00 A.M., London time, on such Interest
Determination Date and in a principal amount equal to an amount of
not less than U.S.$1 million (or the equivalent in the Index
Currency if the Index Currency is not the U.S. dollar) that is
representative of a single transaction in such Index Currency in
such market at such time. If at least two such quotations are
provided, LIBOR determined on such Interest Determination Date
will be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR determined on such Interest
Determination Date will be the arithmetic mean of rates quoted at
approximately 11:00 A.M. (or such other time specified on the
face hereof), in the applicable principal financial center for the
country of the Index Currency on such Interest Determination Date,
by three major banks in such principal financial center selected
by the Calculation Agent (after consultation with the Issuer) on
such Interest Determination Date for loans in the Index Currency
to leading European banks, for the period of the Index Maturity
specified on the face hereof commencing on the second London
Banking Day immediately following such Interest Determination Date
(or, if pounds sterling is the Index Currency, commencing on such
Interest Determination Date) and in a principal amount of not less
than U.S.$1 million (or the equivalent in the Index Currency if
the Index Currency is not the U.S. dollar) that is representative
of a single transaction in such Index Currency in such market at
such time; provided, however, that if the banks selected as
aforesaid by the Calculation Agent are not quoting rates as
mentioned in this sentence, "LIBOR" for such Interest Reset Period
will be the same as LIBOR for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the
rate of interest payable on the LIBOR Notes for which LIBOR is
being determined shall be the Initial Interest Rate). "Index
Currency" means the currency (including composite currencies)
specified as Index Currency on the face hereof. If no such
currency is specified as Index Currency on the face hereof, the
Index Currency shall be U.S. dollars. "Designated LIBOR Page"
means either (a) if "LIBOR Reuters" is designated as the Reporting
Service on the face hereof, the display on the Reuters Monitor
Money Rates Service for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency,
or (b) if "LIBOR Telerate" is designated as the Reporting Service
on the face hereof, the display on the Dow Jones Telerate Service
for the purpose of displaying the London interbank rates of major
banks for the applicable Index Currency. If neither LIBOR Reuters
nor LIBOR Telerate is specified as the Reporting Service on the
face hereof, LIBOR for the applicable Index Currency will be
determined as if LIBOR Telerate (and, if the U.S. dollar is the
Index Currency, Page 3750) had been specified.
Determination of Prime Rate. If the Base Rate specified on
the face hereof is the Prime Rate, the Prime Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
rate set forth in H.15(519) for such date opposite the caption "Bank Prime
Loan." If such rate is not yet published by 9:00 A.M., New York City time,
on the Calculation Date pertaining to such Interest Determination Date, the
Prime Rate for such Interest Determination Date will be the arithmetic mean
of the rates of interest publicly announced by each bank named on the
Reuters Screen USPRIME1 Page (as defined below) as such bank's prime rate
or base lending rate as in effect for such Interest Determination Date as
quoted on the Reuters Screen USPRIME1 Page on such Interest Determination
Date, or, if fewer than four such rates appear on the Reuters Screen
USPRIME1 Page for such Interest Determination Date, the rate shall be the
arithmetic mean of the prime rates quoted on the basis of the actual number
of days in the year divided by 360 as of the close of business on such
Interest Determination Date by at least two of the three major money center
banks in The City of New York selected by the Calculation Agent from which
quotations are requested. If fewer than two quotations are provided, the
Prime Rate shall be calculated by the Calculation Agent and shall be
determined as the arithmetic mean on the basis of the prime rates in The
City of New York by the appropriate number of substitute banks or trust
companies organized and doing business under the laws of the United States,
or any State thereof, in each case having total equity capital of at least
U.S. $500 million and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent to quote such
rate or rates; provided, however, that if the banks or trust companies
selected as aforesaid by the Calculation Agent are not quoting rates as set
forth above, the "Prime Rate" in effect for such Interest Reset Period will
be the same as the Prime Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate).
"Reuters Screen USPRIME1 Page" means the display designated
as Page "USPRIME1" on the Reuters Monitor Money Rates Service (or such
other page as may replace the USPRIME1 Page on that service for the purpose
of displaying prime rates or base lending rates of major United States
banks).
Determination of Treasury Rate. If the Base Rate specified
on the face hereof is the Treasury Rate, the Treasury Rate with respect to
this Note shall be determined on each Interest Determination Date and shall
be the rate for the auction held on such date of direct obligations of the
United States ("Treasury Bills") having the Index Maturity specified on the
face hereof, as published in H.15(519) under the heading "Treasury Bills--
auction average (investment)," or if not so published by 9:00 A.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the auction average rate on such Interest Determination
Date (expressed as a bond equivalent, on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) as otherwise announced
by the United States Department of the Treasury. In the event that the
results of the auction of Treasury Bills having the Index Maturity
specified on the face hereof are not published or reported as provided
above by 3:00 P.M., New York City time, on such Calculation Date or if no
such auction is held on such Interest Determination Date, then the Treasury
Rate shall be calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) calculated using the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
P.M., New York City time, on such Interest Determination Date, of three
leading primary United States government securities dealers selected by the
Calculation Agent for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified on the face hereof; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting as mentioned in this sentence, the Treasury Rate for such
Interest Reset Date will be the same as the Treasury Rate for the
immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable hereon shall be the
Initial Interest Rate).
Determination of CMT Rate. If the Base Rate specified on
the face hereof is the CMT Rate, the CMT Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
rate displayed for the Index Maturity specified on the face hereof on the
Designated CMT Telerate Page under the Caption "Daily Treasury Constant
Maturities and Money Markets/Federal Reserve Board Release H.15 under the
column for the Designated CMT Maturity Index for (i) if the Designated CMT
Telerate Page is 7055, the rate on such Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the week or the month, as
applicable, ended immediately preceding the week in which the related
Interest Determination Date occurs. If such rate is no longer displayed on
the relevant page, or is not displayed by 3:00 P.M., New York City time, on
the Calculation Date pertaining to such Interest Determination Date, then
the CMT Rate for such Interest Determination Date will be such Treasury
Constant Maturity rate for the Designated CMT Maturity Index as published
in the relevant H.15(519). If such rate is no longer published, or is not
published by 3:00 P.M., New York City time, on the related Calculation
Date, then the CMT Rate for such Interest Determination Date will be such
Treasury Constant Maturity rate for the Designated CMT Maturity Index (or
other United States Treasury rate for the Designated CMT Maturity Index)
for the Interest Determination Date with respect to the related Interest
Reset Date as may then be published by either the Board of Governors of the
Federal Reserve System or the United States Department of the Treasury that
the Calculation Agent determines to be comparable to the rate formerly
displayed on the Designated CMT Telerate Page and published in the relevant
H.15(519). If such information is not provided by 3:00 P.M., New York
time, on the related Calculation Date, then the CMT Rate for the Interest
Determination Date will be calculated by the Calculation Agent and will be
a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City
time, on the Interest Determination Date reported, according to their
written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in The City of New York
(which may include affiliates of the Issuer) selected by the Calculation
Agent (from five such Reference Dealers selected by the Calculation Agent,
after consultation with the Issuer), and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation
(or, in the event of equality, one of the lowest), for the most recently
issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the
Designated CMT Maturity Index and remaining term to maturity of not less
than such Designated CMT Maturity Index minus one year. If the Calculation
Agent cannot obtain three such Treasury Notes quotations, the CMT Rate for
such Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity based on the arithmetic mean of the
secondary market offer side prices as of approximately 3:30 P.M., New York
City time, on the Interest Determination Date of three Reference Dealers in
The City of New York (from five such Reference Dealers selected by the
Calculation Agent, after consultation with the Issuer, and eliminating the
highest quotation (or, in the event of equality, one of the highest) and
the lowest quotation (or, in the event of equality, one of the lowest)),
for Treasury Notes with an original maturity of the number of years that is
the next highest to the Designated CMT Maturity Index and a remaining term
to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100,000,000. If three or four (and not five) of such
Reference Dealers are quoting as described above, then the CMT Rate will be
based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers selected by the
Calculation Agent are quoting as described herein, the CMT Rate for such
Interest Reset Date will be the same as the CMT Rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset
Period, the rate of interest payable hereon shall be the Initial Interest
Rate). If two Treasury Notes with an original maturity as described in the
second preceding sentence have remaining terms to maturity equally close to
the Designated CMT Maturity Index, the quotes for the Treasury note with
the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow
Jones Telerate Service specified on the face hereof (or any other page as may
replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)), for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519). If no such page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" shall be the original period
to maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20
or 30 years) specified on the face hereof with respect to which the CMT
Rate will be calculated. If no such maturity is specified on the face
hereof, the Designated CMT Maturity Index shall be two years.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing on
or before each Calculation Date. The interest rate on this Note will in no
event be higher than the maximum rate permitted by New York law, as the same
may be modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next
Interest Reset Date.
Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or the Maturity Date (or any
earlier redemption or repayment date), as the case may be. Accrued
interest hereon shall be an amount calculated by multiplying the face
amount hereof by an accrued interest factor. Such accrued interest factor
shall be computed by adding the interest factor calculated for each day in
the period for which interest is being paid. The interest factor for each
such date shall be computed by dividing the interest rate applicable to
such day by 360 if the Base Rate is CD Rate, Commercial Paper Rate, Federal
Funds Rate, Prime Rate or LIBOR, as specified on the face hereof, or by the
actual number of days in the year if the Base Rate is the Treasury Rate or
the CMT Rate, as specified on the face hereof. All percentages resulting
from any calculation of the rate of interest on this Note will be rounded,
if necessary, to the nearest one hundred-thousandth of a percentage point
(.0000001), with five one-millionths of a percentage point rounded upward,
and all dollar amounts used in or resulting from such calculation on this
Note will be rounded to the nearest cent (with one-half cent rounded
upward). The interest rate in effect on any Interest Reset Date will be
the applicable rate as reset on such date. The interest rate applicable to
any other day is the interest rate from the immediately preceding Interest
Reset Date (or, if none, the Initial Interest Rate).
This Note and all other obligations of the Issuer hereunder will
constitute part of the subordinated debt of the Issuer, will be issued
under the Subordinated Indenture and will be subordinate and junior in
right of payment, to the extent and in the manner set forth in the
Subordinated Indenture, to all "Senior Indebtedness" of the Issuer. The
Subordinated Indenture defines "Senior Indebtedness" as obligations (other
than non-recourse obligations, the debt securities, including this Note,
issued under the Subordinated Indenture or any other obligations
specifically designated as being subordinate in right of payment to Senior
Indebtedness) of, or guaranteed or assumed by, the Issuer for borrowed
money or evidenced by bonds, debentures, notes or other similar
instruments, and amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligation.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and, if
denominated in U.S. dollars, is issuable only in denominations of U.S.
$1,000 and any integral multiple of U.S. $1,000 in excess thereof. If this
Note is denominated in a Specified Currency other than U.S. dollars, then,
unless a higher minimum denomination is required by applicable law, it is
issuable only in denominations of the equivalent of U.S. $1,000 (rounded
down to an integral multiple of 1,000 units of such Specified Currency), or
any amount in excess thereof which is an integral multiple of 1,000 units
of such Specified Currency, as determined by reference to the noon dollar
buying rate in New York City for cable transfers of such Specified Currency
published by the Federal Reserve Bank of New York (the "Market Exchange
Rate") on the Business Day immediately preceding the date of issuance;
provided, however, in the case of ECUs, the Market Exchange Rate shall be
the rate of exchange determined by the Commission of the European
Communities (or any successor thereto) as published in the Official Journal
of the European Communities, or any successor publication, on the Business
Day immediately preceding the date of issuance.
Chemical Bank has been appointed registrar for the Notes (the
"Registrar," which term includes any successor registrar appointed by the
Issuer), and the Registrar will maintain at its office in The City of New
York a register for the registration and transfer of Notes. This Note may
be transferred at the aforesaid office of the Registrar by surrendering
this Note for cancellation, accompanied by a written instrument of transfer
in form satisfactory to the Registrar and duly executed by the registered
holder hereof in person or by the holder's attorney duly authorized in
writing, and thereupon the Registrar shall issue in the name of the
transferee or transferees, in exchange herefor, a new Note or Notes having
identical terms and provisions and having a like aggregate principal amount
in authorized denominations, subject to the terms and conditions set forth
herein; provided, however, that the Registrar will not be required (i) to
register the transfer of or exchange any Note that has been called for
redemption in whole or in part, except the unredeemed portion of Notes
being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of
such Note not required to be repurchased, or (iii) to register the transfer
of or exchange Notes to the extent and during the period so provided in the
Subordinated Indenture with respect to the redemption of Notes. Notes are
exchangeable at said office for other Notes of other authorized
denominations of equal aggregate principal amount having identical terms
and provisions. All such exchanges and transfers of Notes will be free of
charge, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge in connection therewith. All Notes
surrendered for exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Registrar and executed by the
registered holder in person or by the holder's attorney duly authorized in
writing. The date of registration of any Note delivered upon any exchange
or transfer of Notes shall be such that no gain or loss of interest results
from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or
be destroyed, lost or stolen and such Note or evidence of the loss, theft
or destruction thereof (together with the indemnity hereinafter referred to
and such other documents or proof as may be required in the premises) shall
be delivered to the Registrar, a new Note of like tenor will be issued by
the Issuer in exchange for the Note so mutilated or defaced, or in lieu of
the Note so destroyed or lost or stolen, but, in the case of any destroyed
or lost or stolen Note, only upon receipt of evidence satisfactory to the
Registrar and the Issuer that such Note was destroyed or lost or stolen
and, if required, upon receipt also of indemnity satisfactory to each of
them. All expenses and reasonable charges associated with procuring such
indemnity and with the preparation, authentication and delivery of a new
Note shall be borne by the owner of the Note mutilated, defaced, destroyed,
lost or stolen.
The Subordinated Indenture provides that, (a) if an Event of
Default (as defined in the Subordinated Indenture) due to the default in
payment of principal of, premium, if any, or interest on, any series of
debt securities issued under the Subordinated Indenture, including the
series of Subordinated Medium-Term Notes of which this Note forms a part,
or due to the default in the performance or breach of any other covenant or
warranty of the Issuer applicable to the debt securities of such series but
not applicable to all outstanding debt securities issued under the
Subordinated Indenture shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in principal amount of the debt
securities of each affected series (voting as a single class) may then
declare the principal of all debt securities of all such series and
interest accrued thereon to be due and payable immediately and (b) if an
Event of Default due to a default in the performance of any other of the
covenants or agreements in the Subordinated Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due
to certain events of bankruptcy, insolvency and reorganization of the
Issuer, shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of all debt securities
issued under the Subordinated Indenture then outstanding (treated as one
class) may declare the principal of all such debt securities and interest
accrued thereon to be due and payable immediately, but upon certain
conditions such declarations may be annulled and past defaults may be
waived (except a continuing default in payment of principal (or premium, if
any) or interest on such debt securities) by the holders of a majority in
principal amount of the debt securities of all affected series then
outstanding.
The Subordinated Indenture permits the Issuer and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the debt securities of all series issued under the
Subordinated Indenture then outstanding and affected (voting as one class),
to execute supplemental indentures adding any provisions to or changing in
any manner the rights of the holders of each series so affected; provided
that the Issuer and the Trustee may not, without the consent of the holder
of each outstanding debt security affected thereby, (a) extend the final
maturity of any such debt security, or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of interest thereon, or
reduce any amount payable on redemption or repayment thereof, or change the
currency of payment thereof, or impair or affect the rights of any holder
to institute suit for the payment thereof without the consent of the holder
of each debt security so affected; or (b) reduce the aforesaid percentage
in principal amount of debt securities the consent of the holders of which
is required for any such supplemental indenture, without the consent of the
holders of each debt security so affected; provided, however, that neither
this Note nor the Subordinated Indenture may be amended to alter the
subordination provisions hereof or thereof without the written consent of
each holder of Senior Indebtedness then outstanding that would be adversely
affected thereby.
Except as set forth below, if the principal of, premium, if any,
or interest on, this Note is payable in a Specified Currency other than
U.S. dollars and such Specified Currency is not available to the Issuer for
making payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking
community, then the Issuer will be entitled to satisfy its obligations to
the holder of this Note by making such payments in U.S. dollars on the
basis of the Market Exchange Rate on the date of such payment or, if the
Market Exchange Rate is not available on such date, as of the most recent
practicable date; provided, however, that if such Specified Currency is
replaced by a single European currency (expected to be named the Euro), the
payment of principal of, premium, if any, or interest on any Note
denominated in such currency shall be effected in the new single European
currency in conformity with legally applicable measures taken pursuant to,
or by virtue of, the treaty establishing the European Community (the "EC"),
as amended by the treaty on European Union (as so amended, the "Treaty").
Any payment made under such circumstances in U.S. dollars (or, if
applicable, such new single European currency) where the required payment
is in a Specified Currency other than U.S. dollars will not constitute an
Event of Default.
Subject to the provisions below, the value of the ECU, in which
the Notes may be denominated or may be payable, is equal to the value of the
ECU that is from time to time used as the unit of account of the EC. If the
ECU becomes a currency in its own right in accordance with the Treaty, all
references to ECU in the Notes shall be construed as references to such
currency.
With respect to each due date for the payment of principal
of, or interest on, the Notes on or after the first business day in
Brussels on which the ECU ceases to be used as the unit of account of the
EC, and has not become a currency in its own right replacing all or some of
the currencies of the member States of the EC, the Issuer shall choose a
substitute currency (the "Chosen Currency"), which may be any currency
which was, on the last day on which the ECU was used as the unit of account
of the EC, a component currency of the ECU or U.S. dollars, in which all
payments due on or after that date with respect to the Notes and coupons
shall be made. Notice of the Chosen Currency so selected shall be provided
by first class mail to each holder at the address of such holder which
appears on the books maintained by the registrar and to the Paying Agent.
The amount of each payment in such Chosen Currency shall be computed on the
basis of the equivalent of the ECU in that currency, determined as
described below, as of the fourth business day in Brussels prior to the
date on which such payment is due.
On the first business day in Brussels on which the ECU
ceases to be used as the unit of account of the EC, and has not become a
currency in its own right replacing all or some of the currencies of the
member States of the EC, the Issuer shall select a Chosen Currency in which
all payments with respect to Notes and coupons having a due date prior
thereto but not yet presented for payment are to be made. The amount of
each payment in such Chosen Currency shall be computed on the basis of the
equivalent of the ECU in that currency, determined as described below, as
of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as
of any date (the "Day of Valuation") shall be determined by, or on behalf
of, the Exchange Rate Agent on the following basis. The amounts and
components composing the ECU for this purpose (the "Components") shall be
the amounts and components that composed the ECU as of the last date on
which the ECU was used as the unit of account of the EC. The equivalent of
the ECU in the Chosen Currency shall be calculated by, first, aggregating
the U.S. dollar equivalents of the Components; and then, in the case of a
chosen Currency other than U.S. dollars, using the rate used for
determining the U.S. dollar equivalent of the Components in the Chosen
Currency as set forth below, calculating the equivalent in the Chosen
Currency of such aggregate amount in U.S. dollars.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated on the face hereof.
The U.S. dollar equivalent of each of the Components shall
be determined by, or on behalf of, the Exchange Rate Agent on the basis of
the middle spot delivery quotations prevailing at 2:30 P.M., Brussels time,
on the Day of Valuation, as obtained by, or on behalf of, the Exchange Rate
Agent from one or more major banks, as selected by the Issuer, in the
country of issue of the component currency in question. If for any reason
no direct quotations are available for a Component as of a Day of Valuation
from any of the banks selected for this purpose, in computing the U.S.
dollar equivalent of such Component, the Exchange Rate Agent shall (except
as provided below) use the most recent direct quotations for such Component
obtained by it or on its behalf, provided that such quotations were
prevailing in the country of issue not more than two Business Days before
such Day of Valuation. If such most recent quotations were so prevailing
in the country of issue more than two Business Days before such Day of
Valuation, the Exchange Rate Agent shall determine the U.S. dollar
equivalent of such Component on the basis of cross rates derived from the
middle spot delivery quotations for such component currency and for the
U.S. dollar prevailing at 2:30 P.M., Brussels time, on such Day of
Valuation, as obtained by, or on behalf of, the Exchange Rate agent from
one or more major banks, as selected by the Issuer, in a country other than
the country of issue of such component currency. Notwithstanding the
foregoing, the Exchange Rate Agent shall determine the U.S. dollar
equivalent of such Component on the basis of such cross rates if the Issuer
or such agent judges that the equivalent so calculated is more
representative than the U.S. dollar equivalent calculated as provided in
the first sentence of this paragraph. Unless otherwise specified by the
Issuer, if there is more than one market for dealing in any component
currency by reason of foreign exchange regulations or for any other reason,
the market to be referred to in respect of such currency shall be that upon
which a non-resident issuer of securities denominated in such currency
would purchase such currency in order to make payments in respect of such
securities.
Payments in the Chosen Currency will be made at the
specified office of a paying agent in the country of the Chosen Currency,
or, if none, or at the option of the holder, at the specified office of any
Paying Agent either by a check drawn on, or by transfer to an account
maintained by the holder with, a bank in the principal financial center of
the country of the Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will cause
to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as
aforesaid of the Notes. The Issuer may designate other agencies for the
payment of said principal, premium and interest at such place or places
(subject to applicable laws and regulations) as the Issuer may decide. So
long as there shall be such an agency, the Issuer shall keep the Trustee
advised of the names and locations of such agencies, if any are so
designated.
With respect to moneys paid by the Issuer and held by the Trustee
or any Paying Agent for payment of the principal of or interest or premium,
if any, on any Notes that remain unclaimed at the end of two years after
such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes that
such moneys shall be repaid to the Issuer and any person claiming such
moneys shall thereafter look only to the Issuer for payment thereof and
(ii) such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease, without, however, limiting in any way any obligation
that the Issuer may have to pay the principal of or interest or premium, if
any, on this Note as the same shall become due.
No provision of this Note or of the Subordinated Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the registered
holder of this Note.
Prior to due presentment of this Note for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat
the holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Subordinated
Indenture or any indenture supplemental thereto, against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Issuer or of any successor corporation, either directly or through the Issuer
or any successor corporation, whether by virtue of any constitution, statute
or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of
the consideration for the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Subordinated
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Subordinated Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the
above list.
____________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_________________________________________________
_________________________________________________
_______________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE,
OF ASSIGNEE]
_______________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
_______________________________________________________________
constituting and appointing such person attorney to transfer
_______________________________________________________________
such note on the books of the Issuer, with full power of
_______________________________________________________________
substitution in the premises.
Dated:_____________________ NOTICE: The signature to this assignment
must correspond with the name
as written upon the face of the
within Note in every particular
without alteration or enlargement
or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the Optional Repayment Date, to the undersigned at
__________________________________________________________
__________________________________________________________
__________________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is to
be repaid, specify the portion thereof which the holder elects to have
repaid: __________________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the
Notes to be issued to the holder for the portion of the within Note not
being repaid (in the absence of any such specification, one such Note will
be issued for the portion not being repaid): __________________________.
Dated:_____________ ___________________________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as written
upon the face of the within
instrument in every particular
without alteration or enlargement.
</TABLE>
EXHIBIT 4.L
[FORM OF FACE OF SECURITY]
Senior Variable Rate Renewable Note
REGISTERED REGISTERED
No. SRVRR Cusip
[PRINCIPAL
AMOUNT],
as modified by
Schedule
Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository Trust Company
and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, since the
registered owner hereof, Cede & Co., has an interest herein.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET
FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
MORGAN STANLEY GROUP INC.
SENIOR VARIABLE RATE RENEWABLE
MEDIUM-TERM NOTE, SERIES C
BASE RATE: ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE:
REPORTING SERVICE:
INDEX MATURITY: INITIAL INTEREST RATE: INITIAL MATURITY DATE:
SPREAD (PLUS OR INITIAL INTEREST RESET
MINUS) DATE: FINAL MATURITY DATE:
INTEREST PAYMENT ALTERNATE RATE EVENT MAXIMUM INTEREST RATE:
PERIOD: SPREAD:
INTEREST PAYMENT SPREAD MULTIPLIER: MINIMUM INTEREST RATE:
DATE:
INTEREST RESET
PERIOD:
INCREMENTAL SPREAD TOTAL AMOUNT OF OID: INTEREST RESET DATES:
COMMENCEMENT DATE:
ELECTION DATES:
ORIGINAL YIELD TO MATURITY EXTENSION
MATURITY: DATES:
INCREMENTAL SPREAD
(PLUS OR MINUS):
REDEMPTION DATES: INITIAL ACCRUAL CALCULATION AGENT:
PERIOD OID:
REDEMPTION PERCENTAGE: INDEX CURRENCY:
DESIGNATED CMT TELERATE
PAGE:
SPECIFIED CURRENCY:
EXCHANGE RATE AGENT:
DESIGNATED CMT MATURITY
INDEX:
OTHER PROVISIONS:
Morgan Stanley Group Inc., a Delaware corporation (together with its
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to
, or registered assignees, the principal sum specified in Schedule I hereto on
the Initial Maturity Date specified above or, to the extent the maturity date
of any portion of the principal amount of this Note is extended in accordance
with the procedures set forth below to an Extended Maturity Date, as defined
below, on such Extended Maturity Date (except to the extent such portion is
redeemed prior to such Extended Maturity Date) and to pay interest on the
principal amount hereof outstanding from time to time, from the Interest
Accrual Date specified above at a rate per annum equal to the Initial Interest
Rate specified above until the Initial Interest Reset Date specified above,
and thereafter at a rate per annum determined in accordance with the
provisions specified on the reverse hereof until (a) the principal hereof is
paid or duly made available for payment or (b) this Note has been cancelled in
accordance with the provisions set forth below.
The Issuer will pay interest in arrears monthly, quarterly,
semiannually or annually as specified above as the Interest Payment Period on
each Interest Payment Date (as specified above), commencing with the first
Interest Payment Date next succeeding the Interest Accrual Date specified
above, and on the Initial Maturity Date or the Extended Maturity Date, as the
case may be (each, a "Maturity Date"), or any redemption date; provided,
however, if the Interest Accrual Date occurs between a Record Date, as defined
below, and the next succeeding Interest Payment Date, interest payments will
commence on the second Interest Payment Date succeeding the Interest Accrual
Date to the registered holder of this Note on the Record Date with respect to
such second Interest Payment Date; provided, further, that if an Interest
Payment Date or the Maturity Date or redemption date would fall on a day that
is not a Business Day, as defined on the reverse hereof, such Interest Payment
Date, Maturity Date or redemption date shall be the following day that is a
Business Day, except that if the Base Rate specified above is LIBOR and such
next Business Day falls in the next calendar month, the Interest Payment Date,
Maturity Date or redemption date shall be the immediately preceding day that
is a Business Day. As used herein, "Extended Maturity Date" means the
Maturity Extension Date (as specified above) occurring in the month twelve
months after the most recent Election Date on which the maturity of this Note
has been extended pursuant to the provisions set forth below.
Interest on this Note will accrue from and including the most recent
date to which interest has been paid or duly provided for, or, if no interest
has been paid or duly provided for, from the Interest Accrual Date, until, but
excluding the date (a) the principal hereof has been paid or duly made
available for payment or (b) this Note has been cancelled in accordance with
the provisions set forth below. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the person in whose name this Note (or
one or more predecessor Notes) is registered at the close of business on the
date 15 calendar days prior to such Interest Payment Date (whether or not a
Business Day) (each such date a "Record Date"); provided, however, that
interest payable on the Maturity Date (or any redemption date) shall be
payable to the person to whom the principal hereof shall be payable.
On each Election Date, the maturity of this Note shall be extended to
the Maturity Extension Date occurring in the month twelve months following
such Election Date, unless, in any such case, the holder hereof elects to
terminate the automatic extension of the maturity hereof or of any portion
hereof having a principal amount of $1,000 or any larger multiple of $1,000 in
excess thereof by delivering to the Trustee 15 days prior to the applicable
Election Date (i) this Note with the form entitled "Option to Elect
Termination of Automatic Extension" below duly completed or (ii) a telegram,
telex, facsimile transmission or a letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc. or
a commercial bank or a trust company in the United States of America setting
forth the name of the holder of this Note, the principal amount hereof, the
certificate number of this Note or a description of this Note's tenor or
terms, a statement that the option to elect termination of automatic extension
is being exercised thereby, the principal amount hereof with respect to which
such option is being exercised and a guarantee that this Note with the form
entitled "Option to Elect Termination of Automatic Extension" below duly
completed will be received by the Trustee no later than five Business Days
after the date of such telegram, telex, facsimile transmission or letter;
provided that such telegram, telex, facsimile transmission or letter shall not
be effective unless this Note and such form duly completed are received by the
Trustee by such fifth Business Day. Such option may be exercised by the
holder for less than the entire principal amount hereof provided that the
principal amount for which such option is not exercised is at least $1,000 or
any larger amount that is an integral multiple of $1,000. If the option to
terminate the automatic extension of the maturity of any portion hereof is
exercised, a new Note or Notes in the form attached hereto as Exhibit A (each,
a "Short-Term Note") for the principal amount hereof for which such option was
exercised and having as its or their "Maturity Date" (as such term is used in
each such Short-Term Note) the Maturity Extension Date occurring in the month
twelve months after such Election Date shall be issued on such Election Date
in the name of the holder hereof and Schedule I hereto shall be annotated as
of such Election Date to reflect the corresponding decrease in the principal
amount hereof. If any exercise of the option to terminate the automatic
extension of the maturity hereof causes the principal amount of this Note to
be reduced to zero, this Note shall nevertheless not be cancelled until the
date on which all outstanding Short-Term Notes issued in exchange for this
Note shall have been paid in full.
Notwithstanding the foregoing, the maturity of this Note shall not be
extended beyond the Final Maturity Date specified above.
If the holder of any Short-Term Note elects to exchange all or a
portion of such Short-Term Note for an interest in this Note in accordance
with the terms of such Short-Term Note, Schedule I hereto shall be annotated
on the date of such exchange to reflect the corresponding increase in the
principal amount hereof.
Payment of the principal of this Note, any premium and the interest
due at the Maturity Date (or any redemption date), unless this Note is
denominated in a Specified Currency other than U.S. dollars and is to be paid
in whole or in part in such Specified Currency, will be made in immediately
available funds upon surrender of this Note at the office or agency of the
Trustee, as defined on the reverse hereof, maintained for that purpose in the
Borough of Manhattan, The City of New York, or at the office or agency of such
other paying agent as the Issuer may determine in U.S. dollars. U.S. dollars
payments of interest, other than interest due at maturity or any date of
redemption, will be made by United States dollar check mailed to the address
of the person entitled thereto as such address shall appear in the Note
register. A holder of U.S. $10,000,000 or more in aggregate principal amount
of Notes having the same Interest Payment Date, the interest on which is
payable in U.S. dollars, will be entitled to receive payments of interest,
other than interest due at maturity or any date of redemption, by wire
transfer of immediately available funds if appropriate wire transfer
instructions have been received by the Trustee in writing not less than 15
calendar days prior to the applicable Interest Payment Date.
If this Note is denominated in a Specified Currency other than U.S.
dollars, and the holder does not elect (in whole or in part) to receive
payment in U.S. dollars pursuant to the next succeeding paragraph, payments of
interest, principal or any premium with regard to this Note will be made by
wire transfer of immediately available funds to an account maintained by the
holder hereof with a bank located outside the United States if appropriate
wire transfer instructions have been received by the Paying Agent in writing
not less than 15 calendar days prior to the applicable payment date, provided
that, if such wire transfer instructions are not received, such payments will
be made by check payable in such Specified Currency mailed to the address of
the person entitled thereto as such address shall appear in the Note register,
and provided, further, that payment of the principal of this Note, any premium
and the interest due at maturity (or on any redemption or repayment date) will
be made upon surrender of this Note at the office or agency referred to in the
preceding paragraph.
Unless otherwise indicated herein, the holder of this Note
denominated in a Specified Currency other than U.S. dollars, may elect to
receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the Record
Date or at least ten Business Days prior to the Maturity Date or any
redemption date, as the case may be. Such election shall remain in effect
unless such request is revoked by written notice to the Paying Agent as to all
or a portion of payments on this Note at least five Business Days prior to
such Record Date or at least ten days prior to the Maturity Date or any
redemption date, as the case may be.
If the holder elects to receive all or a portion of payments of
principal of and any premium and interest on this Note, if denominated in a
Specified Currency other than U.S. dollars, in U.S. dollars, the Exchange
Rate Agent will convert such payments into U.S. dollars. In the event of
such an election, payment in respect of this Note will be based upon the
exchange rate as determined by the Exchange Rate Agent based on the highest
bid quotation in The City of New York received by such Exchange Rate Agent
at approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign
exchange dealers (one of which may be the Exchange Rate Agent unless such
Exchange Rate Agent is Morgan Stanley & Co. Incorporated), for the
purchase by the quoting dealer of U.S. dollars for the Specified Currency
for settlement on such payment date in the amount of the Specified Currency
payable in the absence of such an election to such holder and at which the
applicable dealer commits to execute a contract. If such bid quotations
are not available, such payment will be made in the Specified Currency.
All currency exchange costs will be borne by the holder of this Note by
deductions from such payments.
If this Note ceases to be held by The Depository Trust Company or
its successor or the nominee of The Depository Trust Company or its
successor, this Note will be exchanged for one or more Notes of authorized
denominations having an aggregate principal amount equal to the principal
amount of this Note as then shown on Schedule I hereto, which new Notes
shall otherwise have the same terms as this Note, except that the
provisions of such new Notes regarding the termination of the automatic
extension of the maturity thereof shall be modified to the extent
appropriate for notes not required to be held in a securities depositary;
provided that the respective rights and obligations of the Issuer and the
holders of such new Notes shall be the same in all material respects as the
respective rights and obligations of the Issuer and the holder of this
Note. Such new Notes shall have stated principal amounts and shall be
registered in the names of the persons then having a beneficial interest in
this Note or in the names of their nominees.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Senior Indenture, as defined on
the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By:______________________
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Senior Indenture.
CHEMICAL BANK,
as Trustee
By:____________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of the Senior Medium-
Term Notes, Series C, having maturities more than nine months from the date
of issue (the "Notes") of the Issuer. The Notes are issuable under a
Senior Indenture, dated as of April 15, 1989, as supplemented by a First
Supplemental Indenture dated as of May 15, 1991 and a Second Supplemental
Indenture dated as of April 15, 1996 (as so supplemented, the "Senior
Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The terms of individual Notes may vary with
respect to interest rates, interest rate formulas, issue dates, maturity
dates, or otherwise, all as provided in the Senior Indenture. To the
extent not inconsistent herewith, the terms of the Senior Indenture are
hereby incorporated by reference herein.
Unless otherwise provided on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise provided on the face hereof
in accordance with the provisions of the following paragraph, will not be
redeemable prior to maturity.
Unless otherwise indicated on the face of this Note, this Note may
not be redeemed prior to the Maturity Date. If so indicated on the face of
this Note, this Note may be redeemed in whole or in part at the option of
the Issuer on the Redemption Dates specified on the face hereof on the
terms set forth on the face hereof, together with interest accrued and
unpaid hereon to the date of redemption. Notice of redemption shall be
mailed to the registered holders of the Notes designated for redemption at
their addresses as the same shall appear on the Note register not less than
180 nor more than 210 days prior to the date fixed for redemption, subject
to all the conditions and provisions of the Senior Indenture. In the event
of redemption of this Note in part only, a new Note or Notes for the amount
of the unredeemed portion hereof shall be issued in the name of the holder
hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in accordance
with the applicable provisions below by reference to the Base Rate
specified on the face hereof based on the Index Maturity, if any, specified
on the face hereof (i) (A) plus or minus the Spread, if any, specified on
the face hereof and (B) for any period on or after the Incremental Spread
Commencement Date, if any, specified on the face hereof, plus or minus the
Incremental Spread, if any, specified on the face hereof or (ii) multiplied
by the Spread Multiplier, if any, specified on the face hereof. Commencing
with the Initial Interest Reset Date specified on the face hereof, the rate
at which interest on this Note is payable shall be reset as of each
Interest Reset Date (as used herein, the term "Interest Reset Date" shall
include the Initial Interest Reset Date). The determination of the rate of
interest at which this Note will be reset on any Interest Reset Date shall
be made on the Interest Determination Date (as defined below) pertaining to
such Interest Reset Date. The Interest Reset Dates will be the Interest
Reset Dates specified on the face hereof; provided, however, that the
interest rate in effect for the period from the Interest Accrual Date to
the Initial Interest Reset Date specified on the face hereof will be the
Initial Interest Rate. If any Interest Reset Date would otherwise be a day
that is not a Business Day, such Interest Reset Date shall be postponed to
the next succeeding day that is a Business Day, except that if the Base
Rate specified on the face hereof is LIBOR and such Business Day is in the
next succeeding calendar month, such Interest Reset Date shall be the next
preceding Business Day. As used herein, "Business Day" means any day,
other than a Saturday or Sunday, that is neither a legal holiday nor a day
on which banking institutions are authorized or required by law or
regulation to close in The City of New York and, with respect to Notes
bearing interest calculated by reference to LIBOR, in the City of London.
The Interest Determination Date pertaining to an Interest Reset Date
for Notes bearing interest calculated by reference to the CD Rate, Commercial
Paper Rate, Federal Funds Rate, Prime Rate and CMT Rate will be the second
Business Day next preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for Notes bearing
interest calculated by reference to LIBOR shall be the second London Banking
Day preceding such Interest Reset Date, except that the Interest Determination
Date pertaining to an Interest Reset Date for a LIBOR Note for which the Index
Currency is pounds sterling will be such Interest Reset Date. As used herein,
"London Banking Day" means any day on which dealings in deposits in the Index
Currency (as defined herein) are transacted in the London interbank market.
The Interest Determination Date pertaining to an Interest Reset Date for Notes
bearing interest calculated by reference to the Treasury Rate shall be the day
of the week in which such Interest Reset Date falls on which Treasury bills
normally would be auctioned; provided, however, that if as a result of a legal
holiday an auction is held on the Friday of the week preceding such Interest
Reset Date, the related Interest Determination Date shall be such preceding
Friday; and provided, further, that if an auction shall fall on any Interest
Reset Date, then the Interest Reset Date shall instead be the first Business
Day following the date of such auction.
Unless otherwise specified on the face hereof, the "Calculation Date"
pertaining to an Interest Determination Date will be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if such day is
not a Business Day, the next succeeding Business Day, or (ii) the Business Day
preceding the applicable Interest Payment Date or Maturity Date (or, with
respect to any principal amount to be redeemed or repaid, any redemption or
repayment date), as the case may be.
Determination of CD Rate. If the Base Rate specified on the face
hereof is the CD Rate, the CD Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate on such
date for negotiable certificates of deposit having the Index Maturity
specified on the face hereof as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates," or any successor publication of the Board of Governors of the Federal
Reserve System ("H.15(519)"), under the heading "CDs (Secondary Market)," or,
if not so published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the CD Rate will be the rate
on such Interest Determination Date for negotiable certificates of deposit of
the Index Maturity specified on the face hereof as published by the Federal
Reserve Bank of New York in its daily statistical release "Composite 3:30 P.M.
Quotations for U.S. Government Securities" ("Composite Quotations") under the
heading "Certificates of Deposit." If neither of such rates is published by
3:00 P.M., New York City time, on such Calculation Date, then the CD Rate on
such Interest Determination Date will be calculated by the Calculation Agent
referred to on the face hereof and will be the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City time, on such
Interest Determination Date for certificates of deposit in the denomination of
$5,000,000 with a remaining maturity closest to the Index Maturity specified
on the face hereof of three leading nonbank dealers in negotiable U.S. dollar
certificates of deposit in The City of New York selected by the Calculation
Agent for negotiable certificates of deposit of major United States money
center banks of the highest credit standing in the market for negotiable
certificates of deposit; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the CD Rate in effect for the applicable period will be the same as
the CD Rate for the immediately preceding Interest Reset Period (or, if there
was no such Interest Reset Period, the rate of interest payable hereon shall
be the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate specified
on the face hereof is the Commercial Paper Rate, the Commercial Paper Rate
with respect to this Note shall be determined on each Interest Determination
Date and shall be the Money Market Yield (as defined herein) of the rate on
such date for commercial paper having the Index Maturity specified on the face
hereof, as such rate shall be published in H.15(519) under the heading
"Commercial Paper," or if not so published prior to 9:00 A.M., New York City
time, on the Calculation Date pertaining to such Interest Determination Date,
the Commercial Paper Rate shall be the Money Market Yield of the rate on such
Interest Determination Date for commercial paper of the Index Maturity
specified on the face hereof as published in Composite Quotations under the
heading "Commercial Paper." If neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, then the Commercial Paper
Rate shall be the Money Market Yield of the arithmetic mean of the offered
rates as of 11:00 A.M., New York City time, on such Interest Determination
Date of three leading dealers in commercial paper in The City of New York
selected by the Calculation Agent for commercial paper of the Index Maturity
specified on the face hereof, placed for an industrial issuer whose bond
rating is "AA," or the equivalent, from a nationally recognized rating agency;
provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the
Commercial Paper Rate in effect for the applicable period will be the same as
the Commercial Paper Rate for the immediately preceding Interest Reset Period
(or, if there was no such Interest Reset Period, the rate of interest payable
hereon shall be the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in accordance with
the following formula:
Money Market Yield = D x 360
---------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the interest period for which interest is being
calculated.
Determination of Federal Funds Rate. If the Base Rate specified on
the face hereof is the Federal Funds Rate, the Federal Funds Rate with respect
to this Note shall be determined on each Interest Determination Date and shall
be the rate on such date for Federal Funds as published in H.15(519) under the
heading "Federal Funds (Effective)," or, if not so published by 9:00 A.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the Federal Funds Rate will be the rate on such Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, the Federal Funds Rate for
such Interest Determination Date will be calculated by the Calculation Agent
and will be the arithmetic mean of the rates for the last transaction in
overnight Federal funds as of 11:00 A.M., New York City time, on such Interest
Determination Date arranged by three leading brokers in Federal funds
transactions in The City of New York selected by the Calculation Agent;
provided, however, that if the brokers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the Federal
Funds Rate in effect for the applicable period will be the same as the Federal
Funds Rate for the immediately preceding Interest Reset Period (or, if there
was no such Interest Reset Period, the rate of interest payable hereon shall
be the Initial Interest Rate).
Determination of LIBOR. If the Base Rate specified on the face
hereof is LIBOR, LIBOR with respect to this Note shall be determined on each
Interest Determination Date as follows:
(i) As of the Interest Determination Date, the Calculation Agent
will determine (a) if "LIBOR Reuters" is specified as the Reporting
Service on the face hereof, the arithmetic mean of the offered rates
(unless the specified Designated LIBOR Page (as defined below) by its
terms provides only for a single rate, in which case such single rate
shall be used) for deposits in the London interbank market in the Index
Currency for the period of the Index Maturity specified on the face
hereof, commencing on the second London Banking Day immediately
following such Interest Determination Date, which appear on the
Designated LIBOR Page at approximately 11:00 A.M., London time, on such
Interest Determination Date, if at least two such offered rates appear
(unless, as aforesaid, only a single rate is required) on such
Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified as the
Reporting Service on the face hereof, the rate for deposits in the Index
Currency for the period of the Index Maturity, each as designated on the
face hereof, commencing on the second London Banking Day following such
Interest Determination Date (or, if pounds sterling is the Index
Currency, commencing on such Interest Determination Date) that appears
on the Designated LIBOR Page at approximately 11:00 A.M., London time,
on such Interest Determination Date. If fewer than two offered rates
appear (if "LIBOR Reuters" is specified as the Reporting Service on the
face hereof and calculation of LIBOR is based on the arithmetic mean of
the offered rates) or if no rate appears (if the Reporting Service on
the face hereof specifies either (x) "LIBOR Reuters" and the Designated
LIBOR Page by its terms provides only for a single rate or (y) "LIBOR
Telerate"), LIBOR in respect of that Interest Determination Date will be
determined as if the parties had specified the rate described in (ii)
below.
(ii) With respect to an Interest Determination Date on which fewer
than two offered rates appear (if "LIBOR Reuters" is specified as the
Reporting Service on the face hereof and calculation of LIBOR is based on
the arithmetic mean of the offered rates) or no rate appears (if the
Reporting Service on the face hereof specifies either (x) "LIBOR Reuters"
and the Designated LIBOR Page by its terms provides only for a single rate
or (y) "LIBOR Telerate"), the Calculation Agent will request the principal
London offices of each of four major reference banks in the London
interbank market, as selected by the Calculation Agent (after consultation
with the Issuer), to provide the Calculation Agent with its offered
quotations for deposits in the Index Currency for the period of the Index
Maturity specified on the face hereof, commencing on the second London
Banking Day immediately following such Interest Determination Date (or, if
pounds sterling is the Index Currency, commencing on such Interest
Determination Date), to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such Interest Determination Date
and in a principal amount equal to an amount of not less than U.S.$1
million (or the equivalent in the Index Currency) (if the Index Currency is
not the U.S. dollar)) that is representative of a single transaction in
such Index Currency in such market at such time. If at least two such
quotations are provided, LIBOR determined on such Interest Determination
Date will be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR determined on such Interest Determination
Date will be the arithmetic mean of rates quoted at approximately 11:00
A.M. (or such other time specified on the face hereof), in the applicable
principal financial center for the country of the Index Currency on such
Interest Determination Date, by three major banks in such principal
financial center selected by the Calculation Agent (after consultation with
the Issuer) on such Interest Determination Date for loans in the Index
Currency to leading European banks, for the period of the Index Maturity
specified on the face hereof commencing on the second London Banking Day
immediately following such Interest Determination Date (or, if pounds
sterling is the Index Currency, commencing on such Interest Determination
Date) and in a principal amount of not less than U.S.$1 million (or the
equivalent in the Index Currency) (if the Index Currency is not the U.S.
dollar)) that is representative of a single transaction in such Index
Currency in such market at such time; provided, however, that if the banks
selected as aforesaid by the Calculation Agent are not quoting rates as
mentioned in this sentence, "LIBOR" for such Interest Reset Period will be
the same as LIBOR for the immediately preceding Interest Reset Period (or,
if there was no such Interest Reset Period, the rate of interest payable on
the LIBOR Notes for which LIBOR is being determined shall be the Initial
Interest Rate). "Index Currency" means the currency (including composite
currencies) specified as Index Currency on the face hereof. If no such
currency is specified as Index Currency on the face hereof, the Index
Currency shall be U.S. dollars. "Designated LIBOR Page" means either (a)
if "LIBOR Reuters" is designated as the Reporting Service on the face
hereof, the display on the Reuters Monitor Money Rates Service for the
purpose of displaying the London interbank rates of major banks for the
applicable Index Currency, or (b) if "LIBOR Telerate" is designated as the
Reporting Service on the face hereof, the display on the Dow Jones Telerate
Service for the purpose of displaying the London interbank rates of major
banks for the applicable Index Currency. If neither LIBOR Reuters nor
LIBOR Telerate is specified as the Reporting Service on the face hereof,
LIBOR for the applicable Index Currency will be determined as if LIBOR
Telerate (and, if the U.S. dollar is the Index Currency, Page 3750) had
been specified.
Determination of Prime Rate. If the Base Rate specified on the
face hereof is the Prime Rate, the Prime Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
rate set forth in H.15(519) for such date opposite the caption "Bank Prime
Loan." If such rate is not yet published by 9:00 A.M., New York City time,
on the Calculation Date pertaining to such Interest Determination Date, the
Prime Rate for such Interest Determination Date will be the arithmetic mean
of the rates of interest publicly announced by each bank named on the
Reuters Screen USPRIME 1 Page as such bank's prime rate or base lending
rate as in effect for such Interest Determination Date as quoted on the
Reuters Screen USPRIME 1 Page on such Interest Determination Date, or, if
fewer than four such rates appear on the Reuters Screen USPRIME 1 Page for
such Interest Determination Date, the rate shall be the arithmetic mean of
the prime rates quoted on the basis of the actual number of days in the
year divided by 360 as of the close of business on such Interest
Determination Date by at least two of the three major money center banks in
The City of New York selected by the Calculation Agent from which
quotations are requested. If fewer than two quotations are provided, the
Prime Rate shall be calculated by the Calculation Agent and shall be
determined as the arithmetic mean on the basis of the prime rates in The
City of New York by the appropriate number of substitute banks or trust
companies organized and doing business under the laws of the United States,
or any State thereof, in each case having total equity capital of at least
U.S. $500 million and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent to quote such
rate or rates; provided, however, that if the banks or trust companies
selected as aforesaid by the Calculation Agent are not quoting rates as set
forth above, the "Prime Rate" in effect for such Interest Reset Period will
be the same as the Prime Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate).
"Reuters Screen USPRIME 1 Page" means the display designated as Page
"USPRIME 1" on the Reuters Monitor Money Rates Service (or such other page
that may replace the USPRIME 1 Page on that service for the purpose of
displaying prime rates or base lending rates of major U.S. banks).
Determination of Treasury Rate. If the Base Rate specified on the
face hereof is the Treasury Rate, the Treasury Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the rate
for the auction held on such date of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face hereof, as
published in H.15(519) under the heading "Treasury Bills--auction average
(investment)," or if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the auction
average rate on such Interest Determination Date (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United States
Department of the Treasury. In the event that the results of the auction of
Treasury Bills having the Index Maturity specified on the face hereof are not
published or reported as provided above by 3:00 P.M., New York City time, on
such Calculation Date or if no such auction is held on such Interest
Determination Date, then the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) calculated using the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Interest Determination Date, of three leading primary United States
government securities dealers selected by the Calculation Agent for the issue
of Treasury Bills with a remaining maturity closest to the Index Maturity
specified on the face hereof; provided, however, that if the dealers selected
as aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate for such Interest Reset Date will be the same as
the Treasury Rate for the immediately preceding Interest Reset Period (or, if
there was no such Interest Reset Period, the rate of interest payable hereon
shall be the Initial Interest Rate).
Determination of CMT Rate. If the Base Rate specified on the face
hereof is the CMT Rate, the CMT Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate displayed
for the Index Maturity specified on the face hereof on the Designated CMT
Telerate Page under the caption "Daily Treasury Constant Maturities and Money
Markets/Federal Reserve Board Release H.15 under the column for the Designated
CMT Maturity Index for (i) if the Designated CMT Telerate Page is 7055, the
rate on such Interest Determination Date and (ii) if the Designated CMT
Telerate Page is 7052, the week or the month, as applicable, ended immediately
preceding the week in which the related Interest Determination Date occurs.
If such rate is no longer displayed on the relevant page, or is not displayed
by 3:00 P.M., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, then the CMT Rate for such Interest Determination
Date will be such Treasury Constant Maturity rate for the Designated CMT
Maturity Index as published in the relevant H.15(519). If such rate is no
longer published, or is not published by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such Interest Determination
Date will be such Treasury Constant Maturity rate for the Designated CMT
Maturity Index (or other United States Treasury rate for the Designated CMT
Maturity Index) for the Interest Determination Date with respect to the
related Interest Reset Date as may then be published by either the Board of
Governors of the Federal Reserve System or the United States Department of the
Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New
York time, on the related Calculation Date, then the CMT Rate for the Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City time,
on the Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers
(each, a "Reference Dealer") in The City of New York (which may include
affiliates of the Issuer) selected by the Calculation Agent (from five such
Reference Dealers selected by the Calculation Agent, after consultation with
the Issuer), and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest), for the most recently issued direct noncallable
fixed rate obligations of the United States ("Treasury Notes") with an
original maturity of approximately the Designated CMT Maturity Index and
remaining term to maturity of not less than such Designated CMT Maturity Index
minus one year. If the Calculation Agent cannot obtain three such Treasury
Notes quotations, the CMT Rate for such Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based on
the arithmetic mean of the secondary market offer side prices as of
approximately 3:30 P.M., New York City time, on the Interest Determination
Date of three Reference Dealers in The City of New York (from five such
Reference Dealers selected by the Calculation Agent, after consultation with
the Issuer, and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least $100,000,000. If three or four (and not
five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offer prices obtained and
neither the highest nor the lowest of such quotes will be eliminated;
provided, however, that if fewer than three Reference Dealers selected by the
Calculation Agent are quoting as described herein, the CMT Rate for such
Interest Reset Date will be the same as the CMT Rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset
Period, the rate of interest payable hereon shall be the Initial Interest
Rate). If two Treasury Notes with an original maturity as described in the
second preceding sentence have remaining terms to maturity equally close to
the Designated CMT Maturity Index, the quotes for the Treasury Note with the
shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service specified on the face hereof (or any other page as may
replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)), for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519). If no such page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" shall be the original period to
maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be two years.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing on
or before each Calculation Date. The interest rate on this Note will in no
event be higher than the maximum rate permitted by New York law, as the same
may be modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next
Interest Reset Date.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or Maturity Date (or any earlier
redemption date), as the case may be. Accrued interest hereon for any period
shall be the sum of the products obtained by multiplying the interest factor
calculated for each day in such period by the principal amount hereof shown on
Schedule I hereto for each such day; provided that for the purpose of
calculating the amount of interest payable hereon, any decrease in the
principal amount hereof attributable to an exercise of the option to terminate
the automatic extension of the maturity hereof shall be effective on and as of
the Election Date corresponding to the exercise of such option, and any
increase in the principal amount hereof shall be effective on and as of the
Interest Payment Date immediately preceding the date of such increase. The
interest factor for each such day shall be computed by dividing the interest
rate applicable to such day by 360 if the Base Rate is CD Rate, Commercial
Paper Rate, Federal Funds Rate, Prime Rate or LIBOR, as specified on the face
hereof, or by the actual number of days in the year if the Base Rate is the
Treasury Rate or the CMT Rate, as specified on the face hereof. All
percentages resulting from any calculation of the rate of interest on this
Note will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (.0000001), with five one-millionths of a percentage point
rounded upward, and all dollar amounts used in or resulting from such
calculation on this Note will be rounded to the nearest cent (with one-half
cent rounded upward). The interest rate in effect on any Interest Reset Date
will be the applicable rate as reset on such date. The interest rate
applicable to any other day is the interest rate from the immediately
preceding Interest Reset Date (or, if none, the Initial Interest Rate).
This Note, and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and is
issuable only in denominations of U.S. $1,000 and any integral multiple of
U.S. $1,000 in excess thereof. If this Note is denominated in a Specified
Currency other than U.S. dollars, then, unless a higher minimum denomination
is required by applicable law, it is issuable only in denominations of the
equivalent of U.S. $1,000 (rounded to an integral multiple of 1,000 units of
such Specified Currency), or an amount in excess thereof which is an integral
multiple of 1,000 units of such Specified Currency, as determined by reference
to the noon dollar buying rate in New York City for cable transfers of such
Specified Currency published by the Federal Reserve Bank of New York (the
"Market Exchange Rate") on the Business Day immediately preceding the date of
issuance; provided, however, in the case of ECUs, the Market Exchange Rate
shall be the rate of exchange determined by the Commission of the European
Communities (or any successor thereto) as published by the Official Journal of
the European Communities, or any successor publication, on the Business Day
immediately preceding the date of issuance.
The Trustee has been appointed registrar for the Notes, and the
Trustee will maintain at its office in The City of New York a register for the
registration and transfer of Notes. This Note may be transferred at the
aforesaid office of the Trustee by surrendering this Note for cancellation,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and duly executed by the registered holder hereof in person or by the
holder's attorney duly authorized in writing, and thereupon the Trustee shall
issue in the name of the transferee or transferees, in exchange herefor, a new
Note or Notes having identical terms and provisions and having a like
aggregate principal amount in authorized denominations, subject to the terms
and conditions set forth herein; provided, however, that the Trustee will not
be required (i) to register the transfer of or exchange any Note that has been
called for redemption in whole or in part, except the unredeemed portion of
Notes being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of such
Note not required to be repurchased or (iii) to register the transfer of or
exchange Notes to the extent and during the period so provided in the Senior
Indenture with respect to the redemption of Notes. Notes are exchangeable at
said office for other Notes of other authorized denominations of equal
aggregate principal amount having identical terms and provisions. All such
exchanges and transfers of Notes will be free of charge, but the Issuer may
require payment of a sum sufficient to cover any tax or other governmental
charge in connection therewith. All Notes surrendered for exchange shall be
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and executed by the registered holder in person or by the holder's
attorney duly authorized in writing. The date of registration of any Note
delivered upon any exchange or transfer of Notes shall be such that no gain or
loss of interest results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Note so destroyed or lost or stolen, but, in the case of any destroyed or lost
or stolen Note, only upon receipt of evidence satisfactory to the Trustee and
the Issuer that such Note was destroyed or lost or stolen and, if required,
upon receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default (as
defined in the Senior Indenture) due to the default in payment of principal
of, premium, if any, or interest on, any series of debt securities issued
under the Senior Indenture, including the series of Senior Medium-Term Notes
of which this Note forms a part, or due to the default in the performance or
breach of any other covenant or warranty of the Issuer applicable to the debt
securities of such series but not applicable to all outstanding debt
securities issued under the Senior Indenture shall have occurred and be
continuing, either the Trustee or the holders of not less than 25% in
principal amount of the debt securities of each affected series (voting as a
single class) may then declare the principal of all debt securities of all
such series and interest accrued thereon to be due and payable immediately and
(b) if an Event of Default due to a default in the performance of any other of
the covenants or agreements in the Senior Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due to
certain events of bankruptcy, insolvency and reorganization of the Issuer,
shall have occurred and be continuing, either the Trustee or the holders of
not less than 25% in principal amount of all debt securities issued under the
Senior Indenture then outstanding (treated as one class) may declare the
principal of all such debt securities and interest accrued thereon to be due
and payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt securities)
by the holders of a majority in principal amount of the debt securities of all
affected series then outstanding.
The Senior Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of the
holders of each series so affected; provided that the Issuer and the Trustee
may not, without the consent of the holder of each outstanding debt security
affected thereby, (a) extend the final maturity of any such debt security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption
thereof, or change the currency of payment thereof, or impair or affect the
rights of any holder to institute suit for the payment thereof without the
consent of the holder of each debt security so affected; or (b) reduce the
aforesaid percentage in principal amount of debt securities the consent of the
holders of which is required for any such supplemental indenture, without the
consent of the holders of each debt security so affected.
Except as set forth below, if the principal of, premium, if any,
or interest on, this Note is payable in a Specified Currency other than
U.S. dollars and such Specified Currency is not available to the Issuer for
making payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking
community, then the Issuer will be entitled to satisfy its obligations to
the holder of this Note by making such payments in U.S. dollars on the
basis of the Market Exchange Rate on the date of such payment or, if the
Market Exchange Rate is not available on such date, as of the most recent
practicable date; provided, however, that if such Specified Currency is
replaced by a single European currency (expected to be named the Euro), the
payment of principal of, premium, if any, or interest on any Note
denominated in such currency shall be effected in the new single European
currency in conformity with legally applicable measures taken pursuant to,
or by virtue of, the treaty establishing the European Community (the "EC"),
as amended by the treaty on European Union (as so amended, the "Treaty").
Any payment made under such circumstances in U.S. dollars (or, if
applicable, such new single European currency) where the required payment
is in a Specified Currency other than U.S. dollars will not constitute an
Event of Default.
Subject to the provisions below, the value of the ECU, in which the
Notes may be denominated or may be payable, is equal to the value of the ECU
that is from time to time used as the unit of account of the EC. If the ECU
becomes a currency in its own right in accordance with the Treaty, all
references to ECU in the Notes shall be construed as references to such
currency.
With respect to each due date for the payment of principal of, or
interest on, the Notes on or after the first business day in Brussels on which
the ECU ceases to be used as the unit of account of the EC, and has not become
a currency in its own right replacing all or some of the currencies of the
member States of the EC, the Company shall choose a substitute currency (the
"Chosen Currency"), which may be any currency which was, on the last day on
which the ECU was used as the unit of account of the EC, a component currency
of the ECU or U.S. dollars, in which all payments due on or after that date
with respect to the Notes and coupons shall be made. Notice of the Chosen
Currency so selected shall be provided by first class mail to each holder at
the address of such holder which appears on the books maintained by the
registrar and to the Paying Agent. The amount of each payment in such Chosen
Currency shall be computed on the basis of the equivalent of the ECU in that
currency, determined as described below, as of the fourth business day in
Brussels prior to the date on which such payment is due.
On the first business day in Brussels on which the ECU ceases to
be used as the unit of account of the EC, and has not become a currency in
its own right replacing all or some of the currencies of the member States
of the EC, the Company shall select a Chosen Currency in which all payments
with respect to Notes and coupons having a due date prior thereto but not
yet presented for payment with respect to Notes and coupons having a due
date prior thereto but not yet presented for payment are to be made. The
amount of each payment in such Chosen Currency shall be computed on the
basis of the equivalent of the ECU in that currency, determined as
described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as of any
date (the "Day of Valuation") shall be determined by, or on behalf of, the
Exchange Rate Agent on the following basis. The amounts and components
composing the ECU for this purpose (the "Components") shall be the amounts and
components that composed the ECU as of the last date on which the ECU was used
as the unit of account of the EC. The equivalent of the ECU in the Chosen
Currency shall be calculated by, first, aggregating the U.S. dollar
equivalents of the Components; and then, in the case of a Chosen Currency
other than U.S. dollars, using the rate used for determining the U.S. dollar
equivalent of the Components in the Chosen Currency as set forth below,
calculating the equivalent in the Chosen Currency of such aggregate amount in
U.S. dollars.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. Incorporated,
unless otherwise indicated on the face hereof.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Company, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf,
provided that such quotations were prevailing in the country of issue not
more than two Business Days before such Day of Valuation. If such most
recent quotations were so prevailing in the country of issue more than two
Business Days before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of
cross rates derived from the middle spot delivery quotations for such
component currency and for the U.S. dollar prevailing at 2:30 P.M.,
Brussels time, on such Day of Valuation, as obtained by, or on behalf of,
the Exchange Rate Agent from one or more major banks, as selected by the
Company, in a country other than the country of issue of such component
currency. Notwithstanding the foregoing, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of such
cross rates if the Company or such agent judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent
calculated as provided in the first sentence of this paragraph. Unless
otherwise specified by the Company, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations
or for any other reason, the market to be referred to in respect of such
currency shall be that upon which a non-resident issuer of securities
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the specified office
of a paying agent in the country of the Chosen Currency, or, if none, or at
the option of the holder, at the specified office of any Paying Agent either
by a check drawn on, or by transfer to an account maintained by the holder
with, a bank in the principal financial center of the country of the Chosen
Currency.
All determinations referred to above made by, or on behalf of, the
Company or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive to the extent permitted by law for all purposes and binding on the
holder of this Note and coupons, if any.
So long as this Note shall be outstanding, the Issuer will cause to
be maintained an office or agency for the payment of the principal of and
premium, if any, and interest on this Note as herein provided in the Borough
of Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, transfer and exchange as aforesaid of the
Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be
such an agency, the Issuer shall keep the Trustee advised of the names and
locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee for
the payment of the principal of or interest or premium, if any, on any Notes
that remain unclaimed at the end of two years after such principal, interest
or premium shall have become due and payable (whether at maturity or upon call
for redemption or otherwise), (i) the Trustee shall notify the holders of such
Notes that such moneys shall be repaid to the Issuer and any person claiming
such moneys shall thereafter look only to the Issuer for payment thereof and
(ii) such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee with respect to such moneys shall thereupon cease,
without, however, limiting in any way any obligation that the Issuer may have
to pay the principal of or interest or premium, if any, on this Note as the
same shall become due.
No provision of this Note or of the Senior Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat
the holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Senior Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Senior Indenture
and not otherwise defined herein shall have the meanings assigned to them in
the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the above
list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_________________________________________________
_________________________________________________
_______________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE,
OF ASSIGNEE]
_______________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
_______________________________________________________________
constituting and appointing such person attorney to transfer
_______________________________________________________________
such note on the books of the Issuer, with full power of
_______________________________________________________________
substitution in the premises.
Dated:_____________________
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of the within Note in every
particular without alteration or enlargement or any change
whatsoever.
OPTION TO ELECT TERMINATION OF AUTOMATIC EXTENSION
The undersigned hereby elects to terminate the automatic extension of
the maturity of the within Note (or the portion thereof specified below) with
the effect provided in the within Note by surrendering the within Note to the
Trustee at Chemical Bank, 55 Water Street, New York, New York 10041,
Attention: Corporate Trustee Administration Department, or such other address
of which the Issuer shall from time to time notify the holders of the Notes,
together with this form of "Option to Elect Termination of Automatic
Extension" duly completed by the holder of the within Note.
If the automatic extension of the maturity of less than the entire
principal amount of the within Note is to be terminated, specify the portion
thereof (which shall be $1,000 or an integral multiple of $1,000 in excess
thereof) as to which the holder elects to terminate the automatic extension of
the maturity $______; and specify the denomination or denominations (which
shall be $1,000 or an integral multiple of $1,000 in excess thereof) of the
Notes in the form attached to the within Note as Exhibit A to be issued to the
holder for the portion of the within Note as to which the automatic extension
of maturity is being terminated (in the absence of any such specification one
such Note will be issued for the portion as to which the automatic extension
of maturity is being terminated) $__________.
Dated:_______________ ________________________________
NOTICE: The signature on this
Option to Elect Termination
of Automatic Extension must
correspond with the name as
written upon the face of the
within Note in every particular,
without alteration or enlargement
or any change whatever.
SCHEDULE I
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. The
following exchanges of a portion of this Note for an interest in a Short-Term
Note and the following exchanges of an interest in a Short-Term Note for an
interest in this Note have been made:
<TABLE>
<S> <C> <C> <C> <C> <C>
Principal
Amount of
Reduced Short-Term Increased
Principal Note Principal
Amount Exchanged Amount Notation
Principal Outstanding for Outstanding Made by
Amount Following Interest Following or on
Date of Exchanged Such in this Such Behalf of
Exchange for Short-Term Note Exchange Note Exchange Trustee
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</TABLE>
EXHIBIT A
[FORM OF FACE OF SECURITY]
[Senior Variable Rate Renewable Note]
REGISTERED REGISTERED
No. SRVRR Cusip
U.S. $
Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository Trust Company
and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, since the
registered owner hereof, Cede & Co., has an interest herein.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET
FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
MORGAN STANLEY GROUP INC.
SENIOR VARIABLE RATE RENEWABLE
MEDIUM-TERM NOTE, SERIES C
BASE RATE: ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE:
REPORTING SERVICE: INITIAL INTEREST RESET MATURITY DATE:
INDEX MATURITY: MAXIMUM INTEREST RATE: INTEREST PAYMENT PERIOD:
SPREAD (PLUS OR MINUS): MINIMUM INTEREST RATE: INTEREST PAYMENT DATES:
ALTERNATE RATE EVENT TOTAL AMOUNT OF OID: INTEREST RESET PERIOD:
SPREAD:
INCREMENTAL SPREAD (PLUS ORIGINAL YIELD TO INTEREST RESET DATES:
OR MINUS): MATURITY:
INCREMENTAL SPREAD INITIAL ACCRUAL PERIOD CALCULATION AGENT:
COMMENCEMENT DATE: OID:
OTHER PROVISIONS: SPECIFIED CURRENCY: INDEX CURRENCY:
NO EXCHANGE FOR
RENEWABLE NOTE: The DESIGNATED CMT
holder of this Note TELERATE PAGE:
may not elect to
exchange such Note for DESIGNATED CMT
an interest in the MATURITY INDEX:
predecessor Renewable
Note (as defined EXCHANGE RATE
below). Consequently, AGENT:
Schedule I, and any
provision related to
such Schedule I, is
inapplicable to this
Note
Morgan Stanley Group Inc., a Delaware corporation (together with its
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to
, or registered assignees, the principal sum specified in Schedule I hereto
on the Maturity Date specified above and to pay interest on the principal
amount hereof outstanding from time to time, from the Interest Accrual Date
specified above at a rate per annum equal to the Initial Interest Rate, as
defined below, until the Initial Interest Reset Date specified above, and
thereafter at a rate per annum determined in accordance with the provisions
specified on the reverse hereof until the earlier of (a) the date on which
the principal hereof is paid or duly made available for payment and (b) the
Interest Payment Date immediately preceding the date on which the principal
amount hereof is reduced to zero, in each case, together with the unpaid
amount of interest, if any, payable on the principal amount hereof during
the period that the Issuer's obligation to pay such principal amount was
evidenced by a predecessor Note that provided for the automatic extension
of the maturity thereof (the "Renewable Note"), which amount shall be
payable on the first date succeeding the Interest Accrual Date specified
above on which interest on this Note is paid and shall be payable to the
person receiving such interest payment. The Issuer will pay interest
hereon in arrears monthly, quarterly, semiannually or annually as specified
above as the Interest Payment Period on each Interest Payment Date (as
specified above), commencing with the first Interest Payment Date next
succeeding the Interest Accrual Date specified above, and on the Maturity
Date or any redemption date; provided, however, if the Interest Accrual
Date occurs between a Record Date, as defined below, and the next
succeeding Interest Payment Date, interest payments will commence on the
second Interest Payment Date succeeding the Interest Accrual Date to the
registered holder of this Note on the Record Date with respect to such
second Interest Payment Date; provided, further, that if an Interest
Payment Date or the Maturity Date would fall on a day that is not a
Business Day, as defined on the reverse hereof, such Interest Payment Date
or Maturity Date shall be the following day that is a Business Day, except
that if the Base Rate specified above is LIBOR and such next Business Day
falls in the next calendar month, the Interest Payment Date or Maturity
Date shall be the immediately preceding day that is a Business Day. As
used herein, "Initial Interest Rate" means the rate of interest determined
in accordance with the provisions of the Renewable Note (i) on the Interest
Reset Date with respect to the Renewable Note occurring on the Interest
Accrual Date specified above or (ii) if no such Interest Reset Date
occurred on the Interest Accrual Date, on the Interest Reset Date with
respect to the Renewable Note occurring immediately preceding the Interest
Accrual Date.
Interest on this Note will accrue from and including the most recent
date to which interest has been paid or duly provided for, or, if no interest
has been paid or duly provided for, from the Interest Accrual Date, until the
earlier of (a) the date on which the principal hereof has been paid or duly
made available for payment and (b) the Interest Payment Date immediately
preceding the date on which the principal amount hereof is reduced to zero in
accordance with the provisions set forth below. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will,
subject to certain exceptions described herein, be paid to the person in whose
name this Note (or one or more predecessor Notes) is registered at the close
of business on the date 15 calendar days prior to such Interest Payment Date
(whether or not a Business Day) (each such date a "Record Date"); provided,
however, that interest payable on the Maturity Date will be payable to the
person to whom the principal hereof shall be payable.
On any date following the Interest Accrual Date and prior to the
Record Date immediately preceding the Maturity Date, the holder hereof may
elect to exchange this Note or any portion hereof having a principal amount
of $1,000 or any larger multiple of $1,000 in excess thereof for an
interest in the Renewable Note equal to the principal amount hereof so
exchanged by delivering to the Trustee (i) this Note with the form entitled
"Option to Exchange" below duly completed or (ii) a telegram, telex,
facsimile transmission or a letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or a trust company in the United States of America setting
forth the name of the holder of this Note, the principal amount hereof, the
certificate number of this Note or a description of this Note's tenor or
terms, a statement that the option to exchange is being exercised thereby,
the principal amount hereof with respect to which such option is being
exercised and a guarantee that this Note with the form entitled "Option to
Exchange" below duly completed will be received by the Trustee no later
than five Business Days after the date of such telegram, telex, facsimile
transmission or letter; provided that such telegram, telex, facsimile
transmission or letter shall not be effective unless this Note and such
form duly completed are received by the Trustee by such fifth Business Day.
Such option may be exercised by the holder for less than the entire
principal amount hereof provided that the principal amount for which such
option is not exercised is at least $1,000 or any larger amount that is an
integral multiple of $1,000. Notwithstanding the foregoing, the option to
exchange all or a portion of this Note for an interest in the Renewable
Note may not be exercised during the period from and including a Record
Date to but excluding the immediately succeeding Interest Payment Date. If
the option to exchange any portion hereof is exercised, then, on the date
of such exchange, Schedule I hereto shall be annotated to reflect the
corresponding decrease in the principal amount hereof, and Schedule I to
the Renewable Note shall be annotated to reflect the corresponding increase
in the principal amount thereof.
Payment of the principal of this Note, any premium and the interest
due at the Maturity Date (or any redemption date), unless this Note is
denominated in a Specified Currency other than U.S. dollars and is to be paid
in whole, or in part in such Specified Currency, will be made in immediately
available funds upon surrender of this Note at the office or agency of the
Trustee, as defined on the reverse hereof, maintained for that purpose in the
Borough of Manhattan, The City of New York, or at the office or agency of such
other paying agent as the Issuer may determine in U.S. dollars. U.S. dollar
payments of interest, other than interest due at maturity or any date of
redemption, will be made by United States dollar check mailed to the address
of the person entitled thereto as such address shall appear in the Note
register. A holder of U.S. $10,000,000 or more in aggregate principal amount
of Notes having the same Interest Payment Date, the interest on which is paid
in U.S. dollars, will be entitled to receive payments of interest, other than
interest due at maturity or any date of redemption, by wire transfer of
immediately available funds if appropriate wire transfer instructions have
been received by the Trustee in writing not less than 15 calendar days prior
to the applicable Interest Payment Date.
If this Note is denominated in a Specified Currency other than U.S.
dollars, and the holder does not elect (in whole or in part) to receive
payment in U.S. dollars pursuant to the next succeeding paragraph, payments of
interest, principal or any premium with regard to this Note will be made by
wire transfer of immediately available funds to an account maintained by the
holder hereof with a bank located outside the United States if appropriate
wire transfer instructions have been received by the Paying Agent in writing
not less than 15 calendar days prior to the applicable payment date, provided
that, if such wire transfer instructions are not received, such payments will
be made by check payable in such Specified Currency mailed to the address of
the person entitled thereto as such address shall appear in the Note register,
and provided, further, that payment of the principal of this Note, any premium
and the interest due at maturity (or on any redemption or repayment date) will
be made upon surrender of this Note at the office or agency referred to in the
preceding paragraph.
Unless otherwise indicated herein, the holder of this Note
denominated in a Specified Currency other than U.S. dollars, may elect to
receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the
Record Date or at least ten Business Days prior to the Maturity Date or any
redemption date, as the case may be. Such election shall remain in effect
unless such request is revoked by written notice to the Paying Agent as to
all or a portion of payments on this Note at least five Business Days prior
to such Record Date or at least ten days prior to the Maturity Date or any
redemption date, as the case may be.
If the holder elects to receive all or a portion of payments of
principal of and any premium and interest on this Note, if denominated in a
Specified Currency other than U.S. dollars, in U.S. dollars, the Exchange
Rate Agent will convert such payments into U.S. dollars. In the event of
such an election, payment in respect of this Note will be based upon the
exchange rate as determined by the Exchange Rate Agent based on the highest
bid quotation in The City of New York received by such Exchange Rate Agent
at approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign
exchange dealers (one of which may be the Exchange Rate Agent unless such
Exchange Rate Agent is Morgan Stanley & Co. Incorporated), for the
purchase by the quoting dealer of U.S. dollars for the Specified Currency
for settlement on such payment date in the amount of the Specified Currency
payable in the absence of such an election to such holder and at which the
applicable dealer commits to execute a contract. If such bid quotations
are not available, such payment will be made in the Specified Currency.
All currency exchange costs will be borne by the holder of this Note by
deductions from such payments.
If this Note ceases to be held by The Depository Trust Company or its
successor or the nominee of The Depository Trust Company or its successor,
this Note will be exchanged for one or more Notes of authorized denominations
having an aggregate principal amount equal to the principal amount of this
Note as then shown on Schedule I hereto, which new Notes shall otherwise have
the same terms as this Note, except that the provisions of such new Notes
regarding the exchange thereof for an interest in a note providing for the
automatic extension of the maturity thereof (a "New Renewable Note") shall be
modified to the extent appropriate for notes not required to be held in a
securities depositary; provided that the respective rights and obligations of
the Issuer and the holders of such new Notes shall be the same in all material
respects as the respective rights and obligations of the Issuer and the holder
of this Note. The terms of the New Renewable Note shall be the same as the
terms of the Renewable Note, except that the principal amount thereof shall
equal the principal amount of the new Notes exchanged therefor and the
provisions of such New Renewable Notes regarding the automatic extension of
the maturity thereof shall be modified to the extent appropriate for notes not
required to be held in a securities depositary; provided that the respective
rights and obligations of the Issuer and the holders of such New Renewable
Notes shall be the same in all material respects as the respective rights and
obligations of the Issuer and the holder of the Renewable Note. Such new
Notes shall have stated principal amounts and shall be registered in the names
of the persons then having a beneficial interest in this Note or in the names
of their nominees.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Senior Indenture, as defined on
the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By:_______________________
Title:
TRUSTEE'S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Senior Indenture.
CHEMICAL BANK,
as Trustee
By:____________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of the Senior Medium-
Term Notes, Series C, having maturities more than nine months from the date
of issue (the "Notes") of the Issuer. The Notes are issuable under a
Senior Indenture, dated as of April 15, 1989, as supplemented by a First
Supplemental Indenture dated as of May 15, 1991 and a Second Supplemental
Indenture dated as of April 15, 1996 (as so supplemented, the "Senior
Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The terms of individual Notes may vary with
respect to interest rates, interest rate formulas, issue dates, maturity
dates, or otherwise, all as provided in the Senior Indenture. To the
extent not inconsistent herewith, the terms of the Senior Indenture are
hereby incorporated by reference herein.
Unless otherwise provided on the face hereof this Note will not be
subject to any sinking fund and will not be redeemable prior to maturity.
This Note will bear interest at the rate determined in accordance
with the applicable provisions below by reference to the Base Rate
specified on the face hereof based on the Index Maturity, if any, specified
on the face hereof (i) (A) plus or minus the Spread, if any, specified on
the face hereof and (B) for any period on or after the Incremental Spread
Commencement Date, if any, specified on the face hereof, plus or minus the
Incremental Spread, if any, specified on the face hereof or (ii) multiplied
by the Spread Multiplier, if any, specified on the face hereof. Commencing
with the Initial Interest Reset Date specified on the face hereof, the rate
at which interest on this Note is payable shall be reset as of each
Interest Reset Date (as used herein, the term "Interest Reset Date" shall
include the Initial Interest Reset Date). The determination of the rate of
interest at which this Note will be reset on any Interest Reset Date shall
be made, on the Interest Determination Date (as defined below) pertaining
to such Interest Reset Date. The Interest Reset Dates will be the Interest
Reset Dates specified on the face hereof; provided, however, that the
interest rate in effect for the period from the Interest Accrual Date to
the Initial Interest Reset Date specified on the face hereof will be the
Initial Interest Rate. If any Interest Reset Date would otherwise be a day
that is not a Business Day, such Interest Reset Date shall be postponed to
the next succeeding day that is a Business Day, except that if the Base
Rate specified on the face hereof is LIBOR and such Business Day is in the
next succeeding calendar month, such Interest Reset Date shall be the next
preceding Business Day. As used herein, "Business Day" means any day,
other than a Saturday or Sunday, and that is neither a legal holiday nor a
day on which banking institutions are authorized or required by law or
regulation to close in The City of New York and, with respect to Notes
bearing interest calculated by reference to LIBOR, in the City of London.
The Interest Determination Date pertaining to an Interest Reset
Date for Notes bearing interest calculated by reference to the CD Rate,
Commercial Paper Rate, Federal Funds Rate, Prime Rate and CMT Rate will be
the second Business Day next preceding such Interest Reset Date. The
Interest Determination Date pertaining to an Interest Reset Date for Notes
bearing interest calculated by reference to LIBOR shall be the second
London Banking Day preceding such Interest Reset Date, except that the
Interest Determination Date pertaining to an Interest Reset Date for a
LIBOR Note for which the Index Currency is pounds Sterling will be such
Interest Reset Date. As used herein, "London Banking Day" means any day on
which dealings in deposits in the Index Currency (as defined herein) are
transacted in the London interbank market. The Interest Determination
Date) pertaining to an Interest Reset Date for Notes bearing interest
calculated by reference to the Treasury Rate shall be the day of the week
in which such Interest Reset Date falls on which Treasury bills normally
would be auctioned; provided, however, that if as a result of a legal
holiday an auction is held on the Friday of the week preceding such
Interest Reset Date, the related Interest Determination Date shall be such
preceding Friday; and provided, further, that if an auction shall fall on
any Interest Reset Date, then the Interest Reset Date shall instead be the
first Business Day following the date of such auction.
Unless otherwise specified on the face hereof, the "Calculation Date"
pertaining to an Interest Determination Date will be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if such day is
not a Business Day, the next succeeding Business Day, or (ii) the Business Day
preceding the applicable Interest Payment Date or Maturity Date (or, with
respect to any principal amount to be redeemed or repaid, any redemption or
repayment date), as the case may be.
Determination of CD Rate. If the Base Rate specified on the face
hereof is the CD Rate, the CD Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate on such
date for negotiable certificates of deposit having the Index Maturity
specified on the face hereof as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates," or any successor publication of the Board of Governors of the Federal
Reserve System ("H.15(519)"), under the heading "CDs (Secondary Market)," or,
if not so published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the CD Rate will be the rate
on such Interest Determination Date for negotiable certificates of deposit of
the Index Maturity specified on the face hereof as published by the Federal
Reserve Bank of New York in its daily statistical release "Composite 3:30 P.M.
Quotations for U.S. Government Securities" ("Composite Quotations") under the
heading "Certificates of Deposit." If neither of such rates is published by
3:00 P.M., New York City time, on such Calculation Date, then the CD Rate on
such Interest Determination Date will be calculated by the Calculation Agent
referred to on the face hereof and will be the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City time, on such
Interest Determination Date for certificates of deposit in the denomination of
$5,000,000 with a remaining maturity closest to the Index Maturity specified
on the face hereof of three leading nonbank dealers in negotiable U.S. dollar
certificates of deposit in The City of New York selected by the Calculation
Agent for negotiable certificates of deposit of major United States money
center banks of the highest credit standing in the market for negotiable
certificates of deposit; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the CD Rate in effect for the applicable period will be the same as
the CD Rate for the immediately preceding Interest Reset Period (or, if there
was no such Interest Reset Period, the rate of interest payable hereon shall
be the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate specified
on the face hereof is the Commercial Paper Rate, the Commercial Paper Rate
with respect to this Note shall be determined on each Interest Determination
Date and shall be the Money Market Yield (as defined herein) of the rate on
such date for commercial paper having the Index Maturity specified on the face
hereof, as such rate shall be published in H.15(519) under the heading
"Commercial Paper," or if not so published prior to 9:00 A.M., New York City
time, on the Calculation Date pertaining to such Interest Determination Date,
the Commercial Paper Rate shall be the Money Market Yield of the rate on such
Interest Determination Date for commercial paper of the Index Maturity
specified on the face hereof as published in Composite Quotations under the
heading "Commercial Paper." If neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, then the Commercial Paper
Rate shall be the Money Market Yield of the arithmetic mean of the offered
rates as of 11:00 A.M., New York City time, on such Interest Determination
Date of three leading dealers in commercial paper in The City of New York
selected by the Calculation Agent for commercial paper of the Index Maturity
specified on the face hereof, placed for an industrial issuer whose bond
rating is "AA," or the equivalent, from a nationally recognized rating agency;
provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the
Commercial Paper Rate in effect for the applicable period will be the same as
the Commercial Paper Rate for the immediately preceding Interest Reset Period
(or, if there was no such Interest Reset Period, the rate of interest payable
hereon shall be the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in accordance with
the following formula:
Money Market Yield = D x 360
---------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the interest period for which interest is being
calculated.
Determination of Federal Funds Rate. If the Base Rate specified on
the face hereof is the Federal Funds Rate, the Federal Funds Rate with respect
to this Note shall be determined on each Interest Determination Date and shall
be the rate on such date for Federal Funds as published in H.15(519) under the
heading "Federal Funds (Effective)," or, if not so published by 9:00 A.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the Federal Funds Rate will be the rate on such Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, the Federal Funds Rate for
such Interest Determination Date will be calculated by the Calculation Agent
and will be the arithmetic mean of the rates for the last transaction in
overnight Federal funds as of 11:00 A.M., New York City time, on such Interest
Determination Date arranged by three leading brokers in Federal funds
transactions in The City of New York selected by the Calculation Agent;
provided, however, that if the brokers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the Federal
Funds Rate in effect for the applicable period will be the same as the Federal
Funds Rate for the immediately preceding Interest Reset Period (or, if there
was no such Interest Reset Period, the rate of interest payable hereon shall
be the Initial Interest Rate).
Determination of LIBOR. If the Base Rate specified on the face
hereof is LIBOR, LIBOR with respect to this Note shall be determined on each
Interest Determination Date as follows:
(i) As of the Interest Determination Date, the Calculation Agent
will determine (a) if "LIBOR Reuters" is specified as the Reporting Service
on the face hereof, the arithmetic mean of the offered rates (unless the
specified Designated LIBOR Page (as defined below) by its terms provides
only for a single rate, in which case such single rate shall be used) for
deposits in the London interbank market in the Index Currency for the
period of the Index Maturity specified on the face hereof, commencing on
the second London Banking Day immediately following such Interest
Determination Date, which appear on the Designated LIBOR Page at
approximately 11:00 A.M., London time, on such Interest Determination Date,
if at least two such offered rates appear (unless, as aforesaid, only a
single rate is required) on such Designated LIBOR Page, or (b) if "LIBOR
Telerate" is specified as the Reporting Service on the face hereof, the
rate for deposits in the Index Currency for the period of the Index
Maturity, each as designated on the face hereof, commencing on the Second
London Banking Day following such Interest Determination Date (or, if
pounds Sterling is the Index Currency commencing on such Interest
Determination Date) that appears on the Designated LIBOR Page at
approximately 11:00 A.M., London time, on such Interest Determination Date.
If fewer than two offered rates appear (if "LIBOR Reuters" is specified as
the Reporting Service on the face hereof and calculation of LIBOR is based
on the arithmetic mean of the offered rates) or if no rate appears (if the
Reporting Service on the face hereof specifies either (x) "LIBOR Reuters"
and the Designated LIBOR Page by its terms provides only for a single rate
or (y) "LIBOR Telerate"), LIBOR in respect of that Interest Determination
Date will be determined as if the parties had specified the rate described
in (ii) below.
(ii) With respect to an Interest Determination Date on which fewer
than two offered rates appear (if "LIBOR Reuters" is specified as the
Reporting Service on the face hereof and calculation of LIBOR is based
on the arithmetic mean of the offered rates) or no rate appears (if the
Reporting Service on the face hereof specifies either (x) "LIBOR
Reuters" and the Designated LIBOR Page by its terms provides only for a
single rate or (y) "LIBOR Telerate"), the Calculation Agent will request
the principal London offices of each of four major reference banks in
the London interbank market, as selected by the Calculation Agent (after
consultation with the Issuer), to provide the Calculation Agent with its
offered quotations for deposits in the Index Currency for the period of
the Index Maturity specified on the face hereof, commencing on the
second London Banking Day immediately following such Interest
Determination Date (or, if pounds sterling is the Index Currency,
commencing on such Interest Determination Date), to prime banks in the
London interbank market at approximately 11:00 A.M., London time, on
such Interest Determination Date and in a principal amount equal to an
amount of not less than U.S.$1 million (or the equivalent in the Index
Currency (if the Index Currency is not U.S. Dollars)) that is
representative of a single transaction in such Index Currency in such
market at such time. If at least two such quotations are provided,
LIBOR determined on such Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR determined on such Interest Determination Date will be
the arithmetic mean of rates quoted at approximately 11:00 A.M. (or
such other time specified on the face hereof), in the applicable
principal financial center for the country of the Index Currency on such
Interest Determination Date, by three major banks in such principal
financial center selected by the Calculation Agent (after consultation
with the Issuer) on such Interest Determination Date for loans in the
Index Currency to leading European banks, for the period of the Index
Maturity specified on the face hereof commencing on the second London
Banking Day immediately following such Interest Determination Date (or,
if pounds sterling is the Index Currency, commencing on such Interest
Determination Date) and in a principal amount of not less than U.S.$1
million (or the equivalent in the Index Currency (if the Index Currency
is not U.S. dollars)) that is representative of a single transaction in
such Index Currency in such market at such time; provided, however, that
if the banks selected as aforesaid by the Calculation Agent are not
quoting rates as mentioned in this sentence, "LIBOR" for such Interest
Reset Period will be the same as LIBOR for the immediately preceding
Interest Reset Period (or, if there was no such Interest Reset Period,
the rate of interest payable on the LIBOR Notes for which LIBOR is being
determined shall be the Initial Interest Rate). "Index Currency" means
the currency (including composite currencies) specified as Index
Currency on the face hereof. If no such currency is specified as Index
Currency on the face hereof, the Index Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is
designated as the Reporting Service on the face hereof, the display on
the Reuters Monitor Money Rates Service for the purpose of displaying
the London interbank rates of major banks for the applicable Index
Currency, or (b) if "LIBOR Telerate" is designated as the Reporting
Service on the face hereof, the display on the Dow Jones Telerate
Service for the purpose of displaying the London interbank rates of
major banks for the applicable Index Currency. If neither LIBOR Reuters
nor LIBOR Telerate is specified as the Reporting Service on the face
hereof, LIBOR for the applicable Index Currency will be determined as if
LIBOR Telerate (and, if the U.S. dollar is the Index Currency, Page
3750) had been specified.
Determination of Prime Rate. If the Base Rate specified on the
face hereof is the Prime Rate, the Prime Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
rate set forth in H.15(519) for such date opposite the caption "Bank Prime
Loan." If such rate is not yet published by 9:00 A.M., New York City time,
on the Calculation Date pertaining to such Interest Determination Date, the
Prime Rate for such Interest Determination Date will be the arithmetic mean
of the rates of interest publicly announced by each bank named on the
Reuters Screen USPRIME 1 Page as such bank's prime rate or base lending
rate as in effect for such Interest Determination Date as quoted on the
Reuters Screen USPRIME 1 Page on such Interest Determination Date, or, if
fewer than four such rates appear on the Reuters Screen USPRIME 1 Page for
such Interest Determination Date, the rate shall be the arithmetic mean of
the prime rates quoted on the basis of the actual number of days in the
year divided by 360 as of the close of business on such Interest
Determination Date by at least two of the three major money center banks in
The City of New York selected by the Calculation Agent from which
quotations are requested. If fewer than two quotations are provided, the
Prime Rate shall be calculated by the Calculation Agent and shall be
determined as the arithmetic mean on the basis of the prime rates in The
City of New York by the appropriate number of substitute banks or trust
companies organized and doing business under the laws of the United States,
or any State thereof, in each case having total equity capital of at least
U.S. $500 million and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent to quote such
rate or rates; provided, however, that if the banks or trust companies
selected as aforesaid by the Calculation Agent are not quoting rates as set
forth above, the "Prime Rate" in effect for such Interest Reset Period will
be the same as the Prime Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate).
"Reuters Screen USPRIME 1 Page" means the display designated as Page
"USPRIME 1" on the Reuters Monitor Money Rate Service (or such other page that
may replace the USPRIME 1 Page on that service for the purpose of displaying
prime rates or base lending rates of major U.S. banks).
Determination of Treasury Rate. If the Base Rate specified on the
face hereof is the Treasury Rate, the Treasury Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the rate
for the auction held on such date of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face hereof, as
published in H.15(519) under the heading "Treasury Bills--auction average
(investment)," or if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the auction
average rate on such Interest Determination Date (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United States
Department of the Treasury. In the event that the results of the auction of
Treasury Bills having the Index Maturity specified on the face hereof are not
published or reported as provided above by 3:00 P.M., New York City time, on
such Calculation Date or if no such auction is held on such Interest
Determination Date, then the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) calculated using the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Interest Determination Date, of three leading primary United States
government securities dealers selected by the Calculation Agent for the issue
of Treasury Bills with a remaining maturity closest to the Index Maturity
specified on the face hereof; provided, however, that if the dealers selected
as aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate for such Interest Reset Date will be the same as
the Treasury Rate for the immediately preceding Interest Reset Period (or, if
there was no such Interest Reset Period, the rate of interest payable hereon
shall be the Initial Interest Rate).
Determination of CMT Rate. If the Base Rate specified on the face
hereof is the CMT Rate, the CMT Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate
displayed for the Index Maturity specified on the face hereof on the
Designated CMT Telerate Page under the caption "Daily Treasury Constant
Maturities and Money Markets/Federal Reserve Board Release H.15," under the
column for the Designated CMT Maturity Index for (i) if the Designated CMT
Telerate Page is 7055, the rate on such Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the week or the month, as
applicable, ended immediately preceding the week in which the related
Interest Determination Date occurs. If such rate is no longer displayed on
the relevant page, or is not displayed by 3:00 P.M., New York City time, on
the Calculation Date pertaining to such Interest Determination Date, then
the CMT Rate for such Interest Determination Date will be such Treasury
Constant Maturity rate for the Designated CMT Maturity Index as published
in the relevant H.15(519). If such rate is no longer published, or is not
published by 3:00 P.M., New York City time, on the related Calculation
Date, then the CMT Rate for such Interest Determination Date will be such
Treasury Constant Maturity rate for the Designated CMT Maturity Index (or
other United States Treasury rate for the Designated CMT Maturity Index)
for the Interest Determination Date with respect to the related Interest
Reset Date as may then be published by either the Board of Governors of the
Federal Reserve System or the United States Department of the Treasury that
the Calculation Agent determines to be comparable to the rate formerly
displayed on the Designated CMT Telerate Page and published in the relevant
H.15(519). If such information is not provided by 3:00 P.M., New York
time, on the related Calculation Date, then the CMT Rate for the Interest
Determination Date will be calculated by the Calculation Agent and will be
a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City
time, on the Interest Determination Date reported, according to their
written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in The City of New York
(which may include affiliates of the Issuer) selected by the Calculation
Agent (from five such Reference Dealers selected by the Calculation Agent,
after consultation with the Issuer), and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation
(or, in the event of equality, one of the lowest), for the most recently
issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the
Designated CMT Maturity Index and remaining term to maturity of not less
than such Designated CMT Maturity Index minus one year. If the Calculation
Agent cannot obtain three such Treasury Notes quotations, the CMT Rate for
such Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity based on the arithmetic mean of the
secondary market offer side prices as of approximately 3:30 P.M., New York
City time, on the Interest Determination Date of three Reference Dealers in
The City of New York (from five such Reference Dealers selected by the
Calculation Agent, after consultation with the Issuer, and eliminating the
highest quotation (or, in the event of equality, one of the highest) and
the lowest quotation (or, in the event of equality, one of the lowest)),
for Treasury Notes with an original maturity of the number of years that is
the next highest to the Designated CMT Maturity Index and a remaining term
to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100,000,000. If three or four (and not five) of such
Reference Dealers are quoting as described above, then the CMT Rate will be
based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers selected by the
Calculation Agent are quoting as described herein, the CMT Rate for such
Interest Reset Date will be the same as the CMT Rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset
Period, the rate of interest payable hereon shall be the Initial Interest
Rate). If two Treasury Notes with an original maturity as described in the
second preceding sentence have remaining terms to maturity equally close to
the Designated CMT Maturity Index, the quotes for the Treasury note with
the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service specified on the face hereof (or any other page as may
replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)), for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519). If no such page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" shall be the original period to
maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be two years.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing on
or before each Calculation Date. The interest rate on this Note will in no
event be higher than the maximum rate permitted by New York law, as the same
may be modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next
Interest Reset Date.
Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or Maturity Date, as the case may
be. Accrued interest hereon for any period shall be the sum of the
products obtained by multiplying the interest factor calculated for each
day in such period by the principal amount hereof shown on Schedule I
hereto for each such day; provided that for the purpose of calculating the
amount of interest payable hereon, any decrease in the principal amount
hereof attributable to an exercise of the option to exchange a portion of
this Note for an interest in the Renewable Note shall be effective on and
as of the Interest Payment Date immediately preceding the date of such
decrease. The interest factor for each such day shall be computed by
dividing the interest rate applicable to such day by 360 if the Base Rate
is CD Rate, Commercial Paper Rate, Federal Funds Rate, Prime Rate or LIBOR,
as specified on the face hereof, or by the actual number of days in the
year if the Base Rate is the Treasury Rate or the CMT Rate, as specified on
the face hereof. All percentages resulting from any calculation of the
rate of interest on this Note will be rounded, if necessary, to the nearest
one hundred-thousandth of a percentage point (.0000001), with five one-
millionths of a percentage point rounded upward, and all dollar amounts
used in or resulting from such calculation on this Note will be rounded to
the nearest cent (with one-half cent rounded upward). The interest rate in
effect on any Interest Reset Date will be the applicable rate as reset on
such date. The interest rate applicable to any other day is the interest
rate from the immediately preceding Interest Reset Date (or, if none, the
Initial Interest Rate).
This Note, and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and is
issuable only in denominations of U.S. $1,000 and any integral multiple of
U.S. $1,000 in excess thereof. If this Note is denominated in a Specified
Currency other than U.S. dollars, then, unless a higher minimum
denomination is required by applicable law, it is issuable only in
denominations of the equivalent of U.S. $1,000 (rounded to an integral
multiple of 1,000 units of such Specified Currency), or any amount in
excess thereof which is an integral multiple of 1,000 units of such
Specified Currency, as determined by reference to the noon dollar buying
rate in New York City for cable transfers of such Specified Currency
published by the Federal Reserve Bank of New York (the "Market Exchange
Rate") on the Business Day immediately preceding the date of issuance;
provided, however, in the case of ECUs, the Market Exchange Rate shall be
the rate of exchange determined by the Commission of the European
Communities (or any successor thereto) as published in the Official Journal
of the European Communities, or any successor publication, on the Business
Day immediately preceding the date of issuance.
The Trustee has been appointed registrar for the Notes, and the
Trustee will maintain at its office in The City of New York a register for
the registration and transfer of Notes. This Note may be transferred at
the aforesaid office of the Trustee by surrendering this Note for
cancellation, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and duly executed by the registered holder
hereof in person or by the holder's attorney duly authorized in writing,
and thereupon the Trustee shall issue in the name of the transferee or
transferees, in exchange herefor, a new Note or Notes having identical
terms and provisions and having a like aggregate principal amount in
authorized denominations, subject to the terms and conditions set forth
herein; provided, however, that the Trustee will not be required (i) to
register the transfer of or exchange any Note that has been called for
redemption in whole or in part, except the unredeemed portion of Notes
being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of
such Note not required to be repurchased or (iii) to register the transfer
of or exchange Notes to the extent and during the period so provided in the
Senior Indenture with respect to the redemption of Notes. Notes are
exchangeable at said office for other Notes of other authorized
denominations of equal aggregate principal amount having identical terms
and provisions. All such exchanges and transfers of Notes will be free of
charge, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge in connection therewith. All Notes
surrendered for exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Trustee and executed by the registered
holder in person or by the holder's attorney duly authorized in writing.
The date of registration of any Note delivered upon any exchange or
transfer of Notes shall be such that no gain or loss of interest results
from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Note so destroyed or lost or stolen, but, in the case of any destroyed or lost
or stolen Note, only upon receipt of evidence satisfactory to the Trustee and
the Issuer that such Note was destroyed or lost or stolen and, if required,
upon receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default (as
defined in the Senior Indenture) due to the default in payment of principal
of, premium, if any, or interest on, any series of debt securities issued
under the Senior Indenture, including the series of Senior Medium-Term
Notes of which this Note forms a part, or due to the default in the
performance or breach of any other covenant or warranty of the Issuer
applicable to the debt securities of such series but not applicable to all
outstanding debt securities issued under the Senior Indenture shall have
occurred and be continuing, either the Trustee or the holders of not less
than 25% in principal amount of the debt securities of each affected series
(voting as a single class) may then declare the principal of all debt
securities of all such series and interest accrued thereon to be due and
payable immediately and (b) if an Event of Default due to a default in the
performance of any other of the covenants or agreements in the Senior
Indenture applicable to all outstanding debt securities issued thereunder,
including this Note, or due to certain events of bankruptcy, insolvency and
reorganization of the Issuer, shall have occurred and be continuing, either
the Trustee or the holders of not less than 25% in principal amount of all
debt securities issued under the Senior Indenture then outstanding (treated
as one class) may declare the principal of all such debt securities and
interest accrued thereon to be due and payable immediately, but upon
certain conditions such declarations may be annulled and past defaults may
be waived (except a continuing default in payment of principal (or premium,
if any) or interest on such debt securities) by the holders of a majority
in principal amount of the debt securities of all affected series then
outstanding.
The Senior Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior
Indenture then outstanding and affected (voting as one class), to execute
supplemental indentures adding any provisions to or changing in any manner
the rights of the holders of each series so affected; provided that the
Issuer and the Trustee may not, without the consent of the holder of each
outstanding debt security affected thereby, (a) extend the final maturity
of any such debt security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or
reduce any amount payable on redemption thereof, or change the currency of
payment thereof, or impair or affect the rights of any holder to institute
suit for the payment thereof without the consent of the holder of each debt
security so affected; or (b) reduce the aforesaid percentage in principal
amount of debt securities the consent of the holders of which is required
for any such supplemental indenture, without the consent of the holders of
each debt security so affected.
Except as set forth below, if the principal of, premium, if any,
or interest on, this Note is payable in a Specified Currency other than
U.S. dollars and such Specified Currency is not available to the Issuer for
making payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking
community, then the Issuer will be entitled to satisfy its obligations to
the holder of this Note by making such payments in U.S. dollars on the
basis of the Market Exchange Rate on the date of such payment or, if the
Market Exchange Rate is not available on such date, as of the most recent
practicable date; provided, however, that if such Specified Currency is
replaced by a single European currency (expected to be named the Euro), the
payment of principal of, premium, if any, or interest on any Note
denominated in such currency shall be effected in the new single European
currency in conformity with legally applicable measures taken pursuant to,
or by virtue of, the treaty establishing the European Community (the "EC"),
as amended by the treaty on European Union (as so amended, the "Treaty").
Any payment made under such circumstances in U.S. dollars (or, if
applicable, such new single European currency) where the required payment
is in a Specified Currency other than U.S. dollars will not constitute an
Event of Default.
Subject to the provisions below, the value of the ECU, in which the
Notes may be denominated or may be payable, is equal to the value of the ECU
that is from time to time used as the unit of account of the EC. If the ECU
becomes a currency in its own right in accordance with the Treaty, all
references to ECU in the Notes shall be construed as references to such
currency.
With respect to each due date for the payment of principal of, or
interest on, the Notes on or after the first business day in Brussels on
which the ECU ceases to be used as the unit of account of the EC, and has
not become a currency in its own right replacing all or some of the
currencies of the member States of the EC, the Company shall choose a
substitute currency (the "Chosen Currency"), which may be any currency
which was, on the last day on which the ECU was used as the unit of account
of the EC, a component currency of the ECU or U.S. dollars, in which all
payments due on or after that date with respect to the Notes and coupons
shall be made. Notice of the Chosen Currency so selected shall be provided
by first class mail to each holder at the address of such holder which
appears on the books maintained by the registrar and to the Paying Agent.
The amount of each payment in such Chosen Currency shall be computed on the
basis of the equivalent of the ECU in that currency, determined as
described below, as of the fourth business day in Brussels prior to the
date on which such payment is due.
On the first business day in Brussels on which the ECU ceases to
be used as the unit of account of the EC, and has not become a currency in
its own right replacing all or some of the currencies of the member States
of the EC, the Company shall select a Chosen Currency in which all payments
with respect to Notes and coupons having a due date prior thereto but not
yet presented for payment with respect to Notes and coupons having a due
date prior thereto but not yet presented for payment are to be made. The
amount of each payment in such Chosen Currency shall be computed on the
basis of the equivalent of the ECU in that currency, determined as
described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as of
any date (the "Day of Valuation") shall be determined by, or on behalf of,
the Exchange Rate Agent on the following basis. The amounts and components
composing the ECU for this purpose (the "Components") shall be the amounts
and components that composed the ECU as of the last date on which the ECU
was used as the unit of account of the EC. The equivalent of the ECU in
the Chosen Currency shall be calculated by, first, aggregating the U.S.
dollar equivalents of the Components; and then, in the case of a Chosen
Currency other than U.S. dollars, using the rate used for determining the
U.S. dollar equivalent of the Components in the Chosen Currency as set
forth below, calculating the equivalent in the Chosen Currency of such
aggregate amount in U.S. dollars.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. Incorporated,
unless otherwise indicated on the face hereof.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Company, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf,
provided that such quotations were prevailing in the country of issue not
more than two Business Days before such Day of Valuation. If such most
recent quotations were so prevailing in the country of issue more than two
Business Days before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of
cross rates derived from the middle spot delivery quotations for such
component currency and for the U.S. dollar prevailing at 2:30 P.M.,
Brussels time, on such Day of Valuation, as obtained by, or on behalf of,
the Exchange Rate Agent from one or more major banks, as selected by the
Company, in a country other than the country of issue of such component
currency. Notwithstanding the foregoing, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of such
cross rates if the Company or such agent judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent
calculated as provided in the first sentence of this paragraph. Unless
otherwise specified by the Company, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations
or for any other reason, the market to be referred to in respect of such
currency shall be that upon which a non-resident issuer of securities
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the specified office
of a paying agent in the country of the Chosen Currency, or, if none, or at
the option of the holder, at the specified office of any Paying Agent either
by a check drawn on, or by transfer to an account maintained by the holder
with, a bank in the principal financial center of the country of the Chosen
Currency.
All determinations referred to above made by, or on behalf of, the
Company or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive to the extent permitted by law for all purposes and binding on the
holder of this Note and coupons, if any.
So long as this Note shall be outstanding, the Issuer will cause to
be maintained an office or agency for the payment of the principal of and
premium, if any, and interest on this Note as herein provided in the Borough
of Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, transfer and exchange as aforesaid of the
Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be
such an agency, the Issuer shall keep the Trustee advised of the names and
locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee for
the payment of the principal of or interest or premium, if any, on any Notes
that remain unclaimed at the end of two years after such principal, interest
or premium shall have become due and payable (whether at maturity or upon call
for redemption or otherwise), (i) the Trustee shall notify the holders of such
Notes that such moneys shall be repaid to the Issuer and any person claiming
such moneys shall thereafter look only to the Issuer for payment thereof and
(ii) such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee with respect to such moneys shall thereupon cease,
without, however, limiting in any way any obligation that the Issuer may have
to pay the principal of or interest or premium, if any, on this Note as the
same shall become due.
No provision of this Note or of the Senior Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat
the holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Senior Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Senior Indenture
and not otherwise defined herein shall have the meanings assigned to them in
the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - ...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the above
list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
______________________________________
______________________________________
_______________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE,
OF ASSIGNEE]
_______________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
_______________________________________________________________
constituting and appointing such person attorney to transfer
_______________________________________________________________
such note on the books of the Issuer, with full power of
_______________________________________________________________
substitution in the premises.
Dated:_____________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within Note in every particular
without alteration or enlargement or any change whatsoever.
OPTION TO EXCHANGE
The undersigned hereby elects to exchange the within Note (or the
portion thereof specified below) with the effect provided in the within Note
by surrendering the within Note to the Trustee at Chemical Bank, 55 Water
Street, New York, New York 10041, Attention: Corporate Trustee Administration
Department, or such other address of which the Issuer shall from time to time
notify the holders of the Notes, together with this form of "Option to
Exchange" duly completed by the holder of the within Note.
If less than the entire principal amount of the within Note is to be
exchanged, specify the portion thereof (which shall be $1,000 or an integral
multiple of $1,000 in excess thereof) to be exchanged $______.
Dated:
NOTICE: The signature on this Option
to Exchange must correspond with the name as
written upon the face of the within Note in
every particular, without alteration or
enlargement or any change whatever.
SCHEDULE I
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is ________________. The
following exchanges of a portion of this Note for an interest in the Renewable
Note have been made:
Reduced
Principal
Amount
Principal Outstanding Notation
Amount Following Made by or
Date of Exchanged for Such on Behalf
Exchange Renewable Note Exchange of Trustee
________ ______________ ___________ __________
N/A N/A N/A N/A
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
________ ______________ ___________ __________
EXHIBIT 4.M
[FORM OF FACE OF SECURITY]
Subordinated Variable Rate Renewable Note
REGISTERED REGISTERED
No. SUBVRR Cusip
[PRINCIPAL AMOUNT],
as modified by
Schedule I
Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository Trust Company
and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, since the
registered owner hereof, Cede & Co., has an interest herein.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET FORTH
BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
MORGAN STANLEY GROUP INC.
SUBORDINATED VARIABLE RATE RENEWABLE GLOBAL MEDIUM-TERM NOTE, SERIES C
<TABLE>
<S> <C> <C>
BASE RATE: ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE:
INDEX MATURITY: INITIAL INTEREST RATE: INITIAL MATURITY DATE:
SPREAD (PLUS OR MINUS): INITIAL INTEREST RESET FINAL MATURITY DATE:
DATE:
ALTERNATE RATE EVENT MAXIMUM INTEREST RATE: INTEREST PAYMENT PERIOD:
SPREAD:
INTEREST PAYMENT DATES
SPREAD MULTIPLIER: MINIMUM INTEREST RATE:
REDEMPTION DATES: TOTAL AMOUNT OF OID: INTEREST RESET PERIOD:
REDEMPTION PERCENTAGE: INTEREST RESET DATES:
APPLICABILITY OF ISSUER'S ORIGINAL YIELD TO CALCULATION AGENT:
OPTION TO RESET SPREAD OR MATURITY:
SPREAD MULTIPLIER: INITIAL ACCRUAL PERIOD
SPECIFIED CURRENCY: OID:
DESIGNATED CMT TELERATE
PAGE: EXCHANGE RATE AGENT:
DESIGNATED CMT MATURITY
INDEX:
OTHER PROVISIONS: INDEX CURRENCY:
</TABLE>
Morgan Stanley Group Inc., a Delaware corporation (together with its
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to
, or registered assignees, the principal sum specified in Schedule I
hereto on the Initial Maturity Date specified above or, to the extent the
maturity date of any portion of the principal amount of this Note is
extended in accordance with the procedures set forth below to an Extended
Maturity Date, as defined below, on such Extended Maturity Date (except to
the extent such portion is redeemed prior to such Extended Maturity Date)
and to pay interest on the principal amount hereof outstanding from time to
time, from the Interest Accrual Date specified above at a rate per annum
equal to the Initial Interest Rate specified above until the Initial
Interest Reset Date specified above, and thereafter at a rate per annum
determined in accordance with the provisions specified on the reverse
hereof until (a) the principal hereof is paid or duly made available for
payment or (b) this Note has been cancelled in accordance with the
provisions set forth below.
The Issuer will pay interest in arrears monthly, quarterly,
semiannually or annually as specified above as the Interest Payment Period on
each Interest Payment Date (as specified above), commencing with the first
Interest Payment Date next succeeding the Interest Accrual Date specified
above, and on the Initial Maturity Date or the Extended Maturity Date, as the
case may be (each, a "Maturity Date"), or any redemption date; provided,
however, if the Interest Accrual Date occurs between a Record Date, as defined
below, and the next succeeding Interest Payment Date, interest payments will
commence on the second Interest Payment Date succeeding the Interest Accrual
Date to the registered holder of this Note on the Record Date with respect to
such second Interest Payment Date; provided, further, that if an Interest
Payment Date or the Maturity Date or redemption date would fall on a day that
is not a Business Day, as defined on the reverse hereof, such Interest Payment
Date, Maturity Date or redemption date shall be the following day that is a
Business Day, except that if the Base Rate specified above is LIBOR and such
next Business Day falls in the next calendar month, the Interest Payment Date,
Maturity Date or redemption date shall be the immediately preceding day that
is a Business Day. As used herein, "Extended Maturity Date" means the
Interest Payment Date occurring in the month six months after the Initial
Maturity Date and each Interest Payment Date occurring in the month six months
after the immediately preceding Extended Maturity Date.
Interest on this Note will accrue from and including the
most recent date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from the Interest
Accrual Date, until (a) the principal hereof has been paid or duly made
available for payment or (b) this Note has been cancelled in accordance
with the provisions set forth below. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will,
subject to certain exceptions described herein, be paid to the person in
whose name this Note (or one or more predecessor Notes) is registered at
the close of business on the date 15 calendar days prior to such Interest
Payment Date (whether or not a Business Day) (each such date a "Record
Date"); provided, however, that interest payable on the Maturity Date (or
any redemption date) shall be payable to the person to whom the principal
hereof shall be payable.
On the Interest Payment Date occurring in the month six months
prior to the Initial Maturity Date (the "Initial Election Date"), the
maturity of this Note shall be extended to the Extended Maturity Date
occurring in the month twelve months following the Initial Election Date
and on the Interest Payment Date occurring in the month six months prior to
each Extended Maturity Date (an "Election Date," which term shall include
the Initial Election Date), the maturity of this Note shall be extended to
the Extended Maturity Date occurring in the month twelve months after such
Election Date, unless, in any such case, the holder hereof elects to
terminate the automatic extension of the maturity hereof or of any portion
hereof having a principal amount of $1,000 or any larger multiple of $1,000
in excess thereof by delivering to the Paying Agent, as defined on the
reverse hereof, not less than 23 nor more than 30 days prior to the
applicable Election Date (i) this Note with the form entitled "Option to
Elect Termination of Automatic Extension" below duly completed or (ii) a
telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange or the National Association of Securities
Dealers, Inc. or a commercial bank or a trust company in the United States
of America setting forth the name of the holder of this Note, the principal
amount hereof, the certificate number of this Note or a description of this
Note's tenor or terms, a statement that the option to elect termination of
automatic extension is being exercised thereby, the principal amount hereof
with respect to which such option is being exercised and a guarantee that
this Note with the form entitled "Option to Elect Termination of Automatic
Extension" below duly completed will be received by the Paying Agent no
later than five Business Days after the date of such telegram, telex,
facsimile transmission or letter; provided that such telegram, telex,
facsimile transmission or letter shall not be effective unless this Note
and such form duly completed are received by the Paying Agent by such fifth
Business Day. Such option may be exercised by the holder for less than the
entire principal amount hereof provided that the principal amount for which
such option is not exercised is at least $1,000 or any larger amount that
is an integral multiple of $1,000. The exercise of such option may be
withdrawn before or after the applicable Election Date, pursuant to the
procedures described on the reverse hereof and in a Short-Term Note (as
defined below). If the option to terminate the automatic extension of the
maturity of any portion hereof is exercised and not withdrawn prior to the
applicable Election Date in accordance with such procedures, a new Note or
Notes in the form attached hereto as Exhibit A (each, a "Short-Term Note")
for the principal amount hereof for which such option was exercised and not
withdrawn shall be issued on such Election Date in the name of the holder
hereof and Schedule I hereto shall be annotated as of such Election Date to
reflect the corresponding decrease in the principal amount hereof. Each
such Short-Term Note shall have as its "Maturity Date" (as such term is
used in such Short-Term Note) the Interest Payment Date occurring in the
month six months after such Election Date and shall have as its Spread or
Spread Multiplier, as the case may be, the Spread or Spread Multiplier
applicable to this Note on the day prior to the issuance of such Short-Term
Note. If any exercise of the option to terminate the automatic extension
of the maturity hereof causes the principal amount of this Note to be
reduced to zero, this Note shall nevertheless not be cancelled until the
date on which all outstanding Short-Term Notes issued in exchange for this
Note shall have been paid in full.
Notwithstanding the foregoing, the maturity of this Note shall
not be extended beyond the Final Maturity Date specified above.
If the holder of any Short-Term Note exchanges all or a portion
of such Short-Term Note for an interest in this Note in accordance with the
terms of such Short-Term Note, Schedule I hereto shall be annotated on the
date of such exchange to reflect the corresponding increase in the principal
amount hereof.
Payment of the principal of this Note, any premium and the
interest due at the Maturity Date (or any redemption date), unless this
Note is denominated in a Specified Currency other than U.S. dollars and is
to be paid in whole or in part in such Specified Currency, will be made in
immediately available funds upon surrender of this Note at the office or
agency of the Paying Agent maintained for that purpose in the Borough of
Manhattan, The City of New York, or at the office or agency of such other
paying agent as the Issuer may determine in U.S. dollars. U.S. dollar
payments of interest, other than interest due at maturity or any date of
redemption, will be made by United States dollar check mailed to the
address of the person entitled thereto as such address shall appear in the
Note register. A holder of U.S. $10,000,000 or more in aggregate principal
amount of Notes having the same Interest Payment Date, the interest on
which is payable in U.S. dollars, will be entitled to receive payments of
interest, other than interest due at maturity or any date of redemption, by
wire transfer of immediately available funds if appropriate wire transfer
instructions have been received by the Paying Agent in writing not less
than 15 calendar days prior to the applicable Interest Payment Date.
If this Note is denominated in a Specified Currency other than
U.S. dollars, and the holder does not elect (in whole or in part) to receive
payment in U.S. dollars pursuant to the next succeeding paragraph, payments
of interest, principal or any premium with regard to this Note will be made by
wire transfer of immediately available funds to an account maintained by the
holder hereof with a bank located outside the United States if appropriate wire
transfer instructions have been received by the Paying Agent in writing not
less than 15 calendar days prior to the applicable payment date, provided
that, if such wire transfer instructions are not received, such payments will
be made by check payable in such Specified Currency mailed to the address of
the person entitled thereto as such address shall appear in the Note register,
and provided, further, that payment of the principal of this Note, any premium
and the interest due at maturity (or on any redemption or repayment date) will
be made upon surrender of this Note at the office or agency referred to in the
preceding paragraph.
Unless otherwise indicated herein, the holder of this Note, if
denominated in a Specified Currency other than U.S. dollars, may elect to
receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the Record
Date or at least ten Business Days prior to the Maturity Date or any
redemption date, as the case may be. Such election shall remain in effect
unless such request is revoked by written notice to the Paying Agent as to all
or a portion of payments on this Note at least five Business Days prior to
such Record Date or at least ten days prior to the Maturity Date or any
redemption date, as the case may be.
If the holder elects to receive all or a portion of payments of
principal of and any premium and interest on this Note, if denominated in a
Specified Currency other than U.S. dollars, in U.S. dollars, the Exchange Rate
Agent will convert such payments into U.S. dollars. In the event of such an
election, payment in respect of this Note will be based upon the exchange rate
as determined by the Exchange Rate Agent based on the highest bid quotation in
The City of New York received by such Exchange Rate Agent at approximately
11:00 A.M., New York City time, on the second Business Day preceding the
applicable payment date from three recognized foreign exchange dealers (one of
which may be the Exchange Rate Agent unless such Exchange Rate Agent is Morgan
Stanley & Co. Incorporated), for the purchase by the quoting dealer of U.S.
dollars for the Specified Currency for settlement on such payment date in the
amount of the Specified Currency payable in the absence of such an election to
such holder and at which the applicable dealer commits to execute a contract.
If such bid quotations are not available, such payment will be made in the
Specified Currency. All currency exchange costs will be borne by the holder
of this Note by deductions from such payments.
If this Note ceases to be held by The Depository Trust Company
or its successor or the nominee of The Depository Trust Company or its
successor, this Note will be exchanged for one or more Notes of authorized
denominations having an aggregate principal amount equal to the principal
amount of this Note as then shown on Schedule I hereto, which new Notes shall
otherwise have the same terms as this Note, except that the provisions of such
new Notes regarding the termination of the automatic extension of the maturity
thereof shall be modified to the extent appropriate for notes not required to
be held in a securities depositary; provided that the respective rights and
obligations of the Issuer and the holders of such new Notes shall be the same
in all material respects as the respective rights and obligations of the
Issuer and the holder of this Note. Such new Notes shall have stated
principal amounts and shall be registered in the names of the persons then
having a beneficial interest in this Note or in the names of their nominees.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place, including,
without limitation, the provisions relating to the subordination of this Note
to the Issuer's Senior Indebtedness, as defined on the reverse hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent referred to on the reverse hereof by
manual signature, this Note shall not be entitled to any benefit under the
Subordinated Indenture, as defined on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By:
Title:
AUTHENTICATING AGENT'S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Subordinated Indenture.
CHEMICAL BANK,
as Authenticating Agent
By:____________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of the
Subordinated Global Medium-Term Notes, Series C, having maturities more than
nine months from the date of issue (the "Notes") of the Issuer. The Notes are
issuable under a Subordinated Indenture, dated as of April 15, 1989, as
supplemented by a First Supplemental Indenture dated as of May 15, 1991 and a
Second Supplemental Indenture dated as of April 15, 1996 (as so supplemented,
the "Subordinated Indenture"), between the Issuer and The First National Bank
of Chicago, as Trustee (the "Trustee," which term includes any successor
trustee under the Subordinated Indenture), to which Subordinated Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties and immunities of the
Issuer, the Trustee and holders of the Notes and the terms upon which the
Notes are, and are to be, authenticated and delivered. The Trustee has
appointed Chemical Bank as Authenticating Agent (the "Authenticating Agent,"
which term includes any successor authenticating agent appointed by the
Trustee) with respect to the Notes, and the Issuer has appointed Chemical Bank
at its corporate trust office in The City of New York as the paying agent (the
"Paying Agent," which term includes any additional or successor Paying Agent
appointed by the Issuer) with respect to the Notes. The terms of individual
Notes may vary with respect to interest rates, interest rate formulas, issue
dates, maturity dates, or otherwise, all as provided in the Subordinated
Indenture. To the extent not inconsistent herewith, the terms of the
Subordinated Indenture are hereby incorporated by reference herein.
Unless otherwise provided on the face hereof, this Note will
not be subject to any sinking fund and, unless otherwise provided on the face
hereof in accordance with the provisions of the following paragraph, will not
be redeemable prior to maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on the Redemption
Dates specified on the face hereof on the terms set forth on the face hereof,
together with interest accrued and unpaid hereon to the date of redemption.
Notice of redemption shall be mailed to the registered holders of the Notes
designated for redemption at their addresses as the same shall appear on the
Note register not less than 180 nor more than 210 days prior to the date fixed
for redemption, subject to all the conditions and provisions of the
Subordinated Indenture. In the event of redemption of this Note in part only,
a new Note or Notes for the amount of the unredeemed portion hereof shall be
issued in the name of the holder hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in
accordance with the applicable provisions below by reference to the Base Rate
shown on the face hereof based on the Index Maturity, if any, shown on the face
hereof (i) plus or minus the Spread, if any, or (ii) multiplied by the Spread
Multiplier, if any, (a) specified on the face hereof, (b) if the Spread or
Spread Multiplier is reset in accordance with the procedures specified below,
then as determined pursuant to such procedures, or (c) if a holder of a
Short-Term Note has exchanged such Note for an interest in this Note in
response to an Optional Exchange Notice (as defined in such Short-Term Note),
then as set forth in such Optional Exchange Notice. Commencing with the
Initial Interest Reset Date specified on the face hereof, the rate at which
interest on this Note is payable shall be reset as of each Interest Reset Date
(as used herein, the term "Interest Reset Date" shall include the Initial
Interest Reset Date) The determination of the rate of interest at which this
Note will be reset on any Interest Reset Date shall be made on the Interest
Determination Date (as defined below) pertaining to such Interest Reset Date.
The Interest Reset Dates will be the Interest Reset Dates specified on the face
hereof; provided, however, that the interest rate in effect for the period
from the Interest Accrual Date to the Initial Interest Reset Date specified on
the face hereof will be the Initial Interest Rate. If any Interest Reset Date
would otherwise be a day that is not a Business Day, such Interest Reset Date
shall be postponed to the next succeeding day that is a Business Day, except
that if the Base Rate specified on the face hereof is LIBOR and such Business
Day is in the next succeeding calendar month, such Interest Reset Date shall
be the next preceding Business Day. As used herein, "Business Day" means any
day, other than a Saturday or Sunday, that is neither a legal holiday nor a
day on which banking institutions are authorized or required by law or
regulation to close in The City of New York and, with respect to Notes bearing
interest calculated by reference to LIBOR, in the City of London.
If so indicated on the face of this Note, the Issuer has the
option to reset the Spread or Spread Multiplier on this Note as of any
Election Date. Such option shall include the right to reset the Maximum
Interest Rate or Minimum Interest Rate on this Note. The Issuer may exercise
such option by notifying the Paying Agent of such exercise at least 45 but not
more than 60 days prior to an Election Date, such notice to be accompanied by
the form of the Reset Notice referred to below. Not later than 38 days prior
to such Election Date, the Paying Agent will mail to the holder hereof a
notice (the "Reset Notice"), first class mail, postage prepaid, setting forth
(a) the election of the Issuer to reset the Spread or Spread Multiplier and
(b) such new Spread or Spread Multiplier, together with any new Maximum
Interest Rate or Minimum Interest Rate.
If the face hereof indicates that the Issuer has the option to
reset the Spread or Spread Multiplier on this Note, then, if the holder of
this Note elects to terminate the automatic extension of the maturity hereof
or any portion hereof as of any Election Date, the Issuer may, not later than
the later of (a) the twentieth calendar day prior to such Election Date and
(b) the first Business Day following the twenty-third calendar day prior to
such Election Date, propose a new Spread or Spread Multiplier or revoke a
Spread or Spread Multiplier previously set forth in a Reset Notice and propose
a higher Spread or Spread Multiplier, in either case together with any new
Maximum Interest Rate or Minimum Interest Rate, by causing the Paying Agent to
send notice thereof, to the holder of this Note by first class mail, postage
prepaid, or by such other means as shall be agreed between the Issuer and the
Paying Agent. If the Issuer has proposed a new or higher Spread or Spread
Multiplier as described above, the holder hereof may withdraw his election to
terminate the automatic extension of the maturity hereof or any portion hereof
by giving written notice to such effect to the Paying Agent not less than 16
days prior to such Election Date (or if such sixteenth day is not a Business
Day, on the immediately preceding Business Day), in which case such new or
higher Spread or Spread Multiplier, together with any new Maximum Interest
Rate or Minimum Interest Rate, will apply to the entire principal amount of
this Note from such Election Date until the Maturity Date or until the Spread
or Spread Multiplier is further reset by the Issuer pursuant to the provisions
hereof or of a Short-Term Note.
The Interest Determination Date pertaining to an Interest Reset
Date for Notes bearing interest calculated by reference to the CD Rate,
Commercial Paper Rate, Federal Funds Rate, Prime Rate and CMT Rate will be the
second Business Day next preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for Notes bearing
interest calculated by reference to LIBOR shall be the second London Banking
Day preceding such Interest Reset Date, except that the Interest Determination
Date pertaining to an Interest Reset Date for a LIBOR Note for which the Index
Currency is pounds sterling will be such Interest Reset Date. As used herein,
"London Banking Day" means any day on which dealings in deposits in the Index
Currency (as defined herein) are transacted in the London interbank market.
The Interest Determination Date pertaining to an Interest Reset Date for Notes
bearing interest calculated by reference to the Treasury Rate shall be the day
of the week in which such Interest Reset Date falls on which Treasury bills
normally would be auctioned; provided, however, that if as a result of a legal
holiday an auction is held on the Friday of the week preceding such Interest
Reset Date, the related Interest Determination Date shall be such preceding
Friday; and provided, further, that if an auction shall fall on any Interest
Reset Date, then the Interest Reset Date shall instead be the first Business
Day following the date of such auction.
Unless otherwise specified on the face hereof, the "Calculation
Date" pertaining to an Interest Determination Date will be the earlier of (i)
the tenth calendar day after such Interest Determination Date or, if such day
is not a Business Day, the next succeeding Business Day, or (ii) the Business
Day preceding the applicable Interest Payment Date or Maturity Date (or, with
respect to any principal amount to be redeemed or repaid, any redemption or
repayment date), as the case may be.
Determination of CD Rate. If the Base Rate specified on the
face hereof is the CD Rate, the CD Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate on such
date for negotiable certificates of deposit having the Index Maturity
specified on the face hereof as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates," or any successor publication of the Board of Governors of the Federal
Reserve System ("H.15(519)"), under the heading "CDs (Secondary Market)," or,
if not so published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the CD Rate will be the rate
on such Interest Determination Date for negotiable certificates of deposit of
the Index Maturity specified on the face hereof as published by the Federal
Reserve Bank of New York in its daily statistical release "Composite 3:30 P.M.
Quotations for U.S. Government Securities" ("Composite Quotations") under the
heading "Certificates of Deposit." If neither of such rates is published by
3:00 P.M., New York City time, on such Calculation Date, then the CD Rate on
such Interest Determination Date will be calculated by the Calculation Agent
referred to on the face hereof and will be the arithmetic mean of the secondary
market offered rates as of 10:00 A.M., New York City time, on such Interest
Determination Date for certificates of deposit in the denomination of
$5,000,000 with a remaining maturity closest to the Index Maturity specified
on the face hereof of three leading nonbank dealers in negotiable U.S. dollar
certificates of deposit in The City of New York selected by the Calculation
Agent for negotiable certificates of deposit of major United States money
center banks of the highest credit standing in the market for negotiable
certificates of deposit; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the CD Rate in effect for the applicable period will be the same as
the CD Rate for the immediately preceding Interest Reset Period (or, if there
was no such Interest Reset Period, the rate of interest payable hereon shall
be the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate
specified on the face hereof is the Commercial Paper Rate, the Commercial
Paper Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the Money Market Yield (as defined herein) of
the rate on such date for commercial paper having the Index Maturity specified
on the face hereof, as such rate shall be published in H.15(519) under the
heading "Commercial Paper," or if not so published prior to 9:00 A.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the Commercial Paper Rate shall be the Money Market Yield
of the rate on such Interest Determination Date for commercial paper of the
Index Maturity specified on the face hereof as published in Composite
Quotations under the heading "Commercial Paper." If neither of such rates is
published by 3:00 P.M., New York City time, on such Calculation Date, then the
Commercial Paper Rate shall be the Money Market Yield of the arithmetic mean
of the offered rates as of 11:00 A.M., New York City time, on such Interest
Determination Date of three leading dealers in commercial paper in The City of
New York selected by the Calculation Agent for commercial paper of the Index
Maturity specified on the face hereof, placed for an industrial issuer whose
bond rating is "AA," or the equivalent, from a nationally recognized rating
agency; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the
Commercial Paper Rate in effect for the applicable period will be the same as
the Commercial Paper Rate for the immediately preceding Interest Reset Period
(or, if there was no such Interest Reset Period, the rate of interest payable
hereon shall be the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in
accordance with the following formula:
Money Market Yield = D x 360
---------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the Index Maturity specified on the face hereof.
Determination of Federal Funds Rate. If the Base Rate
specified on the face hereof is the Federal Funds Rate, the Federal Funds Rate
with respect to this Note shall be determined on each Interest Determination
Date and shall be the rate on such date for Federal Funds as published in
H.15(519) under the heading "Federal Funds (Effective)," or, if not so
published by 9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the Federal Funds Rate will be the rate
on such Interest Determination Date as published in Composite Quotations under
the heading "Federal Funds/Effective Rate." If neither of such rates is
published by 3:00 P.M., New York City time, on such Calculation Date, the
Federal Funds Rate for such Interest Determination Date will be calculated by
the Calculation Agent and will be the arithmetic mean of the rates for the
last transaction in overnight Federal funds as of 11:00 A.M., New York City
time, on such Interest Determination Date arranged by three leading brokers in
Federal funds transactions in The City of New York selected by the Calculation
Agent; provided, however, that if the brokers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the Federal
Funds Rate in effect for the applicable period will be the same as the Federal
Funds Rate for the immediately preceding Interest Reset Period (or, if there
was no such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate).
Determination of LIBOR. If the Base Rate specified on the face
hereof is LIBOR, LIBOR with respect to this Note shall be determined on each
Interest Determination Date as follows:
(i) As of the Interest Determination Date, the Calculation
Agent will determine (a) if "LIBOR Reuters" is specified as the
Reporting Service on the face hereof, the arithmetic mean of the
offered rates (unless the specified Designated LIBOR Page (as defined
below) by its terms provides only for a single rate, in which case
such single rate shall be used) for deposits in the London interbank
market in the Index Currency for the period of the Index Maturity
specified on the face hereof, commencing on the second London Banking
Day immediately following such Interest Determination Date, which
appear on the Designated LIBOR Page at approximately 11:00 A.M.,
London time, on such Interest Determination Date, if at least two
such offered rates appear (unless, as aforesaid, only a single rate is
required) on such Designated LIBOR Page, or (b) if "LIBOR Telerate"
is specified as the Reporting Service on the face hereof, the rate
for deposits in the Index Currency for the period of the Index
Maturity, each as designated on the face hereof, commencing on the
second London Banking Day following such Interest Determination Date
(or, if pounds sterling is the Index Currency, commencing on such
Interest Determination Date), that appears on the Designated LIBOR
Page at approximately 11:00 A.M., London time, on such Interest
Determination Date. If fewer than two offered rates appear (if
"LIBOR Reuters" is specified as the Reporting Service on the face
hereof and calculation of LIBOR is based on the arithmetic mean of
the offered rates) or if no rate appears (if the Reporting Service
on the face hereof specifies either (x) "LIBOR Reuters" and the
Designated LIBOR Page by its terms provides only for a single rate or
(y) "LIBOR Telerate"), LIBOR in respect of that Interest
Determination Date will be determined as if the parties had specified
the rate described in (ii) below.
(ii) With respect to an Interest Determination Date on which
fewer than two offered rates appear (if "LIBOR Reuters" is specified
as the Reporting Service on the face hereof and calculation of LIBOR
is based on the arithmetic mean of the offered rates) or no rate
appears (if the Reporting Service on the face hereof specifies either
(x) "LIBOR Reuters" and the Designated LIBOR Page by its terms
provides only for a single rate or (y) "LIBOR Telerate"), the
Calculation Agent will request the principal London offices of each
of four major reference banks in the London interbank market, as
selected by the Calculation Agent (after consultation with the
Issuer), to provide the Calculation Agent with its offered quotations
for deposits in the Index Currency for the period of the Index
Maturity specified on the face hereof, commencing on the second
London Banking Day immediately following such Interest Determination
Date (or, if pounds sterling is the Index Currency, commencing on such
Interest Determination Date), to prime banks in the London interbank
market at approximately 11:00 A.M., London time, on such Interest
Determination Date and in a principal amount equal to an amount of
not less than U.S.$1 million (or the equivalent in the Index
Currency(if the Index Currency is not the U.S. dollar)) that is
representative of a single transaction in such Index Currency in such
market at such time. If at least two such quotations are provided,
LIBOR determined on such Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR determined on such Interest Determination Date will
be the arithmetic mean of rates quoted at approximately 11:00 A.M.
(or such other time specified on the face hereof), in the applicable
principal financial center for the country of the Index Currency on
such Interest Determination Date, by three major banks in such
principal financial center selected by the Calculation Agent (after
consultation with the Issuer) on such Interest Determination Date for
loans in the Index Currency to leading European banks, for the period
of the Index Maturity specified on the face hereof commencing on the
second London Banking Day immediately following such Interest
Determination Date (or, if pounds sterling is the Index Currency,
commencing on such Interest Determination Date) and in a principal
amount of not less than U.S.$1 million (or the equivalent in the
Index Currency(if the Index Currency is not the U.S. dollar)) that is
representative of a single transaction in such Index Currency in such
market at such time; provided, however, that if the banks selected as
aforesaid by the Calculation Agent are not quoting rates as mentioned
in this sentence, "LIBOR" for such Interest Reset Period will be the
same as LIBOR for the immediately preceding Interest Reset Period
(or, if there was no such Interest Reset Period, the rate of interest
payable on the LIBOR Notes for which LIBOR is being determined shall
be the Initial Interest Rate). "Index Currency" means the currency
(including composite currencies) specified as Index Currency on the
face hereof. If no such currency is specified as Index Currency on
the face hereof, the Index Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is
designated as the Reporting Service on the face hereof, the display on
the Reuters Monitor Money Rates Service for the purpose of displaying
the London interbank rates of major banks for the applicable Index
Currency, or (b) if "LIBOR Telerate" is designated as the Reporting
Service on the face hereof, the display on the Dow Jones Telerate
Service for the purpose of displaying the London interbank rates of
major banks for the applicable Index Currency. If neither LIBOR
Reuters nor LIBOR Telerate is specified as the Reporting Service on
the face hereof, LIBOR for the applicable Index Currency will be
determined as if LIBOR Telerate (and, if the U.S. dollar is the Index
Currency, Page 3750) had been specified.
Determination of Prime Rate. If the Base Rate specified on the
face hereof is the Prime Rate, the Prime Rate with respect to this Note shall
be determined on each Interest Determination Date and shall be the rate set
forth in H.15(519) for such date opposite the caption "Bank Prime Loan." If
such rate is not yet published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the Prime
Rate for such Interest Determination Date will be the arithmetic mean of the
rates of interest publicly announced by each bank named on the Reuters Screen
USPRIME 1 Page (as defined below) as such bank's prime rate or base lending
rate as in effect for such Interest Determination Date as quoted on the Reuters
Screen USPRIME 1 Page on such Interest Determination Date, or, if fewer than
four such rates appear on the Reuters Screen USPRIME 1 Page for such Interest
Determination Date, the rate shall be the arithmetic mean of the prime rates
quoted on the basis of the actual number of days in the year divided by 360 as
of the close of business on such Interest Determination Date by at least two
of the three major money center banks in The City of New York selected by the
Calculation Agent from which quotations are requested. If fewer than two
quotations are provided, the Prime Rate shall be calculated by the Calculation
Agent and shall be determined as the arithmetic mean on the basis of the prime
rates in The City of New York by the appropriate number of substitute banks or
trust companies organized and doing business under the laws of the United
States, or any State thereof, in each case having total equity capital of at
least U.S. $500 million and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent to quote such
rate or rates; provided, however, that if the banks or trust companies
selected as aforesaid by the Calculation Agent are not quoting rates as set
forth above, the "Prime Rate" in effect for such Interest Reset Period will be
the same as the Prime Rate for the immediately preceding Interest Reset Period
(or, if there was no such Interest Reset Period, the rate of interest payable
hereon shall be the Initial Interest Rate).
"Reuters Screen USPRIME 1 Page" means the display designated as
Page "USPRIME 1" on the Reuters Monitor Money Rates Service (or such other
page as may replace the USPRIME 1 Page on that service for the purpose of
displaying prime rates or base lending rates of major United States banks).
Determination of Treasury Rate. If the Base Rate specified on
the face hereof is the Treasury Rate, the Treasury Rate with respect to this
Note shall be determined on each Interest Determination Date and shall be the
rate for the auction held on such date of direct obligations of the United
States ("Treasury Bills") having the Index Maturity specified on the face
hereof, as published in H.15(519) under the heading "Treasury Bills--auction
average (investment)," or if not so published by 9:00 A.M., New York City
time, on the Calculation Date pertaining to such Interest Determination Date,
the auction average rate on such Interest Determination Date (expressed as a
bond equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United States
Department of the Treasury. In the event that the results of the auction of
Treasury Bills having the Index Maturity specified on the face hereof are not
published or reported as provided above by 3:00 P.M., New York City time, on
such Calculation Date or if no such auction is held on such Interest
Determination Date, then the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) calculated using the arithmetic mean of the secondary
market bid rates, as of approximately 3:30 P.M., New York City time, on such
Interest Determination Date, of three leading primary United States government
securities dealers selected by the Calculation Agent for the issue of Treasury
Bills with a remaining maturity closest to the Index Maturity specified on the
face hereof; provided, however, that if the dealers selected as aforesaid by
the Calculation Agent are not quoting as mentioned in this sentence, the
Treasury Rate for such Interest Reset Date will be the same as the Treasury
Rate for the immediately preceding Interest Reset Period (or, if there was no
such Interest Reset Period, the rate of interest payable hereon shall be the
Initial Interest Rate).
Determination of CMT Rate. If the Base Rate specified on the
face hereof is the CMT Rate, the CMT Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate displayed
for the Index Maturity specified on the face hereof on the designated Telerate
Page under the caption "Daily Treasury Constant Maturities and Money
Markets/Federal Reserve Board Release H.15" under the column for the
Designated CMT Maturity Index for (i) if the Designated CMT Telerate Page is
7055, the rate on such Interest Determination Date and (ii) if the Designated
CMT Telerate Page is 7052, the week or the month, as applicable, ended
immediately preceding the week in which the related Interest Determination Date
occurs. If such rate is no longer displayed on the relevant page, or is not
displayed by 3:00 P.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, then the CMT Rate for such Interest
Determination Date will be such Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If such
rate is no longer published, or is not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate for such Interest
Determination Date will be such Treasury Constant Maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the Interest Determination Date with
respect to the related Interest Reset Date as may then be published by either
the Board of Governors of the Federal Reserve System or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate Page
and published in the relevant H.15(519). If such information is not provided
by 3:00 P.M., New York time, on the related Calculation Date, then the CMT
Rate for the Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity, based on the arithmetic mean of the
secondary market closing offer side prices as of approximately 3:30 P.M., New
York City time, on the Interest Determination Date reported, according to
their written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in The City of New York (which
may include affiliates of the Issuer) selected by the Calculation Agent (from
five such Reference Dealers selected by the Calculation Agent, after
consultation with the Issuer), and eliminating the highest quotation (or, in
the event of equality, one of the highest) and the lowest quotation (or, in
the event of equality, one of the lowest), for the most recently issued direct
noncallable fixed rate obligations of the United States ("Treasury Notes")
with an original maturity of approximately the Designated CMT Maturity Index
and remaining term to maturity of not less than such Designated CMT Maturity
Index minus one year. If the Calculation Agent cannot obtain three such
Treasury notes quotations, the CMT Rate for such Interest Determination Date
will be calculated by the Calculation Agent and will be a yield to maturity
based on the arithmetic mean of the secondary market offer side prices as of
approximately 3:30 P.M., New York City time, on the Interest Determination Date
of three Reference Dealers in The City of New York (from five such Reference
Dealers selected by the Calculation Agent, after consultation with the Issuer,
and eliminating the highest quotation (or, in the event of equality, one of
the highest) and the lowest quotation (or, in the event of equality, one of
the lowest)), for Treasury Notes with an original maturity of the number of
years that is the next highest to the Designated CMT Maturity Index and a
remaining term to maturity closest to the Designated CMT Maturity Index and in
an amount of at least $100,000,000. If three or four (and not five) of such
Reference Dealers are quoting as described above, then the CMT Rate will be
based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided, however,
that if fewer than three Reference Dealers selected by the Calculation Agent
are quoting as described herein, the CMT Rate for such Interest Reset Date
will be the same as the CMT Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of interest
payable hereon shall be the Initial Interest Rate). If two Treasury notes
with an original maturity as described in the second preceding sentence have
remaining terms to maturity equally close to the Designated CMT Maturity
Index, the quotes for the Treasury note with the shorter remaining term to
maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow
Jones Telerate Service specified on the face hereof (or any other page as may
replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)), for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519). If no such page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" shall be the original period to
maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be two years.
Notwithstanding the foregoing, the interest rate hereon
shall not be greater than the Maximum Interest Rate, if any, or less than
the Minimum Interest Rate, if any, specified on the face hereof or, if the
Maximum Interest Rate or Minimum Interest Rate is reset in accordance with
the procedures referred to above, as determined pursuant to such
procedures. The Calculation Agent shall calculate the interest rate hereon
in accordance with the foregoing on or before each Calculation Date. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States
Federal law of general application.
At the request of the holder hereof, the Calculation Agent
will provide to the holder hereof the interest rate hereon then in effect
and, if determined, the interest rate that will become effective as of the
next Interest Reset Date.
Interest payments on this Note will include interest accrued
to but excluding the Interest Payment Dates or Maturity Date (or any
earlier redemption date), as the case may be. Accrued interest hereon for
any period shall be the sum of the products obtained by multiplying the
interest factor calculated for each day in such period by the principal
amount hereof shown on Schedule I hereto for each such day; provided that
for the purpose of calculating the amount of interest payable hereon, any
decrease in the principal amount hereof attributable to an exercise of the
option to terminate the automatic extension of the maturity hereof shall be
effective on and as of the Election Date corresponding to the exercise of
such option, and any increase in the principal amount hereof shall be
effective on and as of the Interest Payment Date immediately preceding the
date of such increase. The interest factor for each such day shall be
computed by dividing the interest rate applicable to such day by 360 if the
Base Rate is CD Rate, Commercial Paper Rate, Federal Funds Rate, Prime Rate
or LIBOR, as specified on the face hereof, or by the actual number of days
in the year if the Base Rate is the Treasury Rate or the CMT Rate, as
specified on the face hereof. All percentages resulting from any
calculation of the rate of interest on this Note will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point
(.0000001), with five one-millionths of a percentage point rounded upward,
and all dollar amounts used in or resulting from such calculation on this
Note will be rounded to the nearest cent (with one-half cent rounded
upward). The interest rate in effect on any Interest Reset Date will be
the applicable rate as reset on such date. The interest rate applicable to
any other day is the interest rate from the immediately preceding Interest
Reset Date (or, if none, the Initial Interest Rate).
This Note and all other obligations of the Issuer hereunder
will constitute part of the subordinated debt of the Issuer, will be issued
under the Subordinated Indenture and will be subordinate and junior in
right of payment, to the extent and in the manner set forth in the
Subordinated Indenture, to all "Senior Indebtedness" of the Issuer. The
Subordinated Indenture defines "Senior Indebtedness" as obligations (other
than non-recourse obligations, the debt securities, including this Note,
issued under the Subordinated Indenture or any other obligations
specifically designated as being subordinate in right of payment to Senior
Indebtedness) of, or guaranteed or assumed by, the Issuer for borrowed
money or evidenced by bonds, debentures, notes or other similar
instruments, and amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligation.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without
coupons, and is issuable only in denominations of U.S. $1,000 and any
integral multiple of U.S. $1,000 in excess thereof. If this Note is
denominated in a Specified Currency other than U.S. dollars, then, unless a
higher minimum denomination is required by applicable law, it is issuable
only in denominations of the equivalent of U.S. $1,000 (rounded to an
integral multiple of 1,000 units of such Specified Currency), or any amount
in excess thereof which is an integral multiple of 1,000 units of such
Specified Currency, as determined by reference to the noon dollar buying
rate in New York City for cable transfers of such Specified Currency
published by the Federal Reserve Bank of New York (the "Market Exchange
Rate") on the Business Day immediately preceding the date of issuance;
provided, however, in the case of ECUs, the Market Exchange Rate shall be
the rate of exchange determined by the Commission of the European
Communities (or any successor thereto) as published in the Official Journal
of the European Communities, or any successor publication, on the Business
Day immediately preceding the date of issuance.
Chemical Bank has been appointed registrar for the Notes
(the "Registrar," which term includes any successor registrar appointed by
the Issuer), and the Registrar will maintain at its office in The City of
New York a register for the registration and transfer of Notes. This Note
may be transferred at the aforesaid office of the Registrar by surrendering
this Note for cancellation, accompanied by a written instrument of transfer
in form satisfactory to the Registrar and duly executed by the registered
holder hereof in person or by the holder's attorney duly authorized in
writing, and thereupon the Registrar shall issue in the name of the
transferee or transferees, in exchange herefor, a new Note or Notes having
identical terms and provisions and having a like aggregate principal amount
in authorized denominations, subject to the terms and conditions set forth
herein; provided, however, that the Registrar will not be required (i) to
register the transfer of or exchange any Note that has been called for
redemption in whole or in part, except the unredeemed portion of Notes
being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of
such Note not required to be repurchased or (iii) to register the transfer
of or exchange Notes to the extent and during the period so provided in the
Subordinated Indenture with respect to the redemption of Notes. Notes are
exchangeable at said office for other Notes of other authorized
denominations of equal aggregate principal amount having identical terms
and provisions. All such exchanges and transfers of Notes will be free of
charge, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge in connection therewith. All Notes
surrendered for exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Registrar and executed by the
registered holder in person or by the holder's attorney duly authorized in
writing. The date of registration of any Note delivered upon any exchange
or transfer of Notes shall be such that no gain or loss of interest results
from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and such Note or evidence of the loss,
theft or destruction thereof (together with the indemnity hereinafter
referred to and such other documents or proof as may be required in the
premises) shall be delivered to the Registrar, a new Note of like tenor
will be issued by the Issuer in exchange for the Note so mutilated or
defaced, or in lieu of the Note so destroyed or lost or stolen, but, in the
case of any destroyed or lost or stolen Note, only upon receipt of evidence
satisfactory to the Registrar and the Issuer that such Note was destroyed
or lost or stolen and, if required, upon receipt also of indemnity
satisfactory to each of them. All expenses and reasonable charges
associated with procuring such indemnity and with the preparation,
authentication and delivery of a new Note shall be borne by the owner of
the Note mutilated, defaced, destroyed, lost or stolen.
The Subordinated Indenture provides that, (a) if an Event of
Default (as defined in the Subordinated Indenture) due to the default in
payment of principal of, premium, if any, or interest on, any series of
debt securities issued under the Subordinated Indenture, including the
series of Subordinated Medium-Term Notes of which this Note forms a part,
or due to the default in the performance or breach of any other covenant or
warranty of the Issuer applicable to the debt securities of such series but
not applicable to all outstanding debt securities issued under the
Subordinated Indenture shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in principal amount of the debt
securities of each affected series (voting as a single class) may then
declare the principal of all debt securities of all such series and
interest accrued thereon to be due and payable immediately and (b) if an
Event of Default due to a default in the performance of any other of the
covenants or agreements in the Senior Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due
to certain events of bankruptcy, insolvency and reorganization of the
Issuer, shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of all debt securities
issued under the Subordinated Indenture then outstanding (treated as one
class) may declare the principal of all such debt securities and interest
accrued thereon to be due and payable immediately, but upon certain
conditions such declarations may be annulled and past defaults may be
waived (except a continuing default in payment of principal (or premium, if
any) or interest on such debt securities) by the holders of a majority in
principal amount of the debt securities of all affected series then
outstanding.
The Subordinated Indenture permits the Issuer and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the debt securities of all series issued
under the Subordinated Indenture then outstanding and affected (voting as
one class), to execute supplemental indentures adding any provisions to or
changing in any manner the rights of the holders of each series so
affected; provided that the Issuer and the Trustee may not, without the
consent of the holder of each outstanding debt security affected thereby,
(a) extend the final maturity of any such debt security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any amount payable on redemption thereof, or
change the currency of payment thereof, or impair or affect the rights of
any holder to institute suit for the payment thereof without the consent of
the holder of each debt security so affected; or (b) reduce the aforesaid
percentage in principal amount of debt securities the consent of the
holders of which is required for any such supplemental indenture, without
the consent of the holders of each debt security so affected; provided,
however, that neither this Note nor the Subordinated Indenture may be
amended to alter the subordination provisions hereof or thereof without the
written consent of each holder of Senior Indebtedness then outstanding that
would be adversely affected thereby.
Except as set forth below, if the principal of, premium, if any,
or interest on, this Note is payable in a Specified Currency other than
U.S. dollars and such Specified Currency is not available to the Issuer for
making payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking
community, then the Issuer will be entitled to satisfy its obligations to
the holder of this Note by making such payments in U.S. dollars on the
basis of the Market Exchange Rate on the date of such payment or, if the
Market Exchange Rate is not available on such date, as of the most recent
practicable date; provided, however, that if such Specified Currency is
replaced by a single European currency (expected to be named the Euro), the
payment of principal of, premium, if any, or interest on any Note
denominated in such currency shall be effected in the new single European
currency in conformity with legally applicable measures taken pursuant to,
or by virtue of, the treaty establishing the European Community (the "EC"),
as amended by the treaty on European Union (as so amended, the "Treaty").
Any payment made under such circumstances in U.S. dollars (or, if
applicable, such new single European currency) where the required payment
is in a Specified Currency other than U.S. dollars will not constitute an
Event of Default.
Subject to the provisions below, the value of the ECU, in which
the Notes may be denominated or may be payable, is equal to the value of the
ECU that is from time to time used as the unit of account of the EC. If the
ECU becomes a currency in its own right in accordance with the Treaty, all
references to ECU in the Notes shall be construed as references to such
currency.
With respect to each due date for the payment of principal of,
or interest on, the Notes on or after the first business day in Brussels on
which the ECU ceases to be used as the unit of account of the EC, and has not
become a currency in its own right replacing all or some of the currencies of
the member States of the EC, the Company shall choose a substitute currency
(the "Chosen Currency"), which may be any currency which was, on the last day
on which the ECU was used as the unit of account of the EC, a component
currency of the ECU or U.S. dollars, in which all payments due on or after
that date with respect to the Notes and coupons shall be made. Notice of the
Chosen Currency so selected shall be provided by first class mail to each
holder at the address of such holder which appears on the books maintained by
the Registrar and to the Paying Agent. The amount of each payment in such
Chosen Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of the fourth business day in
Brussels prior to the date on which such payment is due.
On the first business day in Brussels on which the ECU ceases
to be used as the unit of account of the EC, and has not become a currency in
its own right replacing all or some of the currencies of the member States of
the EC, the Company shall select a Chosen Currency in which all payments with
respect to Notes and coupons having a due date prior thereto but not yet
presented for payment with respect to Notes and coupons having a due date
prior thereto but not yet presented for payment are to be made. The amount of
each payment in such Chosen Currency shall be computed on the basis of the
equivalent of the ECU in that currency, determined as described below, as of
such first business day.
The equivalent of the ECU in the relevant Chosen Currency as of
any date (the "Day of Valuation") shall be determined by, or on behalf of, the
Exchange Rate Agent on the following basis. The amounts and components
composing the ECU for this purpose (the "Components") shall be the amounts and
components that composed the ECU as of the last date on which the ECU was used
as the unit of account of the EC. The equivalent of the ECU in the Chosen
Currency shall be calculated by, first, aggregating the U.S. dollar
equivalents of the Components; and then, in the case of a Chosen Currency
other than U.S. dollars, using the rate used for determining the U.S. dollar
equivalent of the Components in the Chosen Currency as set forth below,
calculating the equivalent in the Chosen Currency of such aggregate amount in
U.S. dollars.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated on the face hereof.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Company, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf, provided
that such quotations were prevailing in the country of issue not more than two
Business Days before such Day of Valuation. If such most recent quotations
were so prevailing in the country of issue more than two Business Days before
such Day of Valuation, the Exchange Rate Agent shall determine the U.S. dollar
equivalent of such Component on the basis of cross rates derived from the
middle spot delivery quotations for such component currency and for the U.S.
dollar prevailing at 2:30 P.M., Brussels time, on such Day of Valuation, as
obtained by, or on behalf of, the Exchange Rate Agent from one or more major
banks, as selected by the Company, in a country other than the country of
issue of such component currency. Notwithstanding the foregoing, the Exchange
Rate Agent shall determine the U.S. dollar equivalent of such Component on the
basis of such cross rates if the Company or such agent judges that the
equivalent so calculated is more representative than the U.S. dollar
equivalent calculated as provided in the first sentence of this paragraph.
Unless otherwise specified by the Company, if there is more than one market
for dealing in any component currency by reason of foreign exchange
regulations or for any other reason, the market to be referred to in respect
of such currency shall be that upon which a non-resident issuer of securities
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Company or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive to the extent permitted by law for all purposes and binding on the
holder of this Note and coupons, if any.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as aforesaid
of the Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be
such an agency, the Issuer shall keep the Trustee advised of the names and
locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for the payment of the principal of or interest
or premium, if any, on any Notes that remain unclaimed at the end of two
years after such principal, interest or premium shall have become due and
payable (whether at maturity or upon call for redemption or otherwise), (i)
the Trustee or such Paying Agent shall notify the holders of such Notes
that such moneys shall be repaid to the Issuer and any person claiming such
moneys shall thereafter look only to the Issuer for payment thereof and
(ii) such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease, without, however, limiting in any way any obligation
that the Issuer may have to pay the principal of or interest or premium, if
any, on this Note as the same shall become due.
No provision of this Note or of the Subordinated Indenture
shall alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the registered
holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and none of the Issuer,
the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Subordinated
Indenture or any indenture supplemental thereto, against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Issuer or of any successor corporation, either directly or through the Issuer
or any successor corporation, whether by virtue of any constitution, statute
or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of
the consideration for the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the
Subordinated Indenture and not otherwise defined herein shall have the
meanings assigned to them in the Subordinated Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the
above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_________________________________________________
_________________________________________________
_______________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE]
_______________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
_______________________________________________________________
constituting and appointing such person attorney to transfer
_______________________________________________________________
such note on the books of the Issuer, with full power of
_______________________________________________________________
substitution in the premises.
Dated:_____________________ ____________________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular
without alteration or enlargement or any change whatsoever.
OPTION TO ELECT TERMINATION OF AUTOMATIC EXTENSION
The undersigned hereby elects to terminate the automatic extension of
the maturity of the within Note (or the portion thereof specified below) with
the effect provided in the within Note by surrendering the within Note to the
Paying Agent at Chemical Bank, 55 Water Street, New York, New York 10041,
Attention: Corporate Trustee Administration Department, or such other address
of which the Issuer shall from time to time notify the holders of the Notes,
together with this form of "Option to Elect Termination of Automatic
Extension" duly completed by the holder of the within Note.
If the automatic extension of the maturity of less than the entire
principal amount of the within Note is to be terminated, specify the portion
thereof (which shall be $100,000 or an integral multiple of $1,000 in excess
thereof) as to which the holder elects to terminate the automatic extension of
the maturity $______; and specify the denomination or denominations (which
shall be $100,000 or an integral multiple of $1,000 in excess thereof) of the
Notes in the form attached to the within Note as Exhibit A to be issued to the
holder for the portion of the within Note as to which the automatic extension
of maturity is being terminated (in the absence of any such specification one
such Note will be issued for the portion as to which the automatic extension
of maturity is being terminated) $__________.
Dated:_______________ ________________________________
NOTICE: The signature on this Option to
Elect Termination of Automatic Extension must
correspond with the name as written upon the
face of the within Note in every particular,
without alteration or enlargement or any
change whatever.
SCHEDULE I
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. The
following exchanges of a portion of this Note for an interest in a Short-Term
Note and the following exchanges of an interest in a Short-Term Note for an
interest in this Note have been made:
<TABLE>
<S> <C> <C> <C> <C> <C>
Principal Increased
Reduced Amount of Principal
Principal Principal Short-Term Amount
Amount Amount Note Outstanding Notation Made
Exchanged Outstanding Exchanged for Following by or on
Date of for Short- Following Interest in Such Behalf of
Exchange Term Note Such Exchange this Note Exchange Paying Agent
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EXHIBIT A
[FORM OF FACE OF SECURITY]
[Subordinated Variable Rate Renewable Note]
REGISTERED REGISTERED
No. SUBVRR Cusip
U.S. $_________
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York,
New York) to the issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL, since the registered owner hereof, Cede & Co., has an
interest herein.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY"
AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE
METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF
APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
MORGAN STANLEY GROUP INC.
SUBORDINATED VARIABLE RATE RENEWABLE
GLOBAL MEDIUM-TERM NOTE, SERIES C
BASE RATE: ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE:
INDEX MATURITY: INITIAL INTEREST RESET MATURITY DATE:
DATE:
SPREAD (PLUS OR MINUS): INTEREST PAYMENT PERIOD:
MAXIMUM INTEREST RATE:
ALTERNATE RATE INTEREST PAYMENT DATES:
EVENT SPREAD:
MINIMUM INTEREST RATE:
SPREAD MULTIPLIER:
TOTAL AMOUNT OF OID: INTEREST RESET PERIOD:
INTEREST RESET DATES:
APPLICABILITY OF ISSUER'S REPORTING SERVICE: ORIGINAL YIELD TO
OPTION TO RESET SPREAD OR SPECIFIED CURRENCY: MATURITY:
SPREAD MULTIPLIER:
INITIAL ACCRUAL
PERIOD OID: CALCULATION AGENT:
OTHER PROVISIONS: DESIGNATED CMT INDEX CURRENCY:
NO EXCHANGE FOR TELERATE PAGE EXCHANGE RATE
RENEWABLE NOTE: The AGENT:
holder of this note DESIGNATED CMT
may not elect to MATURITY INDEX:
exchange such note
for an interest in
the predecessor
Renewable Note (as
defined below). Con-
sequently, Schedule I,
and any provision
related to such
Schedule I, is in-
applicable to this
note.
Morgan Stanley Group Inc., a Delaware corporation (together with its
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to
, or registered assignees, the principal sum specified in
Schedule I hereto on the Maturity Date specified above and to pay interest
on the principal amount hereof outstanding from time to time, from the
Interest Accrual Date specified above at a rate per annum equal to the
Initial Interest Rate, as defined below, until the Initial Interest Reset
Date specified above, and thereafter at a rate per annum determined in
accordance with the provisions specified on the reverse hereof until the
earlier of (a) the date on which the principal hereof is paid or duly made
available for payment and (b) the Interest Payment Date immediately
preceding the date on which the principal amount hereof is reduced to zero,
in each case, together with the unpaid amount of interest, if any, payable
on the principal amount hereof during the period that the Issuer's
obligation to pay such principal amount was evidenced by a predecessor Note
that provided for the automatic extension of the maturity thereof (the
"Renewable Note"), which amount shall be payable on the first date
succeeding the Interest Accrual Date specified above on which interest on
this Note is paid and shall be payable to the person receiving such
interest payment. The Issuer will pay interest hereon in arrears monthly,
quarterly, semiannually or annually as specified above as the Interest
Payment Period on each Interest Payment Date (as specified above),
commencing with the first Interest Payment Date next succeeding the
Interest Accrual Date specified above, and on the Maturity Date or any
redemption date; provided, however, if the Interest Accrual Date occurs
between a Record Date, as defined below, and the next succeeding Interest
Payment Date, interest payments will commence on the second Interest
Payment Date succeeding the Interest Accrual Date to the registered holder
of this Note on the Record Date with respect to such second Interest
Payment Date; provided, further, that if an Interest Payment Date or the
Maturity Date would fall on a day that is not a Business Day, as defined on
the reverse hereof, such Interest Payment Date or Maturity Date shall be
the following day that is a Business Day, except that if the Base Rate
specified above is LIBOR and such next Business Day falls in the next
calendar month, the Interest Payment Date or Maturity Date shall be the
immediately preceding day that is a Business Day. As used herein, "Initial
Interest Rate" means the rate of interest determined using the Spread or
Spread Multiplier, as the case may be, specified in the Renewable Note and
using the Base Rate determined in accordance with the provisions of the
Renewable Note (i) on the Interest Reset Date with respect to the Renewable
Note occurring on the Interest Accrual Date specified above or (ii) if no
such Interest Reset Date occurred on the Interest Accrual Date, on the
Interest Reset Date with respect to the Renewable Note occurring
immediately preceding the Interest Accrual Date.
Interest on this Note will accrue from and including the most recent
date to which interest has been paid or duly provided for, or, if no
interest has been paid or duly provided for, from the Interest Accrual
Date, until the earlier of (a) the date on which the principal hereof has
been paid or duly made available for payment and (b) the Interest Payment
Date immediately preceding the date on which the principal amount hereof is
reduced to zero in accordance with the provisions set forth below. The
interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, subject to certain exceptions described herein,
be paid to the person in whose name this Note (or one or more predecessor
Notes) is registered at the close of business on the date 15 calendar days
prior to such Interest Payment Date (whether or not a Business Day) (each
such date a "Record Date"); provided, however, that interest payable on the
Maturity Date will be payable to the person to whom the principal hereof
shall be payable.
On any date following the Original Issue Date and prior to the Record
Date immediately preceding the Maturity Date, the holder hereof may, with
the consent of the Issuer, exchange this Note or any portion hereof having
a principal amount of $1,000 or any larger multiple of $1,000 in excess
thereof for an interest in the Renewable Note equal to the principal amount
hereof so exchanged by delivering to the Paying Agent, as defined on the
reverse hereof, (i) this Note with the form entitled "Request to Exchange"
below duly completed or (ii) a telegram, telex, facsimile transmission or a
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or a trust
company in the United States of America setting forth the name of the
holder of this Note, the principal amount hereof, the certificate number of
this Note or a description of this Note's tenor or terms, a statement that
a request to exchange is being made thereby, the principal amount hereof
with respect to which such request is being made and a guarantee that this
Note with the form entitled "Request to Exchange" below duly completed will
be received by the Paying Agent no later than five Business Days after the
date of such telegram, telex, facsimile transmission or letter; provided
that such telegram, telex, facsimile transmission or letter shall not be
effective unless this Note and such form duly completed are received by the
Paying Agent by such fifth Business Day. Such exchange may occur with
respect to less than the entire principal amount hereof provided that the
principal amount for which such exchange does not occur is at least $1,000
or any larger amount that is an integral multiple of $1,000.
Notwithstanding the foregoing, a request to exchange all or a portion of
this Note for an interest in the Renewable Note may not be made during the
period from and including a Record Date to but excluding the immediately
succeeding Interest Payment Date. If a request to exchange any portion
hereof is granted by the Issuer, then, on the date of such exchange,
Schedule I hereto shall be annotated to reflect the corresponding decrease
in the principal amount hereof, and Schedule I to the Renewable Note shall
be annotated to reflect the corresponding increase in the principal amount
thereof.
Payment of the principal of this Note, any premium and the interest due
at the Maturity Date (or any redemption date), unless this Note is
denominated in a Specified Currency other than U.S. Dollars and is to be
paid in whole, or in part in such Specified Currency, will be made in
immediately available funds upon surrender of this Note at the office or
agency of the Paying Agent maintained for that purpose in the Borough of
Manhattan, The City of New York, or at the office or agency of such other
paying agent as the Issuer may determine in U.S. dollars. U.S. dollar
payments of interest, other than interest due at maturity or any date of
redemption, will be made by United States dollar check mailed to the
address of the person entitled thereto as such address shall appear in the
Note register. A holder of U.S. $10,000,000 or more in aggregate principal
amount of Notes having the same Interest Payment Date, the interest on
which is paid in U.S. dollars, will be entitled to receive payments of
interest, other than interest due at maturity or any date of redemption, by
wire transfer of immediately available funds if appropriate wire transfer
instructions have been received by the Paying Agent in writing not less
than 15 calendar days prior to the applicable Interest Payment Date.
If this Note is denominated in a Specified Currency other than U.S.
dollars, and the holder does not elect (in whole or in part) to receive
payment in U.S. dollars pursuant to the next succeeding paragraph, payments
of interest, principal or any premium with regard to this Note will be made
by wire transfer of immediately available funds to an account maintained by
the holder hereof with a bank located outside the United States if
appropriate wire transfer instructions have been received by the Paying
Agent in writing not less than 15 calendar days prior to the applicable
payment date, provided that, if such wire transfer instructions are not
received, such payments will be made by check payable in such Specified
Currency mailed to the address of the person entitled thereto as such
address shall appear in the Note register, and provided, further, that
payment of the principal of this Note, any premium and the interest due at
maturity (or on any redemption or repayment date) will be made upon
surrender of this Note at the office or agency referred to in the preceding
paragraph.
Unless otherwise indicated herein, the holder of this Note, if
denominated in a Specified Currency other than U.S. dollars, may elect to
receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the
Record Date or at least ten Business Days prior to the Maturity Date or any
redemption date, as the case may be. Such election shall remain in effect
unless such request is revoked by written notice to the Paying Agent as to
all or a portion of payments on this Note at least five Business Days prior
to such Record Date or at least ten days prior to the Maturity Date or any
redemption date, as the case may be.
If the holder elects to receive all or a portion of payments of
principal of and any premium and interest on this Note, if denominated in a
Specified Currency other than U.S. dollars, in U.S. dollars, the Exchange
Rate Agent will convert such payments into U.S. dollars. In the event of
such an election, payment in respect of this Note will be based upon the
exchange rate as determined by the Exchange Rate Agent based on the highest
bid quotation in The City of New York received by such Exchange Rate Agent
at approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign
exchange dealers (one of which may be the Exchange Rate Agent unless such
Exchange Rate Agent is Morgan Stanley & Co. Incorporated), for the
purchase by the quoting dealer of U.S. dollars for the Specified Currency
for settlement on such payment date in the amount of the Specified Currency
payable in the absence of such an election to such holder and at which the
applicable dealer commits to execute a contract. If such bid quotations
are not available, such payment will be made in the Specified Currency.
All currency exchange costs will be borne by the holder of this Note by
deductions from such payments.
If this Note ceases to be held by The Depository Trust Company or its
successor or the nominee of The Depository Trust Company or its successor,
this Note will be exchanged for one or more Notes of authorized
denominations having an aggregate principal amount equal to the principal
amount of this Note as then shown on Schedule I hereto, which new Notes
shall otherwise have the same terms as this Note, except that the
provisions of such new Notes regarding the exchange thereof for an interest
in a note providing for the automatic extension of the maturity thereof (a
"New Renewable Note") shall be modified to the extent appropriate for notes
not required to be held in a securities depositary; provided that the
respective rights and obligations of the Issuer and the holders of such new
Notes shall be the same in all material respects as the respective rights
and obligations of the Issuer and the holder of this Note. The terms of
the New Renewable Note shall be the same as the terms of the Renewable
Note, except that the principal amount thereof shall equal the principal
amount of the new Notes exchanged therefor and the provisions of such New
Renewable Notes regarding the automatic extension of the maturity thereof
shall be modified to the extent appropriate for notes not required to be
held in a securities depositary; provided that the respective rights and
obligations of the Issuer and the holders of such New Renewable Notes shall
be the same in all material respects as the respective rights and
obligations of the Issuer and the holder of the Renewable Note. Such new
Notes shall have stated principal amounts and shall be registered in the
names of the persons then having a beneficial interest in this Note or in
the names of their nominees.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have
the same effect as if set forth at this place, including, without limitation,
the provisions relating to the subordination of this Note to the Issuer's
Senior Indebtedness, as defined on the reverse hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Subordinated
Indenture, as defined on the reverse hereof, or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
DATED: MORGAN STANLEY GROUP INC.
By:_______________________
Title:
AUTHENTICATING AGENT'S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Subordinated Indenture.
CHEMICAL BANK,
as Authenticating Agent
By:____________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of the Subordinated Global
Medium-Term Notes, Series C, having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable
under a Subordinated Indenture, dated as of April 15, 1989, as supplemented
by a First Supplemental Indenture dated as of May 15, 1991 and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Subordinated Indenture"), between the Issuer and The First National Bank
of Chicago, as Trustee (the "Trustee," which term includes any successor
trustee under the Subordinated Indenture), to which Subordinated Indenture
and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and
immunities of the Issuer, the Trustee and holders of the Notes and the
terms upon which the Notes are, and are to be, authenticated and delivered.
The Trustee has appointed Chemical Bank as Authenticating Agent (the
"Authenticating Agent," which term includes any successor authenticating
agent appointed by the Trustee) with respect to the Notes, and the Issuer
has appointed Chemical Bank at its corporate trust office in The City of
New York as the paying agent (the "Paying Agent," which term includes any
additional or successor Paying Agent appointed by the Issuer) with respect
to the Notes. The terms of individual Notes may vary with respect to
interest rates, interest rate formulas, issue dates, maturity dates, or
otherwise, all as provided in the Subordinated Indenture. To the extent
not inconsistent herewith, the terms of the Subordinated Indenture are
hereby incorporated by reference herein.
Unless otherwise provided, this Note will not be subject to any sinking
fund and will not be redeemable prior to maturity.
This Note will bear interest at the rate determined in accordance with
the applicable provisions below by reference to the Base Rate shown on the
face hereof based on the Index Maturity, if any, shown on the face hereof
(i) plus or minus the Spread, if any, or (ii) multiplied by the Spread
Multiplier, if any, specified on the face hereof. Commencing with the
Initial Interest Reset Date specified on the face hereof, the rate at which
interest on this Note is payable shall be reset as of each Interest Reset
Date (as used herein, the term "Interest Reset Date" shall include the
Initial Interest Reset Date). The determination of the rate of interest at
which this Note will be reset on any Interest Reset Date shall be made, on
the Interest Determination Date (as defined below) pertaining to such
Interest Reset Date. The Interest Reset Dates will be the Interest Reset
Dates specified on the face hereof; provided, however, that the interest
rate in effect for the period from the Interest Accrual Date to the Initial
Interest Reset Date specified on the face hereof will be the Initial
Interest Rate. If any Interest Reset Date would otherwise be a day that is
not a Business Day, such Interest Reset Date shall be postponed to the next
succeeding day that is a Business Day, except that if the Base Rate
specified on the face hereof is LIBOR and such Business Day is in the next
succeeding calendar month, such Interest Reset Date shall be the next
preceding Business Day. As used herein, "Business Day" means any day,
other than a Saturday or Sunday, and that is neither a legal holiday nor a
day on which banking institutions are authorized or required by law or
regulation to close in The City of New York and, with respect to Notes
bearing interest calculated by reference to LIBOR, in the City of London.
If so indicated on the face of this Note, the Issuer may from time to
time offer to reset the Spread or Spread Multiplier, as the case may be, on
the Renewable Note by causing the Paying Agent to send to the holder hereof
a notice (an "Optional Exchange Notice") by first class mail, postage
prepaid, or by such other means as shall be agreed between the Issuer and
the Paying Agent, setting forth (a) the new Spread or Spread Multiplier to
be applied to the Renewable Note, together with any change in the Maximum
Interest Rate or Minimum Interest Rate, and (b) the date, if any, on which
such offer will expire. In order to accept such offer, the holder hereof
must exchange this Note in whole or in part for an interest in the
Renewable Note in accordance with the third paragraph on the face of this
Note by delivering to the Paying Agent the notice referred to in clause (i)
or (ii) of such paragraph prior to the earlier of the expiration date, if
any, of such offer and the Record Date immediately preceding the Maturity
Date.
The Interest Determination Date pertaining to an Interest Reset Date for
Notes bearing interest calculated by reference to the CD Rate, Commercial
Paper Rate, Federal Funds Rate, Prime Rate and CMT Rate will be the second
Business Day next preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for Notes bearing
interest calculated by reference to LIBOR shall be the second London
Banking Day preceding such Interest Reset Date except that the Interest
Determination Date pertaining to an Interest Reset Date for a LIBOR Note
for which the Index Currency is pounds Sterling will be such Interest Reset
Date. As used herein, "London Banking Day" means any day on which dealings
in deposits in the Index Currency (as defined herein) are transacted in the
London interbank market. The Interest Determination Date pertaining to an
Interest Reset Date for Notes bearing interest calculated by reference to
the Treasury Rate shall be the day of the week in which such Interest Reset
Date falls on which Treasury bills normally would be auctioned; provided,
however, that if as a result of a legal holiday an auction is held on the
Friday of the week preceding such Interest Reset Date, the related Interest
Determination Date shall be such preceding Friday; and provided, further,
that if an auction shall fall on any Interest Reset Date, then the Interest
Reset Date shall instead be the first Business Day following the date of
such auction.
Unless otherwise specified on the face hereof, the "Calculation Date"
pertaining to an Interest Determination Date will be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if such day
is not a Business Day, the next succeeding Business Day, or (ii) the
Business Day preceding the applicable Interest Payment Date or Maturity
Date (or, with respect to any principal amount to be redeemed or repaid,
any redemption or repayment date), as the case may be.
Determination of CD Rate. If the Base Rate specified on the face hereof is
the CD Rate, the CD Rate with respect to this Note shall be determined on
each Interest Determination Date and shall be the rate on such date for
negotiable certificates of deposit having the Index Maturity specified on
the face hereof as published by the Board of Governors of the Federal
Reserve System in "Statistical Release H.15(519), Selected Interest Rates,"
or any successor publication of the Board of Governors of the Federal
Reserve System ("H.15(519)"), under the heading "CDs (Secondary Market),"
or, if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the CD
Rate will be the rate on such Interest Determination Date for negotiable
certificates of deposit of the Index Maturity specified on the face hereof
as published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 P.M. Quotations for U.S. Government
Securities" ("Composite Quotations") under the heading "Certificates of
Deposit." If neither of such rates is published by 3:00 P.M., New York City
time, on such Calculation Date, then the CD Rate on such Interest
Determination Date will be calculated by the Calculation Agent referred to
on the face hereof and will be the arithmetic mean of the secondary market
offered rates as of 10:00 A.M., New York City time, on such Interest
Determination Date for certificates of deposit in the denomination of
$5,000,000 with a remaining maturity closest to the Index Maturity
specified on the face hereof of three leading nonbank dealers in negotiable
U.S. dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable certificates of deposit of major United
States money center banks of the highest credit standing in the market for
negotiable certificates of deposit; provided, however, that if the dealers
selected as aforesaid by the Calculation Agent are not quoting as mentioned
in this sentence, the CD Rate in effect for the applicable period will be
the same as the CD Rate for the immediately preceding Interest Reset Period
(or, if there was no such Interest Reset Period, the rate of interest
payable hereon shall be the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate specified on
the face hereof is the Commercial Paper Rate, the Commercial Paper Rate
with respect to this Note shall be determined on each Interest
Determination Date and shall be the Money Market Yield (as defined herein)
of the rate on such date for commercial paper having the Index Maturity
specified on the face hereof, as such rate shall be published in H.15(519)
under the heading "Commercial Paper," or if not so published prior to 9:00
A.M., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the Commercial Paper Rate shall be the Money
Market Yield of the rate on such Interest Determination Date for commercial
paper of the Index Maturity specified on the face hereof as published in
Composite Quotations under the heading "Commercial Paper." If neither of
such rates is published by 3:00 P.M., New York City time, on such
Calculation Date, then the Commercial Paper Rate shall be the Money Market
Yield of the arithmetic mean of the offered rates as of 11:00 A.M., New
York City time, on such Interest Determination Date of three leading
dealers in commercial paper in The City of New York selected by the
Calculation Agent for commercial paper of the Index Maturity specified on
the face hereof, placed for an industrial issuer whose bond rating is "AA,"
or the equivalent, from a nationally recognized rating agency; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting as mentioned in this sentence, the Commercial Paper Rate in
effect for the applicable period will be the same as the Commercial Paper
Rate for the immediately preceding Interest Reset Period (or, if there was
no such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate). "Money Market Yield" shall be the yield
calculated in accordance with the following formula:
Money Market Yield = D x 360
---------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the Index Maturity specified on the face hereof.
Determination of Federal Funds Rate. If the Base Rate specified on the
face hereof is the Federal Funds Rate, the Federal Funds Rate with respect to
this Note shall be determined on each Interest Determination Date and shall be
the rate on such date for Federal Funds as published in H.15(519) under the
heading "Federal Funds (Effective)," or, if not so published by 9:00 A.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the Federal Funds Rate will be the rate on such Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, the Federal Funds Rate for
such Interest Determination Date will be calculated by the Calculation Agent
and will be the arithmetic mean of the rates for the last transaction in
overnight Federal funds as of 11:00 A.M., New York City time, on such Interest
Determination Date arranged by three leading brokers in Federal funds
transactions in The City of New York selected by the Calculation Agent;
provided, however, that if the brokers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the Federal
Funds Rate in effect for the applicable period will be the same as the Federal
Funds Rate for the immediately preceding Interest Reset Period (or, if there
was no such Interest Reset Period, the rate of interest payable hereon shall
be the Initial Interest Rate).
Determination of LIBOR. If the Base Rate specified on the face hereof is
LIBOR, LIBOR with respect to this Note shall be determined on each Interest
Determination Date as follows:
(i) As of the Interest Determination Date, the Calculation Agent will
determine (a) if "LIBOR Reuters" is specified as the Reporting Service on
the face hereof, the arithmetic mean of the offered rates (unless the
specified Designated LIBOR Page (as defined below) by its terms provides
only for a single rate, in which case such single rate shall be used) for
deposits in the London interbank market in the Index Currency for the
period of the Index Maturity specified on the face hereof, commencing on
the second London Banking Day immediately following such Interest
Determination Date, which appear on the Designated LIBOR Page at
approximately 11:00 A.M., London time, on such Interest Determination Date,
if at least two such offered rates appear (unless, as aforesaid, only a
single rate is required) on such Designated LIBOR Page, or (b) if "LIBOR
Telerate" is specified as the Reporting Service on the face hereof, the
rate for deposits in the Index Currency for the period of the Index
Maturity, each as designated on the face hereof, commencing on the second
London Banking Day following such Interest Determination Date (or, if
pounds Sterling is the Index Currency, commencing on such Interest
Determination Date), that appears on the Designated LIBOR Page at
approximately 11:00 A.M., London time, on such Interest Determination Date.
If fewer than two offered rates appear (if "LIBOR Reuters" is specified as
the Reporting Service on the face hereof and calculation of LIBOR is based
on the arithmetic mean of the offered rates) or if no rate appears (if the
Reporting Service on the face hereof specifies either (x) "LIBOR Reuters"
and the Designated LIBOR Page by its terms provides only for a single rate
or (y) "LIBOR Telerate"), LIBOR in respect of that Interest Determination
Date will be determined as if the parties had specified the rate described
in (ii) below.
(ii) With respect to an Interest Determination Date on which fewer than
two offered rates appear (if "LIBOR Reuters" is specified as the Reporting
Service on the face hereof and calculation of LIBOR is based on the
arithmetic mean of the offered rates) or no rate appears (if the Reporting
Service on the face hereof specifies either (x) "LIBOR Reuters" and the
Designated LIBOR Page by its terms provides only for a single rate or (y)
"LIBOR Telerate"), the Calculation Agent will request the principal London
offices of each of four major reference banks in the London interbank
market, as selected by the Calculation Agent (after consultation with the
Issuer), to provide the Calculation Agent with its offered quotations for
deposits in the Index Currency for the period of the Index Maturity
specified on the face hereof, commencing on the second London Banking Day
immediately following such Interest Determination Date (or, if pounds
Sterling is the Index Currency, commencing on such Interest Determination
Date), to prime banks in the London interbank market at approximately 11:00
A.M., London time, on such Interest Determination Date and in a principal
amount equal to an amount of not less than U.S.$1 million (or the
equivalent in the Index Currency (if the Index Currency is not U.S.
dollars)) that is representative of a single transaction in such Index
Currency in such market at such time. If at least two such quotations are
provided, LIBOR determined on such Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR determined on such Interest Determination Date will be the
arithmetic mean of rates quoted at approximately 11:00 A.M. (or such other
time specified on the face hereof), in the applicable principal financial
center for the country of the Index Currency on such Interest Determination
Date, by three major banks in such principal financial center selected by
the Calculation Agent (after consultation with the Issuer) on such Interest
Determination Date for loans in the Index Currency to leading European
banks, for the period of the Index Maturity specified on the face hereof
commencing on the second London Banking Day immediately following such
Interest Determination Date (or, if pounds Sterling is the Index Currency,
commencing on such Interest Determination Date) and in a principal amount
of not less than U.S.$1 million (or the equivalent in the Index Currency
(if the Index Currency is not U.S. Dollars)) that is representative of a
single transaction in such Index Currency in such market at such time;
provided, however, that if the banks selected as aforesaid by the
Calculation Agent are not quoting rates as mentioned in this sentence,
"LIBOR" for such Interest Reset Period will be the same as LIBOR for the
immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable on the LIBOR Notes for
which LIBOR is being determined shall be the Initial Interest Rate). "Index
Currency" means the currency (including composite currencies) specified as
Index Currency on the face hereof. If no such currency is specified as
Index Currency on the face hereof, the Index Currency shall be U.S.
dollars. "Designated LIBOR Page" means either (a) if "LIBOR Reuters" is
designated as the Reporting Service on the face hereof, the display on the
Reuters Monitor Money Rates Service for the purpose of displaying the
London interbank rates of major banks for the applicable Index Currency, or
(b) if "LIBOR Telerate" is designated as the Reporting Service on the face
hereof, the display on the Dow Jones Telerate Service for the purpose of
displaying the London interbank rates of major banks for the applicable
Index Currency. If neither LIBOR Reuters nor LIBOR Telerate is specified
as the Reporting Service on the face hereof, LIBOR for the applicable Index
Currency will be determined as if LIBOR Telerate (and, if the U.S. dollar
is the Index Currency, Page 3750) had been specified.
Determination of Prime Rate. If the Base Rate specified on the face
hereof is the Prime Rate, the Prime Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate set
forth in H.15(519) for such date opposite the caption "Bank Prime Loan." If
such rate is not yet published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the Prime
Rate for such Interest Determination Date will be the arithmetic mean of
the rates of interest publicly announced by each bank named on the Reuters
Screen USPRIME 1 Page (as defined below) as such bank's prime rate or base
lending rate as in effect for such Interest Determination Date as quoted on
the Reuters Screen USPRIME 1 Page on such Interest Determination Date, or,
if fewer than four such rates appear on the Reuters Screen USPRIME 1 Page
for such Interest Determination Date, the rate shall be the arithmetic mean
of the prime rates quoted on the basis of the actual number of days in the
year divided by 360 as of the close of business on such Interest
Determination Date by at least two of the three major money center banks in
The City of New York selected by the Calculation Agent from which
quotations are requested. If fewer than two quotations are provided, the
Prime Rate shall be calculated by the Calculation Agent and shall be
determined as the arithmetic mean on the basis of the prime rates in The
City of New York by the appropriate number of substitute banks or trust
companies organized and doing business under the laws of the United States,
or any State thereof, in each case having total equity capital of at least
U.S. $500 million and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent to quote such
rate or rates; provided, however, that if the banks or trust companies
selected as aforesaid by the Calculation Agent are not quoting rates as set
forth above, the "Prime Rate" in effect for such Interest Reset Period will
be the same as the Prime Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate). "Reuters
Screen USPRIME 1 Page" means the display designated as Page "USPRIME 1" on
the Reuters Monitor Money Rates Service (or such other page as may replace
the USPRIME 1 Page on that service for the purpose of displaying prime
rates or base lending rates of major United States banks).
Determination of Treasury Rate. If the Base Rate specified on the face
hereof is the Treasury Rate, the Treasury Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
rate for the auction held on such date of direct obligations of the United
States ("Treasury Bills") having the Index Maturity specified on the face
hereof, as published in H.15(519) under the heading "Treasury Bills--
auction average (investment)," or if not so published by 9:00 A.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the auction average rate on such Interest Determination
Date (expressed as a bond equivalent, on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) as otherwise announced
by the United States Department of the Treasury. In the event that the
results of the auction of Treasury Bills having the Index Maturity
specified on the face hereof are not published or reported as provided
above by 3:00 P.M., New York City time, on such Calculation Date or if no
such auction is held on such Interest Determination Date, then the Treasury
Rate shall be calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) calculated using the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
P.M., New York City time, on such Interest Determination Date, of three
leading primary United States government securities dealers selected by the
Calculation Agent for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified on the face hereof; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting as mentioned in this sentence, the Treasury Rate for such
Interest Reset Date will be the same as the Treasury Rate for the
immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable hereon shall be the
Initial Interest Rate).
Determination of CMT Rate. If the Base Rate specified on the face
hereof is the CMT Rate, the CMT Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate
displayed for the Index Maturity specified on the face hereof on the
Designated CMT Telerate Page under the caption "Daily Treasury Constant
Maturities and Money Markets/Federal Reserve Board Release H.15," under the
column for the Designated CMT Maturity Index for (i) if the Designated CMT
Telerate Page is 7055, the rate on such Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the week or the month, as
applicable, ended immediately preceding the week in which the related
Interest Determination Date occurs. If such rate is no longer displayed on
the relevant page, or is not displayed by 3:00 P.M., New York City time, on
the Calculation Date pertaining to such Interest Determination Date, then
the CMT Rate for such Interest Determination Date will be such Treasury
Constant Maturity rate for the Designated CMT Maturity Index as published
in the relevant H.15(519). If such rate is no longer published, or is not
published by 3:00 P.M., New York City time, on the related Calculation
Date, then the CMT Rate for such Interest Determination Date will be such
Treasury Constant Maturity rate for the Designated CMT Maturity Index (or
other United States Treasury rate for the Designated CMT Maturity Index)
for the Interest Determination Date with respect to the related Interest
Reset Date as may then be published by either the Board of Governors of the
Federal Reserve System or the United States Department of the Treasury that
the Calculation Agent determines to be comparable to the rate formerly
displayed on the Designated CMT Telerate Page and published in the relevant
H.15(519). If such information is not provided by 3:00 P.M., New York
time, on the related Calculation Date, then the CMT Rate for the Interest
Determination Date will be calculated by the Calculation Agent and will be
a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City
time, on the Interest Determination Date reported, according to their
written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in The City of New York
(which may include affiliates of the Issuer) selected by the Calculation
Agent (from five such Reference Dealers selected by the Calculation Agent,
after consultation with the Issuer), and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation
(or, in the event of equality, one of the lowest), for the most recently
issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the
Designated CMT Maturity Index and remaining term to maturity of not less
than such Designated CMT Maturity Index minus one year. If the Calculation
Agent cannot obtain three such Treasury Notes quotations, the CMT Rate for
such Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity based on the arithmetic mean of the
secondary market offer side prices as of approximately 3:30 P.M., New York
City time, on the Interest Determination Date of three Reference Dealers in
The City of New York (from five such Reference Dealers selected by the
Calculation Agent, after consultation with the Issuer, and eliminating the
highest quotation (or, in the event of equality, one of the highest) and
the lowest quotation (or, in the event of equality, one of the lowest)),
for Treasury Notes with an original maturity of the number of years that is
the next highest to the Designated CMT Maturity Index and a remaining term
to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100,000,000. If three or four (and not five) of such
Reference Dealers are quoting as described above, then the CMT Rate will be
based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers selected by the
Calculation Agent are quoting as described herein, the CMT Rate for such
Interest Reset Date will be the same as the CMT Rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset
Period, the rate of interest payable hereon shall be the Initial Interest
Rate). If two Treasury Notes with an original maturity as described in the
second preceding sentence have remaining terms to maturity equally close to
the Designated CMT Maturity Index, the quotes for the Treasury note with
the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service specified on the face hereof (or any other page as may replace such
page on that service for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519)), for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519). If no such page is specified on
the face hereof, the Designated CMT Telerate Page shall be 7052, for the most
recent week.
"Designated CMT Maturity Index" shall be the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be two years.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing on
or before each Calculation Date. The interest rate on this Note will in no
event be higher than the maximum rate permitted by New York law, as the same
may be modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will provide to
the holder hereof the interest rate hereon then in effect and, if determined,
the interest rate that will become effective as of the next Interest Reset
Date.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or Maturity Date, as the case may be.
Accrued interest hereon for any period shall be the sum of the products
obtained by multiplying the interest factor calculated for each day in such
period by the principal amount hereof shown on Schedule I hereto for each
such day; provided that for the purpose of calculating the amount of
interest payable hereon, any decrease in the principal amount hereof
attributable to an exchange of a portion of this Note for an interest in
the Renewable Note shall be effective on and as of the Interest Payment
Date immediately preceding the date of such decrease. The interest factor
for each such day shall be computed by dividing the interest rate
applicable to such day by 360 if the Base Rate is CD Rate, Commercial Paper
Rate, Federal Funds Rate, Prime Rate or LIBOR, as specified on the face
hereof, or by the actual number of days in the year if the Base Rate is the
Treasury Rate or the CMT Rate, as specified on the face hereof. All
percentages resulting from any calculation of the rate of interest on this
Note will be rounded, if necessary, to the nearest one hundred-thousandth
of a percentage point (.0000001), with five one-millionths of a percentage
point rounded upward, and all dollar amounts used in or resulting from such
calculation on this Note will be rounded to the nearest cent (with one-half
cent rounded upward). The interest rate in effect on any Interest Reset
Date will be the applicable rate as reset on such date. The interest rate
applicable to any other day is the interest rate from the immediately
preceding Interest Reset Date (or, if none, the Initial Interest Rate).
This Note and all other obligations of the Issuer hereunder will
constitute part of the subordinated debt of the Issuer, will be issued
under the Subordinated Indenture and will be subordinate and junior in
right of payment, to the extent and in the manner set forth in the
Subordinated Indenture, to all "Senior Indebtedness" of the Issuer. The
Subordinated Indenture defines "Senior Indebtedness" as obligations (other
than non-recourse obligations, the debt securities, including this Note,
issued under the Subordinated Indenture or any other obligations
specifically designated as being subordinate in right of payment to Senior
Indebtedness) of, or guaranteed or assumed by, the Issuer for borrowed
money or evidenced by bonds, debentures, notes or other similar
instruments, and amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligation.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and is
issuable only in denominations of U.S. $1,000 and any integral multiple of
U.S. $1,000 in excess thereof. If this Note is denominated in a Specified
Currency other than U.S. dollars, then, unless a higher minimum
denomination is required by applicable law, it is issuable only in
denominations of the equivalent of U.S. $1,000 (rounded to an integral
multiple of 1,000 units of such Specified Currency), or any amount in
excess thereof which is an integral multiple of 1,000 units of such
Specified Currency, as determined by reference to the noon dollar buying
rate in New York City for cable transfers of such Specified Currency
published by the Federal Reserve Bank of New York (the "Market Exchange
Rate") on the Business Day immediately preceding the date of issuance;
provided, however, in the case of ECUs, the Market Exchange Rate shall be
the rate of exchange determined by the Commission of the European
Communities (or any successor thereto) as published in the Official Journal
of the European Communities, or any successor publication, on the Business
Day immediately preceding the date of issuance.
Chemical Bank has been appointed registrar for the Notes (the "Registrar,"
which term includes any successor registrar appointed by the Issuer), and the
Registrar will maintain at its office in The City of New York a register for
the registration and transfer of Notes. This Note may be transferred at the
aforesaid office of the Registrar by surrendering this Note for cancellation,
accompanied by a written instrument of transfer in form satisfactory to the
Registrar and duly executed by the registered holder hereof in person or by
the holder's attorney duly authorized in writing, and thereupon the Registrar
shall issue in the name of the transferee or transferees, in exchange herefor,
a new Note or Notes having identical terms and provisions and having a like
aggregate principal amount in authorized denominations, subject to the terms
and conditions set forth herein; provided, however, that the Registrar will
not be required (i) to register the transfer of or exchange any Note that has
been called for redemption in whole or in part, except the unredeemed portion
of Notes being redeemed in part, (ii) to register the transfer of or exchange
any Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of such
Note not required to be repurchased or (iii) to register the transfer of or
exchange Notes to the extent and during the period so provided in the
Subordinated Indenture with respect to the redemption of Notes. Notes are
exchangeable at said office for other Notes of other authorized denominations
of equal aggregate principal amount having identical terms and provisions.
All such exchanges and transfers of Notes will be free of charge, but the
Issuer may require payment of a sum sufficient to cover any tax or other
governmental charge in connection therewith. All Notes surrendered for
exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Registrar and executed by the registered holder in person
or by the holder's attorney duly authorized in writing. The date of
registration of any Note delivered upon any exchange or transfer of Notes
shall be such that no gain or loss of interest results from such exchange or
transfer.
In case any Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to
and such other documents or proof as may be required in the premises) shall
be delivered to the Registrar, a new Note of like tenor will be issued by
the Issuer in exchange for the Note so mutilated or defaced, or in lieu of
the Note so destroyed or lost or stolen, but, in the case of any destroyed
or lost or stolen Note, only upon receipt of evidence satisfactory to the
Registrar and the Issuer that such Note was destroyed or lost or stolen
and, if required, upon receipt also of indemnity satisfactory to each of
them. All expenses and reasonable charges associated with procuring such
indemnity and with the preparation, authentication and delivery of a new
Note shall be borne by the owner of the Note mutilated, defaced, destroyed,
lost or stolen.
The Subordinated Indenture provides that, (a) if an Event of Default (as
defined in the Subordinated Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt
securities issued under the Subordinated Indenture, including the series of
Subordinated Medium-Term Notes of which this Note forms a part, or due to
the default in the performance or breach of any other covenant or warranty
of the Issuer applicable to the debt securities of such series but not
applicable to all outstanding debt securities issued under the Subordinated
Indenture shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of the debt securities of
each affected series (voting as a single class) may then declare the
principal of all debt securities of all such series and interest accrued
thereon to be due and payable immediately and (b) if an Event of Default
due to a default in the performance of any other of the covenants or
agreements in the Subordinated Indenture applicable to all outstanding debt
securities issued thereunder, including this Note, or due to certain events
of bankruptcy, insolvency and reorganization of the Issuer, shall have
occurred and be continuing, either the Trustee or the holders of not less
than 25% in principal amount of all debt securities issued under the
Subordinated Indenture then outstanding (treated as one class) may declare
the principal of all such debt securities and interest accrued thereon to
be due and payable immediately, but upon certain conditions such
declarations may be annulled and past defaults may be waived (except a
continuing default in payment of principal (or premium, if any) or interest
on such debt securities) by the holders of a majority in principal amount
of the debt securities of all affected series then outstanding.
The Subordinated Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Subordinated
Indenture then outstanding and affected (voting as one class), to execute
supplemental indentures adding any provisions to or changing in any manner
the rights of the holders of each series so affected; provided that the
Issuer and the Trustee may not, without the consent of the holder of each
outstanding debt security affected thereby, (a) extend the final maturity
of any such debt security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or
reduce any amount payable on redemption thereof, or change the currency of
payment thereof, or impair or affect the rights of any holder to institute
suit for the payment thereof without the consent of the holder of each debt
security so affected; or (b) reduce the aforesaid percentage in principal
amount of debt securities the consent of the holders of which is required
for any such supplemental indenture, without the consent of the holders of
each debt security so affected; provided, however, that neither this Note
nor the Subordinated Indenture may be amended to alter the subordination
provisions hereof or thereof without the written consent of each holder of
Senior Indebtedness then outstanding that would be adversely affected
thereby.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for
making payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking
community, then the Issuer will be entitled to satisfy its obligations to
the holder of this Note by making such payments in U.S. dollars on the
basis of the Market Exchange Rate on the date of such payment or, if the
Market Exchange Rate is not available on such date, as of the most recent
practicable date; provided, however, that if such Specified Currency is
replaced by a single European currency (expected to be named the Euro), the
payment of principal of, premium, if any, or interest on any Note
denominated in such currency shall be effected in the new single European
currency in conformity with legally applicable measures taken pursuant to,
or by virtue of, the treaty establishing the European Community (the "EC"),
as amended by the treaty on European Union (as so amended, the "Treaty").
Any payment made under such circumstances in U.S. dollars (or, if
applicable, such new single European currency) where the required payment
is in a Specified Currency other than U.S. dollars will not constitute an
Event of Default.
Subject to the provisions below, the value of the ECU, in which the Notes
may be denominated or may be payable, is equal to the value of the ECU that is
from time to time used as the unit of account of the EC. If the ECU becomes a
currency in its own right in accordance with the Treaty, all references to ECU
in the Notes shall be construed as references to such currency.
With respect to each due date for the payment of principal of, or interest
on, the Notes on or after the first business day in Brussels on which the ECU
ceases to be used as the unit of account of the EC, and has not become a
currency in its own right replacing all or some of the currencies of the
member States of the EC, the Company shall choose a substitute currency (the
"Chosen Currency"), which may be any currency which was, on the last day on
which the ECU was used as the unit of account of the EC, a component currency
of the ECU or U.S. dollars, in which all payments due on or after that date
with respect to the Notes and coupons shall be made. Notice of the Chosen
Currency so selected shall be provided by first class mail to each holder at
the address of such holder which appears on the books maintained by the
Registrar and to the Paying Agent. The amount of each payment in such Chosen
Currency shall be computed on the basis of the equivalent of the ECU in that
currency, determined as described below, as of the fourth business day in
Brussels prior to the date on which such payment is due.
On the first business day in Brussels on which the ECU ceases to be used as
the unit of account of the EC, and has not become a currency in its own right
replacing all or some of the currencies of the member States of the EC, the
Company shall select a Chosen Currency in which all payments with respect to
Notes and coupons having a due date prior thereto but not yet presented for
payment with respect to Notes and coupons having a due date prior thereto but
not yet presented for payment are to be made. The amount of each payment in
such Chosen Currency shall be computed on the basis of the equivalent of the
ECU in that currency, determined as described below, as of such first business
day.
The equivalent of the ECU in the relevant Chosen Currency as of any date
(the "Day of Valuation") shall be determined by, or on behalf of, the Exchange
Rate Agent on the following basis. The amounts and components composing the
ECU for this purpose (the "Components") shall be the amounts and components
that composed the ECU as of the last date on which the ECU was used as the
unit of account of the EC. The equivalent of the ECU in the Chosen Currency
shall be calculated by, first, aggregating the U.S. dollar equivalents of the
Components; and then, in the case of a Chosen Currency other than U.S.
dollars, using the rate used for determining the U.S. dollar equivalent of the
Components in the Chosen Currency as set forth below, calculating the
equivalent in the Chosen Currency of such aggregate amount in U.S. dollars.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. Incorporated,
unless otherwise indicated on the face hereof.
The U.S. dollar equivalent of each of the Components shall be determined
by, or on behalf of, the Exchange Rate Agent on the basis of the middle spot
delivery quotations prevailing at 2:30 P.M., Brussels time, on the Day of
Valuation, as obtained by, or on behalf of, the Exchange Rate Agent from one
or more major banks, as selected by the Company, in the country of issue of
the component currency in question.
If for any reason no direct quotations are available for a Component as
of a Day of Valuation from any of the banks selected for this purpose, in
computing the U.S. dollar equivalent of such Component, the Exchange Rate
Agent shall (except as provided below) use the most recent direct
quotations for such Component obtained by it or on its behalf, provided
that such quotations were prevailing in the country of issue not more than
two Business Days before such Day of Valuation. If such most recent
quotations were so prevailing in the country of issue more than two
Business Days before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of
cross rates derived from the middle spot delivery quotations for such
component currency and for the U.S. dollar prevailing at 2:30 P.M.,
Brussels time, on such Day of Valuation, as obtained by, or on behalf of,
the Exchange Rate Agent from one or more major banks, as selected by the
Company, in a country other than the country of issue of such component
currency. Notwithstanding the foregoing, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of such
cross rates if the Company or such agent judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent
calculated as provided in the first sentence of this paragraph. Unless
otherwise specified by the Company, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations
or for any other reason, the market to be referred to in respect of such
currency shall be that upon which a non-resident issuer of securities
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the specified office of a
paying agent in the country of the Chosen Currency, or, if none, or at the
option of the holder, at the specified office of any Paying Agent either by a
check drawn on, or by transfer to an account maintained by the holder with, a
bank in the principal financial center of the country of the Chosen Currency.
All determinations referred to above made by, or on behalf of, the Company
or by, or on behalf of, the Exchange Rate Agent shall be at such entity's sole
discretion and shall, in the absence of manifest error, be conclusive to the
extent permitted by law for all purposes and binding on the holder of this
Note and coupons, if any.
So long as this Note shall be outstanding, the Issuer will cause to be
maintained an office or agency for the payment of the principal of and
premium, if any, and interest on this Note as herein provided in the Borough
of Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, transfer and exchange as aforesaid of the
Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be
such an agency, the Issuer shall keep the Trustee advised of the names and
locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or any
Paying Agent for the payment of the principal of or interest or premium, if
any, on any Notes that remain unclaimed at the end of two years after such
principal, interest or premium shall have become due and payable (whether at
maturity or upon call for redemption or otherwise), (i) the Trustee or such
Paying Agent shall notify the holders of such Notes that such moneys shall be
repaid to the Issuer and any person claiming such moneys shall thereafter look
only to the Issuer for payment thereof and (ii) such moneys shall be so repaid
to the Issuer. Upon such repayment all liability of the Trustee or such
Paying Agent with respect to such moneys shall thereupon cease, without,
however, limiting in any way any obligation that the Issuer may have to pay
the principal of or interest or premium, if any, on this Note as the same
shall become due.
No provision of this Note or of the Subordinated Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if
any, or the interest on this Note, for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Subordinated Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Subordinated Indenture
and not otherwise defined herein shall have the meanings assigned to them in
the Subordinated Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_________________________________________________
_________________________________________________
_______________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE]
_______________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
_______________________________________________________________
constituting and appointing such person attorney to transfer
_______________________________________________________________
such note on the books of the Issuer, with full power of
_______________________________________________________________
substitution in the premises.
Dated:_____________________ ____________________________________________
NOTICE: The signature to this assignment
must correspond with the name
as written upon the face of the
within Note in every particular
without alteration or enlargement
or any change whatsoever.
REQUEST TO EXCHANGE
The undersigned hereby requests to exchange the within Note (or
the portion thereof specified below) with the effect provided in the within
Note by surrendering the within Note to the Paying Agent at Chemical Bank, 55
Water Street, New York, New York 10041, Attention: Corporate Trustee
Administration Department, or such other address of which the Issuer shall
from time to time notify the holders of the Notes, together with this form of
"Request to Exchange" duly completed by the holder of the within Note.
If less than the entire principal amount of the within Note is
requested to be exchanged, specify the portion thereof (which shall be
$100,000 or an integral multiple of $1,000 in excess thereof) to be exchanged
$______.
Dated:_____________________ ____________________________________________
NOTICE: The signature on this Request to
Exchange must correspond with
the name as written upon the
face of the within Note in every
particular, without alteration
or enlargement or any change
whatever.
SCHEDULE I
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is ________________. The
following exchanges of a portion of this Note for an interest in the Renewable
Note have been made:
Reduced
Principal
Amount Notation
Principal Outstanding Made by or
Amount Following on Behalf
Date of Exchanged for Such of Paying
Exchange Renewable Note Exchange Agent
- -------- -------------- ----------- ------------
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
________ ______________ ___________ ____________
</TABLE>
EXHIBIT 4.N
FACE OF SECURITY
Senior Dollarized Yield Curve Note (Bond Basis)
REGISTERED REGISTERED
No. DYC(B) [PRINCIPAL AMOUNT]
CUSIP: *
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE
APPROXIMATE METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY
FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Dollarized Yield Curve (Bond Basis))
SET RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
REFERENCE RATE INTEREST ACCRUAL DATE: INTEREST PAYMENT
CURRENCY: DATE(S):
INITIAL INTEREST RATE: INTEREST RESET
DATES:
INDEX MATURITY:
INITIAL INTEREST RESET
DATE: CALCULATION
AGENT:
REFERENCE RATE
MULTIPLIER:
SPECIFIED CURRENCY:
REFERENCE RATE MAXIMUM INTEREST RATE:
LOCATION: TOTAL AMOUNT OF
OID:
MINIMUM INTEREST RATE:
CONVERSION FACTOR ORIGINAL YIELD TO
REFERENCE PERIOD: INITIAL REDEMPTION DATE: MATURITY:
INITIAL REDEMPTION INITIAL ACCRUAL
PERCENTAGE: PERIOD OID:
ANNUAL REDEMPTION EXCHANGE RATE
PERCENTAGE REDUCTION: AGENT:
OPTIONAL REPAYMENT
DATE(S):
OTHER PROVISIONS:
__________
(*) Applies only if this Note is a Registered Global Security.
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to
, or registered assignees, the principal sum of
on the Maturity Date specified above (except to the extent redeemed or
repaid prior to the Maturity Date) and to pay interest thereon, from and
including the Interest Accrual Date specified above at a rate per annum
equal to the Initial Interest Rate specified above until the Initial
Interest Reset Date specified above, and thereafter at a rate per annum
determined in accordance with the provisions specified on the reverse
hereof until the principal hereof is paid or duly made available for
payment. The Issuer will pay interest in arrears monthly, quarterly,
semiannually or annually as specified above as the Interest Payment Period
on each Interest Payment Date (as specified above), commencing with the
first Interest Payment Date next succeeding the Interest Accrual Date
specified above, and on the Maturity Date (or any redemption or repayment
date); provided, however, that if the Interest Accrual Date occurs between
a Record Date, as defined below, and the next succeeding Interest Payment
Date, interest payments will commence on the second Interest Payment Date
succeeding the Interest Accrual Date to the registered holder of this Note
on the Record Date with respect to such second Interest Payment Date; and
provided, further, that if an Interest Payment Date or the Maturity Date or
redemption or repayment date would fall on a day that is not a Business
Day, as defined on the reverse hereof, such Interest Payment Date, Maturity
Date or redemption or repayment date shall be the following day that is a
Business Day and no interest on such payment shall accrue for the period
from and after the Interest Payment Date or the Maturity Date or redemption
or repayment date.
Interest on this Note will accrue from and including the
most recent date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until the principal hereof has been paid or duly
made available for payment. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the person in whose name this Note
(or one or more predecessor Notes) is registered at the close of business
on the date 15 calendar days prior to such Interest Payment Date (whether
or not a Business Day) (each such date a "Record Date"); provided,
however, that interest payable on the Maturity Date (or any redemption or
repayment date) will be payable to the person to whom the principal hereof
shall be payable.
Payment of the principal of this Note, any premium and the
interest due at the Maturity Date (or any redemption or repayment date),
unless this Note is denominated in a Specified Currency other than U.S.
dollars and is to be paid in whole or in part in such Specified Currency,
will be made in immediately available funds upon surrender of this Note at
the office or agency of the Paying Agent, as defined on the reverse hereof,
maintained for that purpose in the Borough of Manhattan, The City of New
York, or at such other paying agency as the Issuer may determine, in U.S.
dollars. U.S. dollar payments of interest, other than interest due at
maturity or any date of redemption or repayment, shall be made by U.S.
dollar check mailed to the address of the person entitled thereto as such
address shall appear in the Note register. A holder of U.S. $10,000,000 or
more in aggregate principal amount of Notes having the same Interest
Payment Date, the interest on which is payable in U.S. dollars, shall be
entitled to receive payments of interest, other than interest due at
maturity or any date of redemption or repayment, by wire transfer of
immediately available funds if appropriate wire transfer instructions have
been received by the Paying Agent in writing not less than 15 calendar days
prior to the applicable Interest Payment Date.
If this Note is denominated in a Specified Currency other
than U.S. dollars, and the holder does not elect (in whole or in part) to
receive payment in U.S. dollars pursuant to the next succeeding paragraph,
payments of interest, principal or any premium with regard to this Note
will be made by wire transfer of immediately available funds to an account
maintained by the holder hereof with a bank located outside the United
States if appropriate wire transfer instructions have been received by the
Paying Agent in writing not less than 15 calendar days prior to the
applicable payment date, provided that, if such wire transfer instructions
are not received, such payments will be made by check payable in such
Specified Currency mailed to the address of the person entitled thereto as
such address shall appear in the Note register, and provided, further, that
payment of the principal of this Note, any premium and the interest due at
maturity (or on any redemption or repayment date) will be made upon
surrender of this Note at the office or agency referred to in the preceding
paragraph.
Unless otherwise indicated herein, the holder of this Note
denominated in a Specified Currency other than U.S. dollars, may elect to
receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the
Record Date or at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be. Such election shall
remain in effect unless such request is revoked by written notice to the
Paying Agent as to all or a portion of payments on this Note at least five
Business Days prior to such Record Date or at least ten days prior to the
Maturity Date or any redemption or repayment date, as the case may be.
If the holder elects to receive all or a portion of payments
of principal of and any premium and interest on this Note, if denominated
in a Specified Currency other than U.S. dollars, in U.S. dollars, the
Exchange Rate Agent will convert such payments into U.S. dollars. In the
event of such an election, payment in respect of this Note will be based
upon the exchange rate as determined by the Exchange Rate Agent based on
the highest bid quotation in The City of New York received by such Exchange
Rate Agent at approximately 11:00 A.M., New York City time, on the second
Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent
unless such Exchange Rate Agent is Morgan Stanley & Co. Incorporated), for
the purchase by the quoting dealer of U.S. dollars for the Specified
Currency for settlement on such payment date in the amount of the Specified
Currency payable in the absence of such an election to such holder and at
which the applicable dealer commits to execute a contract. If such bid
quotations are not available, such payment will be made in the Specified
Currency. All currency exchange costs will be borne by the holder of this
Note by deductions from such payments.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By:_______________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Senior Indenture.
CHEMICAL BANK, as Trustee
By:_______________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series C, having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable
under a Senior Indenture, dated as of April 15, 1989, as supplemented by a
First Supplemental Indenture dated as of May 15, 1991 and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Senior Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed Chemical Bank at its
corporate trust office in The City of New York as the paying agent (the
"Paying Agent," which term includes any additional or successor Paying
Agent appointed by the Issuer) with respect to the Notes. The terms of
individual Notes may vary with respect to interest rates, interest rate
formulas, issue dates, maturity dates, or otherwise, all as provided in the
Senior Indenture. To the extent not inconsistent herewith, the terms of
the Senior Indenture are hereby incorporated by reference herein.
Unless otherwise provided on the face hereof, this Note will
not be subject to any sinking fund and, unless otherwise provided on the face
hereof in accordance with the provisions of the following two paragraphs, will
not be redeemable or subject to repayment at the option of the holder prior to
maturity.
Unless otherwise indicated on the face of this Note, this
Note may not be redeemed prior to the Maturity Date. If so indicated on
the face of this Note, this Note may be redeemed in whole or in part at the
option of the Issuer on or after the Initial Redemption Date specified on
the face hereof on the terms set forth on the face hereof, together with
interest accrued and unpaid hereon to the date of redemption. If this Note
is subject to "Annual Redemption Percentage Reduction," the Initial
Redemption Percentage indicated on the face hereof will be reduced on each
anniversary of the Initial Redemption Date by the Annual Redemption
Percentage Reduction specified on the face hereof until the redemption
price of this Note is 100% of the principal amount hereof, together with
interest accrued and unpaid hereon to the date of redemption. Notice of
redemption shall be mailed to the registered holders of the Notes
designated for redemption at their addresses as the same shall appear on
the Note register not less than 30 nor more than 60 days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Senior Indenture. In the event of redemption of this Note in part only, a
new Note or Notes for the amount of the unredeemed portion hereof shall be
issued in the name of the holder hereof upon the cancellation hereof.
Unless otherwise indicated on the face of this Note, this
Note shall not be subject to repayment at the option of the holder prior to
the Maturity Date. If so indicated on the face of this Note, this Note
will be subject to repayment at the option of the holder on the Optional
Repayment Date or Dates specified on the face hereof on the terms set forth
herein. On any Optional Repayment Date, this Note will be repayable in
whole or in part in increments of $1,000 or, if this Note is denominated in
a Specified Currency other than U.S. dollars, in increments of 1,000 units
of such Specified Currency (provided that any remaining principal amount
hereof shall not be less than the minimum authorized denomination hereof)
at the option of the holder hereof at a price equal to 100% of the
principal amount to be repaid, together with interest accrued and unpaid
hereon to the date of repayment. For this Note to be repaid at the option
of the holder hereof, the Paying Agent must receive at its corporate trust
office in the Borough of Manhattan, The City of New York, at least 15 but
not more than 30 days prior to the date of repayment, (i) this Note with
the form entitled "Option to Elect Repayment" below duly completed or (ii)
a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange or the National Association of Securities
Dealers, Inc. or a commercial bank or a trust company in the United States
setting forth the name of the holder of this Note, the principal amount
hereof, the certificate number of this Note or a description of this Note's
tenor and terms, the principal amount hereof to be repaid, a statement that
the option to elect repayment is being exercised thereby and a guarantee
that this Note, together with the form entitled "Option to Elect Repayment"
duly completed, will be received by the Paying Agent not later than the
fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter; provided, that such telegram, telex, facsimile
transmission or letter shall only be effective if this Note and form duly
completed are received by the Paying Agent by such fifth Business Day.
Exercise of such repayment option by the holder hereof shall be
irrevocable. In the event of repayment of this Note in part only, a new
Note or Notes for the amount of the unpaid portion hereof shall be issued
in the name of the holder hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in
accordance with the following formula:
I = SR - (RRM x RR X CF)
where "I" is the interest rate for the Interest Reset Period, "SR" is the Set
Rate shown on the face hereof, "RRM" is the Reference Rate Multiplier shown on
the face hereof, "RR" is the Reference Rate determined in the manner set forth
below and "CF" is the Conversion Factor calculated in the manner set forth
below.
Commencing with the Initial Interest Reset Date specified on
the face hereof, the rate at which interest on this Note is payable shall be
reset as of each Interest Reset Date (as used herein, the term "Interest Reset
Date" shall include the Initial Interest Reset Date). The Interest Reset
Dates will be the Interest Reset Dates specified on the face hereof; provided,
however, that the interest rate in effect for the period from the Interest
Accrual Date to the Initial Interest Reset Date will be the Initial Interest
Rate.
As used herein, "Business Day" means any day, other than a
Saturday or Sunday, and that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to close
in The City of New York or the City of London or (i) with respect to Notes
denominated in a Specified Currency other than U.S. dollars, European Currency
Units ("ECUs") or Australian dollars, in the capital city of the country of
the Specified Currency, (ii) with respect to Notes denominated in ECUs, that
is not a non-ECU clearing day, as determined by the ECU Banking Association in
Paris or (iii) with respect to Notes denominated in Australian dollars, in
Sydney.
The Interest Determination Date pertaining to an Interest Reset
Date shall be the second London Banking Day preceding such Interest Reset
Date. As used herein, "London Banking Day" means any day on which dealings in
deposits in the Reference Rate Currency are transacted in the London interbank
market.
As used herein, "Interest Reset Period" means initially the
period from and including the Original Issue Date specified on the face hereof
to but excluding the Initial Interest Reset Date specified on the face hereof
and thereafter the period from and including an Interest Reset Date (including
the Initial Interest Reset Date) to but excluding the next succeeding Interest
Reset Date (or, if applicable, the Maturity Date specified on the face
hereof).
Unless otherwise specified on the face hereof, the "Calculation
Date" pertaining to an Interest Determination Date will be the earlier of (i)
the tenth calendar day after such Interest Determination Date or, if such day
is not a Business Day, the next succeeding Business Day, or (ii) the Business
Day preceding the applicable Interest Payment Date or Maturity Date (or, with
respect to any principal amount to be redeemed or repaid, any redemption or
repayment date), as the case may be.
Determination of Reference Rate. The Reference Rate with
respect to this Note shall be determined on each Interest Determination Date
as follows:
(i) As of the Interest Determination Date, the Calculation
Agent shall determine the arithmetic mean of the offered rates for
deposits in the Reference Rate Currency for the period of the Index
Maturity specified on the face hereof which appears at the Reference
Rate Location specified on the face hereof at approximately 11:00
A.M., London time, on such Interest Determination Date.
(ii) If fewer than two offered rates appear at the Reference
Rate Location, the Calculation Agent will request the principal
London offices of each of four major banks in the London interbank
market, as selected by the Calculation Agent, to provide the
Calculation Agent with its offered quotation for deposits in the
Reference Rate Currency for the period of the Index Maturity to
prime banks in the London interbank market at approximately 11:00
A.M., London time, on such Interest Determination Date and in a
principal amount that is representative for a single transaction
in such market at such time. If at least two such quotations are
provided, the Reference Rate will be the arithmetic mean of such
quotations. If fewer than two quotations are provided, the
Reference Rate in respect of such Interest Determination Date will
be the arithmetic mean of the rates quoted by three major banks
located in the city which is the principal financial center of the
country which issues the Reference Rate Currency (the "Reference
City") selected by the Calculation Agent (after consultation with
the Issuer) at approximately 11:00 A.M., Reference City time, on
such Interest Determination Date for loans in the Reference Rate
Currency to leading European banks, for the period of the Index
Maturity and in a principal amount that is representative of a
single transaction in such market at such time; provided, however,
that if fewer than three banks selected as aforesaid by the
Calculation Agent are quoting as mentioned in this sentence, the
Reference Rate for such Interest Reset Period will be the same as
the Reference Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate
of interest payable hereon shall be the Initial Interest Rate).
Calculation of Conversion Factor. The Conversion Factor with
respect to this Note shall be calculated by dividing the number of days in the
applicable Interest Reset Period by the Conversion Factor Reference Period
specified on the face hereof.
Notwithstanding the foregoing, the interest rate hereon shall
not be greater than the Maximum Interest Rate, if any, or less than the
Minimum Interest Rate, if any, specified on the face hereof. The Calculation
Agent shall calculate the interest rate hereon in accordance with the
foregoing on or before each Calculation Date. The interest rate on this Note
will in no event be higher than the maximum rate permitted by New York law, as
the same may be modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next
Interest Reset Date.
Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Unless otherwise provided
on the face hereof, interest payments for this Note will be computed and paid
on the basis of a 360-day year of twelve 30-day months. All percentages
resulting from any calculation of the rate of interest on this Note will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point (.0000001), with five one-millionths of a percentage point rounded
upward, and all dollar amounts used in or resulting from such calculation on
this Note will be rounded to the nearest cent (with one-half cent rounded
upward). The interest rate in effect on any Interest Reset Date will be the
applicable rate as reset on such date. The interest rate applicable to any
other day is the interest rate from the immediately preceding Interest Reset
Date (or, if none, the Initial Interest Rate).
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons,
and, if denominated in U.S. dollars, is issuable only in denominations of U.S.
$1,000 and any integral multiple of U.S. $1,000 in excess thereof. If this
Note is denominated in a Specified Currency other than U.S. dollars, then,
unless a higher minimum denomination is required by applicable law, it is
issuable only in denominations of the equivalent of U.S. $1,000 (rounded down
to an integral multiple of 1,000 units of such Specified Currency), or any
amount in excess thereof which is an integral multiple of 1,000 units of such
Specified Currency, as determined by reference to the noon dollar buying rate
in New York City for cable transfers of such Specified Currency published by
the Federal Reserve Bank of New York (the "Market Exchange Rate") on the
Business Day immediately preceding the date of issuance; provided, however, in
the case of ECUs, the Market Exchange Rate shall be the rate of exchange
determined by the Commission of the European Communities (or any successor
thereto) as published in the Official Journal of the European Communities, or
any successor publication, on the Business Day immediately preceding the date
of issuance.
The Trustee has been appointed registrar for the Notes, and the
Trustee will maintain at its office in The City of New York a register for the
registration and transfer of Notes. This Note may be transferred at the
aforesaid office of the Trustee by surrendering this Note for cancellation,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and duly executed by the registered holder hereof in person or by the
holder's attorney duly authorized in writing, and thereupon the Trustee shall
issue in the name of the transferee or transferees, in exchange herefor, a new
Note or Notes having identical terms and provisions and having a like
aggregate principal amount in authorized denominations, subject to the terms
and conditions set forth herein; provided, however, that the Trustee will not
be required (i) to register the transfer of or exchange any Note that has been
called for redemption in whole or in part, except the unredeemed portion of
Notes being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of such
Note not required to be repurchased, or (iii) to register the transfer of or
exchange Notes to the extent and during the period so provided in the Senior
Indenture with respect to the redemption of Notes. Notes are exchangeable at
said office for other Notes of other authorized denominations of equal
aggregate principal amount having identical terms and provisions. All such
exchanges and transfers of Notes will be free of charge, but the Issuer may
require payment of a sum sufficient to cover any tax or other governmental
charge in connection therewith. All Notes surrendered for exchange shall be
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and executed by the registered holder in person or by the holder's
attorney duly authorized in writing. The date of registration of any Note
delivered upon any exchange or transfer of Notes shall be such that no gain or
loss of interest results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or
be destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Note so destroyed or lost or stolen, but, in the case of any destroyed or lost
or stolen Note, only upon receipt of evidence satisfactory to the Trustee and
the Issuer that such Note was destroyed or lost or stolen and, if required,
upon receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt securities
issued under the Senior Indenture, including the series of Senior Medium-Term
Notes of which this Note forms a part, or due to the default in the
performance or breach of any other covenant or warranty of the Issuer
applicable to the debt securities of such series but not applicable to all
outstanding debt securities issued under the Senior Indenture shall have
occurred and be continuing, either the Trustee or the holders of not less than
25% in principal amount of the debt securities of each affected series (voting
as a single class) may then declare the principal of all debt securities of
all such series and interest accrued thereon to be due and payable immediately
and (b) if an Event of Default due to a default in the performance of any
other of the covenants or agreements in the Senior Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due to
certain events of bankruptcy, insolvency and reorganization of the Issuer,
shall have occurred and be continuing, either the Trustee or the holders of
not less than 25% in principal amount of all debt securities issued under the
Senior Indenture then outstanding (treated as one class) may declare the
principal of all such debt securities and interest accrued thereon to be due
and payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt securities)
by the holders of a majority in principal amount of the debt securities of all
affected series then outstanding.
The Senior Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected;
or (b) reduce the aforesaid percentage in principal amount of debt securities
the consent of the holders of which is required for any such supplemental
indenture, without the consent of the holders of each debt security so
affected.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency other than
U.S. dollars and such Specified Currency is not available to the Issuer for
making payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking
community, then the Issuer will be entitled to satisfy its obligations to the
holder of this Note by making such payments in U.S. dollars on the basis of
the Market Exchange Rate on the date of such payment or, if the Market
Exchange Rate is not available on such date, as of the most recent practicable
date; provided, however, that if such Specified Currency is replaced by a
single European currency (expected to be named the Euro), the payment of
principal of, premium, if any, or interest on any Note denominated in such
currency shall be effected in the new single European currency in conformity
with legally applicable measures taken pursuant to, or by virtue of, the treaty
establishing the European Community (the "EC"), as amended by the treaty on
European Union (the "Treaty"). Any payment made under such circumstances in
U.S. dollars (or, if applicable, such new single European currency) where the
required payment is in a Specified Currency other than U.S. dollars will not
constitute an Event of Default.
Subject to the provisions below, the value of the ECU, in
which the Notes may be denominated or may be payable, is equal to the value
of the ECU that is from time to time used as the unit of account of the EC.
If the ECU becomes a currency in its own right in accordance with the
Treaty, all references to ECU in the Notes shall be construed as references
to such currency.
With respect to each due date for the payment of principal
of, or interest on, the Notes on or after the first business day in
Brussels on which the ECU ceases to be used as the unit of account of the
EC, and has not become a currency in its own right replacing all or some of
the currencies of the member States of the EC, the Issuer shall choose a
substitute currency (the "Chosen Currency"), which may be any currency
which was, on the last day on which the ECU was used as the unit of account
of the EC, a component currency of the ECU or U.S. dollars, in which all
payments due on or after that date with respect to the Notes and coupons
shall be made. Notice of the Chosen Currency so selected shall be provided
by first class mail to each holder at the address of such holder which
appears on the books maintained by the registrar and to the Paying Agent.
The amount of each payment in such Chosen Currency shall be computed on the
basis of the equivalent of the ECU in that currency, determined as
described below, as of the fourth business day in Brussels prior to the
date on which such payment is due.
On the first business day in Brussels on which the ECU
ceases to be used as the unit of account of the EC, and has not become a
currency in its own right replacing all or some of the currencies of the
member States of the EC, the Issuer shall select a Chosen Currency in which
all payments with respect to Notes and coupons having a due date prior
thereto but not yet presented for payment are to be made. The amount of
each payment in such Chosen Currency shall be computed on the basis of the
equivalent of the ECU in that currency, determined as described below, as
of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as
of any date (the "Day of Valuation") shall be determined by, or on behalf
of, the Exchange Rate Agent on the following basis. The amounts and
components composing the ECU for this purpose (the "Components") shall be
the amounts and components that composed the ECU as of the last date on
which the ECU was used as the unit of account of the EC. The equivalent of
the ECU in the Chosen Currency shall be calculated by, first, aggregating
the U.S. dollar equivalents of the Components; and then, in the case of a
chosen Currency other than U.S. dollars, using the rate used for
determining the U.S. dollar equivalent of the Components in the Chosen
Currency as set forth below, calculating the equivalent in the Chosen
Currency of such aggregate amount in U.S. dollars.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated on the face hereof.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Issuer, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf,
provided that such quotations were prevailing in the country of issue not
more than two Business Days before such Day of Valuation. If such most
recent quotations were so prevailing in the country of issue more than two
Business Days before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of
cross rates derived from the middle spot delivery quotations for such
component currency and for the U.S. dollar prevailing at 2:30 P.M.,
Brussels time, on such Day of Valuation, as obtained by, or on behalf of,
the Exchange Rate agent from one or more major banks, as selected by the
Issuer, in a country other than the country of issue of such component
currency. Notwithstanding the foregoing, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of such
cross rates if the Issuer or such agent judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent
calculated as provided in the first sentence of this paragraph. Unless
otherwise specified by the Issuer if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations
or for any other reason, the market to be referred to in respect of such
currency shall be that upon which a non-resident issuer of securities
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal
of and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as
aforesaid of the Notes. The Issuer may designate other agencies for the
payment of said principal, premium and interest at such place or places
(subject to applicable laws and regulations) as the Issuer may decide. So
long as there shall be such an agency, the Issuer shall keep the Trustee
advised of the names and locations of such agencies, if any are so
designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes that such
moneys shall be repaid to the Issuer and any person claiming such moneys shall
thereafter look only to the Issuer for payment thereof and (ii) such moneys
shall be so repaid to the Issuer. Upon such repayment all liability of the
Trustee or such Paying Agent with respect to such moneys shall thereupon
cease, without, however, limiting in any way any obligation that the Issuer
may have to pay the principal of or interest or premium, if any, on this Note
as the same shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on
this Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the registered
holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and none of the Issuer,
the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Senior Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the above list.
__________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_________________________________________________
_________________________________________________
_______________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE]
_______________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
_______________________________________________________________
constituting and appointing such person attorney to transfer
_______________________________________________________________
such note on the books of the Issuer, with full power of
_______________________________________________________________
substitution in the premises.
Dated:_____________________ ____________________________________________
NOTICE: The signature to this assignment
must correspond with the name
as written upon the face of the
within Note in every particular
without alteration or enlargement
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs
the Issuer to repay the within Note (or portion thereof specified below)
pursuant to its terms at a price equal to the principal amount thereof,
together with interest to the Optional Repayment Date, to the undersigned at
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note
is to be repaid, specify the portion thereof
which the holder elects to have repaid: __________________; and specify the
denomination or denominations (which shall not be less than the minimum
authorized denomination) of the Notes to be issued to the holder for the
portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being
repaid): __________________________.
Dated:___________ ___________________________________________________
NOTICE: The signature on this Option to Elect
Repayment must correspond with the name
as written upon the face of the within
instrument in every particular without
alteration or enlargement.
EXHIBIT 4.O
[FORM OF FACE OF SECURITY]
Senior Dollarized Yield Curve Note (Money Market Basis)
REGISTERED REGISTERED
No. DYC(MM) [PRINCIPAL AMOUNT]
CUSIP: *
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York,
New York) to the issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE
APPROXIMATE METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR
THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE
DISCOUNT ("OID") RULES.
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Dollarized Yield Curve (Money Market Basis))
SET RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
REFERENCE RATE INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE:
DATE(S)
CURRENCY:
INITIAL INTEREST RATE: INTEREST RESET DATES:
INDEX MATURITY:
INITIAL INTEREST RESET
REFERENCE RATE DATE: CALCULATION AGENT:
MULTIPLIER:
SPECIFIED CURRENCY:
REFERENCE RATE MAXIMUM INTEREST RATE:
LOCATION: TOTAL AMOUNT OF OID:
MINIMUM INTEREST RATE:
ORIGINAL YIELD TO
INITIAL REDEMPTION DATE: MATURITY:
INITIAL REDEMPTION INITIAL ACCRUAL
PERCENTAGE: PERIOD OID:
ANNUAL REDEMPTION EXCHANGE RATE AGENT
PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT
DATE(S):
OTHER PROVISIONS:
____________
(*) Applies only if this Note is a Registered Global Security.
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to
, or registered assignees, the principal sum of
on the Maturity Date specified above (except to the extent redeemed or
repaid prior to the Maturity Date) and to pay interest thereon, from and
including the Interest Accrual Date specified above at a rate per annum
equal to the Initial Interest Rate specified above until the Initial
Interest Reset Date specified above, and thereafter at a rate per annum
determined in accordance with the provisions specified on the reverse
hereof until the principal hereof is paid or duly made available for
payment. The Issuer will pay interest in arrears monthly, quarterly,
semiannually or annually as specified above as the Interest Payment Period
on each Interest Payment Date (as specified above), commencing with the
first Interest Payment Date next succeeding the Interest Accrual Date
specified above, and on the Maturity Date (or any redemption or repayment
date); provided, however, that if the Interest Accrual Date occurs between
a Record Date, as defined below, and the next succeeding Interest Payment
Date, interest payments will commence on the second Interest Payment Date
succeeding the Interest Accrual Date to the registered holder of this Note
on the Record Date with respect to such second Interest Payment Date; and
provided, further, that if an Interest Payment Date or the Maturity Date or
redemption or repayment date would fall on a day that is not a Business
Day, as defined on the reverse hereof, such Interest Payment Date, Maturity
Date or redemption or repayment date shall be the following day that is a
Business Day, except that if such next Business Day falls in the next
calendar month, the Interest Payment Date, Maturity Date or redemption or
repayment date shall be the immediately preceding day that is a Business
Day.
Interest on this Note will accrue from and including the
most recent date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until the principal hereof has been paid or duly
made available for payment. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the person in whose name this Note
(or one or more predecessor Notes) is registered at the close of business
on the date 15 calendar days prior to such Interest Payment Date (whether
or not a Business Day) (each such date a "Record Date"); provided,
however, that interest payable on the Maturity Date (or any redemption or
repayment date) will be payable to the person to whom the principal hereof
shall be payable.
Payment of the principal of this Note, any premium and the
interest due at the Maturity Date (or any redemption or repayment date),
unless this Note is denominated in a Specified Currency other than U.S.
dollars and is to be paid in whole or in part in such Specified Currency,
will be made in immediately available funds upon surrender of this Note at
the office or agency of the Paying Agent, as defined on the reverse hereof,
maintained for that purpose in the Borough of Manhattan, The City of New
York, or at such other paying agency as the Issuer may determine, in U.S.
dollars. U.S. dollar payments of interest, other than interest due at
maturity or any date of redemption or repayment, will be made by U.S.
dollar check mailed to the address of the person entitled thereto as such
address shall appear in the Note register. A holder of U.S. $10,000,000 or
more in aggregate principal amount of Notes having the same Interest
Payment Date, the interest on which is payable in U.S. dollars, shall be
entitled to receive payments of interest, other than interest due at
maturity or any date of redemption or repayment, by wire transfer of
immediately available funds if appropriate wire transfer instructions have
been received by the Paying Agent in writing not less than 15 calendar days
prior to the applicable Interest Payment Date.
If this Note is denominated in a Specified Currency other
than U.S. dollars, and the holder does not elect (in whole or in part) to
receive payment in U.S. dollars pursuant to the next succeeding paragraph,
payments of interest, principal or any premium with regard to this Note
will be made by wire transfer of immediately available funds to an account
maintained by the holder hereof with a bank located outside the United
States if appropriate wire transfer instructions have been received by the
Paying Agent in writing not less than 15 calendar days prior to the
applicable payment date, provided that, if such wire transfer instructions
are not received, such payments will be made by check payable in such
Specified Currency mailed to the address of the person entitled thereto as
such address shall appear in the Note register, and provided, further, that
payment of the principal of this Note, any premium and the interest due at
maturity (or on any redemption or repayment date) will be made upon
surrender of this Note at the office or agency referred to in the preceding
paragraph.
Unless otherwise indicated herein, the holder of this Note, if
denominated in a Specified Currency other than U.S. dollars, may elect to
receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the Record
Date or at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be. Such election shall remain
in effect unless such request is revoked by written notice to the Paying Agent
as to all or a portion of payments on this Note at least five Business Days
prior to such Record Date or at least ten days prior to the Maturity Date or
any redemption or repayment date, as the case may be.
If the holder elects to receive all or a portion of payments of
principal of and any premium and interest on this Note, if denominated in a
Specified Currency other than U.S. dollars, in U.S. dollars, the Exchange Rate
Agent will convert such payments into U.S. dollars. In the event of such an
election, payment in respect of this Note will be based upon the exchange rate
as determined by the Exchange Rate Agent based on the highest bid quotation in
The City of New York received by such Exchange Rate Agent at approximately
11:00 A.M., New York City time, on the second Business Day preceding the
applicable payment date from three recognized foreign exchange dealers (one of
which may be the Exchange Rate Agent unless such Exchange Rate Agent is Morgan
Stanley & Co. Incorporated), for the purchase by the quoting dealer of U.S.
dollars for the Specified Currency for settlement on such payment date in the
amount of the Specified Currency payable in the absence of such an election to
such holder and at which the applicable dealer commits to execute a contract.
If such bid quotations are not available, such payment will be made in the
Specified Currency. All currency exchange costs will be borne by the holder
of this Note by deductions from such payments.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By ______________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Senior Indenture.
CHEMICAL BANK, as Trustee
By ______________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series C, having maturities more than nine months from the
date of issue (the "Notes") of the Issuer. The Notes are issuable under a
Senior Indenture, dated as of April 15, 1989, as supplemented by a First
Supplemental Indenture dated as of May 15, 1991 and a Second Supplemental
Indenture dated as of April 15, 1996 (as so supplemented, the "Senior
Indenture"), between the Issuer and Chemical Bank, as Trustee (the "Trustee,"
which term includes any successor trustee under the Senior Indenture), to
which Senior Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities of the Issuer, the Trustee and holders of the Notes and
the terms upon which the Notes are, and are to be, authenticated and
delivered. The Issuer has appointed Chemical Bank at its corporate trust
office in The City of New York as the paying agent (the "Paying Agent," which
term includes any additional or successor Paying Agent appointed by the
Issuer) with respect to the Notes. The terms of individual Notes may vary
with respect to interest rates, interest rate formulas, issue dates, maturity
dates, or otherwise, all as provided in the Senior Indenture. To the extent
not inconsistent herewith, the terms of the Senior Indenture are hereby
incorporated by reference herein.
Unless otherwise provided on the face hereof, this Note will
not be subject to any sinking fund and, unless otherwise provided on the face
hereof in accordance with the provisions of the following two paragraphs, will
not be redeemable or subject to repayment at the option of the holder prior to
maturity.
Unless otherwise indicated on the face of this Note, this Note
may not be redeemed prior to the Maturity Date. If so indicated on the face
of this Note, this Note may be redeemed in whole or in part at the option of
the Issuer on or after the Initial Redemption Date specified on the face
hereof on the terms set forth on the face hereof, together with interest
accrued and unpaid hereon to the date of redemption. If this Note is subject
to "Annual Redemption Percentage Reduction," the Initial Redemption Percentage
indicated on the face hereof will be reduced on each anniversary of the
Initial Redemption Date by the Annual Redemption Percentage Reduction
specified on the face hereof until the redemption price of this Note is 100% of
the principal amount hereof, together with interest accrued and unpaid hereon
to the date of redemption. Notice of redemption shall be mailed to the
registered holders of the Notes designated for redemption at their addresses
as the same shall appear on the Note register not less than 30 nor more than
60 days prior to the date fixed for redemption, subject to all the conditions
and provisions of the Senior Indenture. In the event of redemption of this
Note in part only, a new Note or Notes for the amount of the unredeemed
portion hereof shall be issued in the name of the holder hereof upon the
cancellation hereof.
Unless otherwise indicated on the face of this Note, this Note
shall not be subject to repayment at the option of the holder prior to the
Maturity Date. If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional Repayment
Date or Dates specified on the face hereof on the terms set forth herein. On
any Optional Repayment Date, this Note will be repayable in whole or in part
in increments of $1,000 or, if this Note is denominated in a Specified
Currency other than U.S. dollars, in increments of 1,000 units of such
Specified Currency (provided that any remaining principal amount hereof shall
not be less than the minimum authorized denomination hereof) at the option of
the holder hereof at a price equal to 100% of the principal amount to be
repaid, together with interest accrued and unpaid hereon to the date of
repayment. For this Note to be repaid at the option of the holder hereof,
the Paying Agent must receive at its corporate trust office in the Borough of
Manhattan, The City of New York, at least 15 but not more than 30 days prior
to the date of repayment, (i) this Note with the form entitled "Option to Elect
Repayment" below duly completed or (ii) a telegram, telex, facsimile
transmission or a letter from a member of a national securities exchange or
the National Association of Securities Dealers, Inc. or a commercial bank or
a trust company in the United States setting forth the name of the holder of
this Note, the principal amount hereof, the certificate number of this Note or
a description of this Note's tenor and terms, the principal amount hereof to be
repaid, a statement that the option to elect repayment is being exercised
thereby and a guarantee that this Note, together with the form entitled
"Option to Elect Repayment" duly completed, will be received by the Paying
Agent not later than the fifth Business Day after the date of such telegram,
telex, facsimile transmission or letter; provided, that such telegram, telex,
facsimile transmission or letter shall only be effective if this Note and form
duly completed are received by the Paying Agent by such fifth Business Day.
Exercise of such repayment option by the holder hereof shall be irrevocable.
In the event of repayment of this Note in part only, a new Note or Notes for
the amount of the unpaid portion hereof shall be issued in the name of the
holder hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in
accordance with the following formula:
I = SR - (RR x RRM)
where "I" is the interest rate for the Interest Reset
Period, "SR" is the Set Rate shown on the face hereof, "RR" is the Reference
Rate determined in the manner set forth below and "RRM" is the Reference Rate
Multiplier shown on the face hereof.
Commencing with the Initial Interest Reset Date specified on
the face hereof, the rate at which interest on this Note is payable shall be
reset as of each Interest Reset Date (as used herein, the term "Interest Reset
Date" shall include the Initial Interest Reset Date). The Interest Reset
Dates will be the Interest Reset Dates specified on the face hereof; provided,
however, that the interest rate in effect for the period from the Interest
Accrual Date to the Initial Interest Reset Date will be the Initial Interest
Rate. If any Interest Reset Date would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be postponed to the next
succeeding day that is a Business Day, except that if such Business Day is in
the next succeeding calendar month, such Interest Reset Date shall be the next
preceding Business Day. As used herein, "Business Day" means any day, other
than a Saturday or Sunday, and that is neither a legal holiday nor a day on
which banking institutions are authorized or required by law or regulation to
close in The City of New York or the City of London or (i) with respect to
Notes denominated in a Specified Currency other than U.S. dollars, European
Currency Units ("ECUs") or Australian dollars, in the capital city of the
country of the Specified Currency, (ii) with respect to Notes denominated in
ECUs, that is not a non-ECU clearing day, as determined by the ECU Banking
Association in Paris or (iii) with respect to Notes denominated in Australian
dollars, in Sydney.
The Interest Determination Date pertaining to an Interest Reset
Date shall be the second London Banking Day preceding such Interest Reset
Date. As used herein, "London Banking Day" means any day on which dealings in
deposits in the Reference Rate Currency are transacted in the London interbank
market.
As used herein, "Interest Reset Period" means initially the
period from and including the Original Issue Date specified on the face hereof
to but excluding the Initial Interest Reset Date specified on the face hereof
and thereafter the period from and including an Interest Reset Date (including
the Initial Interest Reset Date) to but excluding the next succeeding Interest
Reset Date (or, if applicable, the Maturity Date specified on the face hereof).
Unless otherwise specified on the face hereof, the
"Calculation Date" pertaining to an Interest Determination Date will be the
earlier of (i) the tenth calendar day after such Interest Determination
Date or, if such day is not a Business Day, the next succeeding Business
Day, or (ii) the Business Day preceding the applicable Interest Payment
Date or Maturity Date (or, with respect to any principal amount to be
redeemed or repaid, any redemption or repayment date), as the case may be.
Determination of Reference Rate. The Reference Rate with
respect to this Note shall be determined on each Interest Determination Date
as follows:
(i) As of the Interest Determination Date, the Calculation
Agent shall determine the arithmetic mean of the offered rates for
deposits in the Reference Rate Currency for the period of the Index
Maturity specified on the face hereof which appears at the Reference
Rate Location specified on the face hereof at approximately 11:00
A.M., London time, on such Interest Determination Date.
(ii) If fewer than two offered rates appear at the Reference
Rate Location, the Calculation Agent will request the principal
London offices of each of four major banks in the London interbank
market, as selected by the Calculation Agent, to provide the
Calculation Agent with its offered quotation for deposits in the
Reference Rate Currency for the period of the Index Maturity to prime
banks in the London interbank market at approximately 11:00 A.M.,
London time, on such Interest Determination Date and in a principal
amount that is representative for a single transaction in such market
at such time. If at least two such quotations are provided, the
Reference Rate will be the arithmetic mean of such quotations. If
fewer than two quotations are provided, the Reference Rate in respect
of such Interest Determination Date will be the arithmetic mean of
the rates quoted by three major banks located in the city which is
the principal financial center of the country which issues the
Reference Rate Currency (the "Reference City") selected by the
Calculation Agent (after consultation with the Issuer) at
approximately 11:00 A.M., Reference City time, on such Interest
Determination Date for loans in the Reference Rate Currency to
leading European banks, for the period of the Index Maturity and in a
principal amount that is representative of a single transaction in
such market at such time; provided, however, that if fewer than three
banks selected as aforesaid by the Calculation Agent are quoting as
mentioned in this sentence, the Reference Rate for such Interest
Reset Period will be the same as the Reference Rate for the
immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate).
Notwithstanding the foregoing, the interest rate hereon shall
not be greater than the Maximum Interest Rate, if any, or less than the
Minimum Interest Rate, if any, specified on the face hereof. The Calculation
Agent shall calculate the interest rate hereon in accordance with the
foregoing on or before each Calculation Date. The interest rate on this Note
will in no event be higher than the maximum rate permitted by New York law, as
the same may be modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next
Interest Reset Date.
Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Accrued interest hereon
shall be an amount calculated by multiplying the face amount hereof by an
accrued interest factor. Such accrued interest factor shall be computed by
adding the interest factor calculated for each day in the period for which
interest is being paid. The interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360. All
percentages resulting from any calculation of the rate of interest on this
Note will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (.0000001), with five one-millionths of a percentage point
rounded upward, and all dollar amounts used in or resulting from such
calculation on this Note will be rounded to the nearest cent (with one-half
cent rounded upward). The interest rate in effect on any Interest Reset Date
will be the applicable rate as reset on such date. The interest rate
applicable to any other day is the interest rate from the immediately
preceding Interest Reset Date (or, if none, the Initial Interest Rate).
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons,
and, if denominated in U.S. dollars, is issuable only in denominations of U.S.
$1,000 and any integral multiple of U.S. $1,000 in excess thereof. If this
Note is denominated in a Specified Currency other than U.S. dollars, then,
unless a higher minimum denomination is required by applicable law, it is
issuable only in denominations of the equivalent of U.S. $1,000 (rounded to an
integral multiple of 1,000 units of such Specified Currency), or any amount in
excess thereof which is an integral multiple of 1,000 units of such Specified
Currency, as determined by reference to the noon dollar buying rate in New
York City for cable transfers of such Specified Currency published by the
Federal Reserve Bank of New York (the "Market Exchange Rate") on the Business
Day immediately preceding the date of issuance; provided, however, in the case
of ECUs, the Market Exchange Rate shall be the rate of exchange determined by
the Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities, or any
successor publication, on the Business Day immediately preceding the date of
issuance.
The Trustee has been appointed registrar for the Notes, and
the Trustee will maintain at its office in The City of New York a register
for the registration and transfer of Notes. This Note may be transferred
at the aforesaid office of the Trustee by surrendering this Note for
cancellation, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and duly executed by the registered holder
hereof in person or by the holder's attorney duly authorized in writing,
and thereupon the Trustee shall issue in the name of the transferee or
transferees, in exchange herefor, a new Note or Notes having identical
terms and provisions and having a like aggregate principal amount in
authorized denominations, subject to the terms and conditions set forth
herein; provided, however, that the Trustee will not be required (i) to
register the transfer of or exchange any Note that has been called for
redemption in whole or in part, except the unredeemed portion of Notes
being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of
such Note not required to be repurchased, or (iii) to register the transfer
of or exchange Notes to the extent and during the period so provided in the
Senior Indenture with respect to the redemption of Notes. Notes are
exchangeable at said office for other Notes of other authorized
denominations of equal aggregate principal amount having identical terms
and provisions. All such exchanges and transfers of Notes will be free of
charge, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge in connection therewith. All Notes
surrendered for exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Trustee and executed by the registered
holder in person or by the holder's attorney duly authorized in writing.
The date of registration of any Note delivered upon any exchange or
transfer of Notes shall be such that no gain or loss of interest results
from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and such Note or evidence of the loss,
theft or destruction thereof (together with the indemnity hereinafter
referred to and such other documents or proof as may be required in the
premises) shall be delivered to the Trustee, a new Note of like tenor will
be issued by the Issuer in exchange for the Note so mutilated or defaced,
or in lieu of the Note so destroyed or lost or stolen, but, in the case of
any destroyed or lost or stolen Note, only upon receipt of evidence
satisfactory to the Trustee and the Issuer that such Note was destroyed or
lost or stolen and, if required, upon receipt also of indemnity
satisfactory to each of them. All expenses and reasonable charges
associated with procuring such indemnity and with the preparation,
authentication and delivery of a new Note shall be borne by the owner of
the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of
Default (as defined in the Senior Indenture) due to the default in payment
of principal of, premium, if any, or interest on, any series of debt
securities issued under the Senior Indenture, including the series of
Senior Medium-Term Notes of which this Note forms a part, or due to the
default in the performance or breach of any other covenant or warranty of
the Issuer applicable to the debt securities of such series but not
applicable to all outstanding debt securities issued under the Senior
Indenture shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of the debt securities of
each affected series (voting as a single class) may then declare the
principal of all debt securities of all such series and interest accrued
thereon to be due and payable immediately and (b) if an Event of Default
due to a default in the performance of any other of the covenants or
agreements in the Senior Indenture applicable to all outstanding debt
securities issued thereunder, including this Note, or due to certain events
of bankruptcy, insolvency and reorganization of the Issuer, shall have
occurred and be continuing, either the Trustee or the holders of not less
than 25% in principal amount of all debt securities issued under the Senior
Indenture then outstanding (treated as one class) may declare the principal
of all such debt securities and interest accrued thereon to be due and
payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt
securities) by the holders of a majority in principal amount of the debt
securities of all affected series then outstanding.
The Senior Indenture permits the Issuer and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the debt securities of all series issued under the
Senior Indenture then outstanding and affected (voting as one class), to
execute supplemental indentures adding any provisions to or changing in any
manner the rights of the holders of each series so affected; provided that
the Issuer and the Trustee may not, without the consent of the holder of
each outstanding debt security affected thereby, (a) extend the final
maturity of any such debt security, or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of interest thereon, or
reduce any amount payable on redemption or repayment thereof, or change the
currency of payment thereof, or impair or affect the rights of any holder
to institute suit for the payment thereof without the consent of the holder
of each debt security so affected; or (b) reduce the aforesaid percentage
in principal amount of debt securities the consent of the holders of which
is required for any such supplemental indenture, without the consent of the
holders of each debt security so affected.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency other
than U.S. dollars and such Specified Currency is not available to the
Issuer for making payments hereon due to the imposition of exchange
controls or other circumstances beyond the control of the Issuer or is no
longer used by the government of the country issuing such currency or for
the settlement of transactions by public institutions within the
international banking community, then the Issuer will be entitled to
satisfy its obligations to the holder of this Note by making such payments
in U.S. dollars on the basis of the Market Exchange Rate on the date of
such payment or, if the Market Exchange Rate is not available on such date,
as of the most recent practicable date; provided, however, that if such
Specified Currency is replaced by a single European currency (expected to
be named the Euro), the payment of principal of, premium, if any, or
interest on any Note denominated in such currency shall be effected in the
new single European currency in conformity with legally applicable measures
taken pursuant to, or by virtue of, the treaty establishing the European
Community (the "EC"), as amended by the treaty on European Union (the
"Treaty"). Any payment made under such circumstances in U.S. dollars (or,
if applicable, such new single European currency) where the required
payment is in a Specified Currency other than U.S. dollars will not
constitute an Event of Default.
Subject to the provisions below, the value of the ECU, in which
the Notes may be denominated or may be payable, is equal to the value of the
ECU that is from time to time used as the unit of account of the EC. If the
ECU becomes a currency in its own right in accordance with the Treaty, all
references to ECU in the Notes shall be construed as references to such
currency.
With respect to each due date for the payment of principal of,
or interest on, the Notes on or after the first business day in Brussels on
which the ECU ceases to be used as the unit of account of the EC, and has not
become a currency in its own right replacing all or some of the currencies of
the member States of the EC, the Issuer shall choose a substitute currency
(the "Chosen Currency"), which may be any currency which was, on the last day
on which the ECU was used as the unit of account of the EC, a component
currency of the ECU or U.S. dollars, in which all payments due on or after
that date with respect to the Notes and coupons shall be made. Notice of the
Chosen Currency so selected shall be provided by first class mail to each
holder at the address of such holder which appears on the books maintained by
the registrar and to the Paying Agent. The amount of each payment in such
Chosen Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of the fourth business day in
Brussels prior to the date on which such payment is due.
On the first business day in Brussels on which the ECU ceases
to be used as the unit of account of the EC, and has not become a currency in
its own right replacing all or some of the currencies of the member States of
the EC, the Issuer shall select a Chosen Currency in which all payments with
respect to Notes and coupons having a due date prior thereto but not yet
presented for payment are to be made. The amount of each payment in such
Chosen Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as of
any date (the "Day of Valuation") shall be determined by, or on behalf of, the
Exchange Rate Agent on the following basis. The amounts and components
composing the ECU for this purpose (the "Components") shall be the amounts and
components that composed the ECU as of the last date on which the ECU was used
as the unit of account of the EC. The equivalent of the ECU in the Chosen
Currency shall be calculated by, first, aggregating the U.S. dollar
equivalents of the Components; and then, in the case of a chosen Currency
other than U.S. dollars, using the rate used for determining the U.S. dollar
equivalent of the Components in the Chosen Currency as set forth below,
calculating the equivalent in the Chosen Currency of such aggregate amount in
U.S. dollars.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated on the face hereof.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Issuer, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf, provided
that such quotations were prevailing in the country of issue not more than two
Business Days before such Day of Valuation. If such most recent quotations
were so prevailing in the country of issue more than two Business Days before
such Day of Valuation, the Exchange Rate Agent shall determine the U.S. dollar
equivalent of such Component on the basis of cross rates derived from the
middle spot delivery quotations for such component currency and for the U.S.
dollar prevailing at 2:30 P.M., Brussels time, on such Day of Valuation, as
obtained by, or on behalf of, the Exchange Rate agent from one or more major
banks, as selected by the Issuer, in a country other than the country of issue
of such component currency. Notwithstanding the foregoing, the Exchange Rate
Agent shall determine the U.S. dollar equivalent of such Component on the
basis of such cross rates if the Issuer or such agent judges that the
equivalent so calculated is more representative than the U.S. dollar
equivalent calculated as provided in the first sentence of this paragraph.
Unless otherwise specified by the Issuer if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations or
for any other reason, the market to be referred to in respect of such currency
shall be that upon which a non-resident issuer of securities denominated in
such currency would purchase such currency in order to make payments in
respect of such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as aforesaid
of the Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be
such an agency, the Issuer shall keep the Trustee advised of the names and
locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes that such
moneys shall be repaid to the Issuer and any person claiming such moneys shall
thereafter look only to the Issuer for payment thereof and (ii) such moneys
shall be so repaid to the Issuer. Upon such repayment all liability of the
Trustee or such Paying Agent with respect to such moneys shall thereupon
cease, without, however, limiting in any way any obligation that the Issuer
may have to pay the principal of or interest or premium, if any, on this Note
as the same shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the registered
holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and none of the Issuer,
the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Senior Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the
inscription on the face of this instrument, shall be construed as though they
were written out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the
above list.
__________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_________________________________________________
_________________________________________________
_______________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE]
_______________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
_______________________________________________________________
constituting and appointing such person attorney to transfer
_______________________________________________________________
such note on the books of the Issuer, with full power of
_______________________________________________________________
substitution in the premises.
Dated:_____________________ ____________________________________________
NOTICE: The signature to this assignment
must correspond with the name
as written upon the face of the
within Note in every particular
without alteration or enlargement
or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and
instructs the Issuer to repay the within Note (or portion thereof specified
below) pursuant to its terms at a price equal to the principal amount
thereof, together with inter-est to the Optional Repayment Date, to the
undersigned at
__________________________________________________________
__________________________________________________________
__________________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note
is to be repaid, specify the portion thereof which the holder elects to
have repaid: __________________; and specify the denomination or
denominations (which shall not be less than the minimum authorized
denomination) of the Notes to be issued to the holder for the portion of
the within Note not being repaid (in the absence of any such specification,
one such Note will be issued for the portion not being repaid):
__________________________.
Dated:_____________ ___________________________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as written
upon the face of the within
instrument in every particular
without alteration or enlargement.
EXHIBIT 4.P
[FORM OF FACE OF SECURITY]
Senior Dollarized Bull Note
REGISTERED REGISTERED
No. DYC(B) [PRINCIPAL AMOUNT]
CUSIP:(*)
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York,
New York) to the issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.*
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE
APPROXIMATE METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR
THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE
DISCOUNT ("OID") RULES.
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Dollarized Bull Note)
SET RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
REFERENCE RATE INTEREST ACCRUAL DATE:
CURRENCIES:
INTEREST PAYMENT DATE(S):
INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
INDEX MATURITY:
INTEREST RESET DATE:
REFERENCE RATE
MULTIPLIER: MAXIMUM INTEREST RATE: CALCULATION AGENT
AND TRUSTEE:
MINIMUM INTEREST RATE:
SPECIFIED CURRENCY:
REFERENCE RATE
LOCATION: TOTAL AMOUNT OF OID:
ORIGINAL YIELD TO
ANNUAL REDEMPTION INITIAL REDEMPTION DATE: MATURITY:
PERCENTAGE REDUCTION:
INITIAL REDEMPTION INITIAL ACCRUAL
OPTIONAL REPAYMENT PERCENTAGE: PERIOD OID:
DATE(S):
OTHER PROVISIONS: EXCHANGE RATE AGENT
____________
(*) Applies only if this Note is a Registered Global Security.
Morgan Stanley Group Inc., a Delaware corporation (together with
its successors and assigns, the "Issuer"), for value received, hereby promises
to pay to
, or registered assignees, the principal sum of
on the Maturity Date specified above (except to the extent redeemed or
repaid prior to the Maturity Date) and to pay interest thereon, from and
including the Interest Accrual Date specified above at a rate per annum
equal to the Initial Interest Rate specified above until the Interest Reset
Date specified above, and thereafter at a rate per annum determined in
accordance with the provisions specified on the reverse hereof until the
principal hereof is paid or duly made available for payment. The Issuer
will pay interest in arrears monthly, quarterly, semiannually or annually
as specified above as the Interest Payment Period on each Interest Payment
Date (as specified above), commencing with the first Interest Payment Date
next succeeding the Interest Accrual Date specified above, and on the
Maturity Date (or any redemption or repayment date); provided, however,
that if the Interest Accrual Date occurs between a Record Date, as defined
below, and the next succeeding Interest Payment Date, interest payments
will commence on the second Interest Payment Date succeeding the Interest
Accrual Date to the registered holder of this Note on the Record Date with
respect to such second Interest Payment Date; and provided, further, that
if an Interest Payment Date (other than the Maturity Date or redemption or
repayment date) would fall on a day that is not a Business Day, as defined
on the reverse hereof, such Interest Payment Date shall be the following
day that is a Business Day; and provided, further, that if the Maturity
Date or redemption or repayment date would fall on a day that is not a
Business Day, such Maturity Date or redemption or repayment date shall be
on the following day that is a Business Day and no interest shall accrue
from and after such Maturity Date or redemption or repayment date.
Interest on this Note will accrue from and including the most
recent date to which interest has been paid or duly provided for, or, if no
interest has been paid or duly provided for, from and including the
Interest Accrual Date, until, but excluding the date the principal hereof
has been paid or duly made available for payment. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date
will, subject to certain exceptions described herein, be paid to the person
in whose name this Note (or one or more predecessor Notes) is registered at
the close of business on the date 15 calendar days prior to such Interest
Payment Date (whether or not a Business Day) (each such date a "Record
Date"); provided, however, that interest payable on the Maturity Date (or
any redemption or repayment date) will be payable to the person to whom the
principal hereof shall be payable.
Payment of the principal of this Note, any premium and the
interest due at the Maturity Date (or any redemption or repayment date),
unless this Note is denominated in a Specified Currency other than U.S.
dollars and is to be paid in whole or in part in such Specified Currency,
will be made in immediately available funds upon surrender of this Note at
the office or agency of the Paying Agent, as defined on the reverse hereof,
maintained for that purpose in the Borough of Manhattan, The City of New
York, or at such other paying agency as the Issuer may determine, in U.S.
dollars. U.S. dollar payments of interest, other than interest due at
maturity or any date of redemption or repayment, will be made by U.S.
dollar check mailed to the address of the person entitled thereto as such
address shall appear in the Note register. A holder of U.S. $10,000,000 or
more in aggregate principal amount of Notes having the same Interest
Payment Date, the interest on which is payable in U.S. dollars, shall be
entitled to receive payments of interest, other than interest due at
maturity or any date of redemption or repayment, by wire transfer of
immediately available funds if appropriate wire transfer instructions have
been received by the Paying Agent in writing not less than 15 calendar days
prior to the applicable Interest Payment Date.
If this Note is denominated in a Specified Currency other than
U.S. dollars, and the holder does not elect (in whole or in part) to
receive payment in U.S. dollars pursuant to the next succeeding paragraph,
payments of interest, principal or any premium with regard to this Note
will be made by wire transfer of immediately available funds to an account
maintained by the holder hereof with a bank located outside the United
States if appropriate wire transfer instructions have been received by the
Paying Agent in writing not less than 15 calendar days prior to the
applicable payment date, provided that, if such wire transfer instructions
are not received, such payments will be made by check payable in such
Specified Currency mailed to the address of the person entitled thereto as
such address shall appear in the Note register, and provided, further, that
payment of the principal of this Note, any premium and the interest due at
maturity (or on any redemption or repayment date) will be made upon
surrender of this Note at the office or agency referred to in the preceding
paragraph.
Unless otherwise indicated herein, the holder of this Note, if
denominated in a Specified Currency other than U.S. dollars, may elect to
receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the
Record Date or at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be. Such election shall
remain in effect unless such request is revoked by written notice to the
Paying Agent as to all or a portion of payments on this Note at least five
Business Days prior to such Record Date or at least ten days prior to the
Maturity Date or any redemption or repayment date, as the case may be.
If the holder elects to receive all or a portion of payments of
principal of and any premium and interest on this Note, if denominated in a
Specified Currency other than U.S. dollars, in U.S. dollars, the Exchange
Rate Agent will convert such payments into U.S. dollars. In the event of
such an election, payment in respect of this Note will be based upon the
exchange rate as determined by the Exchange Rate Agent based on the highest
bid quotation in The City of New York received by such Exchange Rate Agent
at approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign
exchange dealers (one of which may be the Exchange Rate Agent unless such
Exchange Rate Agent is Morgan Stanley & Co. Incorporated), for the
purchase by the quoting dealer of U.S. dollars for the Specified Currency
for settlement on such payment date in the amount of the Specified Currency
payable in the absence of such election to such holder and at which the
applicable dealer commits to execute a contract. If such bid quotations
are not available, such payment will be made in the Specified Currency.
All currency exchange costs will be borne by the holder of this Note by
deductions from such payments.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By:_______________________________
Title: Treasurer
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Senior Indenture.
CHEMICAL BANK, as Trustee
By:_______________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series C, having maturities more than nine months from the
date of issue (the "Notes") of the Issuer. The Notes are issuable under a
Senior Indenture, dated as of April 15, 1989, as supplemented by a First
Supplemental Indenture dated as of May 15, 1991 and a Second Supplemental
Indenture dated as of April 15, 1996 (as so supplemented, the "Senior
Indenture"), between the Issuer and Chemical Bank, as Trustee (the "Trustee,"
which term includes any successor trustee under the Senior Indenture), to
which Senior Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities of the Issuer, the Trustee and holders of the Notes and
the terms upon which the Notes are, and are to be, authenticated and
delivered. The Issuer has appointed Chemical Bank at its corporate trust
office in The City of New York as the paying agent (the "Paying Agent," which
term includes any additional or successor Paying Agent appointed by the
Issuer) with respect to the Notes. The terms of individual Notes may vary
with respect to interest rates, interest rate formulas, issue dates, maturity
dates, or otherwise, all as provided in the Senior Indenture. To the extent
not inconsistent herewith, the terms of the Senior Indenture are hereby
incorporated by reference herein.
Unless otherwise provided on the face hereof, this Note will not
be subject to any sinking fund and, unless otherwise provided on the face
hereof in accordance with the provisions of the following two paragraphs, will
not be redeemable or subject to repayment at the option of the holder prior to
maturity.
Unless otherwise indicated on the face of this Note, this Note
may not be redeemed prior to the Maturity Date. If so indicated on the
face of this Note, this Note may be redeemed in whole or in part at the
option of the Issuer on or after the Initial Redemption Date specified on
the face hereof on the terms set forth on the face hereof, together with
interest accrued and unpaid hereon to the date of redemption. If this Note
is subject to "Annual Redemption Percentage Reduction," the Initial
Redemption Percentage indicated on the face hereof will be reduced on each
anniversary of the Initial Redemption Date by the Annual Redemption
Percentage Reduction specified on the face hereof until the redemption
price of this Note is 100% of the principal amount hereof, together with
interest accrued and unpaid hereon to the date of redemption. Notice of
redemption shall be mailed to the registered holders of the Notes
designated for redemption at their addresses as the same shall appear on
the Note register not less than 30 nor more than 60 days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Senior Indenture. In the event of redemption of this Note in part only, a
new Note or Notes for the amount of the unredeemed portion hereof shall be
issued in the name of the holder hereof upon the cancellation hereof.
Unless otherwise indicated on the face of this Note, this Note
shall not be subject to repayment at the option of the holder prior to the
Maturity Date. If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional Repayment
Date or Dates specified on the face hereof on the terms set forth herein.
On any Optional Repayment Date, this Note will be repayable in whole or in
part in increments of $1,000 or, if this Note is denominated in a Specified
Currency other than U.S. dollars, in increments of 1,000 units of such
Specified Currency (provided that any remaining principal amount hereof
shall not be less than the minimum authorized denomination hereof) at the
option of the holder hereof at a price equal to 100% of the principal
amount to be repaid, together with interest accrued and unpaid hereon to
the date of repayment. For this Note to be repaid at the option of the
holder hereof, the Paying Agent must receive at its corporate trust office
in the Borough of Manhattan, The City of New York, at least 15 but not more
than 30 days prior to the date of repayment, (i) this Note with the form
entitled "Option to Elect Repayment" below duly completed or (ii) a
telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange or the National Association of Securities
Dealers, Inc. or a commercial bank or a trust company in the United States
setting forth the name of the holder of this Note, the principal amount
hereof, the certificate number of this Note or a description of this Note's
tenor and terms, the principal amount hereof to be repaid, a statement that
the option to elect repayment is being exercised thereby and a guarantee
that this Note, together with the form entitled "Option to Elect Repayment"
duly completed, will be received by the Paying Agent not later than the
fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter; provided, that such telegram, telex, facsimile
transmission or letter shall only be effective if this Note and form duly
completed are received by the Paying Agent by such fifth Business Day.
Exercise of such repayment option by the holder hereof shall be
irrevocable. In the event of repayment of this Note in part only, a new
Note or Notes for the amount of the unpaid portion hereof shall be issued
in the name of the holder hereof upon the cancellation hereof.
This Note will bear interest from and including the Interest
Reset Date at the rate per annum determined in accordance with the
following formula:
I = RRM x (SR - RR)
where "I" is the interest rate per annum for the Interest Reset Period (as
defined below), "SR" is the Set Rate shown on the face hereof, "RRM" is the
Reference Rate Multiplier shown on the face hereof and "RR" is the
Reference Rate determined in the manner set forth below.
As used herein, "Business Day" means any day, other than a
Saturday or Sunday, and that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to close
in The City of New York or the City of London or (i) if this Note is
denominated in a Specified Currency other than U.S. dollars, European Currency
Units ("ECUs") or Australian dollars, in the capital city of the country of
the Specified Currency, (ii) if this Note is denominated in ECUs, that is not
a non-ECU clearing day, as determined by the ECU Banking Association in Paris
or (iii) if this Note is denominated in Australian dollars, in Sydney.
The Interest Determination Date pertaining to the Interest Reset
Date shall be the second London Banking Day preceding such Interest Reset
Date. As used herein, "London Banking Day" means any day on which dealings in
deposits in any of the Reference Rate Currencies are transacted in the London
interbank market.
As used herein, "Interest Reset Period" means the period from and
including an Interest Reset Date to but excluding the Maturity Date specified
on the face hereof.
Unless otherwise specified on the face hereof, the "Calculation
Date" pertaining to an Interest Determination Date will be the earlier of (i)
the tenth calendar day after such Interest Determination Date or, if such day
is not a Business Day, the next succeeding Business Day, or (ii) the Business
Day preceding the applicable Interest Payment Date or Maturity Date (or, with
respect to any principal amount to be redeemed or repaid, any redemption or
repayment date), as the case may be.
Determination of Reference Rate. The Reference Rate with respect
to this Note shall be the arithmetic mean of the offered interest rate swap
rates for the Reference Rate Currencies specified on the face hereof. The
offered interest rate swap rate for each Reference Rate Currency shall be
determined by Morgan Stanley International for the Calculation Agent on the
Interest Determination Date as follows:
(a) If "Telerate" is specified as the Reference Rate Location on
the face hereof for such Reference Rate Currency, Morgan Stanley
International shall determine for the Calculation Agent the rate that
appears on the Telerate Page specified on the face hereof for such
Reference Rate Currency as the offered fixed rate of interest on or
about 11:00 a.m., London time, on such Interest Determination Date for a
customary interest rate swap transaction where: (i) the term of such
transaction equals the Index Maturity; (ii) the floating rate of
interest is the rate for six-month LIBOR for such Reference Rate
Currency; and (iii) all payments to be made pursuant to such transaction
are to be made in such Reference Rate Currency, ("Telerate Swap Rate,"
and such Telerate Swap Rate shall be the offered interest rate swap rate
for such Reference Rate Currency), and
(b) If "Reference Dealers" is specified as the Reference Rate
Location on the face hereof or if "Telerate" is so specified but the
Telerate Swap Rate cannot be determined as described above, Morgan
Stanley International will request the principal London offices of each
of five major swap dealers, as selected by Morgan Stanley International,
to provide quotations of the semi-annual offered fixed rate of interest
on or about 11:00 a.m., London time, on such Interest Determination Date
for a customary interest rate swap transaction where: (i) the term of
such transaction equals the Index Maturity; (ii) the floating rate of
interest is the rate for six-month LIBOR for such Reference Rate
Currency; (iii) all payments to be made pursuant to such transaction are
to be made in such Reference Rate Currency; and (iv) the notional amount
for such transaction is an amount that is representative for a swap
transaction in the relevant market at the relevant time. If five such
quotations are provided, the offered interest rate swap rate for such
Reference Rate Currency will be the arithmetic mean of the three
quotations remaining after the highest and the lowest quotations have
been disregarded. If fewer than five such quotations are provided, but
not less than one quotation, the offered interest rate swap rate for
such Reference Rate Currency will be the arithmetic mean of such
quotations (or, if only one quotation is provided, the offered interest
rate swap rate shall be such quotation). If no such quotation is
provided, the offered interest rate swap rate for such Reference Rate
Currency will be determined by Morgan Stanley International in its sole
discretion.
Calculation of Interest. Interest payments on this Note will
include interest accrued to but excluding the Interest Payment Dates or the
Maturity Date (or any earlier redemption or repayment date), as the case
may be. Unless otherwise provided on the face hereof, interest payments
for this Note will be computed and paid on the basis of a 360-day year of
twelve 30-day months. All percentages resulting from any calculation of
the rate of interest on this Note will be rounded, if necessary, to the
nearest one hundred-thousandth of a percentage point (.0000001), with five
one-millionths of a percentage point rounded upward, and all dollar amounts
used in or resulting from such calculation on this Note will be rounded to
the nearest cent (with one-half cent rounded upward). The interest rate in
effect on any Interest Reset Date will be the applicable rate as reset on
such date. The interest rate applicable to any other day is the interest
rate from the immediately preceding Interest Reset Date (or, if none, the
Initial Interest Rate).
Notwithstanding the foregoing, the interest rate hereon shall not
be greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing on
or before each Calculation Date based on the Reference Rate as provided to it
by Morgan Stanley International. The interest rate on this Note will in no
event be higher than the maximum rate permitted by New York law, as the same
may be modified by United States Federal law of general application. In
determining the Reference Rate, the Calculation Agent is entitled to rely
solely on Morgan Stanley International and shall have no responsibility itself
to make such determination.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next
Interest Reset Date.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and, if
denominated in U.S. dollars, is issuable only in denominations of U.S. $1,000
and any integral multiple of U.S. $1,000 in excess thereof. If this Note is
denominated in a Specified Currency other than U.S. dollars, then, unless a
higher minimum denomination is required by applicable law, it is issuable only
in denominations of the equivalent of U.S. $1,000 (rounded to an integral
multiple of 1,000 units of such Specified Currency), or any amount in excess
thereof which is an integral multiple of 1,000 units of such Specified
Currency, as determined by reference to the noon dollar buying rate in New
York City for cable transfers of such Specified Currency published by the
Federal Reserve Bank of New York (the "Market Exchange Rate") on the Business
Day immediately preceding the date of issuance; provided, however, in the case
of ECUs, the Market Exchange Rate shall be the rate of exchange determined by
the Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities, or any
successor publication, on the Business Day immediately preceding the date of
issuance.
The Trustee has been appointed registrar for the Notes, and the
Trustee will maintain at its office in The City of New York a register for
the registration and transfer of Notes. This Note may be transferred at
the aforesaid office of the Trustee by surrendering this Note for
cancellation, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and duly executed by the registered holder
hereof in person or by the holder's attorney duly authorized in writing,
and thereupon the Trustee shall issue in the name of the transferee or
transferees, in exchange herefor, a new Note or Notes having identical
terms and provisions and having a like aggregate principal amount in
authorized denominations, subject to the terms and conditions set forth
herein; provided, however, that the Trustee will not be required (i) to
register the transfer of or exchange any Note that has been called for
redemption in whole or in part, except the unredeemed portion of Notes
being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of
such Note not required to be repurchased, or (iii) to register the transfer
of or exchange Notes to the extent and during the period so provided in the
Senior Indenture with respect to the redemption of Notes. Notes are
exchangeable at said office for other Notes of other authorized
denominations of equal aggregate principal amount having identical terms
and provisions. All such exchanges and transfers of Notes will be free of
charge, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge in connection therewith. All Notes
surrendered for exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Trustee and executed by the registered
holder in person or by the holder's attorney duly authorized in writing.
The date of registration of any Note delivered upon any exchange or
transfer of Notes shall be such that no gain or loss of interest results
from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or
be destroyed, lost or stolen and such Note or evidence of the loss, theft
or destruction thereof (together with the indemnity hereinafter referred to
and such other documents or proof as may be required in the premises) shall
be delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Note so destroyed or lost or stolen, but, in the case of any destroyed or
lost or stolen Note, only upon receipt of evidence satisfactory to the
Trustee and the Issuer that such Note was destroyed or lost or stolen and,
if required, upon receipt also of indemnity satisfactory to each of them.
All expenses and reasonable charges associated with procuring such
indemnity and with the preparation, authentication and delivery of a new
Note shall be borne by the owner of the Note mutilated, defaced, destroyed,
lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt
securities issued under the Senior Indenture, including the series of
Senior Medium-Term Notes of which this Note forms a part, or due to the
default in the performance or breach of any other covenant or warranty of
the Issuer applicable to the debt securities of such series but not
applicable to all outstanding debt securities issued under the Senior
Indenture shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of the debt securities of
each affected series (voting as a single class) may then declare the
principal of all debt securities of all such series and interest accrued
thereon to be due and payable immediately and (b) if an Event of Default
due to a default in the performance of any other of the covenants or
agreements in the Senior Indenture applicable to all outstanding debt
securities issued thereunder, including this Note, or due to certain events
of bankruptcy, insolvency and reorganization of the Issuer, shall have
occurred and be continuing, either the Trustee or the holders of not less
than 25% in principal amount of all debt securities issued under the Senior
Indenture then outstanding (treated as one class) may declare the principal
of all such debt securities and interest accrued thereon to be due and
payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt
securities) by the holders of a majority in principal amount of the debt
securities of all affected series then outstanding.
The Senior Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in aggregate
principal amount of the debt securities of all series issued under the
Senior Indenture then outstanding and affected (voting as one class), to
execute supplemental indentures adding any provisions to or changing in any
manner the rights of the holders of each series so affected; provided that
the Issuer and the Trustee may not, without the consent of the holder of
each outstanding debt security affected thereby, (a) extend the final
maturity of any such debt security, or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of interest thereon, or
reduce any amount payable on redemption or repayment thereof, or change the
currency of payment thereof, or impair or affect the rights of any holder
to institute suit for the payment thereof without the consent of the holder
of each debt security so affected; or (b) reduce the aforesaid percentage
in principal amount of debt securities the consent of the holders of which
is required for any such supplemental indenture, without the consent of the
holders of each debt security so affected.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency other
than U.S. dollars and such Specified Currency is not available to the
Issuer for making payments hereon due to the imposition of exchange
controls or other circumstances beyond the control of the Issuer or is no
longer used by the government of the country issuing such currency or for
the settlement of transactions by public institutions within the
international banking community, then the Issuer will be entitled to
satisfy its obligations to the holder of this Note by making such payments
in U.S. dollars on the basis of the Market Exchange Rate on the date of
such payment or, if the Market Exchange Rate is not available on such date,
as of the most recent practicable date; provided, however, that if such
Specified Currency is replaced by a single European currency (expected to
be named the Euro), the payment of principal of, premium, if any, or
interest on any Note denominated in such currency shall be effected in the
new single European currency in conformity with legally applicable measures
taken pursuant to, or by virtue of, the treaty establishing the European
Community (the "EC"), as amended by the treaty on European Union (as so
amended, the "Treaty"). Any payment made under such circumstances in U.S.
dollars (or, if applicable, such new single European currency) where the
required payment is in a Specified Currency other than U.S. dollars will
not constitute an Event of Default.
Subject to the provisions below, the value of the ECU, in which
the Notes may be denominated or may be payable, is equal to the value of the
ECU that is from time to time used as the unit of account of the EC. If the
ECU becomes a currency in its own right in accordance with the Treaty, all
references to ECU in the Notes shall be construed as references to such
currency.
With respect to each due date for the payment of principal of, or
interest on, the Notes on or after the first business day in Brussels on which
the ECU ceases to be used as the unit of account of the EC, and has not become
a currency in its own right replacing all or some of the currencies of the
member States of the EC, the Issuer shall choose a substitute currency (the
"Chosen Currency"), which may be any currency which was, on the last day on
which the ECU was used as the unit of account of the EC, a component currency
of the ECU or U.S. dollars, in which all payments due on or after that date
with respect to the Notes and coupons shall be made. Notice of the Chosen
Currency so selected shall be provided by first class mail to each holder at
the address of such holder which appears on the books maintained by the
registrar and to the Paying Agent. The amount of each payment in such Chosen
Currency shall be computed on the basis of the equivalent of the ECU in that
currency, determined as described below, as of the fourth business day in
Brussels prior to the date on which such payment is due.
On the first business day in Brussels on which the ECU ceases to
be used as the unit of account of the EC, and has not become a currency in its
own right replacing all or some of the currencies of the member States of the
EC, the Issuer shall select a Chosen Currency in which all payments with
respect to Notes and coupons having a due date prior thereto but not yet
presented for payment are to be made. The amount of each payment in such
Chosen Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as of
any date (the "Day of Valuation") shall be determined by, or on behalf of, the
Exchange Rate Agent on the following basis. The amounts and components
composing the ECU for this purpose (the "Components") shall be the amounts and
components that composed the ECU as of the last date on which the ECU was used
as the unit of account of the EC. The equivalent of the ECU in the Chosen
Currency shall be calculated by, first, aggregating the U.S. dollar
equivalents of the Components; and then, in the case of a chosen Currency
other than U.S. dollars, using the rate used for determining the U.S. dollar
equivalent of the Components in the Chosen Currency as set forth below,
calculating the equivalent in the Chosen Currency of such aggregate amount in
U.S. dollars.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated on the face hereof.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Issuer, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf,
provided that such quotations were prevailing in the country of issue not
more than two Business Days before such Day of Valuation. If such most
recent quotations were so prevailing in the country of issue more than two
Business Days before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of
cross rates derived from the middle spot delivery quotations for such
component currency and for the U.S. dollar prevailing at 2:30 P.M.,
Brussels time, on such Day of Valuation, as obtained by, or on behalf of,
the Exchange Rate agent from one or more major banks, as selected by the
Issuer, in a country other than the country of issue of such component
currency. Notwithstanding the foregoing, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of such
cross rates if the Issuer or such agent judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent
calculated as provided in the first sentence of this paragraph. Unless
otherwise specified by the Issuer, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations
or for any other reason, the market to be referred to in respect of such
currency shall be that upon which a non-resident issuer of securities
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of, the
Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal
of and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as
aforesaid of the Notes. The Issuer may designate other agencies for the
payment of said principal, premium and interest at such place or places
(subject to applicable laws and regulations) as the Issuer may decide. So
long as there shall be such an agency, the Issuer shall keep the Trustee
advised of the names and locations of such agencies, if any are so
designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes that
such moneys shall be repaid to the Issuer and any person claiming such
moneys shall thereafter look only to the Issuer for payment thereof and
(ii) such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease, without, however, limiting in any way any obligation
that the Issuer may have to pay the principal of or interest or premium, if
any, on this Note as the same shall become due.
No provision of this Note or of the Senior Indenture shall alter
or impair the obligation of the Issuer, which is absolute and unconditional,
to pay the principal of, premium, if any, and interest on this Note at the
time, place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and none of the Issuer,
the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Senior Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the above list.
__________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_________________________________________________
_________________________________________________
_______________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE]
_______________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
_______________________________________________________________
constituting and appointing such person attorney to transfer
_______________________________________________________________
such note on the books of the Issuer, with full power of
_______________________________________________________________
substitution in the premises.
Dated:_____________________ ____________________________________________
NOTICE: The signature to this assignment
must correspond with the name
as written upon the face of the
within Note in every particular
without alteration or enlargement
or any change whatsoever.
EXHIBIT 4.Q
[FORM OF FACE OF SECURITY]
Floating/Fixed Rate Senior Note
REGISTERED REGISTERED
No. FLR/FX [PRINCIPAL AMOUNT]
CUSIP: *
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.*
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE
APPROXIMATE METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY
FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
____________
* Applies only if this Note is a Registered Global Security.
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Floating/Fixed Rate)
BASE RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
INDEX MATURITY: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
SPREAD (PLUS OR INITIAL INTEREST RATE:
MINUS): INTEREST PAYMENT PERIOD:
INITIAL INTEREST RESET
ALTERNATE RATE DATE:
EVENT SPREAD: INTEREST RESET PERIOD:
MAXIMUM INTEREST RATE:
SPREAD MULTIPLIER: INTEREST RESET DATES:
MINIMUM INTEREST RATE:
FIXED RATE OPTIONAL REPAYMENT
COMMENCEMENT DATE: INITIAL REDEMPTION DATE: DATE(S):
FIXED INTEREST RATE: INITIAL REDEMPTION CALCULATION AGENT:
PERCENTAGE:
ANNUAL REDEMPTION SPECIFIED CURRENCY:
PERCENTAGE REDUCTION:
TOTAL AMOUNT OF OID:
INDEX CURRENCY:
ORIGINAL YIELD TO
MATURITY:
EXCHANGE RATE AGENT:
INITIAL ACCRUAL
DESIGNATED CMT PERIOD OID:
TELERATE PAGE:
DESIGNATED CMT
MATURITY INDEX:
REPORTING SERVICE:
OTHER PROVISIONS:
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to
, or registered assignees, the principal sum of
on the Maturity Date specified above (except to the extent redeemed or
repaid prior to the Maturity Date) and to pay interest thereon, from the
Interest Accrual Date specified above at a rate per annum equal to the
Initial Interest Rate specified above until the Initial Interest Reset Date
specified above, and thereafter at a rate per annum determined in
accordance with the provisions specified on the reverse hereof until the
principal hereof is paid or duly made available for payment. The Issuer
will pay interest in arrears monthly, quarterly, semiannually or annually
as specified above as the Interest Payment Period on each Interest Payment
Date (as specified above), commencing with the first Interest Payment Date
next succeeding the Interest Accrual Date specified above, and on the
Maturity Date (or any redemption or repayment date); provided, however,
that if the Interest Accrual Date occurs between a Record Date, as defined
below, and the next succeeding Interest Payment Date, interest payments
will commence on the second Interest Payment Date succeeding the Interest
Accrual Date to the registered holder of this Note on the Record Date with
respect to such second Interest Payment Date; provided, further, that if,
during any period prior to the Fixed Rate Commencement Date, an Interest
Payment Date (other than the Maturity Date or a redemption or repayment
date) would fall on a day that is not a Business Day, as defined on the
reverse hereof, such Interest Payment Date shall be the following day that
is a Business, except that if the Base Rate specified above is LIBOR and
such next Business Day falls in the next calendar month, such Interest
Payment Date shall be the immediately preceding day that is a Business Day;
and provided, further, that if the Maturity Date or redemption or repayment
date would fall on a day that is not a Business Day, such Maturity Date or
redemption or repayment date shall be on the following day that is a
Business Day and no interest shall accrue for the period from and after
such Maturity Date or redemption or repayment date; and provided, further,
that if, during any period on or after the Fixed Rate Commencement Date, an
Interest Payment Date or the Maturity Date or redemption or repayment date
would fall on a day that is not a Business Day, payment of interest,
premium, if any, or principal otherwise payable on such date need not be
made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the Interest Payment Date or on the
Maturity Date or redemption or repayment date, and no interest on such
payment shall accrue for the period from and after the Interest Payment
Date or the Maturity Date or redemption or repayment date to such next
succeeding Business Day.
Interest on this Note will accrue from and including the
most recent date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until, but excluding the date the principal hereof
has been paid or duly made available for payment. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date
will, subject to certain exceptions described herein, be paid to the person
in whose name this Note (or one or more predecessor Notes) is registered at
the close of business on the date 15 calendar days prior to such Interest
Payment Date (whether or not a Business Day) (each such date a "Record
Date"); provided, however, that interest payable on the Maturity Date (or
any redemption or repayment date) will be payable to the person to whom the
principal hereof shall be payable.
Payment of the principal of this Note, any premium and the
interest due at the Maturity Date (or any redemption or repayment date),
unless this Note is denominated in a Specified Currency other than U.S.
dollars and is to be paid in whole or in part in such Specified Currency,
will be made in immediately available funds upon surrender of this Note at
the office or agency of the Paying Agent, as defined on the reverse hereof,
maintained for that purpose in the Borough of Manhattan, The City of New
York, or at such other paying agency as the Issuer may determine in U.S.
dollars. U.S. dollar payments of interest, other than interest due at
maturity or any date of redemption or repayment, will be made by U.S.
dollar check mailed to the address of the person entitled thereto as such
address shall appear in the Note register. A holder of U.S. $10,000,000 or
more in aggregate principal amount of Notes having the same Interest
Payment Date, the interest on which is payable in U.S. dollars, will be
entitled to receive payments of interest, other than interest due at
maturity or any date of redemption or repayment, by wire transfer of
immediately available funds if appropriate wire transfer instructions have
been received by the Paying Agent in writing not less than 15 calendar days
prior to the applicable Interest Payment Date. If this Note is denominated
in a Specified Currency other than U.S. dollars, payments of interest
hereon will be made by wire transfer of immediately available funds to an
account maintained by the holder hereof with a bank located outside the
United States if appropriate wire transfer instructions have been received
by the Paying Agent in writing not less than 15 calendar days prior to the
applicable Interest Payment Date. If such wire transfer instructions are
not so received, such interest payments will be made by check payable in
such Specified Currency mailed to the address of the person entitled
thereto as such address shall appear in the Note register.
If this Note is denominated in a Specified Currency other
than U.S. dollars, and the holder does not elect (in whole or in part) to
receive payment in U.S. dollars pursuant to the next succeeding paragraph,
payments of interest, principal or any premium with regard to this Note
will be made by wire transfer of immediately available funds to an account
maintained by the holder hereof with a bank located outside the United
States if appropriate wire transfer instructions have been received by the
Paying Agent in writing not less than 15 calendar days prior to the
applicable payment date, provided that, if such wire transfer instructions
are not received, such payments will be made by check payable in such
Specified Currency mailed to the address of the person entitled thereto as
such address shall appear in the Note register, and provided, further, that
payment of the principal of this Note, any premium and the interest due at
maturity (or on any redemption or repayment date) will be made upon
surrender of this Note at the office or agency referred to in the preceding
paragraph.
Unless otherwise indicated herein, the holder of this Note,
if denominated in a Specified Currency other than U.S. dollars, may elect
to receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the
Record Date or at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be. Such election shall
remain in effect unless such request is revoked by written notice to the
Paying Agent as to all or a portion of payments on this Note at least five
Business Days prior to such Record Date or at least ten days prior to the
Maturity Date or any redemption or repayment date, as the case may be.
If the holder elects to receive all or a portion of payments
of principal of and any premium and interest on this Note, if denominated
in a Specified Currency other than U.S. dollars, in U.S. dollars, the
Exchange Rate Agent will convert such payments into U.S. dollars. In the
event of such an election, payment in respect of this Note will be based
upon the exchange rate as determined by the Exchange Rate Agent based on
the highest bid quotation in The City of New York received by such Exchange
Rate Agent at approximately 11:00 A.M., New York City time, on the second
Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent
unless such Exchange Rate Agent is Morgan Stanley & Co. Incorporated), for
the purchase by the quoting dealer of U.S. dollars for the Specified
Currency for settlement on such payment date in the amount of the Specified
Currency payable in the absence of such an election to such holder and at
which the applicable dealer commits to execute a contract. If such bid
quotations are not available, such payment will be made in the Specified
Currency. All currency exchange costs will be borne by the holder of this
Note by deductions from such payments. Reference is hereby made to the
further provisions of this Note set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect as if set
forth at this place. Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by manual
signature, this Note shall not be entitled to any benefit under the Senior
Indenture, as defined on the reverse hereof, or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By:_______________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Senior Indenture.
CHEMICAL BANK, as Trustee
By:_______________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series C, having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable
under a Senior Indenture, dated as of April 15, 1989, as supplemented by a
First Supplemental Indenture dated as of May 15, 1991 and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Senior Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed Chemical Bank at its
corporate trust office in The City of New York as the paying agent (the
"Paying Agent," which term includes any additional or successor Paying
Agent appointed by the Issuer) with respect to the Notes. The terms of
individual Notes may vary with respect to interest rates, interest rate
formulas, issue dates, maturity dates, or otherwise, all as provided in the
Senior Indenture. To the extent not inconsistent herewith, the terms of
the Senior Indenture are hereby incorporated by reference herein.
Unless otherwise provided on the face hereof, this Note will not
be subject to any sinking fund and, unless otherwise provided on the face
hereof in accordance with the provisions of the following two paragraphs,
will not be redeemable or subject to repayment at the option of the holder
prior to maturity.
Unless otherwise indicated on the face of this Note, this
Note may not be redeemed prior to the Maturity Date. If so indicated on
the face of this Note, this Note may be redeemed in whole or in part at the
option of the Issuer on or after the Initial Redemption Date specified on
the face hereof on the terms set forth on the face hereof, together with
interest accrued and unpaid hereon to the date of redemption.
If this Note is subject to "Annual Redemption Percentage
Reduction," the Initial Redemption Percentage indicated on the face hereof
will be reduced on each anniversary of the Initial Redemption Date by the
Annual Redemption Percentage Reduction specified on the face hereof until
the redemption price of this Note is 100% of the principal amount hereof,
together with interest accrued and unpaid hereon to the date of redemption.
Notice of redemption shall be mailed to the registered holders of the Notes
designated for redemption at their addresses as the same shall appear on
the Note register not less than 30 nor more than 60 days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Senior Indenture. In the event of redemption of this Note in part only, a
new Note or Notes for the amount of the unredeemed portion hereof shall be
issued in the name of the holder hereof upon the cancellation hereof.
Unless otherwise indicated on the face of this Note, this
Note shall not be subject to repayment at the option of the holder prior to
the Maturity Date. If so indicated on the face of this Note, this Note
will be subject to repayment at the option of the holder on the Optional
Repayment Date or Dates specified on the face hereof on the terms set forth
herein. On any Optional Repayment Date, this Note will be repayable in
whole or in part in increments of $1,000 or, if this Note is denominated in
a Specified Currency other than U.S. dollars, in increments of 1,000 units
of such Specified Currency (provided that any remaining principal amount
hereof shall not be less than the minimum authorized denomination hereof)
at the option of the holder hereof at a price equal to 100% of the
principal amount to be repaid, together with interest accrued and unpaid
hereon to the date of repayment. For this Note to be repaid at the option
of the holder hereof, the Paying Agent must receive at its corporate trust
office in the Borough of Manhattan, The City of New York, at least 15 but
not more than 30 days prior to the date of repayment, (i) this Note with
the form entitled "Option to Elect Repayment" below duly completed or (ii)
a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange or the National Association of Securities
Dealers, Inc. or a commercial bank or a trust company in the United States
setting forth the name of the holder of this Note, the principal amount
hereof, the certificate number of this Note or a description of this Note's
tenor and terms, the principal amount hereof to be repaid, a statement that
the option to elect repayment is being exercised thereby and a guarantee
that this Note, together with the form entitled "Option to Elect Repayment"
duly completed, will be received by the Paying Agent not later than the
fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter; provided, that such telegram, telex, facsimile
transmission or letter shall only be effective if this Note and form duly
completed are received by the Paying Agent by such fifth Business Day.
Exercise of such repayment option by the holder hereof shall be
irrevocable. In the event of repayment of this Note in part only, a new
Note or Notes for the amount of the unpaid portion hereof shall be issued
in the name of the holder hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in
accordance with the applicable provisions below by reference to the Base
Rate shown on the face hereof based on the Index Maturity, if any, shown on
the face hereof (i) plus or minus the Spread, if any, and/or (ii)
multiplied by the Spread Multiplier, if any, specified on the face hereof.
Commencing with the Initial Interest Reset Date specified on the face
hereof, the rate at which interest on this Note is payable shall be reset
as of each Interest Reset Date specified on the face hereof (including the
Initial Interest Reset Date). The determination of the rate of interest at
which this Note will be reset on any Interest Reset Date shall be made on
the Interest Determination Date (as defined below) pertaining to such
Interest Reset Dates; provided, however, that (i) the interest rate in
effect for the period from the Interest Accrual Date to the Initial
Interest Reset Date will be the Initial Interest Rate and (ii) the interest
rate in effect commencing on and including the Fixed Rate Commencement Date
to the Maturity Date hereof shall be the Fixed Interest Rate, if such rate
is specified on the face hereof, or if no such Fixed Interest Rate is so
specified, the interest rate in effect hereon on the day immediately
preceding the Fixed Rate Commencement Date. If any Interest Reset Date
would otherwise be a day that is not a Business Day, such Interest Reset
Date shall be postponed to the next succeeding day that is a Business Day,
except that if the Base Rate specified on the face hereof is LIBOR and such
Business Day is in the next succeeding calendar month, such Interest Reset
Date shall be the next preceding Business Day. As used herein, "Business
Day" means any day, other than a Saturday or Sunday, that is neither a
legal holiday nor a day on which banking institutions are authorized or
required by law or regulation to close in The City of New York and (i) if
this Note bears interest calculated by reference to LIBOR that is also a
London Banking Day, (ii) if this Note is denominated in a Specified
Currency other than U.S. dollars, Australian dollars or ECUs, in the
principal financial center of the country of the Specified Currency, (iii)
if this Note is denominated in Australian dollars, in Sydney and (iv) if
this Note is denominated in ECUs, that is not a non-ECU clearing day, as
determined by the ECU Banking Association in Paris.
The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to the CD
Rate, Commercial Paper Rate, Federal Funds Rate, Prime Rate and CMT Rate
will be the second Business Day next preceding such Interest Reset Date.
The Interest Determination Date pertaining to an Interest Reset Date for
Notes bearing interest calculated by reference to LIBOR shall be the second
London Banking Day preceding such Interest Reset Date, except that the
Interest Determination Date pertaining to an Interest Reset Date for a
LIBOR Note for which the Index Currency is pounds sterling will be such
Interest Reset Date. As used herein, "London Banking Day" means any day on
which dealings in deposits in the Index Currency (as defined herein) are
transacted in the London interbank market. The Interest Determination Date
pertaining to an Interest Reset Date for Notes bearing interest calculated
by reference to the Treasury Rate shall be the day of the week in which
such Interest Reset Date falls on which Treasury bills normally would be
auctioned; provided, however, that if as a result of a legal holiday an
auction is held on the Friday of the week preceding such Interest Reset
Date, the related Interest Determination Date shall be such preceding
Friday; and provided, further, that if an auction shall fall on any
Interest Reset Date, then the Interest Reset Date shall instead be the
first Business Day following the date of such auction.
Unless otherwise specified on the face hereof, the
"Calculation Date" pertaining to an Interest Determination Date will be the
earlier of (i) the tenth calendar day after such Interest Determination
Date or, if such day is not a Business Day, the next succeeding Business
Day, or (ii) the Business Day preceding the applicable Interest Payment
Date or Maturity Date (or, with respect to any principal amount to be
redeemed or repaid, any redemption or repayment date), as the case may be.
Determination of CD Rate. If the Base Rate specified on the
face hereof is the CD Rate, the CD Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate on
such date for negotiable certificates of deposit having the Index Maturity
specified on the face hereof as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates," or any successor publication of the Board of Governors of the
Federal Reserve System ("H.15(519)"), under the heading "CDs (Secondary
Market)," or, if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the CD
Rate will be the rate on such Interest Determination Date for negotiable
certificates of deposit of the Index Maturity specified on the face hereof
as published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 P.M. Quotations for U.S.
Government Securities" ("Composite Quotations") under the
heading "Certificates of Deposit." If neither of such rates is published by
3:00 P.M., New York City time, on such Calculation Date, then the CD Rate
on such Interest Determination Date will be calculated by the Calculation
Agent referred to on the face hereof and will be the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City time, on
such Interest Determination Date for certificates of deposit in an amount
that is representative of a single transaction at that time with a
remaining maturity closest to the Index Maturity specified on the face
hereof of three leading nonbank dealers in negotiable U.S. dollar
certificates of deposit in The City of New York selected by the Calculation
Agent for negotiable certificates of deposit of major United States money
center banks of the highest credit standing in the market for negotiable
certificates of deposit; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the CD Rate in effect for the applicable period will be the same
as the CD Rate for the immediately preceding Interest Reset Period (or, if
there was no such Interest Reset Period, the rate of interest payable
hereon shall be the Initial Interest Rate). Determination of Commercial
Paper Rate. If the Base Rate specified on the face hereof is the
Commercial Paper Rate, the Commercial Paper Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
Money Market Yield (as defined herein) of the rate on such date for
commercial paper having the Index Maturity specified on the face hereof, as
such rate shall be published in H.15(519) under the heading "Commercial
Paper," or if not so published prior to 9:00 A.M., New York City time, on
the Calculation Date pertaining to such Interest Determination Date, the
Commercial Paper Rate shall be the Money Market Yield of the rate on such
Interest Determination Date for commercial paper of the Index Maturity
specified on the face hereof as published in Composite Quotations under the
heading "Commercial Paper." If neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, then the Commercial
Paper Rate shall be the Money Market Yield of the arithmetic mean of the
offered rates as of 11:00 A.M., New York City time, on such Interest
Determination Date of three leading dealers in commercial paper in The City
of New York selected by the Calculation Agent for commercial paper of the
Index Maturity specified on the face hereof, placed for an industrial
issuer whose bond rating is "AA," or the equivalent, from a nationally
recognized rating agency; provided, however, that if the dealers selected
as aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Commercial Paper Rate in effect for the applicable period
will be the same as the Commercial Paper Rate for the immediately preceding
Interest Reset Period (or, if there was no such Interest Reset Period, the
rate of interest payable hereon shall be the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in
accordance with the following formula:
D x 360
Money Market Yield = ---------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the Index Maturity specified on the face hereof.
Determination of Federal Funds Rate. If the Base Rate
specified on the face hereof is the Federal Funds Rate, the Federal Funds
Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the rate on such date for Federal Funds as
published in H.15(519) under the heading "Federal Funds (Effective)," or,
if not so published by 9:00 A.M., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, the Federal Funds Rate
will be the rate on such Interest Determination Date as published in
Composite Quotations under the heading "Federal Funds/Effective Rate." If
neither of such rates is published by 3:00 P.M., New York City time, on
such Calculation Date, the Federal Funds Rate for such Interest
Determination Date will be calculated by the Calculation Agent and will be
the arithmetic mean of the rates for the last transaction in overnight
Federal funds as of 11:00 A.M., New York City time, on such Interest
Determination Date arranged by three leading brokers in Federal funds
transactions in The City of New York selected by the Calculation Agent;
provided, however, that if the brokers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the
Federal Funds Rate in effect for the applicable period will be the same as
the Federal Funds Rate for the immediately preceding Interest Reset Period
(or, if there was no such Interest Reset Period, the rate of interest
payable hereon shall be the Initial Interest Rate).
Determination of LIBOR. If the Base Rate specified on the face
hereof is LIBOR, LIBOR with respect to this Note shall be determined on each
Interest Determination Date as follows:
(i) As of the Interest Determination Date, the Calculation
Agent will determine (a) if "LIBOR Reuters" is specified as the
Reporting Service on the face hereof, the arithmetic mean of the
offered rates (unless the specified Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in
which case such single rate shall be used) for deposits in the
London interbank market in the Index Currency for the period of
the Index Maturity each as designated on the face hereof,
commencing on the second London Banking Day following such
Interest Determination Date, that appears on the Designated LIBOR
Page at approximately 11:00 A.M., London time, on such Interest
Determination Date, if at least two such offered rates appear
(unless, as aforesaid, only a single rate is required) on such
Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified as
the Reporting Service on the face hereof, the rate for deposits in
the Index Currency for the period of the Index Maturity,
commencing on such Interest Determination Date (or, if pounds
sterling is the Index Currency, commencing on such Interest
Determination Date) that appears on the Designated LIBOR Page at
approximately 11:00 A.M., London time, on such Interest
Determination Date. If fewer than two offered rates appear (if
"LIBOR Reuters" is specified as the Reporting Service on the face
hereof and calculation of LIBOR is based on the arithmetic mean of
the offered rates) or if no rate appears (if the Reporting Service
on the face hereof specifies either (x) "LIBOR Reuters" and the
Designated LIBOR Page by its terms provides only for a single rate
or (y) "LIBOR Telerate"), LIBOR in respect of that Interest
Determination Date will be determined as if the parties had
specified the rate described in (ii) below.
(ii) With respect to an Interest Determination Date on which
fewer than two offered rates appear (if "LIBOR Reuters" is
specified as the Reporting Service on the face hereof and
calculation of LIBOR is based on the arithmetic mean of the
offered rates) or no rate appears (if the Reporting Service on the
face hereof specifies either (x) "LIBOR Reuters" and the
Designated LIBOR Page by its terms provides only for a single rate
or (y) "LIBOR Telerate"), the Calculation Agent will request the
principal London offices of each of four major reference banks in
the London interbank market, as selected by the Calculation Agent
(after consultation with the Issuer), to provide the Calculation
Agent with its offered quotations for deposits in the Index
Currency for the period of the Index Maturity specified on the
face hereof, commencing on the second London Banking Day
immediately following such Interest Determination Date (or, if
pounds sterling is the Index Currency, commencing on such Interest
Determination Date), to prime banks in the London interbank market
at approximately 11:00 A.M., London time, on such Interest
Determination Date and in a principal amount equal to an amount of
not less than U.S.$1 million (or the equivalent in the Index
Currency (if the Index Currency is not the U.S. dollar)) that is
representative of a single transaction in such Index Currency in
such market at such time. If at least two such quotations are
provided, LIBOR determined on such Interest Determination Date
will be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR in respect of that Interest
Determination Date will be the arithmetic mean of rates quoted at
approximately 11:00 A.M. (or such other time specified on the
face hereof), in the applicable principal financial center for the
country of the Index Currency on such Interest Determination Date,
by three major banks in such principal financial center selected
by the Calculation Agent (after consultation with the Issuer) on
such Interest Determination Date for loans in the Index Currency
to leading European banks, for the period of the Index Maturity
specified on the face hereof commencing on the second London
Banking Day immediately following such Interest Determination Date
(or, if pounds sterling is the Index Currency, commencing on such
Interest Determination Date) and in a principal amount of not less
than U.S.$1 million (or the equivalent in the Index Currency (if
the Index Currency is not the U.S. dollar)) that is representative
of a single transaction in such Index Currency in such market at
such time; provided, however, that if the banks selected as
aforesaid by the Calculation Agent are not quoting rates as
mentioned in this sentence, "LIBOR" for such Interest Reset Period
will be the same as LIBOR for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the
rate of interest payable on the LIBOR Notes for which LIBOR is
being determined shall be the Initial Interest Rate). "Index
Currency" means the currency (including composite currencies)
specified as Index Currency on the face hereof. If no such
currency is specified as Index Currency on the face hereof, the
Index Currency shall be U.S. dollars. "Designated LIBOR Page"
means either (a) if "LIBOR Reuters" is designated as the Reporting
Service on the face hereof, the display on the Reuters Monitor
Money Rates Service for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency,
or (b) if "LIBOR Telerate" is designated as the Reporting Service
on the face hereof, the display on the Dow Jones Telerate Service
for the purpose of displaying the London interbank rates of major
banks for the applicable Index Currency. If neither LIBOR Reuters
nor LIBOR Telerate is specified as the Reporting Service on the
face hereof, LIBOR for the applicable Index Currency will be
determined as if LIBOR Telerate (and, if the U.S. dollar is the
Index Currency, Page 3750) had been specified.
Determination of Prime Rate. If the Base Rate specified on
the face hereof is the Prime Rate, the Prime Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
rate set forth in H.15(519) for such date opposite the caption "Bank Prime
Loan." If such rate is not yet published by 9:00 A.M., New York City time,
on the Calculation Date pertaining to such Interest Determination Date, the
Prime Rate for such Interest Determination Date will be the arithmetic mean
of the rates of interest publicly announced by each bank named on the
Reuters Screen USPRIME 1 Page (as defined below) as such bank's prime rate
or base lending rate as in effect for such Interest Determination Date as
quoted on the Reuters Screen USPRIME 1 Page on such Interest Determination
Date, or, if fewer than four such rates appear on the Reuters Screen
USPRIME 1 Page for such Interest Determination Date, the rate shall be the
arithmetic mean of the prime rates quoted on the basis of the actual number
of days in the year divided by 360 as of the close of business on such
Interest Determination Date by at least two of the three major money center
banks in The City of New York selected by the Calculation Agent from which
quotations are requested. If fewer than two quotations are provided, the
Prime Rate shall be calculated by the Calculation Agent and shall be
determined as the arithmetic mean on the basis of the prime rates in The
City of New York by the appropriate number of substitute banks or trust
companies organized and doing business under the laws of the United States,
or any State thereof, in each case having total equity capital of at least
U.S. $500 million and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent to quote such
rate or rates ; provided, however, that if the banks or trust companies
selected as aforesaid by the Calculation Agent are not quoting rates as set
forth above, the "Prime Rate" in effect for such Interest Reset Period will
be the same as the Prime Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate).
"Reuters Screen USPRIME 1 Page" means the display designated
as Page "USPRIME 1" on the Reuters Monitor Money Rates Service (or such
other page as may replace the USPRIME 1 Page on that service for the
purpose of displaying prime rates or base lending rates of major United
States banks).
Determination of Treasury Rate. If the Base Rate specified
on the face hereof is the Treasury Rate, the Treasury Rate with respect to
this Note shall be determined on each Interest Determination Date and shall
be the rate for the auction held on such date of direct obligations of the
United States ("Treasury Bills") having the Index Maturity specified on the
face hereof, as published in H.15(519) under the heading "Treasury Bills--
auction average (investment)," or if not so published by 9:00 A.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the auction average rate on such Interest Determination
Date (expressed as a bond equivalent, on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) as otherwise announced
by the United States Department of the Treasury. In the event that the
results of the auction of Treasury Bills having the Index Maturity
specified on the face hereof are not published or reported as provided
above by 3:00 P.M., New York City time, on such Calculation Date or if no
such auction is held on such Interest Determination Date, then the Treasury
Rate shall be calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) calculated using the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
P.M., New York City time, on such Interest Determination Date, of three
leading primary United States government securities dealers selected by the
Calculation Agent for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified on the face hereof; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting as mentioned in this sentence, the Treasury Rate for such
Interest Reset Date will be the same as the Treasury Rate for the
immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable hereon shall be the
Initial Interest Rate).
Determination of CMT Rate. If the Base Rate specified on
the face hereof is the CMT Rate, the CMT Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
rate displayed for the Index Maturity specified on the face hereof on the
Designated CMT Telerate Page under the caption "Daily Treasury Constant
Maturities and Money Markets/Federal Reserve Board Release H.15 under the
column for the Designated CMT Maturity Index for (i) if the Designated CMT
Telerate Page is 7055, the rate on such Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the week or the month, as
applicable, ended immediately preceding the week in which the related
Interest Determination Date occurs. If such rate is no longer displayed on
the relevant page, or is not displayed by 3:00 P.M., New York City time, on
the Calculation Date pertaining to such Interest Determination Date, then
the CMT Rate for such Interest Determination Date will be such Treasury
Constant Maturity rate for the Designated CMT Maturity Index as published
in the relevant H.15(519). If such rate is no longer published, or is not
published by 3:00 P.M., New York City time, on the related Calculation
Date, then the CMT Rate for such Interest Determination Date will be such
Treasury Constant Maturity rate for the Designated CMT Maturity Index (or
other United States Treasury rate for the Designated CMT Maturity Index)
for the Interest Determination Date with respect to the related Interest
Reset Date as may then be published by either the Board of Governors of the
Federal Reserve System or the United States Department of the Treasury that
the Calculation Agent determines to be comparable to the rate formerly
displayed on the Designated CMT Telerate Page and published in the relevant
H.15(519). If such information is not provided by 3:00 P.M., New York
time, on the related Calculation Date, then the CMT Rate for the Interest
Determination Date will be calculated by the Calculation Agent and will be
a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City
time, on the Interest Determination Date reported, according to their
written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in The City of New York
(which may include affiliates of the Issuer) selected by the Calculation
Agent (from five such Reference Dealers selected by the Calculation Agent,
after consultation with the Issuer), and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation
(or, in the event of equality, one of the lowest), for the most recently
issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the
Designated CMT Maturity Index and remaining term to maturity of not less
than such Designated CMT Maturity Index minus one year. If the Calculation
Agent cannot obtain three such Treasury Notes quotations, the CMT Rate for
such Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity based on the arithmetic mean of the
secondary market offer side prices as of approximately 3:30 P.M., New York
City time, on the Interest Determination Date of three Reference Dealers in
The City of New York (from five such Reference Dealers selected by the
Calculation Agent, after consultation with the Issuer, and eliminating the
highest quotation (or, in the event of equality, one of the highest) and
the lowest quotation (or, in the event of equality, one of the lowest)),
for Treasury Notes with an original maturity of the number of years that is
the next highest to the Designated CMT Maturity Index and a remaining term
to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100,000,000. If three or four (and not five) of such
Reference Dealers are quoting as described above, then the CMT Rate will be
based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers selected by the
Calculation Agent are quoting as described herein, the CMT Rate for such
Interest Reset Date will be the same as the CMT Rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset
Period, the rate of interest payable hereon shall be the Initial Interest
Rate). If two Treasury Notes with an original maturity as described in the
second preceding sentence have remaining terms to maturity equally close to
the Designated CMT Maturity Index, the quotes for the Treasury note with
the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow
Jones Telerate Service specified on the face hereof (or any other page as may
replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)), for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519). If no such page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" shall be the original period to
maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be two years.
Notwithstanding the foregoing, the interest rate hereon shall
not be greater than the Maximum Interest Rate, if any, or less than the
Minimum Interest Rate, if any, specified on the face hereof. The Calculation
Agent shall calculate the interest rate hereon in accordance with the
foregoing on or before each Calculation Date. The interest rate on this Note
will in no event be higher than the maximum rate permitted by New York law, as
the same may be modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next
Interest Reset Date.
Interest payments on this Note will include interest accrued
to but excluding the Interest Payment Dates or the Maturity Date (or any
earlier redemption or repayment date), as the case may be. Accrued
interest hereon shall be an amount calculated by multiplying the face
amount hereof by an accrued interest factor. Such accrued interest factor
shall be computed by adding the interest factor calculated for each day in
the period for which interest is being paid. The interest factor for each
such date shall be computed by dividing the interest rate applicable to
such day by 360 if the Base Rate is CD Rate, Commercial Paper Rate, Federal
Funds Rate, Prime Rate or LIBOR, as specified on the face hereof, or by the
actual number of days in the year if the Base Rate is the Treasury Rate or
the CMT Rate, as specified on the face hereof. All percentages resulting
from any calculation of the rate of interest on this Note will be rounded,
if necessary, to the nearest one hundred-thousandth of a percentage point
(.0000001), with five one-millionths of a percentage point rounded upward,
and all dollar amounts used in or resulting from such calculation on this
Note will be rounded to the nearest cent (with one-half cent rounded
upward). The interest rate in effect on any Interest Reset Date will be
the applicable rate as reset on such date. The interest rate applicable to
any other day (other than a day occurring on or after the Fixed Rate
Commencement Date) is the interest rate from the immediately preceding
Interest Reset Date (or, if none, the Initial Interest Rate). While this
Note bears interest at the Fixed Interest Rate, interest payments on this
Note will be computed and paid on the basis of a 360-day year of twelve 30-
day months.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without
coupons, and, if denominated in U.S. dollars, is issuable only in
denominations of U.S. $1,000 and any integral multiple of U.S. $1,000 in
excess thereof. If this Note is denominated in a Specified Currency other
than U.S. dollars, then, unless a higher minimum denomination is required
by applicable law, it is issuable only in denominations of the equivalent
of U.S. $1,000 (rounded down to an integral multiple of 1,000 units of such
Specified Currency), or any amount in excess thereof which is an integral
multiple of 1,000 units of such Specified Currency, as determined by
reference to the noon dollar buying rate in New York City for cable
transfers of such Specified Currency published by the Federal Reserve Bank
of New York (the "Market Exchange Rate") on the Business Day immediately
preceding the date of issuance; provided, however, in the case of ECUs, the
Market Exchange Rate shall be the rate of exchange determined by the
Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities, or any
successor publication, on the Business Day immediately preceding the date
of issuance.
The Trustee has been appointed registrar for the Notes, and
the Trustee will maintain at its office in The City of New York a register
for the registration and transfer of Notes. This Note may be transferred
at the aforesaid office of the Trustee by surrendering this Note for
cancellation, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and duly executed by the registered holder
hereof in person or by the holder's attorney duly authorized in writing,
and thereupon the Trustee shall issue in the name of the transferee or
transferees, in exchange herefor, a new Note or Notes having identical
terms and provisions and having a like aggregate principal amount in
authorized denominations, subject to the terms and conditions set forth
herein; provided, however, that the Trustee will not be required (i) to
register the transfer of or exchange any Note that has been called for
redemption in whole or in part, except the unredeemed portion of Notes
being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of
such Note not required to be repurchased, or (iii) to register the transfer
of or exchange Notes to the extent and during the period so provided in the
Senior Indenture with respect to the redemption of Notes. Notes are
exchangeable at said office for other Notes of other authorized
denominations of equal aggregate principal amount having identical terms
and provisions. All such exchanges and transfers of Notes will be free of
charge, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge in connection therewith. All Notes
surrendered for exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Trustee and executed by the registered
holder in person or by the holder's attorney duly authorized in writing.
The date of registration of any Note delivered upon any exchange or
transfer of Notes shall be such that no gain or loss of interest results
from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and such Note or evidence of the loss,
theft or destruction thereof (together with the indemnity hereinafter
referred to and such other documents or proof as may be required in the
premises) shall be delivered to the Trustee, a new Note of like tenor will
be issued by the Issuer in exchange for the Note so mutilated or defaced,
or in lieu of the Note so destroyed or lost or stolen, but, in the case of
any destroyed or lost or stolen Note, only upon receipt of evidence
satisfactory to the Trustee and the Issuer that such Note was destroyed or
lost or stolen and, if required, upon receipt also of indemnity
satisfactory to each of them. All expenses and reasonable charges
associated with procuring such indemnity and with the preparation,
authentication and delivery of a new Note shall be borne by the owner of
the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of
Default (as defined in the Senior Indenture) due to the default in payment
of principal of, premium, if any, or interest on, any series of debt
securities issued under the Senior Indenture, including the series of
Senior Medium-Term Notes of which this Note forms a part, or due to the
default in the performance or breach of any other covenant or warranty of
the Issuer applicable to the debt securities of such series but not
applicable to all outstanding debt securities issued under the Senior
Indenture shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of the debt securities of
each affected series (voting as a single class) may then declare the
principal of all debt securities of all such series and interest accrued
thereon to be due and payable immediately and (b) if an Event of Default
due to a default in the performance of any other of the covenants or
agreements in the Senior Indenture applicable to all outstanding debt
securities issued thereunder, including this Note, or due to certain events
of bankruptcy, insolvency and reorganization of the Issuer, shall have
occurred and be continuing, either the Trustee or the holders of not less
than 25% in principal amount of all debt securities issued under the Senior
Indenture then outstanding (treated as one class) may declare the principal
of all such debt securities and interest accrued thereon to be due and
payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt
securities) by the holders of a majority in principal amount of the debt
securities of all affected series then outstanding.
The Senior Indenture permits the Issuer and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the debt securities of all series issued under the
Senior Indenture then outstanding and affected (voting as one class), to
execute supplemental indentures adding any provisions to or changing in any
manner the rights of the holders of each series so affected; provided that
the Issuer and the Trustee may not, without the consent of the holder of
each outstanding debt security affected thereby, (a) extend the final
maturity of any such debt security, or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of interest thereon, or
reduce any amount payable on redemption or repayment thereof, or change the
currency of payment thereof, or impair or affect the rights of any holder
to institute suit for the payment thereof without the consent of the holder
of each debt security so affected; or (b) reduce the aforesaid percentage
in principal amount of debt securities the consent of the holders of which
is required for any such supplemental indenture, without the consent of the
holders of each debt security so affected.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency other
than U.S. dollars and such Specified Currency is not available to the
Issuer for making payments hereon due to the imposition of exchange
controls or other circumstances beyond the control of the Issuer or is no
longer used by the government of the country issuing such currency or for
the settlement of transactions by public institutions within the
international banking community, then the Issuer will be entitled to
satisfy its obligations to the holder of this Note by making such payments
in U.S. dollars on the basis of the Market Exchange Rate on the date of
such payment or, if the Market Exchange Rate is not available on such date,
as of the most recent practicable date provided, however, that if such
Specified Currency is replaced by a single European currency (expected to
be named the Euro), the payment of principal of, premium, if any, or
interest on any Note denominated in such currency shall be effected in the
new single European currency in conformity with legally applicable measures
taken pursuant to, or by virtue of, the treaty establishing the European
Community (the "EC"), as amended by the treaty on European Union (as so
amended, the "Treaty"). Any payment made under such circumstances in U.S.
dollars (or, if applicable, in such new single European currency) where the
required payment is in a Specified Currency other than U.S. dollars will
not constitute an Event of Default.
Subject to the provisions below, the value of the ECU, in which
the Notes may be denominated or may be payable, is equal to the value of the
ECU that is from time to time used as the unit of account of the EC. If the
ECU becomes a currency in its own right in accordance with the Treaty, all
references to ECU in the Notes shall be construed as references to such
currency.
With respect to each due date for the payment of principal of,
or interest on, the Notes on or after the first business day in Brussels on
which the ECU ceases to be used as the unit of account of the EC, and has not
become a currency in its own right replacing all or some of the currencies of
the member States of the EC, the Issuer shall choose a substitute currency
(the "Chosen Currency"), which may be any currency which was, on the last day
on which the ECU was used as the unit of account of the EC, a component
currency of the ECU or U.S. dollars, in which all payments due on or after
that date with respect to the Notes and coupons shall be made. Notice of the
Chosen Currency so selected shall be provided by first class mail to each
holder at the address of such holder which appears on the books maintained by
the registrar and to the Paying Agent. The amount of each payment in such
Chosen Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of the fourth business day in
Brussels prior to the date on which such payment is due.
On the first business day in Brussels on which the ECU ceases
to be used as the unit of account of the EC, and has not become a currency in
its own right replacing all or some of the currencies of the member States of
the EC, the Issuer shall select a Chosen Currency in which all payments with
respect to Notes and coupons having a due date prior thereto but not yet
presented for payment are to be made. The amount of each payment in such
Chosen Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as
of any date (the "Day of Valuation") shall be determined by, or on behalf
of, the Exchange Rate Agent on the following basis. The amounts and
components composing the ECU for this purpose (the "Components") shall be
the amounts and components that composed the ECU as of the last date on
which the ECU was used as the unit of account of the EC. The equivalent of
the ECU in the Chosen Currency shall be calculated by, first, aggregating
the U.S. dollar equivalents of the Components; and then, in the case of a
chosen Currency other than U.S. dollars, using the rate used for
determining the U.S. dollar equivalent of the Components in the Chosen
Currency as set forth below, calculating the equivalent in the Chosen
Currency of such aggregate amount in U.S. dollars.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated on the face hereof.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Issuer, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf,
provided that such quotations were prevailing in the country of issue not
more than two Business Days before such Day of Valuation. If such most
recent quotations were so prevailing in the country of issue more than two
Business Days before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of
cross rates derived from the middle spot delivery quotations for such
component currency and for the U.S. dollar prevailing at 2:30 P.M.,
Brussels time, on such Day of Valuation, as obtained by, or on behalf of,
the Exchange Rate agent from one or more major banks, as selected by the
Issuer, in a country other than the country of issue of such component
currency. Notwithstanding the foregoing, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of such
cross rates if the Issuer or such agent judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent
calculated as provided in the first sentence of this paragraph. Unless
otherwise specified by the Issuer, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations
or for any other reason, the market to be referred to in respect of such
currency shall be that upon which a non-resident issuer of securities
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as aforesaid
of the Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be
such an agency, the Issuer shall keep the Trustee advised of the names and
locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes that such
moneys shall be repaid to the Issuer and any person claiming such moneys shall
thereafter look only to the Issuer for payment thereof and (ii) such moneys
shall be so repaid to the Issuer. Upon such repayment all liability of the
Trustee or such Paying Agent with respect to such moneys shall thereupon
cease, without, however, limiting in any way any obligation that the Issuer
may have to pay the principal of or interest or premium, if any, on this Note
as the same shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on
this Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the registered
holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and none of the Issuer,
the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Senior Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the above
list.
__________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_________________________________________________
_________________________________________________
_______________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE,
OF ASSIGNEE]
_______________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
_______________________________________________________________
constituting and appointing such person attorney to transfer
_______________________________________________________________
such note on the books of the Issuer, with full power of
_______________________________________________________________
substitution in the premises.
Dated:_____________________ ____________________________________________
NOTICE: The signature to this assignment
must correspond with the name
as written upon the face of the
within Note in every particular
without alteration or enlargement
or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
__________________________________________________________
__________________________________________________________
__________________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid: __________________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the
Notes to be issued to the holder for the portion of the within Note not being
repaid (in the absence of any such specification, one such Note will be issued
for the portion not being repaid): __________________________.
Dated:____________________ ___________________________________
NOTICE: The signature on this Option
to Elect Repayment must correspond
with the name as written upon the
face of the within instrument in
every particular without
alteration or enlargement.
S&P INDEXED (BULL) NOTE
CUSIP NO. _________ EXHIBIT 4.R
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
REGISTERED REGISTERED
No. _________ $_________
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York,
New York) to the issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE
METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF
APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
<TABLE>
<S> <C>
TITLE: EQUITY LINKED NOTE DUE PRINCIPAL AMOUNT: $____________
_____________
TRADE DATE: _________________ ISSUE PRICE: 100%
ORIGINAL ISSUE DATE: _________ INITIAL VALUE: ______________
SETTLEMENT DATE: _____________ LEVERAGE FACTOR: ______________
MATURITY DATE: _______________ AMOUNT REPAYABLE AT MATURITY:
Principal Amount plus interest equal to the
greater of (i) zero and (ii)
DETERMINATION DATE:__________
or the next preceding Business Day if such Principal x Leverage x (Final Value - Initial Value)
date is not a Business Day. ---------------------------
Amount Factor (if any) Initial Value
TOTAL AMOUNT OF OID: $__________ where Final Value is the closing value of
the S&P 500 Index (such value as calculated
by Standard & Poor's and published in the
Wall Street Journal) at the market close on
the Determination Date.
ORIGINAL YIELD TO MATURITY: ___% CALCULATION AGENT: Morgan Stanley
& Co. Incorporated
INITIAL ACCRUAL PERIOD OID: _______ DEPOSITORY: The Depository Trust
Company or its successors
REGISTRATION STATEMENT NUMBER:
____________
PRICING SUPPLEMENTAL NUMBER:
____________
OTHER PROVISIONS:
</TABLE>
Morgan Stanley Group, Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to Cede & Co., a nominee of The Depository Trust Company, or
registered assigns, the Repayment Amount as determined by the Calculation
Agent in U.S. dollars, as set forth above and as defined on the reverse
hereof, on the Maturity Date specified above.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE
SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By:_______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Senior Indenture.
CHEMICAL BANK, as Trustee
By:_______________________________
Authorized Officer
REVERSE OF SECURITY
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
EQUITY LINKED NOTE DUE
1. General. This Note is one of a duly authorized issue of
Senior Global Medium-Term Notes, Series C, having maturities more than nine
months from the date of issue (the "Notes") of the Issuer. The Notes are
issuable under a Senior Indenture, dated as of April 15, 1989, as supplemented
by a First Supplemental Indenture dated as of May 15, 1991, and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Senior Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities of the Issuer, the Trustee and Holders of the
Notes and the terms upon which the Notes are, and are to be, authenticated and
delivered.
Payment of the principal of this Note and the interest due, if
any, at the Maturity Date will be made in immediately available funds upon
surrender of this Note at the office or agency of the Paying Agent, as defined
below, maintained for that purpose in the Borough of Manhattan, The City of
New York, or at such other paying agency as the Issuer may determine.
The Issuer has appointed Chemical Bank at its corporate trust
office in The City of New York as the paying agent (the "Paying Agent," which
term includes any additional or successor Paying Agent appointed by the
Issuer) with respect to the Notes.
The Issuer has appointed Morgan Stanley & Co. Incorporated as
the Calculation Agent (the "Calculation Agent," which term includes any
additional or successor Calculation Agent appointed by the Issuer) with
respect to the Notes. The terms of individual Notes may vary with respect to
interest rates, interest rate formulas, issue dates, maturity dates, or
otherwise, all as provided in the Senior Indenture. To the extent not
inconsistent herewith, the terms of the Senior Indenture are hereby
incorporated by reference herein.
2. Repayment Amount. The Holder of this Note will be
entitled to receive an amount (the "Repayment Amount") at the Maturity Date
equal to the Principal Amount plus interest, if any (the "Interest Payment),
calculated in accordance with the following sentence. The Interest Payment
will be equal to the greater of (i) zero and (ii)
Principal x Leverage Factor x (Final Value - Initial Value)
Amount (if any) Initial Value
where Initial Value and Leverage Factor are specified on the face hereof
and Final Value is the closing value of the Standard & Poor's 500 Composite
Stock Price Index ("S&P 500 Index") (such value as calculated by Standard
& Poor's ("S&P") and published in the Wall Street Journal) at the market
close on the Determination Date specified on the face hereof. If the Final
Value is equal to or less than the Initial Value, a Holder of this Note
will be repaid 100% of the Principal Amount of this Note, but the Holder
will not receive any Interest Payment.
"Business Day," for purposes of this Note, is a day on which the New
York Stock Exchange, Inc. (the "New York Stock Exchange") is open for trading.
If any payment under this Note is to be made on a day on which
commercial banks in The City of New York are authorized or required by law or
regulation to close, the obligation to make such payment will be satisfied if
it is made on the next succeeding day on which commercial banks in The City of
New York are not authorized or required by law or regulation to close, and no
interest will accrue as a result of such delayed payment.
If S&P discontinues publication of the S&P 500 Index and S&P or
another entity publishes a successor or substitute index that the Calculation
Agent determines, in its sole discretion, to be comparable to the discontinued
S&P 500 Index (such index being referred to hereinafter as a "Successor
Index"), then, upon the Calculation Agent's notification of such determination
to the Trustee and the Issuer, the Interest Payment shall be determined by
reference to the value of such Successor Index at the close of trading on the
New York Stock Exchange, the American Stock Exchange, Inc. (the "Amex") or the
relevant exchange or market for the Successor Index on the Determination Date.
Notwithstanding the foregoing, if the Calculation Agent determines
that a Market Disruption Event) as hereinafter defined) with respect to the
S&P 500 Index (or a Successor Index) has occurred and is continuing on the
Determination Date, then the Final Value shall be the value of the S&P 500
Index (or the Successor Index) at the close of trading on the New York Stock
Exchange and Amex (or on the relevant exchange or market for any Successor
Index) on the next preceding Business Day on which there was no Market
Disruption Event.
"Market Disruption Event" in respect of the S&P 500 Index (or
Successor Index) means either of the following events:
(i) the suspension or material limitation of trading in 100
or more of the securities included in the S&P 500 Index (or Successor
Index), or
(ii) the imposition of material adverse limitations on the
prices of 100 or more of the securities included in the S&P 500 Index
(or Successor Index),
in either case, on the exchange on which or in the market in which such
securities are primarily traded, provided, that a limitation on the hours in a
trading day and/or number of days of trading will not constitute a Market
Disruption Event if it results from an announced change in the regular
business hours of the relevant exchange or market.
All determinations made by the Calculation Agent and the Issuer shall
be at the sole discretion of the respective parties and shall, in the absence
of manifest error, be conclusive for all purposes and binding on the Issuer,
beneficial owners and Holders of this Note.
If the publication of the S&P 500 Index is discontinued and S&P or
another entity does not publish a Successor Index on the Determination Date,
the amount of the Interest Payment, if any, due on the Maturity Date will be
computed by the Calculation Agent which will determine a Final Value by
reference to the following formula:
(1) determining the component stocks of the S&P 500 Index or
any Successor Index (the "Component Stocks") as of the last date on
which either of such indices was calculated by S&P or another entity
and quoted on any quotation system (each such Component Stock a "Last
Component Stock");
(2) for each Last Component Stock, calculating as of the
relevant Business Day, the product of the market price per share and
the number of the then outstanding shares (such product referred to
as the "Market Value" of such stock), by reference to (a) the closing
market price per share of such Last Component Stock as quoted by the
New York Stock Exchange or the Amex or any other nationally
recognized stock exchange, or if no such quotation is available, then
the National Association of Securities Dealers Automated Quotation
National Market System ("NASDAQ") together with the NASDAQ, the
"Exchanges") and (b) the most recent publicly available statement of
the number of outstanding shares of such Last Component Stock;
(3) aggregating the Market Values obtained in clause (2) for
all Last Component Stocks;
(4) determining the Base Value (as defined in the Company's
Pricing Supplement referred to on the face hereof to the Registration
Statement referred to on the face hereof (the "Pricing Supplement")
under "Standard & Poor's 500 Composite Stock Price Index --
Computation of the S&P 500 Index") as of the last day on which either
the S&P 500 Index or any Successor Index was published by S&P or
another entity, as adjusted thereafter as described below;
(5) dividing the aggregate Market Value of all Last Component
Stocks by the Base Value (adjusted as aforesaid); and
(6) multiplying the resulting quotient (expressed in decimals)
by ten.
If any Last Component Stock is no longer publicly traded on any
nationally recognized stock exchange, major regional stock exchange or in the
over-the-counter market, the last available market price per share for such
Last Component Stock as quoted by any exchange, and the number of outstanding
shares thereof at such time, will be used in computing the last available
Market Value of such Last Component Stock.
If a company that has issued a Last Component Stock and another
company that has issued a Last Component Stock are consolidated to form a new
company, the common stock of such new company will be considered a Last
Component Stock and the common stocks of the constituent companies will no
longer be considered Last Component Stocks. If any company that has issued a
Last Component Stock merges with, or acquires, a company that has not issued a
Last Component Stock, the common stock of the surviving corporation will, upon
the effectiveness of such merger or acquisition, be considered a Last
Component Stock. However, in each case, the Base Value will be adjusted in
accordance with the formula set forth in the Pricing Supplement in the last
paragraph under "Standard & Poor's 500 Composite Stock Price Index --
Computation of the S&P 500 Index." As a result of this adjustment, the Base
Value immediately after such consolidation, merger or acquisition will equal
(a) the Base Value immediately prior to such event, multiplied by (b) the
quotient of the aggregate Market Value of all Last Component Stocks
immediately after such event, dividend by the aggregate Market Value for all
Last Component Stocks immediately prior to such event.
If a company that has issued a Last Component Stock issues a stock
dividend, declares a stock split or issues new shares pursuant to the
acquisition of another company, then, in each case, the Base Value will be
adjusted (in accordance with the formula described below) so that, immediately
after the time the particular Last Component Stock commences trading
ex-dividend, the time the stock split becomes effective or the time new shares
of such Last Component Stock commence trading, the Base Value equals (a) the
Base Value immediately prior to such event, multiplied by (b) the quotient of
the aggregate Market Value for all Last Component Stocks immediately after
such event, dividend by the aggregate Market Value of all Last Component Stocks
immediately prior to such event. The Base Value may not be adjusted by the
Calculation Agent in all cases in which S&P, in its discretion, would have
adjusted the Base Value.
If at any time the method of calculating the S&P 500 Index or a
Successor Index, or the value thereof, is changed in a material respect, or if
the S&P 500 Index or a Successor Index is in any other way modified so that
such index does not, in the opinion of the Calculation Agent, fairly represent
the value of the S&P 500 Index or such Successor Index had such changes or
modifications not been made, then, from and after such time, the Calculation
Agent shall, at the close of business in New York City on each date the
closing value with respect to the Final Value is to be calculated, make such
calculations and adjustments as, in the good faith judgment of the Calculation
Agent, may be necessary in order to arrive at a value of a stock index
comparable to the S&P 500 Index or such Successor Index, as the case may be,
as if such changes or modifications had not been made, and calculate the
Interest Payment with reference to the S&P 500 Index or such Successor Index,
as adjusted. Accordingly, if the method of calculating the S&P 500 Index or a
Successor Index is modified so that the value of such Index is a fraction of
what it would have been if it had not been modified (e.g., due to a split in
the index), then the Calculation Agent shall adjust such index in order to
arrive at a value of the S&P 500 Index or such Successor Index as if it had
not been modified (e.g., as if such split had not occurred).
Upon any selection by the Calculation Agent of a Successor
Index, the Calculation Agent shall cause written notice thereof to be
furnished to the registered Holder of this Note within three Business Days of
such selection. If S&P discontinues publication of the S&P 500 Index prior to
the Determination Date and the Calculation Agent determines that no Successor
Index is available at such time, then on each Business Day until the earlier
to occur of (i) the Determination Date and (ii) a determination by the
Calculation Agent that a Successor Index is available, the Calculation Agent
shall determine the value that would be used in computing the Interest Payment
as if such day were the Determination Date. The Calculation Agent shall cause
notice of each such value to be provided to the registered Holder of this Note
on each succeeding Business Day until and including the Determination Date
(unless a Successor Index is prior thereto determined to be available).
Notwithstanding these alternative arrangements, discontinuance of the
publication of the S&P 500 Index may adversely affect the value of this Note.
3. Acceleration upon Event of Default. In case an Event of
Default with respect to this Note shall have occurred and be continuing, the
amount declared due and payable upon any acceleration of this Note will be
determined by the Calculation Agent and will be equal to the sum of (i) the
"issue price" of the "noncontingent debt instrument" plus "original issue
discount" accrued to the date of acceleration and (ii) the "exercise price" of
the "property right" determined as though the Determination Date were the date
of acceleration. For these purposes, "issue price," "noncontingent debt
instrument," "original issue discount," "exercise price" and "property right"
have the meanings and values assigned to them under "Certain Federal Income
Tax Considerations" in the Pricing Supplement and apply to any and all Holders
of the Note including Holders who are not United States Holders as defined in
the Pricing Supplement.
4. Other Provisions. Unless otherwise provided on the face
hereof, this Note will not be subject to any sinking fund and will not be
redeemable or subject to repayment at the option of the Holder or the Issuer
prior to the Maturity Date.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons,
and is issuable only in denominations of U.S. $1,000 and any integral multiple
of U.S. $1,000 in excess thereof.
The Trustee has been appointed registrar for the Notes, and
the Trustee will maintain at its office in The City of New York a register
for the registration and transfer of Notes. This Note may be transferred
at the aforesaid office of the Trustee by surrendering this Note for
cancellation, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and duly executed by the registered Holder
hereof in person or by the Holder's attorney duly authorized in writing,
and thereupon the Trustee shall issue in the name of the transferee or
transferees, in exchange herefor, a new Note or Notes having identical
terms and provisions and having a like aggregate principal amount in
authorized denominations, subject to the terms and conditions set forth
herein. Notes are exchangeable at said office for other Notes of other
authorized denominations of equal aggregate principal amount having
identical terms and provisions. All such exchanges and transfers of Notes
will be free of charge, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge in connection
therewith. All Notes surrendered for exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Trustee and
executed by the registered Holder in person or by the Holder's attorney
duly authorized in writing. The date of registration of any Note delivered
upon any exchange or transfer of Notes shall be such that no gain or loss
of interest results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or
be destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Note so destroyed or lost or stolen, but, in the case of any destroyed or lost
or stolen Note, only upon receipt of evidence satisfactory to the Trustee and
the Issuer that such Note was destroyed or lost or stolen and, if required,
upon receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt securities
issued under the Senior Indenture, including the series of Senior Medium-Term
Notes of which this Note forms a part, or due to the default in the
performance or breach of any other covenant or warranty of the Issuer
applicable to the debt securities of such series but not applicable to all
outstanding debt securities issued under the Senior Indenture shall have
occurred and be continuing, either the Trustee or the holders of not less than
25% in principal amount of the debt securities of each affected series (voting
as a single class) may then declare the principal of all debt securities of
all such series and interest accrued thereon to be due and payable immediately
and (b) if an Event of Default due to a default in the performance of any
other of the covenants or agreements in the Senior Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due to
certain events of bankruptcy, insolvency and reorganization of the Issuer,
shall have occurred and be continuing, either the Trustee or the holders of
not less than 25% in principal amount of all debt securities issued under the
Senior Indenture then outstanding (treated as one class) may declare the
principal of all such debt securities and interest accrued thereon to be due
and payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt securities)
by the holders of a majority in principal amount of the debt securities of all
affected series then outstanding.
The Senior Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any matter the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the written consent of the holder of each debt security so
affected; or (b) reduce the aforesaid percentage in principal amount of debt
securities the consent of the holders of which is required for any such
supplemental indenture, without the consent of the holders of each debt
security so affected.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as aforesaid
of the Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to
applicable laws and regulations) as the Issuer may decide. So long as there
shall be such an agency, the Issuer shall keep the Trustee advised of the
names and locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the Holders of such Notes that
such moneys shall be repaid to the Issuer and any person claiming such
moneys shall thereafter look only to the Issuer for payment thereof and
(ii) such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease, without, however, limiting in any way any obligation
that the Issuer may have to pay the principal of or interest or premium, if
any, of this Note as the same shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal and interest, if any, on this Note at the
time, place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the registered Holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Holder in whose name this Note is registered as the owner hereof
for all purposes whether or not this Note be overdue, and none of the Issuer,
the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal or
the interest, if any, on this Note, for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Senior Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of
survivorship and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the
above list.
__________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_________________________________________________
_________________________________________________
_______________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE]
_______________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
_______________________________________________________________
constituting and appointing such person attorney to transfer
_______________________________________________________________
such note on the books of the Issuer, with full power of
_______________________________________________________________
substitution in the premises.
Dated:_____________________ ____________________________________________
NOTICE: The signature to this assignment
must correspond with the name
as written upon the face of the
within Note in every particular
without alteration or enlargement
or any change whatsoever.
S&P INDEXED (BEAR) NOTE
CUSIP NO. _____________ EXHIBIT 4.S
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
REGISTERED REGISTERED
No. _____________ $_________
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE
METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF
APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
<TABLE>
<S> <C>
TITLE: EQUITY LINKED NOTE DUE PRINCIPAL AMOUNT: $____________
_____________
ISSUE PRICE: 100%
TRADE DATE: _________________
INITIAL VALUE: ______________
ORIGINAL ISSUE DATE: _________
LEVERAGE FACTOR: ______________
SETTLEMENT DATE: _____________
AMOUNT REPAYABLE AT MATURITY:
MATURITY DATE: _______________ Principal Amount plus interest equal to the
greater of (i) zero and (ii)
DETERMINATION DATE:__________ or the
next preceding Business Day if such date is not Principal x Leverage x (Initial Value - Final Value)
a Business Day. Amount Factor (if any) Initial Value
TOTAL AMOUNT OF OID: $__________ where Final Value is the closing value of the
S&P 500 Index (such value as calculated by
ORIGINAL YIELD TO MATURITY: ___% Standard & Poor's and published in the Wall
Street Journal) at the market close on the
INITIAL ACCRUAL PERIOD OID: _______ Determination Date.
REGISTRATION STATEMENT NUMBER: CALCULATION AGENT: Morgan Stanley &
____________ Co. Incorporated
PRICING SUPPLEMENT NUMBER:_______ DEPOSITORY: The Depository Trust
Company or its successors.
OTHER PROVISIONS:
</TABLE>
Morgan Stanley Group, Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to Cede & Co., a nominee of The Depository Trust Company, or
registered assigns, the Repayment Amount as determined by the Calculation
Agent in U.S. Dollars, as set forth above and as defined on the reverse
hereof, on the Maturity Date specified above.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE
SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By: _________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Senior Indenture.
CHEMICAL BANK, as Trustee
By _________________________
Authorized Officer
REVERSE OF SECURITY
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
EQUITY LINKED NOTE DUE __________________
1. General. This Note is one of a duly authorized issue of
Senior Global Medium-Term Notes, Series C, having maturities more than nine
months from the date of issue (the "Notes") of the Issuer. The Notes are
issuable under a Senior Indenture, dated as of April 15, 1989, as supplemented
by a First Supplemental Indenture dated as of May 15, 1991, and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Senior Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities of the Issuer, the Trustee and Holders of the
Notes and the terms upon which the Notes are, and are to be, authenticated and
delivered.
Payment of the principal of this Note and the interest due, if
any, at the Maturity Date will be made in immediately available funds upon
surrender of this Note at the office or agency of the Paying Agent, as defined
below, maintained for that purpose in the Borough of Manhattan, The City of
New York, or at such other paying agency as the Issuer may determine.
The Issuer has appointed Chemical Bank at its corporate trust
office in The City of New York as the paying agent (the "Paying Agent," which
term includes any additional or successor Paying Agent appointed by the
Issuer) with respect to the Notes.
The Issuer has appointed Morgan Stanley & Co. Incorporated as
the Calculation Agent (the "Calculation Agent," which term includes any
additional or successor Calculation Agent appointed by the Issuer) with
respect to the Notes. The terms of individual Notes may vary with respect to
interest rates, interest rate formulas, issue dates, maturity dates, or
otherwise, all as provided in the Senior Indenture. To the extent not
inconsistent herewith, the terms of the Senior Indenture are hereby
incorporated by reference herein.
2. Repayment Amount. The Holder of this Note will be
entitled to receive an amount (the "Repayment Amount") at the Maturity Date
equal to the Principal Amount plus interest, if any (the "Interest Payment),
calculated in accordance with the following sentence. The Interest Payment
will be equal to the greater of (i) zero and (ii)
Principal x Leverage Factor x (Initial Value - Final Value)
Amount (if any) Initial Value
where Initial Value and Leverage Factor are specified on the face hereof and
Final Value is the closing value of the Standard & Poor's 500 Composite Stock
Price Index ("S&P 500 Index") (such value as calculated by Standard & Poor's
("S&P") and published in the Wall Street Journal) at the market close on the
Determination Date specified on the face hereof. If the Final Value is equal
to or greater than the Initial Value, a Holder of this Note will be repaid
100% of the Principal Amount of this Note, but the Holder will not receive any
Interest Payment.
"Business Day," for purposes of this Note, is a day on which
the New York Stock Exchange, Inc. (the "New York Stock Exchange") is open for
trading.
If any payment under this Note is to be made on a day on which
commercial banks in The City of New York are authorized or required by law or
regulation to close, the obligation to make such payment will be satisfied if
it is made on the next succeeding day on which commercial banks in The City of
New York are not authorized or required by law or regulation to close, and no
interest will accrue as a result of such delayed payment.
If S&P discontinues publication of the S&P 500 Index and S&P or
another entity publishes a successor or substitute index that the Calculation
Agent determines, in its sole discretion, to be comparable to the discontinued
S&P 500 Index (such index being referred to hereinafter as a "Successor
Index"), then, upon the Calculation Agent's notification of such determination
to the Trustee and the Issuer, the Interest Payment shall be determined by
reference to the value of such Successor Index at the close of trading on the
New York Stock Exchange, the American Stock Exchange, Inc. (the "Amex") or the
relevant exchange or market for the Successor Index on the Determination Date.
Notwithstanding the foregoing, if the Calculation Agent
determines That a Market Disruption Event) as hereinafter defined) with
respect to the S&P 500 Index (or a Successor Index) has occurred and is
continuing on the Determination Date, then the Final Value shall be the value
of the S&P 500 Index (or the Successor Index) at the close of trading on the
New York Stock Exchange and Amex (or on the relevant exchange or market for
any Successor Index) on the next preceding Business Day on which there was no
Market Disruption Event.
"Market Disruption Event" in respect of the S&P 500 Index (or
Successor Index) means either of the following events:
(i) the suspension or material limitation of trading in 100
or more of the securities included in the S&P 500 Index (or Successor
Index), or
(ii) the imposition of material adverse limitations on the
prices of 100 or more of the securities included in the S&P 500 Index
(or Successor Index),
in either case, on the exchange on which or in the market in which such
securities are primarily traded, provided, that a limitation on the hours in a
trading day and/or number or days of trading will not constitute a Market
Disruption Event if it results from an announced change in the regular
business hours of the relevant exchange or market.
All determinations made by the Calculation Agent and the Issuer
shall be at the sole discretion of the respective parties and shall, in the
absence of manifest error, be conclusive for all purposes and binding on the
Issuer, beneficial owners and Holders of this Note.
If the publication of the S&P 500 Index is discontinued and S&P
or another entity does not publish a Successor Index on the Determination
Date, the amount of the Interest Payment, if any, due on the Maturity Date
will be computed by the Calculation Agent which will determine a Final Value
by reference to the following formula:
(1) determining the component stocks of the S&P 500 Index or
any Successor Index (the "Component Stocks") as of the last date on
which either of such indices was calculated by S&P or another entity
and quoted on any quotation system (each such Component Stock a "Last
Component Stock");
(2) for each Last Component Stock, calculating as of the
relevant Business Day, the product of the market price per share and
the number of the then outstanding shares (such product referred to
as the "Market Value" of such Stock), by reference to (a) the closing
market price per share of such Last Component Stock as quoted by the
New York Stock Exchange or the Amex or any other nationally
recognized stock exchange, or if no such quotation is available, then
the National Association of Securities Dealers Automated Quotation
National Market System ("NASDAQ") (together with the NASDAQ, the
"Exchanges") and (b) the most recent publicly available statement of
the number of outstanding shares of such Last Component Stock;
(3) aggregating the Market Values obtained in clause (2) for
all Last Component Stocks;
(4) determining the Base Value (as defined in the Company's
Pricing Supplement referred to on the face hereof to the Registration
Statement referred to on the face hereof (the "Pricing Supplement")
under "Standard & Poor's 500 Composite Stock Price Index --
Computation of the S&P 500 Index") as of the last day on which either
the S&P 500 Index or any Successor Index was published by S&P or
another entity, as adjusted thereafter as described below;
(5) dividing the aggregate Market Value of all Last Component
Stocks by the Base Value (adjusted as aforesaid); and
(6) multiplying the resulting quotient (expressed in decimals)
by ten.
If any Last Component Stock is no longer publicly traded on any
nationally recognized stock exchange, major regional stock exchange or in the
over-the-counter market, the last available market price per share for such
Last Component Stock as quoted by any exchange, and the number of outstanding
shares thereof at such time, will be used in computing the last available
Market Value of such Last Component Stock.
If a company that has issued a Last Component Stock and another
company that has issued a Last Component Stock are consolidated to form a new
company, the common stock of such new company will be considered a Last
Component Stock and the common stocks of the constituent companies will no
longer be considered Last Component Stocks. If any company that has issued a
Last Component Stock merges with, or acquires, a company that has not issued a
Last Component Stock, the common stock of the surviving corporation will, upon
the effectiveness of such merger or acquisition, be considered a Last
Component Stock. However, in each case, the Base Value will be adjusted in
accordance with the formula set forth in the Pricing Supplement in the last
paragraph under "Standard & Poor's 500 Composite Stock Price Index --
Computation of the S&P 500 Index." As a result of this adjustment, the Base
Value immediately after such consolidation, merger or acquisition will equal
(a) the Base Value immediately prior to such event, multiplied by (b) the
quotient of the aggregate Market Value of all Last Component Stocks
immediately after such event, divided by the aggregate Market Value for all
Last Component Stocks immediately prior to such event.
If a company that has issued a Last Component Stock issues a
stock dividend, declares a stock split or issues new shares pursuant to the
acquisition of another company, then, in each case, the Base Value will be
adjusted (in accordance with the formula described below) so that, immediately
after the time the particular Last Component Stock commences trading
ex-dividend, the time the stock split becomes effective or the time new shares
of such Last Component Stock commence trading, the Base Value equals (a) the
Base Value immediately prior to such event, multiplied by (b) the quotient of
the aggregate Market Value for all Last Component Stocks immediately after
such event, divided by the aggregate Market Value of all Last Component Stocks
immediately prior to such event. The Base Value may not be adjusted by the
Calculation Agent in all cases in which S&P, in its discretion, would have
adjusted the Base Value.
If at any time the method of calculating the S&P 500 Index or a
Successor Index, or the value thereof, is changed in a material respect, or if
the S&P 500 Index or a Successor Index is in any other way modified so that
such index does not, in the opinion of the Calculation Agent, fairly represent
the value of the S&P 500 Index or such Successor Index had such changes or
modifications not been made, then, from and after such time, the Calculation
Agent shall, at the close of business in New York City on each date the
closing value with respect to the Final Value is to be calculated, make such
calculations and adjustments as, in the good faith judgment of the Calculation
Agent, may be necessary in order to arrive at a value of a stock index
comparable to the S&P 500 Index or such Successor Index, as the case may be,
as if such changes or modifications had not been made, and calculate the
Interest Payment with reference to the S&P 500 Index or such Successor Index,
as adjusted. Accordingly, if the method of calculating the S&P 500 Index or a
Successor Index is modified so that the value of such Index is a fraction of
what it would have been if it had not been modified (e.g., due to a split in
the index), then the Calculation Agent shall adjust such index in order to
arrive at a value of the S&P 500 Index or such Successor Index as if it had
not been modified (e.g., as if such split had not occurred).
Upon any selection by the Calculation Agent of a Successor
Index, the Calculation Agent shall cause written notice thereof to be
furnished to the registered Holder of this Note within three Business Days of
such selection. If S&P discontinues publication of the S&P 500 Index prior to
the Determination Date and the Calculation Agent determines that no Successor
Index is available at such time, then on each Business Day until the earlier
to occur of (i) the Determination Date and (ii) a determination by the
Calculation Agent that a Successor Index is available, the Calculation Agent
shall determine the value that would be used in computing the Interest Payment
as if such day were the Determination Date. The Calculation Agent shall cause
notice of each such value to be provided to the registered Holder of this Note
on each succeeding Business Day until and including the Determination Date
(unless a Successor Index is prior thereto determined to be available).
Notwithstanding these alternative arrangements, discontinuance of the
publication of the S&P 500 Index may adversely affect the value of this Note.
3. Acceleration upon Event of Default. In case an Event of
Default with respect to this Note shall have occurred and be continuing, the
amount declared due and payable upon any acceleration of this Note will be
determined by the Calculation Agent and will be equal to the sum of (i) the
"issue price" of the "noncontingent debt instrument" plus "original issue
discount" accrued to the date of acceleration and (ii) the "exercise price" of
the "property right" determined as though the Determination Date were the date
of acceleration. For these purposes, "issue price," "noncontingent debt
instrument," "original issue discount," "exercise price" and "property right"
have the meanings and values assigned to them under "Certain Federal Income
Tax Considerations" in the Pricing Supplement and apply to any and all Holders
of the Note including Holders who are not United States Holders as defined in
the Pricing Supplement.
4. Other Provisions. Unless otherwise provided on the face
hereof, this Note will not be subject to any sinking fund and will not be
redeemable or subject to repayment at the option of the Holder or the Issuer
prior to the Maturity Date.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons,
and is issuable only in denominations of U.S. $1,000 and any integral multiple
of U.S. $1,000 in excess thereof.
The Trustee has been appointed registrar for the Notes, and
the Trustee will maintain at its office in The City of New York a register
for the registration and transfer of Notes. This Note may be transferred
at the aforesaid office of the Trustee by surrendering this Note for
cancellation, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and duly executed by the registered Holder
hereof in person or by the Holder's attorney duly authorized in writing,
and thereupon the Trustee shall issue in the name of the transferee or
transferees, in exchange herefor, a new Note or Notes having identical
terms and provisions and having a like aggregate principal amount in
authorized denominations, subject to the terms and conditions set forth
herein. Notes are exchangeable at said office for other Notes of other
authorized denominations of equal aggregate principal amount having
identical terms and provisions. All such exchanges and transfers of Notes
will be free of charge, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge in connection
therewith. All Notes surrendered for exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Trustee and
executed by the registered Holder in person or by the Holder's attorney
duly authorized in writing. The date of registration of any Note delivered
upon any exchange or transfer of Notes shall be such that no gain or loss
of interest results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or
be destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Note so destroyed or lost or stolen, but, in the case of any destroyed or lost
or stolen Note, only upon receipt of evidence satisfactory to the Trustee and
the Issuer that such Note was destroyed or lost or stolen and, if required,
upon receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt securities
issued under the Senior Indenture, including the series of Senior Medium-Term
Notes of which this Note forms a part, or due to the default in the
performance or breach of any other covenant or warranty of the Issuer
applicable to the debt securities of such series but not applicable to all
outstanding debt securities issued under the Senior Indenture shall have
occurred and be continuing, either the Trustee or the holders of not less than
25% in principal amount of the debt securities of each affected series (voting
as a single class) may then declare the principal of all debt securities of
all such series and interest accrued thereon to be due and payable immediately
and (b) if an Event of Default due to a default in the performance of any
other of the covenants or agreements in the Senior Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due to
certain events of bankruptcy, insolvency and reorganization of the Issuer,
shall have occurred and be continuing, either the Trustee or the holders of
not less than 25% in principal amount of all debt securities issued under the
Senior Indenture then outstanding (treated as one class) may declare the
principal of all such debt securities and interest accrued thereon to be due
and payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt securities)
by the holders of a majority in principal amount of the debt securities of all
affected series then outstanding.
The Senior Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any matter the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the written consent of the holder of each debt security so
affected; or (b) reduce the aforesaid percentage in principal amount of debt
securities the consent of the holders of which is required for any such
supplemental indenture, without the consent of the holders of each debt
security so affected.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as aforesaid
of the Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be
such an agency, the Issuer shall keep the Trustee advised of the names and
locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the Holders of such Notes that such
moneys shall be repaid to the Issuer and any person claiming such moneys shall
thereafter look only to the Issuer for payment thereof and (ii) such moneys
shall be so repaid to the Issuer. Upon such repayment all liability of the
Trustee or such Paying Agent with respect to such moneys shall thereupon cease,
without, however, limiting in any way any obligation that the Issuer may have
to pay the principal of or interest or premium, if any, of this Note as the
same shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal and interest, if any, on this Note at the
time, place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the registered Holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Holder in whose name this Note is registered as the owner hereof
for all purposes whether or not this Note be overdue, and none of the Issuer,
the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal or
the interest, if any, on this Note, for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Senior Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of
survivorship and not as tenants in common
UNIF GIFT MIN ACT - Custodian
_____________________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act _________________________
(State)
Additional abbreviations may also be used though not in the
above list.
_________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_________________________:
_________________________:
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE,
OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such note on the books of the
Issuer, with full power of substitution in the premises.
Dated: _________________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within Note in every particular
without alteration or enlargement or any change whatsoever.
EXHIBIT 4.T
[FORM OF FACE OF SECURITY]
Temporary Global Fixed Rate Senior Bearer Note
BEARER BEARER
No. TGFX [PRINCIPAL AMOUNT]
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4
OF THE UNITED KINGDOM BANKING ACT 1987.](1)
[MEDIUM TERM NOTE ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4
OF THE UNITED KINGDOM BANKING ACT 1987.](2)
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR AN INTEREST IN A
PERMANENT GLOBAL BEARER NOTE, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET FORTH
BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES AND
EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD, 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.
IF THIS NOTE IS DENOMINATED IN JAPANESE YEN, IT SHALL HAVE A MATURITY OF NOT
LESS THAN ONE YEAR AND IT MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY,
IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT IN JAPAN PRIOR TO THE DATE
WHICH IS 90 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS NOTE. IF (i)
INTEREST PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN AND PRINCIPAL
PAYMENTS ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER THAN JAPANESE
YEN OR (ii) PRINCIPAL PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN
AND INTEREST PAYMENTS ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER
THAN JAPANESE YEN, THIS NOTE MAY NOT BE OFFERED OR SOLD, DIRECTLY OR
INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF JAPAN PRIOR
TO THE DATE WHICH IS 180 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS
NOTE.
- --------------
(1) Applies only if this Note is denominated in pounds sterling and matures
not more than one year from and including the Original Issue Date.
(2) Applies only if this Note is denominated in pounds sterling and matures
more than one year and not more than five years from and including the
Original Issue Date.
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Fixed Rate)
ORIGINAL INITIAL REDEMPTION INTEREST RATE: MATURITY
ISSUE DATE: DATE: DATE:
INTEREST INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL
ACCRUAL DATE: PERCENTAGE: DATE: REPAYMENT
DATE(S):
TOTAL AMOUNT ANNUAL REDEMPTION APPLICABILITY OF
OF OID: PERCENTAGE MODIFIED PAYMENT MINIMUM
REDUCTION: UPON ACCELERATION DENOMINA-
OR REDEMPTION: TIONS:
ORIGINAL YIELD INITIAL ACCRUAL If yes, state CEDEL NO.:
TO MATURITY: PERIOD OID: Issue Price:
EUROCLEAR NO.: EXCHANGE RATE SPECIFIED
AGENT: CURRENCY:
COMMON CODE: OTHER PROVISIONS:
ISIN:
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to bearer, upon surrender hereof, the principal amount
specified in Schedule A hereto, on the Maturity Date specified above
(except to the extent previously redeemed or repaid) and to pay interest
thereon at the Interest Rate per annum specified above from and including
the Interest Accrual Date specified above until but excluding the date the
principal amount is paid or duly made available for payment, annually in
arrears on the Interest Payment Date specified above in each year
commencing on the Interest Payment Date next succeeding the Interest
Accrual Date specified above, and at maturity (or on any redemption or
repayment date); provided, however, that if the Interest Accrual Date
occurs fifteen days or less prior to the first Interest Payment Date
occurring after the Interest Accrual Date, interest payments will commence
on the second Interest Payment Date succeeding the Interest Accrual Date.
Interest on this Note will accrue from and including the
most recent Interest Payment Date to which interest has been paid or duly
provided for, or, if no interest has been paid or duly provided for, from
and including the Interest Accrual Date, until but excluding the date the
principal amount hereof has been paid or duly made available for payment.
Upon any payment of interest on this Note, the Principal Paying Agent (as
defined below) shall cause Schedule A of this Note to be endorsed to
reflect such payment. No payment on this Note will be made at any office
or agency of the Issuer in the United States or by check mailed to an
address in the United States (as defined below) or by wire transfer to an
account maintained by the holder of this Note with a bank in the United
States except as may be permitted under United States federal tax laws and
regulations then in effect without adverse tax consequences to the Issuer.
Notwithstanding the foregoing, in the event that payment in U.S. dollars of
the full amount payable on this Note at the offices of all Paying Agents
(as defined below) would be illegal or effectively precluded as a result of
exchange controls or similar restrictions, payment on this Note will be
made by a paying agency in the United States, if such paying agency, under
applicable law and regulations, would be able to make such payment.
Notwithstanding any other provision of this Note, no payment of principal
or interest shall be made on any portion of this Note unless there shall
have been delivered to the Principal Paying Agent a certificate
substantially in the form of Exhibit A hereto with respect to the portion
of this Note with respect to which such principal or interest is to be
paid. Such certificate shall have been delivered to the holder hereof by
Morgan Guaranty Trust Company of New York, Brussels office, as operator of
the Euroclear System (the "Euroclear Operator"), Cedel Bank, societe
anonyme ("Cedel") and/or any other relevant clearing system (including
Societe Interprofessionelle pour la Compensation des Valeurs Mobilieres and
the Intermediaires financiers habilites authorized to maintain accounts
therein ("SICOVAM")) as the case may be, and shall be based on a
certificate substantially in the form of Exhibit B hereto provided to the
Euroclear Operator, Cedel and/or any other relevant clearing system, as the
case may be, by those of its account holders who are to receive such
payment of principal or interest.
This Note is issued in temporary global bearer form and
represents all or a portion of a duly authorized issue of Senior Global
Medium-Term Notes, Series [D/E] (the "Notes"), issued under a Senior
Indenture, dated as of April 15, 1989, as supplemented by a First
Supplemental Indenture dated as of May 15, 1991 and a Second Supplemental
Indenture dated as of April 15, 1996 (as so supplemented, the "Senior
Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed Chemical Bank,
London Branch, as its principal paying agent for the Notes (the "Principal
Paying Agent," which term includes any additional or successor Principal
Paying Agent appointed by the Issuer). The Notes are issuable (i) in
temporary or permanent global bearer form without coupons attached (the
"Global Bearer Notes") in the minimum denominations set forth on the face
hereof or thereof or any amount in excess thereof which is an integral
multiple of 1,000 units of the Specified Currency set forth on the face
hereof or thereof, (ii) in definitive bearer form with interest coupons
attached (the "Definitive Bearer Notes") in the minimum denominations set
forth on the face thereof or any amount in excess thereof which is an
integral multiple of 1,000 units of the Specified Currency set forth on the
face thereof and (iii) in fully registered definitive form without coupons
(the "Registered Notes"), in the minimum denominations set forth on the
face thereof or any amount in excess thereof which is an integral multiple
of 1,000 units of the Specified Currency set forth on the face thereof.
Except as otherwise provided herein, this Note is governed by
the terms and conditions of the Permanent Global Fixed Rate Senior Bearer Note
(the "Permanent Global Bearer Note") to be issued in exchange for this Note,
which terms and conditions are hereby incorporated by reference herein mutatis
mutandis and shall be binding on the Company and the holder hereof as if fully
set forth herein. The form of the Permanent Global Bearer Note is attached
hereto.
This Note is exchangeable in whole or from time to time in part
on or after the Exchange Date (as defined below) for an interest (equal to the
principal amount of the portion of this Note being exchanged) in a single
Permanent Global Bearer Note upon the request of the Euroclear Operator, Cedel
and/or any other relevant clearing system, acting on behalf of the owner of a
beneficial interest in this Note, to the Principal Paying Agent upon delivery
to the Principal Paying Agent of a certificate substantially in the form of
Exhibit A hereto with respect to the portion of this Note to be exchanged.
Such certificate shall have been delivered to the holder hereof by the
Euroclear Operator, Cedel and/or any other relevant clearing system, as the
case may be, and shall be based on a certificate substantially in the form of
Exhibit B hereto provided to the Euroclear Operator, Cedel and/or any other
relevant clearing system, as the case may be, by those of its account holders
having an interest in the portion hereof to be exchanged. Notwithstanding the
foregoing, if this Note is subject to a tax redemption as described on the
reverse of the Permanent Global Bearer Note attached hereto, interests in this
Note may be exchanged for interests in a permanent Global Bearer Note on and
after such redemption date as if such redemption date had been the Exchange
Date, subject to receipt of the certificates described in the preceding
sentence. Upon exchange of any portion of this Note for an interest in a
Permanent Global Bearer Note, the Principal Paying Agent shall cause Schedule
A of this Note to be endorsed to reflect the reduction of its principal amount
by an amount equal to the aggregate principal amount being so exchanged.
Except as otherwise provided herein, until exchanged for a Permanent Global
Bearer Note, this Note shall in all respects be entitled to the same benefits
under the Senior Indenture as a duly authenticated and delivered Permanent
Global Bearer Note.
As used herein:
(a) the term "Exchange Date" means the date that is 40 days
after the date on which the Issuer receives the proceeds of the sale of
this Note (the "Closing Date"), provided that if this Note is held by
Morgan Stanley International, or any other manager participating in the
distribution of the tranche of Notes of which this Note forms a part, as
part of an unsold allotment or subscription more than 40 days after the
Closing Date for this Note, the Exchange Date shall be the day after the
date this Note is sold by Morgan Stanley International or such other
manager, all as determined and notified to the Trustee by Morgan Stanley
International, or if Morgan Stanley International did not participate in
the distribution of such tranche, by the Issuer.
(b) the term "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.
All other terms used in this Note which are defined in the
Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Note shall not be entitled
to any benefit under the Senior Indenture, as defined on the reverse hereof,
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By ___________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
CHEMICAL BANK,
as Trustee
By ______________________________
Authorized Officer
SCHEDULE A
SCHEDULE OF EXCHANGES
The Initial Principal Amount of this Note is ______________.
The following payments of interest and exchanges of a part of this Note for an
interest in a single Permanent Global Bearer Note have been made:
<TABLE>
<S> <C> <C> <C> <C>
Principal
Amount Remaining
Exchanged Principal
For Amount Notation Made
Date of Permanent Outstanding by or on
Exchange Payment Global Following Behalf
or Interest of Bearer Such of Principal
Principal Interest Note Exchange Paying Agent
- ----------- -------- --------- ----------- -------------
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
___________ ________ _________ ___________ ___________
</TABLE>
EXHIBIT A
[FORM OF CERTIFICATE TO BE GIVEN BY
THE EUROCLEAR OPERATOR, CEDEL
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
_________________________________________
Morgan Stanley Group Inc.
Global Medium-Term Notes, Series [D/E]
Represented by Temporary Global 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 any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States persons"), (ii) is owned by United States persons that are (a)
foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) ("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 U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the
further effect that 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.
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 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: _______________, 19__
[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]]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
as Operator of the Euroclear
System]
[CEDEL BANK S.A.]
[OTHER]
By___________________________
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF THE EUROCLEAR OPERATOR, CEDEL
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
_________________________________________
Morgan Stanley Group Inc.
Global Medium-Term Notes, Series [D/E]
Represented by Temporary Global 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 any estate or trust
the income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) are owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) United States person(s) 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 U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), 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 $___________
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 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.
Dated: _______________, 19__
[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:
EXHIBIT 4.U
[FORM OF FACE OF SECURITY]
Permanent Global Fixed Rate Senior Bearer Note
BEARER BEARER
No. PGFX
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4
OF THE UNITED KINGDOM BANKING ACT 1987.](1)
[MEDIUM TERM NOTE ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4
OF THE UNITED KINGDOM BANKING ACT 1987.](2)
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR DEFINITIVE BEARER NOTES OR IN
WHOLE OR IN PART FOR REGISTERED NOTES, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET FORTH
BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES AND
EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD, 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.
IF THIS NOTE IS DENOMINATED IN JAPANESE YEN, IT SHALL HAVE A MATURITY OF NOT
LESS THAN ONE YEAR AND IT MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY,
IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT IN JAPAN PRIOR TO THE DATE
WHICH IS 90 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS NOTE. IF (i)
INTEREST PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN AND PRINCIPAL
PAYMENTS ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER THAN JAPANESE
YEN OR (ii) PRINCIPAL PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN
AND INTEREST PAYMENTS ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER
THAN JAPANESE YEN, THIS NOTE MAY NOT BE OFFERED OR SOLD, DIRECTLY OR
INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF JAPAN PRIOR
TO THE DATE WHICH IS 180 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS
NOTE.
(1) Applies only if this Note is denominated in pounds sterling and matures
not more than one year from and including the Original Issue Date.
(2) Applies only if this Note is denominated in pounds sterling and matures
more than one year and not more than five years from and including the
Original Issue Date.
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Fixed Rate)
<TABLE>
<S> <C> <C> <C>
ORIGINAL INITIAL REDEMPTION INTEREST RATE: MATURITY
ISSUE DATE: DATE: DATE:
INTEREST INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL
ACCRUAL DATE: PERCENTAGE: DATE: REPAYMENT
DATE(S):
TOTAL AMOUNT ANNUAL REDEMPTION APPLICABILITY OF
OF OID: PERCENTAGE MODIFIED PAYMENT MINIMUM
REDUCTION: UPON ACCELERATION DENOMINA-
OR REDEMPTION: TIONS:
ORIGINAL YIELD INITIAL ACCRUAL If yes, state CEDEL NO.:
TO MATURITY: PERIOD OID: Issue Price:
EUROCLEAR NO.: SPECIFIED EXCHANGE
CURRENCY: RATE
AGENT:
COMMON CODE: OTHER
PROVISIONS:
ISIN:
</TABLE>
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to bearer, upon surrender hereof, the principal amount
specified in Schedule A hereto, on the Maturity Date specified above
(except to the extent previously redeemed or repaid) and to pay interest
thereon at the Interest Rate per annum specified above from and including
the Interest Accrual Date specified above until but excluding the date the
principal amount is paid or duly made available for payment (except as
provided below), annually in arrears on the Interest Payment Date specified
above in each year commencing on the Interest Payment Date next succeeding
the Interest Accrual Date specified above, and at maturity (or on any
redemption or repayment date); provided, however, that if the Interest
Accrual Date occurs fifteen days or less prior to the first Interest
Payment Date occurring after the Interest Accrual Date, interest payments
will commence on the second Interest Payment Date succeeding the Interest
Accrual Date.
Interest on this Note will accrue from and including the most
recent Interest Payment Date to which interest has been paid or duly provided
for, or, if no interest has been paid or duly provided for, from and including
the Interest Accrual Date, until the principal hereof has been paid or duly
made available for payment (except as provided below). The interest so
payable, and punctually paid or duly provided for, on any Interest Payment
Date will, subject to certain exceptions described herein, be paid to the
holder of this Note at the office or agency of the Principal Paying Agent
(this and certain other capitalized terms used herein are defined on the
reverse of this Note) or at the office or agency of such other paying agents
outside the United States as the Issuer may determine for that purpose (each,
a "Paying Agent," which term shall include the Principal Paying Agent).
Payment of the principal of this Note, any premium and the
interest due at maturity (or on any redemption or repayment date) will be made
upon presentation and surrender of this Note at the office or agency of the
Principal Paying Agent or at the office of any Paying Agent.
Payment of the principal of and premium, if any, and
interest on this Note will be made in the Specified Currency indicated
above, except as provided on the reverse hereof. If this Note is
denominated in U.S. dollars, any payment of the principal of, premium, if
any, and interest on this Note will be made in such coin or currency of the
United States of America as at the time of payment is legal tender for
payment of public and private debts. Such payments on this Note will be
made either by a check mailed to an address outside the United States
furnished by the payee or, at the option of the payee and subject to
applicable laws and regulations and the procedures of the Paying Agent, by
wire transfer of immediately available funds to an account maintained by
the payee with a bank located outside the United States if appropriate wire
transfer instructions have been received by the Paying Agent not less than
15 calendar days prior to the applicable payment date. Notwithstanding the
foregoing, in the event that payment in U.S. dollars of the full amount
payable on this Note at the offices of all Paying Agents would be illegal
or effectively precluded as a result of exchange controls or similar
restrictions, payment on this Note will be made by a paying agency in the
United States, if such paying agency, under applicable law and regulations,
would be able to make such payment. If this Note is denominated in a
Specified Currency other than U.S. dollars, then, except as provided on the
reverse hereof, payment of the principal of and premium, if any, and
interest on this Note will be made in such Specified Currency either by a
check drawn on a bank outside the United States or, at the option of the
payee and subject to applicable laws and regulations and the procedures of
the Paying Agent, by wire transfer of immediately available funds to an
account maintained by the payee with a bank located outside the United
States.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By:_________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
CHEMICAL BANK,
as Trustee
By: _____________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
\ This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series [D/E], having maturities more than nine months
from the date of issue (the "Notes") of the Issuer. The Notes are issuable
under a Senior Indenture, dated as of April 15, 1989, as supplemented by a
First Supplemental Indenture dated as of May 15, 1991 and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Senior Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed Chemical Bank,
London Branch, as its principal paying agent for the Notes (the "Principal
Paying Agent," which term includes any additional or successor Principal
Paying Agent appointed by the Issuer). The terms of individual Notes may
vary with respect to interest rates, interest rate formulas, issue dates,
maturity dates, or otherwise, all as provided in the Senior Indenture. To
the extent not inconsistent herewith, the terms of the Senior Indenture are
hereby incorporated by reference herein.
If this Note is denominated in pounds sterling, the Issuer
represents that it is not an authorized institution (for purposes of the
United Kingdom Banking Act 1987) and repayment of the principal of, and
payment of any interest or premium on, this Note has not been guaranteed, that
it has complied with its obligations under the listing rules of The
International Stock Exchange of the United Kingdom and the Republic of Ireland
Limited (the "Rules") and that, since the last publication in compliance with
the Rules of information about it, it, having made all reasonable inquiries,
has not become aware of any change in circumstances which could reasonably be
regarded as significantly and adversely affecting its ability to meet its
obligations in respect of the Notes as they fall due.
Unless otherwise provided on the face hereof, this Note will
not be subject to any sinking fund and, unless otherwise provided on the face
hereof in accordance with the provisions of the following two paragraphs and
except as set forth below, will not be redeemable or subject to repayment at
the option of the holder prior to maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on or after the
Initial Redemption Date specified on the face hereof on the terms set forth
on the face hereof, together with interest accrued and unpaid hereon to the
date of redemption (except as provided below). If this Note is subject to
"Annual Redemption Percentage Reduction," the Initial Redemption Percentage
indicated on the face hereof will be reduced on each anniversary of the
Initial Redemption Date by the Annual Redemption Percentage Reduction
specified on the face hereof until the redemption price of this Note is
100% of the principal amount hereof, together with interest accrued and
unpaid hereon to the date of redemption (except as provided below). Notice
of redemption shall be mailed to the holders of the Notes designated for
redemption who have filed their names and addresses with the Principal
Paying Agent, not less than 30 nor more than 60 days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Senior Indenture. Notice of redemption to all other holders of Notes shall
be published in the manner set forth in "Notices" as defined below, once in
each of the three successive calendar weeks, the first publication to be
not less than 30 nor more than 60 days prior to the date set for
redemption. In the event of redemption of this Note in part only, the
Principal Paying Agent shall cause Schedule A of this Note to be endorsed
to reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of this Note so redeemed, whereupon the
principal amount hereof shall be reduced for all purposes by the amount so
redeemed and noted.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional Repayment
Date or Dates specified on the face hereof on the terms set forth herein. On
any Optional Repayment Date, this Note will be repayable in whole or in part
in increments of $1,000 or, if this Note is denominated in a Specified
Currency other than U.S. dollars, in increments of 1,000 units of such
Specified Currency (provided that any remaining principal amount hereof shall
not be less than the minimum authorized denomination hereof) at the option of
the holder hereof at a price equal to 100% of the principal amount to be
repaid, together with interest accrued and unpaid hereon to the date of
repayment (except as provided below). For this Note to be repaid at the
option of the holder hereof, the Principal Paying Agent must receive at its
office in London, at least 15 but not more than 30 days prior to the date of
repayment, (i) this Note with the form entitled "Option to Elect Repayment"
below duly completed or (ii) a telegram, telex, facsimile transmission or a
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or a trust
company in the United States, Western Europe or Japan setting forth the name
of the holder of this Note, the principal amount hereof, the certificate
number of this Note or a description of this Note's tenor and terms, the
principal amount hereof to be repaid, a statement that the option to elect
repayment is being exercised thereby and a guarantee that this Note, together
with the form entitled "Option to Elect Repayment" duly completed, will be
received by the Principal Paying Agent not later than the fifth Business Day
after the date of such telegram, telex, facsimile transmission or letter;
provided, that such telegram, telex, facsimile transmission or letter shall
only be effective if this Note and form duly completed are received by the
Principal Paying Agent by such fifth Business Day. Exercise of such repayment
option by the holder hereof shall be irrevocable. In the event of repayment
of this Note in part only, the Principal Paying Agent shall cause Schedule A
of this Note to be endorsed to reflect the reduction of its principal amount
by an amount equal to the aggregate principal amount of this Note so repaid,
whereupon the principal amount hereof shall be reduced for all purposes by the
amount so repaid and noted.
Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Unless otherwise specified
on the face hereof, interest payments for this Note will be computed and paid
on the basis of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity
Date (or any redemption or repayment date) does not fall on a Business Day,
payment of interest, premium, if any, or principal otherwise payable on such
date need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date or on the Maturity Date (or any redemption or repayment date), and no
interest on such payment shall accrue for the period from and after the
Interest Payment Date or the Maturity Date (or any redemption or repayment
date) to such next succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note is issued in permanent global bearer form without
interest coupons attached (a "Global Bearer Note"). The beneficial owner of
all or a portion of this Note may exchange its interest in this Note upon not
less than 30 days' written notice to the Principal Paying Agent, in whole, for
Notes in bearer form with interest coupons, if any, attached (the "Definitive
Bearer Notes," and, together with the Global Bearer Notes, the "Bearer Notes")
or, in whole or from time to time in part, for Notes in fully registered form
without coupons (the "Registered Notes"), in each case, in the minimum
denominations set forth on the face hereof or any amount in excess thereof
which is an integral multiple of 1,000 units of the Specified Currency set
forth on the face hereof, at the office of the Principal Paying Agent, or, in
the case of Registered Notes, at the office of the transfer agent for the
Registered Notes in London, which transfer agent will initially be Chemical
Bank, London Branch, upon compliance with any procedures set forth in, or
established pursuant to, the Senior Indenture; provided, however, that the
Issuer shall not be required (i) to exchange this Note for a period of fifteen
calendar days preceding the first publication of a notice of redemption of all
or any portion hereof or (ii) to exchange any portion of this Note selected
for redemption or surrendered for optional repayment, except that all or a
portion of this Note may be exchanged for a Registered Note of like tenor,
provided that such Registered Note shall be simultaneously surrendered for
redemption or repayment, as the case may be; and provided, further, that if a
Registered Note is issued in exchange for any portion of this Note after the
close of business at the office of the Principal Paying Agent on any record
date (whether or not a Business Day) for the payment of interest on such
Registered Note and before the opening of business at such office on the
relevant Interest Payment Date, any interest will not be payable on such
Interest Payment Date in respect of such Registered Note, but will be payable
on such Interest Payment Date only to the holder of this Note. Upon exchange
of this Note in whole for a Definitive Bearer Note or Definitive Bearer Notes,
or in whole or in part for a Registered Note or Registered Notes, the
Principal Paying Agent shall cause Schedule A of this Note to be endorsed to
reflect the reduction of the principal amount hereof by an amount equal to the
aggregate principal amount of such Definitive Bearer Note or Definitive Bearer
Notes, or such Registered Note or Registered Notes, whereupon the principal
amount hereof shall be reduced for all purposes by the amount so exchanged and
noted. All such exchanges of Notes will be free of service charge, but the
Issuer may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. The date of any Note
delivered upon any exchange of this Note shall be such that no gain or loss of
interest results from such exchange.
All (and not less than all) interests in this Note will be
exchanged for Definitive Bearer Notes in accordance with the procedures set
forth in the following two sentences as soon as practicable after the first
beneficial owner of an interest in this Note exchanges its interest for a
Definitive Bearer Note, provided that a common depository located outside
the United States (the "common depository") holding this Note for Morgan
Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System (the "Euroclear Operator"), Cedel Bank, societe anonyme
("Cedel") and/or any other relevant clearing system (including Societe
Interprofessionelle pour la Compensation des Valeurs Mobilieres
("SICOVAM")) instructs the Principal Paying Agent regarding the aggregate
principal amount of Definitive Bearer Notes and the denominations of such
Definitive Bearer Notes that must be authenticated and delivered to each of
the Euroclear Operator and Cedel in exchange for this Note. Thereafter,
the Principal Paying Agent, acting solely in reliance on such instructions,
shall, upon surrender to it of this Note and subject to the conditions in
the preceding paragraph, authenticate and deliver Definitive Bearer Notes
in exchange for this Note in accordance with such instructions and shall
cause Schedule A of this Note to be endorsed to reflect the reduction of
its principal amount by an amount equal to the aggregate principal amount
of this Note. Nothing in this paragraph shall prevent the further exchange
of Definitive Bearer Notes into Registered Notes.
This Note may be transferred by delivery; provided, however,
that this Note may be transferred only to a common depositary outside the
United States for the Euroclear Operator, Cedel and/or any other relevant
clearing system or to a nominee of such a depositary.
In case any Note shall at any time become mutilated, defaced or
be destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Note so destroyed or lost or stolen, but, in the case of any destroyed or lost
or stolen Note, only upon receipt of evidence satisfactory to the Trustee and
the Issuer that such Note was destroyed or lost or stolen and, if required,
upon receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt securities
issued under the Senior Indenture, including the series of Senior Global
Medium-Term Notes of which this Note forms a part, or due to the default in
the performance or breach of any other covenant or warranty of the Issuer
applicable to the debt securities of such series but not applicable to all
outstanding debt securities issued under the Senior Indenture shall have
occurred and be continuing, either the Trustee or the holders of not less than
25% in principal amount of the debt securities of each affected series (voting
as a single class) may then declare the principal of all debt securities of
all such series and interest accrued thereon to be due and payable immediately
and (b) if an Event of Default due to a default in the performance of any
other of the covenants or agreements in the Senior Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due to
certain events of bankruptcy, insolvency and reorganization of the Issuer,
shall have occurred and be continuing, either the Trustee or the holders of
not less than 25% in principal amount of all debt securities issued under the
Senior Indenture then outstanding (treated as one class) may declare the
principal of all such debt securities and interest accrued thereon to be due
and payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt securities)
by the holders of a majority in principal amount of the debt securities of all
affected series then outstanding.
If the face hereof indicates that this Note is subject to
"Modified Payment upon Acceleration or Redemption," then (i) if the
principal hereof is declared to be due and payable as described in the
preceding paragraph, the amount of principal due and payable with respect
to this Note shall be limited to the aggregate principal amount hereof
multiplied by the sum of the Issue Price specified on the face hereof
(expressed as a percentage of the aggregate principal amount) plus the
original issue discount amortized from the Interest Accrual Date to the
date of declaration, which amortization shall be calculated using the
"interest method" (computed in accordance with generally accepted
accounting principles in effect on the date of declaration), (ii) for the
purpose of any vote of securityholders taken pursuant to the Senior
Indenture prior to the acceleration of payment of this Note, the principal
amount hereof shall equal the amount that would be due and payable hereon,
calculated as set forth in clause (i) above, if this Note were declared to
be due and payable on the date of any such vote and (iii) for the purpose
of any vote of securityholders taken pursuant to the Senior Indenture
following the acceleration of payment of this Note, the principal amount
hereof shall equal the amount of principal due and payable with respect to
this Note, calculated as set forth in clause (i) above.
This Note may be redeemed, as a whole, at the option of the
Issuer at any time prior to maturity, upon the giving of a notice of
redemption as described below, at a redemption price equal to 100% of the
principal amount hereof, together with accrued interest to the date fixed for
redemption (except that if this Note is subject to "Modified Payment upon
Acceleration or Redemption," such redemption price would be limited to the
aggregate principal amount hereof multiplied by the sum of the Issue Price
specified on the face hereof (expressed as a percentage of the aggregate
principal amount) plus the original issue discount amortized from the Interest
Accrual Date to the date of redemption, which amortization shall be calculated
using the "interest method" (computed in accordance with generally accepted
accounting principles in effect on the date of redemption) (the "Amortized
Amount")), if the Issuer determines that, as a result of any change in or
amendment to the laws (or any regulations or rulings promulgated thereunder)
of the United States or of any political subdivision or taxing authority
thereof or therein affecting taxation, or any change in official position
regarding the application or interpretation of such laws, regulations or
rulings, which change or amendment becomes effective on or after the Original
Issue Date hereof, the Issuer has or will become obligated to pay Additional
Amounts (as defined below) with respect to this Note as described below.
Prior to the giving of any Notice of redemption pursuant to this paragraph,
the Issuer shall deliver to the Trustee (i) a certificate stating that the
Issuer is entitled to effect such redemption and setting forth a statement of
facts showing that the conditions precedent to the right of the Issuer to so
redeem have occurred, and (ii) an opinion of independent counsel satisfactory
to the Trustee to such effect based on such statement of facts; provided that
no such notice of redemption shall be given earlier than 60 days prior to the
earliest date on which the Issuer would be obligated to pay such Additional
Amounts if a payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more
than 60 days prior to the date fixed for redemption, which date and the
applicable redemption price will be specified in the Notice.
If the Issuer shall determine that any payment made outside
the United States by the Issuer or any Paying Agent of principal, premium
or interest due in respect of this Note would, under any present or future
laws or regulations of the United States, be subject to any certification,
identification or other information reporting requirement of any kind, the
effect of which is the disclosure to the Issuer, any Paying Agent or any
governmental authority of the nationality, residence or identity of a
beneficial owner of this Note who is a United States Alien (as defined
below) (other than such a requirement (a) that would not be applicable to
a payment made by the Issuer or any Paying Agent (i) directly to the
beneficial owner or (ii) to a custodian, nominee or other agent of the
beneficial owner, or (b) that can be satisfied by such custodian, nominee
or other agent certifying to the effect that such beneficial owner is a
United States Alien; provided that in each case referred to in clauses
(a)(ii) and (b) payment by such custodian, nominee or agent to such
beneficial owner is not otherwise subject to any such requirement), the
Issuer shall redeem this Note, as a whole, at a redemption price equal to
100% of the principal amount thereof (except that if this Note is subject
to "Modified Payment upon Acceleration or Redemption," such redemption
price would be limited to the aggregate principal amount hereof multiplied
by the sum of the Issue Price specified on the face hereof (expressed as a
percentage of the aggregate principal amount) plus the Amortized Amount),
together with accrued interest to the date fixed for redemption, or, at the
election of the Issuer if the conditions of the next succeeding paragraph
are satisfied, pay the additional amounts specified in such paragraph. The
Issuer shall make such determination and election as soon as practicable,
shall promptly notify the Trustee thereof and shall publish prompt notice
thereof (the "Determination Notice") stating the effective date of such
certification, identification or other information reporting requirements,
whether the Issuer will redeem this Note or has elected to pay the
additional amounts specified in the next succeeding paragraph, and (if
applicable) the last date by which the redemption of this Note must take
place, as provided in the next succeeding sentence. If the Issuer redeems
this Note, such redemption shall take place on such date, not later than
one year after the publication of the Determination Notice, as the Issuer
shall elect by notice to the Trustee at least 60 days prior to the date
fixed for redemption. Notice of such redemption of this Note will be given
to the holder of this Note not more than 60 nor less than 30 days prior to
the date fixed for redemption. Such redemption notice shall include a
statement as to the last date by which this Note to be redeemed may be
exchanged for Registered Notes. Notwithstanding the foregoing, the Issuer
shall not so redeem this Note if the Issuer shall subsequently determine,
not less than 30 days prior to the date fixed for redemption, that
subsequent payments would not be subject to any such requirement, in which
case the Issuer shall publish prompt notice of such determination and any
earlier redemption notice shall be revoked and of no further effect. The
right of the holder of this Note to exchange this Note for Registered Notes
will terminate at the close of business of the Principal Paying Agent on
the fifteenth day prior to the date fixed for redemption, and no further
exchanges of this Note for Registered Notes shall be permitted.
If and so long as the certification, identification or other
information reporting requirements referred to in the preceding paragraph
would be fully satisfied by payment of a backup withholding tax or similar
charge, the Issuer may elect by notice to the Trustee to pay as additional
amounts such amounts as may be necessary so that every net payment made
outside the United States following the effective date of such requirements by
the Issuer or any Paying Agent of principal, premium or interest due in
respect of this Note of which the beneficial owner is a United States Alien
(but without any requirement that the nationality, residence or identity of
such beneficial owner be disclosed to the Issuer, any Paying Agent or any
governmental authority, with respect to the payment of such additional
amounts), after deduction or withholding for or on account of such backup
withholding tax or similar charge (other than a backup withholding tax or
similar charge that (i) would not be applicable in the circumstances referred
to in the second parenthetical clause of the first sentence of the preceding
paragraph, or (ii) is imposed as a result of presentation of this Note for
payment more than 15 days after the date on which such payment becomes due and
payable or on which payment thereof is duly provided for, whichever occurs
later), will not be less than the amount provided for in this Note to be then
due and payable. In the event the Issuer elects to pay any additional amounts
pursuant to this paragraph, the Issuer shall have the right to redeem this
Note as a whole at any time pursuant to the applicable provisions of the
immediately preceding paragraph and the redemption price of this Note will not
be reduced for applicable withholding taxes. If the Issuer elects to pay
additional amounts pursuant to this paragraph and the condition specified in
the first sentence of this paragraph should no longer be satisfied, then the
Issuer will redeem this Note as a whole, pursuant to the applicable provisions
of the immediately preceding paragraph.
The Issuer will, subject to certain exceptions and limitations
set forth below, pay such additional amounts (the "Additional Amounts") to the
holder of this Note who is a United States Alien as may be necessary in order
that every net payment of the principal of and interest on this Note and any
other amounts payable on this Note, after withholding for or on account of any
present or future tax, assessment or governmental charge imposed upon or as a
result of such payment by the United States (or any political subdivision or
taxing authority thereof or therein), will not be less than the amount
provided for in this Note to be then due and payable. The Issuer will not,
however, be required to make any payment of Additional Amounts to any such
holder for or on account of:
(a) any such tax, assessment or other governmental charge
that would not have been so imposed but for (i) the existence of
any present or former connection between such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of such
holder, if such holder is an estate, a trust, a partnership or a
corporation) and the United States, including, without limitation,
such holder (or such fiduciary, settlor, beneficiary, member or
shareholder) being or having been a citizen or resident thereof or
being or having been engaged in a trade or business or present
therein or having, or having had, a permanent establishment
therein or (ii) the presentation by the holder of this Note for
payment on a date more than 15 days after the date on which such
payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as a personal
holding company or foreign personal holding company or controlled
foreign corporation or passive foreign investment company with
respect to the United States or as a corporation which accumulates
earnings to avoid United States federal income tax or as a private
foundation or other tax-exempt organization;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payments on or in respect
of this Note;
(e) any tax, assessment or other governmental charge required
to be withheld by any Paying Agent from any payment of principal of,
or interest on, this Note, if such payment can be made without such
withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that
would not have been imposed but for the failure to comply with
certification, information or other reporting requirements concerning
the nationality, residence or identity of the holder or beneficial
owner of this Note, if such compliance is required by statute or by
regulation of the United States or of any political subdivision or
taxing authority thereof or therein as a precondition to relief or
exemption from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power
of all classes of stock entitled to vote of the Issuer or as a direct
or indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or
(g);
nor shall Additional Amounts be paid with respect to any payment on this Note
to a United States Alien who is a fiduciary or partnership or other than the
sole beneficial owner of such payment to the extent such payment would be
required by the laws of the United States (or any political subdivision
thereof) to be included in the income, for tax purposes, of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to the Additional Amounts
had such beneficiary, settlor, member or beneficial owner been the holder of
this Note.
The Senior Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected;
or (b) reduce the aforesaid percentage in principal amount of debt securities
the consent of the holders of which is required for any such supplemental
indenture, without the consent of the holders of each debt security so
affected.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency other than
U.S. dollars and such Specified Currency is not available to the Issuer for
making payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking
community, then the Issuer will be entitled to satisfy its obligations to the
holder of this Note by making such payments in U.S. dollars on the basis of
the Market Exchange Rate (as defined below) on the date of such payment or, if
the Market Exchange Rate is not available on such date, as of the most recent
practicable date provided, however, that if such Specified Currency is
replaced by a single European currency (expected to be named the Euro), the
payment of principal of, premium, if any, or interest on any Note denominated
in such currency shall be effected in the new single European currency in
conformity with legally applicable measures taken pursuant to, or by virtue
of, the treaty establishing the European Community (the "EC"), as amended by
the treaty on European Union (as so amended, the "Treaty"). Any payment made
under such circumstances in U.S. dollars (or, if applicable, such new single
European currency) where the required payment is in a Specified Currency other
than U.S. dollars will not constitute an Event of Default.
If the principal of, premium, if any, or interest on, this Note
is payable in ECUs, then with respect to each due date for any such payment on
or after the first business day in Brussels on which the ECU ceases to be used
as the unit of account of the European Community ("EC") and has not become a
currency in its own right, replacing all or some of the currencies of the
member states of the EC, the Issuer shall choose a substitute currency (the
"Chosen Currency") which may be any currency which was, on the last day on
which the ECU was used as the unit of account of the EC, a component currency
of the ECU basket or U.S. dollars, in which all such payments due on or after
that date with respect to this Note shall be made. Notice of the Chosen
Currency so selected shall, where practicable, be published in the manner
described in "Notices" below. The amount of each payment in such Chosen
Currency shall be computed on the basis of the equivalent of the ECU in that
currency, determined as described below, as of the fourth business day in
Brussels prior to the date on which such payment is due.
If the principal of, premium, if any, or interest on, this Note
is payable in ECUs, then on the first business day in Brussels on which the
ECU ceases to be used as the unit of account of the EC and has not become a
currency in its own right, replacing all or some of the currencies of the
member states of the EC, the Issuer shall choose a Chosen Currency in which
all such payments with respect to this Note having a due date prior thereto
but not yet presented for payment are to be made. The amount of each payment
in such Chosen Currency shall be computed on the basis of the equivalent of
the ECU in that currency, determined as described below, as of such first
business day.
The equivalent of the ECU in the relevant Chosen Currency as of
any date (the "Day of Valuation") shall be determined on the following basis
by, or on behalf of, an Exchange Rate Agent appointed by the Issuer. The
amounts and components composing the ECU for this purpose (the "Components")
shall be the amounts and components composing the ECU as of the last date on
which the ECU was used as the unit of account of the EC. The equivalent of
the ECU in the Chosen Currency shall be calculated by, first, aggregating the
U.S. dollar equivalents of the Components; and then, in the case of a Chosen
Currency other than U.S. dollars, using the rate used for determining the U.S.
dollar equivalent of the Components in the Chosen Currency as set forth below,
calculating the equivalent in the Chosen Currency of such aggregate amount in
U.S. dollars.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Issuer, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf; provided
that such quotations were prevailing in the country of issue not more than two
Business Days before such Day of Valuation. If such most recent quotations
were so prevailing in the country of issue more than two Business Days in the
country of issue before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of cross
rates derived from the middle spot delivery quotations for such component
currency and for the U.S. dollar prevailing at 2:30 P.M., Brussels time, on
such Day of Valuation, as obtained by, or on behalf of, the Exchange Rate
Agent from one or more major banks, as selected by the Issuer, in a country
other than the country of issue of such component currency. Notwithstanding
the foregoing, the Exchange Rate Agent shall determine the U.S. dollar
equivalent of such Component on the basis of such cross rates if the Issuer or
such agent judges that the equivalent so calculated is more representative
than the U.S. dollar equivalent calculated as provided in the first sentence
of this paragraph. Unless otherwise specified by the Issuer, if there is more
than one market for dealing in any component currency by reason of foreign
exchange regulations or for any other reason, the market to be referred to in
respect of such currency shall be that upon which a non-resident issuer of
notes denominated in such currency would purchase such currency in order to
make payments in respect of such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of this Note.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided. If this
Note is listed on The International Stock Exchange of the United Kingdom and
the Republic of Ireland Limited and such Exchange so requires, the Issuer
shall maintain a Paying Agent in London. The Issuer may designate other
agencies for the payment of said principal, premium and interest at such place
or places outside the United States (subject to applicable laws and
regulations) as the Issuer may decide. So long as there shall be such an
agency, the Issuer shall keep the Trustee advised of the names and locations
of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes that
such moneys shall be repaid to the Issuer and any person claiming such
moneys shall thereafter look only to the Issuer for payment thereof and
(ii) such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease, without, however, limiting in any way any obligation
that the Issuer may have to pay the principal of or interest or premium, if
any, on this Note as the same shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the holder of this
Note.
The Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the holder of this Note as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Senior Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in The
City of New York or in the City of London and (i) if this Note is denominated
in a Specified Currency other than U.S. dollars, Australian dollars or ECUs,
in the principal financial center of the country of the Specified Currency,
(ii) if this Note is denominated in Australian dollars, in Sydney and (iii) if
this Note is denominated in ECUs, that is not a non-ECU clearing day, as
determined by the ECU Banking Association in Paris;
(b) the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for wire transfers of the Specified
Currency indicated on the face hereof as certified for customs purposes by the
Federal Reserve Bank of New York;
(c) the term "Notices" refers to notices to the holders of
the Notes to be given by publication in an authorized newspaper in the
English language and of general circulation in the Borough of Manhattan,
The City of New York, and London or, if publication in London is not
practical, in an English language newspaper with general circulation in
Western Europe. Such publication is expected to be made in the Wall Street
Journal and the Financial Times. Such Notices will be deemed to have been
given on the date of such publication, or if published in such newspapers
on different dates, on the date of the first such publication;
(d) the term "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction; and
(e) the term "United States Alien" means any person who, for
United States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership, one or more of the members of which
is a foreign corporation, a non-resident alien individual or a non-resident
alien fiduciary of a foreign estate or trust.
All other terms used in this Note which are defined in the
Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and
instructs the Issuer to repay the within Note (or portion thereof specified
below) pursuant to its terms at a price equal to the principal amount thereof,
together with interest to the Optional Repayment Date, to the undersigned at
___________________________________________________________
___________________________________________________________
___________________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid: __________________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the
Notes to be issued to the holder for the portion of the within Note not being
repaid (in the absence of any such specification, one such Note will be issued
for the portion not being repaid): ____________________________.
Dated:______________________ ___________________________
SCHEDULE A
EXCHANGES FOR DEFINITIVE BEARER NOTES, DEFINITIVE
REGISTERED NOTES AND FROM TEMPORARY GLOBAL BEARER NOTE,
REDEMPTIONS AND REPAYMENTS
The initial principal amount of this Note is ______________.
The following (A) exchanges of (i) portions of this Note for Definitive Bearer
Notes or Registered Notes and (ii) portions of a Temporary Global Bearer Note
for an interest in this Note or (B) (x) redemptions at the option of the
Issuer or (y) repayments at the option of the holder have been made:
<TABLE>
<S> <C> <C> <C>
Principal Amount Principal Amount Principal Amount
Date of Exchange, Exchanged From Exchanged For Exchanged For
Redemption, Temporary Global Definitive Bearer Definitive
or Repayment Notes Notes Registered Notes
- -------------------- -------------------- -------------------- --------------------
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
</TABLE>
<TABLE>
<C> <C> <C> <C>
Remaining Principal
Principal Amount Principal Amount Amount Outstanding
Redeemed at the Repaid at the Following Such Notation Made by
option of option of Exchange, Redemption or on behalf of
the Issuer the Holder or Repayment Paying Agent
- -------------------- -------------------- -------------------- --------------------
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
____________________ ____________________ ____________________ ____________________
</TABLE>
EXHIBIT 4.V
[FORM OF FACE OF SECURITY]
Euro Fixed Rate Senior Bearer Note
BEARER BEARER
No. EFXRB [PRINCIPAL AMOUNT]
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4
OF THE UNITED KINGDOM BANKING ACT 1987.](*)
[MEDIUM TERM NOTE ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4
OF THE UNITED KINGDOM BANKING ACT 1987.](**)
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET FORTH
BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES AND
EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD, 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.
- ----------------------
(*) Applies only if this Note is denominated in pounds sterling and matures
not more than one year from and including the Original Issue Date.
(**) Applies only if this Note is denominated in pounds sterling and matures
more than one year and not more than five years from and including the
Original Issue Date.
IF THIS NOTE IS DENOMINATED IN JAPANESE YEN, IT SHALL HAVE A MATURITY OF NOT
LESS THAN ONE YEAR AND IT MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY,
IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT IN JAPAN PRIOR TO THE DATE
WHICH IS 90 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS NOTE. IF (i)
INTEREST PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN AND PRINCIPAL
PAYMENTS ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER THAN JAPANESE
YEN OR (ii) PRINCIPAL PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN
AND INTEREST PAYMENTS ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER
THAN JAPANESE YEN, THIS NOTE MAY NOT BE OFFERED OR SOLD, DIRECTLY OR
INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF JAPAN PRIOR
TO THE DATE WHICH IS 180 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS
NOTE.
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E] (Fixed Rate)
ORIGINAL INITIAL REDEMPTION INTEREST RATE: MATURITY
ISSUE DATE: DATE: DATE:
INTEREST INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL
ACCRUAL DATE: PERCENTAGE: DATE: REPAYMENT
DATE(S):
TOTAL AMOUNT ANNUAL REDEMPTION APPLICABILITY OF
OF OID: PERCENTAGE MODIFIED PAYMENT MINIMUM
REDUCTION: UPON ACCELERATION DENOMINA-
OR REDEMPTION: TIONS:
ORIGINAL YIELD INITIAL ACCRUAL If yes, state SPECIFIED
TO MATURITY: PERIOD OID: Issue Price: CURRENCY:
COMMON CODE: EXCHANGE RATE OTHER
AGENT: PROVISIONS:
ISIN:
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to bearer, upon surrender hereof, the principal sum of
, on the Maturity Date specified above (except to the extent previously
redeemed or repaid) and to pay interest thereon to the bearer of the coupons,
if any, appertaining hereto (the "Coupons") as they severally mature, at the
Interest Rate per annum specified above from and including the Interest
Accrual Date specified above until but excluding the date the principal hereof
is paid or duly made available for payment (except as provided below),
annually in arrears on the Interest Payment Date specified above in each year
commencing on the Interest Payment Date next succeeding the Interest Accrual
Date specified above, and at maturity (or on any redemption or repayment
date); provided, however, that if the Interest Accrual Date occurs fifteen
days or less prior to the first Interest Payment Date occurring after the
Interest Accrual Date, interest payments will commence on the second Interest
Payment Date succeeding the Interest Accrual Date.
Interest on this Note will accrue from and including the most
recent Interest Payment Date to which interest has been paid or duly provided
for, or, if no interest has been paid or duly provided for, from and including
the Interest Accrual Date, until but excluding the date the principal hereof
has been paid or duly made available for payment (except as provided below).
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, subject to certain exceptions described herein, be
paid to the holder of the appropriate Coupon upon presentment and surrender at
the office of a Paying Agent referred to in the next succeeding paragraph.
Payment of the principal of this Note, any premium and the
interest due at maturity (or on any redemption or repayment date) will be made
upon presentation and surrender of this Note and any Coupons (and, in the case
of redemption or repayment, any Coupon yet unmatured) at the office or agency
of the Principal Paying Agent, as defined on the reverse hereof, or at the
office or agency of such paying agents listed on the reverse of each Coupon
and at the office or agency of such other paying agents outside the United
States (this and certain other capitalized terms used herein are defined on
the reverse of this Note) as the Issuer may determine for that purpose (each,
a "Paying Agent," which term shall include the Principal Paying Agent).
Payment of the principal of and premium, if any, and interest
on this Note will be made in the Specified Currency indicated above, except as
provided on the reverse hereof. If this Note is denominated in U.S. dollars,
any payment of the principal of, premium, if any, and interest on this Note
will be made in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
Such payments on this Note will be made either by a check mailed to an address
outside the United States furnished by the payee or, at the option of the
payee and subject to applicable laws and regulations and the procedures of the
Paying Agent, by wire transfer of immediately available funds to an account
maintained by the payee with a bank located outside the United States if
appropriate wire transfer instructions have been received by the Paying Agent
not less than 15 calendar days prior to the applicable payment date.
Notwithstanding the foregoing, in the event that payment in U.S. dollars of
the full amount payable on this Note at the offices of all Paying Agents would
be illegal or effectively precluded as a result of exchange controls or
similar restrictions, payment on this Note will be made by a paying agency in
the Borough of Manhattan, The City of New York, if such paying agency, under
applicable law and regulations, would be able to make such payment. If this
Note is denominated in a Specified Currency other than U.S. dollars, then,
except as provided on the reverse hereof, payment of the principal of and
premium, if any, and interest on this Note will be made in such Specified
Currency either by a check drawn on a bank outside the United States or, at
the option of the payee and subject to applicable laws and regulations and the
procedures of the Paying Agent, by wire transfer of immediately available
funds to an account maintained by the payee with a bank located outside the
United States.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By _____________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Senior Indenture.
CHEMICAL BANK,
as Trustee
By _____________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series [D/E], having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable under a
Senior Indenture, dated as of April 15, 1989, as supplemented by a First
Supplemental Indenture dated as of May 15, 1991 and a Second Supplemental
Indenture dated as of April 15, 1996 (as so supplemented, the "Senior
Indenture"), between the Issuer and Chemical Bank, as Trustee (the "Trustee,"
which term includes any successor trustee under the Senior Indenture), to
which Senior Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities of the Issuer, the Trustee and holders of the Notes or
Coupons and the terms upon which the Notes are, and are to be, authenticated
and delivered. The Issuer has appointed Chemical Bank, London Branch, as its
principal paying agent for the Notes and the Coupons (the "Principal Paying
Agent," which term includes any additional or successor Principal Paying Agent
appointed by the Issuer). The terms of individual Notes may vary with respect
to interest rates, interest rate formulas, issue dates, maturity dates, or
otherwise, all as provided in the Senior Indenture. To the extent not
inconsistent herewith, the terms of the Senior Indenture are hereby
incorporated by reference herein.
If this Note is denominated in pounds sterling, the Issuer
represents that it is not an authorized institution (for purposes of the
United Kingdom Banking Act 1987) and repayment of the principal of, and
payment of any interest or premium on, this Note has not been guaranteed, that
it has complied with its obligations under the listing rules of The
International Stock Exchange of the United Kingdom and the Republic of Ireland
Limited (the "Rules") and that, since the last publication in compliance with
the Rules of information about it, it, having made all reasonable inquiries,
has not become aware of any change in circumstances which could reasonably be
regarded as significantly and adversely affecting its ability to meet its
obligations in respect of the Notes as they fall due.
Unless otherwise provided on the face hereof, this Note will
not be subject to any sinking fund and, unless otherwise provided on the face
hereof in accordance with the provisions of the following two paragraphs and
except as set forth below, will not be redeemable or subject to repayment at
the option of the holder prior to maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on or after the
Initial Redemption Date specified on the face hereof on the terms set forth on
the face hereof, together with interest accrued and unpaid hereon to the date
of redemption (except as provided below). If this Note is subject to "Annual
Redemption Percentage Reduction," the Initial Redemption Percentage indicated
on the face hereof will be reduced on each anniversary of the Initial
Redemption Date by the Annual Redemption Percentage Reduction specified on the
face hereof until the redemption price of this Note is 100% of the principal
amount hereof, together with interest accrued and unpaid hereon to the date
of redemption (except as provided below). Notice of redemption shall be
mailed to the holders of the Notes designated for redemption who have filed
their names and addresses with the Principal Paying Agent, not less than 30
nor more than 60 days prior to the date fixed for redemption, subject to all
the conditions and provisions of the Senior Indenture. Notice of redemption
to all other holders of Notes shall be published in the manner set forth in
"Notices" as defined below, once in each of the three successive calendar
weeks, the first publication to be not less than 30 nor more than 60 days
prior to the date set for redemption. In the event of redemption of this Note
in part only, a new Note or Notes for the amount of the unredeemed portion
hereof shall be issued upon the cancellation hereof. If redeemed prior to
maturity, this Note must be presented for payment together with all unmatured
Coupons, if any, appertaining hereto, failing which the amount of any missing
unmatured Coupon will be deducted from the sum due for payment; provided,
however, that such deduction may be waived by the Issuer and the Principal
Paying Agent if there is furnished to each of them such security or indemnity
as they may require.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional Repayment
Date or Dates specified on the face hereof on the terms set forth herein. On
any Optional Repayment Date, this Note will be repayable in whole or in part
in increments of $1,000 or, if this Note is denominated in a Specified
Currency other than U.S. dollars, in increments of 1,000 units of such
Specified Currency (provided that any remaining principal amount hereof shall
not be less than the minimum authorized denomination hereof) at the option of
the holder hereof at a price equal to 100% of the principal amount to be
repaid, together with interest accrued and unpaid hereon to the date of
repayment (except as provided below). For this Note to be repaid at the
option of the holder hereof, the Principal Paying Agent must receive at its
office in London, at least 15 but not more than 30 days prior to the date of
repayment, (i) this Note with the form entitled "Option to Elect Repayment"
below duly completed, together with any unmatured Coupons appertaining hereto,
or (ii) a telegram, telex, facsimile transmission or a letter from a member of
a national securities exchange or the National Association of Securities
Dealers, Inc. or a commercial bank or a trust company in the United States,
Western Europe or Japan setting forth the name of the holder of this Note, the
principal amount hereof, the certificate number of this Note or a description
of this Note's tenor and terms, the principal amount hereof to be repaid, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that this Note, together with the form entitled "Option to Elect
Repayment" duly completed, together with any unmatured Coupons appertaining
hereto, will be received by the Principal Paying Agent not later than the fifth
Business Day after the date of such telegram, telex, facsimile transmission or
letter; provided, that such telegram, telex, facsimile transmission or letter
shall only be effective if this Note, together with any unmatured Coupons
appertaining hereto, and form duly completed are received by the Principal
Paying Agent by such fifth Business Day. Exercise of such repayment option by
the holder hereof shall be irrevocable. In the event of repayment of this
Note in part only, a new Note or Notes for the amount of the unpaid portion
hereof shall be issued upon the cancellation hereof.
Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Interest payments for this
Note will be computed and paid on the basis of a 360-day year of twelve 30-day
months unless otherwise indicated on the face hereof.
In the case where the Interest Payment Date or the Maturity
Date (or any redemption or repayment date) does not fall on a Business Day,
payment of interest, premium, if any, or principal otherwise payable on such
date need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date or on the Maturity Date (or any redemption or repayment date), and no
interest on such payment shall accrue for the period from and after the
Interest Payment Date or the Maturity Date (or any redemption or repayment
date) to such next succeeding Business Day.
This Note and the Coupons and all the obligations of the Issuer
hereunder are direct, unsecured obligations of the Issuer and rank without
preference or priority among themselves and pari passu with all other existing
and future unsecured and unsubordinated indebtedness of the Issuer, subject to
certain statutory exceptions in the event of liquidation upon insolvency.
This Note is issued in definitive bearer form with Coupons
attached (a "Definitive Bearer Note") and is issuable only in the minimum
denominations set forth on the face hereof or any amount in excess thereof
which is an integral multiple of 1,000 units of the Specified Currency set
forth on the face hereof. Notes also are issuable in global bearer form
without Coupons (the "Global Bearer Notes" and, together with the Definitive
Bearer Notes, the "Bearer Notes") or in definitive registered form (the
"Registered Notes"), in each case, only in the minimum denominations set forth
on the face thereof or any amount in excess thereof which is an integral
multiple of 1,000 units of the Specified Currency set forth on the face
thereof.
This Note and the Coupons may be transferred by delivery. At
the option of the holder of this Note, and subject to the terms of the Senior
Indenture, this Note (with all unmatured Coupons, and all matured Coupons, if
any, in default) will be exchanged for a Registered Note of any authorized
denomination of like tenor and in an equal aggregate principal amount, in
accordance with the provisions of the Senior Indenture, at the office of the
Trustee in The City of New York (which initially has been appointed registrar
and transfer agent for the Notes) or at the office of the Principal Paying
Agent in London (which initially has been appointed transfer agent for the
Notes), or at the office of any transfer agent designated by the Issuer for
such purpose. If this Note is surrendered in exchange for a Registered Note
after the close of business at any such office on any record date (whether or
not a Business Day) for the payment of interest on such Registered Note and
before the opening of business at such office on the relevant Interest Payment
Date, this Note shall be surrendered without the Coupon relating to such
Interest Payment Date. All such exchanges of Notes and Coupons will be free
of service charge, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
None of the Issuer, the Trustee or any agent of the Issuer or
the Trustee shall be required to exchange this Note for a Registered Note if
such exchange would result in adverse United States Federal income tax
consequences to the Issuer under then applicable United States federal income
tax laws.
The Company will not be required (i) to exchange any Bearer
Note to be redeemed for a period of fifteen calendar days preceding the first
publication of the relevant notice of redemption or (ii) to exchange any Bearer
Note selected for redemption or surrendered for optional repayment, except
that such Bearer Note may be exchanged for a Registered Note of like tenor,
provided that such Registered Note shall be simultaneously surrendered for
redemption or repayment, as the case may be.
In case any Note or Coupon shall at any time become mutilated,
defaced or be destroyed, lost or stolen and such Note or Coupon or evidence of
the loss, theft or destruction thereof (together with the indemnity hereinafter
referred to and such other documents or proof as may be required in the
premises) shall be delivered to the Trustee, a new Note of like tenor, with
Coupons corresponding to the Coupons appertaining to the Note so mutilated,
defaced, destroyed, lost or stolen or to the Note to which such mutilated,
defaced, destroyed, lost or stolen Coupon appertained, will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Note so destroyed or lost or stolen or in exchange for the Note to which such
mutilated, defaced, destroyed, lost or stolen Coupon appertained, but, in the
case of any destroyed or lost or stolen Note or Coupon, only upon receipt of
evidence satisfactory to the Trustee and the Issuer that such Note or Coupon
was destroyed or lost or stolen and, if required, upon receipt also of
indemnity satisfactory to each of them. All expenses and reasonable charges
associated with procuring such indemnity and with the preparation,
authentication and delivery of a new Note and Coupons, if any, shall be borne
by the owner of the Note or Coupon mutilated, defaced, destroyed, lost or
stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt securities
issued under the Senior Indenture, including the series of Senior Global
Medium-Term Notes of which this Note forms a part, or due to the default in
the performance or breach of any other covenant or warranty of the Issuer
applicable to the debt securities of such series but not applicable to all
outstanding debt securities issued under the Senior Indenture shall have
occurred and be continuing, either the Trustee or the holders of not less than
25% in principal amount of the debt securities of each affected series (voting
as a single class) may then declare the principal of all debt securities of
all such series and interest accrued thereon to be due and payable immediately
and (b) if an Event of Default due to a default in the performance of any
other of the covenants or agreements in the Senior Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due to
certain events of bankruptcy, insolvency and reorganization of the Issuer,
shall have occurred and be continuing, either the Trustee or the holders of
not less than 25% in principal amount of all debt securities issued under the
Senior Indenture then outstanding (treated as one class) may declare the
principal of all such debt securities and interest accrued thereon to be due
and payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt securities)
by the holders of a majority in principal amount of the debt securities of all
affected series then outstanding.
If the face hereof indicates that this Note is subject to
"Modified Payment upon Acceleration or Redemption," then (i) if the principal
hereof is declared to be due and payable as described in the preceding
paragraph, the amount of principal due and payable with respect to this Note
shall be limited to the aggregate principal amount hereof multiplied by the
sum of the Issue Price specified on the face hereof (expressed as a percentage
of the aggregate principal amount) plus the original issue discount amortized
from the Interest Accrual Date to the date of declaration, which amortization
shall be calculated using the "interest method" (computed in accordance with
generally accepted accounting principles in effect on the date of declaration),
(ii) for the purpose of any vote of securityholders taken pursuant to the
Senior Indenture prior to the acceleration of payment of this Note, the
principal amount hereof shall equal the amount that would be due and payable
hereon, calculated as set forth in clause (i) above, if this Note were
declared to be due and payable on the date of any such vote and (iii) for the
purpose of any vote of securityholders taken pursuant to the Senior Indenture
following the acceleration of payment of this Note, the principal amount
hereof shall equal the amount of principal due and payable with respect to
this Note, calculated as set forth in clause (i) above.
This Note may be redeemed, as a whole, at the option of the
Issuer at any time prior to maturity, upon the giving of a notice of
redemption as described below, at a redemption price equal to 100% of the
principal amount hereof, together with accrued interest to the date fixed for
redemption (except that if this Note is subject to "Modified Payment upon
Acceleration or Redemption," such redemption price would be limited to the
aggregate principal amount hereof multiplied by the sum of the Issue Price
specified on the face hereof (expressed as a percentage of the aggregate
principal amount) plus the original issue discount amortized from the Interest
Accrual Date to the date of redemption, which amortization shall be calculated
using the "interest method" (computed in accordance with generally accepted
accounting principles in effect on the date of redemption) (the "Amortized
Amount")), if the Issuer determines that, as a result of any change in or
amendment to the laws (or any regulations or rulings promulgated thereunder)
of the United States or of any political subdivision or taxing authority
thereof or therein affecting taxation, or any change in official position
regarding the application or interpretation of such laws, regulations or
rulings, which change or amendment becomes effective on or after the Original
Issue Date hereof, the Issuer has or will become obligated to pay Additional
Amounts (as defined below) with respect to the Notes as described below.
Prior to the giving of any Notice of redemption pursuant to this paragraph,
the Issuer shall deliver to the Trustee (i) a certificate stating that the
Issuer is entitled to effect such redemption and setting forth a statement of
facts showing that the conditions precedent to the right of the Issuer to so
redeem have occurred, and (ii) an opinion of independent counsel satisfactory
to the Trustee to such effect based on such statement of facts; provided that
no such notice of redemption shall be given earlier than 60 days prior to the
earliest date on which the Issuer would be obligated to pay such Additional
Amounts if a payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more
than 60 days prior to the date fixed for redemption, which date and the
applicable redemption price will be specified in the Notice.
If the Issuer shall determine that any payment made outside the
United States by the Issuer or any Paying Agent of principal, premium or
interest due in respect of this Note or any Coupon would, under any present or
future laws or regulations of the United States, be subject to any
certification, identification or other information reporting requirement of
any kind, the effect of which is the disclosure to the Issuer, any Paying
Agent or any governmental authority of the nationality, residence or identity
of a beneficial owner of this Note or any Coupon who is a United States Alien
(as defined below) (other than such a requirement (a) that would not be
applicable to a payment made by the Issuer or any Paying Agent (i) directly
to the beneficial owner or (ii) to a custodian, nominee or other agent of the
beneficial owner, or (b) that can be satisfied by such custodian, nominee or
other agent certifying to the effect that such beneficial owner is a United
States Alien; provided that in each case referred to in clauses (a)(ii) and
(b) payment by such custodian, nominee or agent to such beneficial owner is
not otherwise subject to any such requirement), the Issuer shall redeem this
Note, as a whole, at a redemption price equal to 100% of the principal amount
thereof (except that if this Note is subject to "Modified Payment upon
Acceleration or Redemption," such redemption price would be limited to the
aggregate principal amount hereof multiplied by the sum of the Issue Price
specified on the face hereof (expressed as a percentage of the aggregate
principal amount) plus the Amortized Amount), together with accrued interest
to the date fixed for redemption, or, at the election of the Issuer if the
conditions of the next succeeding paragraph are satisfied, pay the additional
amounts specified in such paragraph. The Issuer shall make such determination
and election as soon as practicable, shall promptly notify the Trustee thereof
and shall publish prompt notice thereof (the "Determination Notice") stating
the effective date of such certification, identification or other information
reporting requirements, whether the Issuer will redeem this Note or has
elected to pay the additional amounts specified in the next succeeding
paragraph, and (if applicable) the last date by which the redemption of this
Note must take place, as provided in the next succeeding sentence. If the
Issuer redeems this Note, such redemption shall take place on such date, not
later than one year after the publication of the Determination Notice, as the
Issuer shall elect by notice to the Trustee at least 60 days prior to the date
fixed for redemption. Notice of such redemption of this Note will be given to
the holder of this Note not more than 60 nor less than 30 days prior to the
date fixed for redemption. Such redemption notice shall include a statement
as to the last date by which this Note to be redeemed may be exchanged for
Registered Notes. Notwithstanding the foregoing, the Issuer shall not so
redeem this Note if the Issuer shall subsequently determine, not less than 30
days prior to the date fixed for redemption, that subsequent payments would
not be subject to any such requirement, in which case the Issuer shall publish
prompt notice of such determination and any earlier redemption notice shall be
revoked and of no further effect. The right of the holder of this Note to
exchange this Note for Registered Notes will terminate at the close of
business of the Principal Paying Agent on the fifteenth day prior to the date
fixed for redemption, and no further exchanges of this Note for Registered
Notes shall be permitted.
If and so long as the certification, identification or other
information reporting requirements referred to in the preceding paragraph
would be fully satisfied by payment of a backup withholding tax or similar
charge, the Issuer may elect by notice to the Trustee to pay as additional
amounts such amounts as may be necessary so that every net payment made
outside the United States following the effective date of such requirements by
the Issuer or any Paying Agent of principal, premium or interest due in
respect of this Note or any Coupon of which the beneficial owner is a United
States Alien (but without any requirement that the nationality, residence or
identity of such beneficial owner be disclosed to the Issuer, any Paying Agent
or any governmental authority, with respect to the payment of such additional
amounts), after deduction or withholding for or on account of such backup
withholding tax or similar charge (other than a backup withholding tax or
similar charge that (i) would not be applicable in the circumstances referred
to in the second parenthetical clause of the first sentence of the preceding
paragraph, or (ii) is imposed as a result of presentation of this Note or
Coupon for payment more than 15 days after the date on which such payment
becomes due and payable or on which payment thereof is duly provided for,
whichever occurs later), will not be less than the amount provided for in this
Note or any Coupon to be then due and payable. In the event the Issuer elects
to pay any additional amounts pursuant to this paragraph, the Issuer shall
have the right to redeem this Note as a whole at any time pursuant to the
applicable provisions of the immediately preceding paragraph and the
redemption price of this Note will not be reduced for applicable withholding
taxes. If the Issuer elects to pay additional amounts pursuant to this
paragraph and the condition specified in the first sentence of this paragraph
should no longer be satisfied, then the Issuer will redeem this Note as a
whole, pursuant to the applicable provisions of the immediately preceding
paragraph.
The Issuer will, subject to certain exceptions and limitations
set forth below, pay such additional amounts (the "Additional Amounts") to the
holder of this Note or any Coupon who is a United States Alien as may be
necessary in order that every net payment of the principal of and interest on
this Note and any other amounts payable on this Note, after withholding for or
on account of any present or future tax, assessment or governmental charge
imposed upon or as a result of such payment by the United States (or any
political subdivision or taxing authority thereof or therein), will not be
less than the amount provided for in this Note or any Coupon to be then due
and payable. The Issuer will not, however, be required to make any payment of
Additional Amounts to any such holder for or on account of:
(a) any such tax, assessment or other governmental charge that
would not have been so imposed but for (i) the existence of any
present or former connection between such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of such
holder, if such holder is an estate, a trust, a partnership or a
corporation) and the United States, including, without limitation,
such holder (or such fiduciary, settlor, beneficiary, member or
shareholder) being or having been a citizen or resident thereof or
being or having been engaged in a trade or business or present
therein or having, or having had, a permanent establishment therein
or (ii) the presentation by the holder of this Note or Coupon, if
any, for payment on a date more than 15 days after the date on which
such payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as a personal
holding company or foreign personal holding company or controlled
foreign corporation or passive foreign investment company with
respect to the United States or as a corporation which accumulates
earnings to avoid United States federal income tax or as a private
foundation or other tax-exempt organization;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payments on or in respect
of this Note or any Coupon;
(e) any tax, assessment or other governmental charge required
to be withheld by any Paying Agent from any payment of principal of,
or interest on, this Note, if such payment can be made without such
withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that
would not have been imposed but for the failure to comply with
certification, information or other reporting requirements concerning
the nationality, residence or identity of the holder or beneficial
owner of this Note or any Coupon, if such compliance is required by
statute or by regulation of the United States or of any political
subdivision or taxing authority thereof or therein as a precondition
to relief or exemption from such tax, assessment or other
governmental charge;
(g) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power
of all classes of stock entitled to vote of the Issuer or as a direct
or indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or
(g);
nor shall Additional Amounts be paid with respect to any payment on this Note
or any Coupon to a United States Alien who is a fiduciary or partnership or
other than the sole beneficial owner of such payment to the extent such payment
would be required by the laws of the United States (or any political
subdivision thereof) to be included in the income, for tax purposes, of a
beneficiary or settlor with respect to such fiduciary or a member of such
partnership or a beneficial owner who would not have been entitled to the
Additional Amounts had such beneficiary, settlor, member or beneficial owner
been the holder of this Note or any Coupon.
The Senior Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected;
or (b) reduce the aforesaid percentage in principal amount of debt securities
the consent of the holders of which is required for any such supplemental
indenture, without the consent of the holders of each debt security so
affected.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency other than
U.S. dollars and such Specified Currency is not available to the Issuer for
making payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking
community, then the Issuer will be entitled to satisfy its obligations to the
holder of this Note or any Coupon by making such payments in U.S. dollars on
the basis of the Market Exchange Rate (as defined below) on the date of such
payment or, if the Market Exchange Rate is not available on such date, as of
the most recent practicable date; provided, however, that if such Specified
Currency is replaced by a single European currency (expected to be named the
Euro), the payment of principal of, premium, if any, or interest on any Note
denominated in such currency shall be effected in the new single European
currency in conformity with legally applicable measures taken pursuant to, or
by virtue of, the treaty establishing the European Community (the "EC"), as
amended by the treaty on European Union (as so amended, the "Treaty"). Any
payment made under such circumstances in U.S. dollars (or, if applicable, such
new single European currency) where the required payment is in a Specified
Currency other than U.S. dollars will not constitute an Event of Default.
If the principal of, premium, if any, or interest on, this Note
is payable in ECUs, then with respect to each due date for any such payment on
or after the first business day in Brussels on which the ECU ceases to be used
as the unit of account of the European Community and has not become a currency
in its own right, replacing all or some of the currencies of the member states
of the EC, the Issuer shall choose a substitute currency (the "Chosen
Currency") which may be any currency which was, on the last day on which the
ECU was used as the unit of account of the EC, a component currency of the ECU
basket or U.S. dollars, in which all such payments due on or after that date
with respect to this Note shall be made. Notice of the Chosen Currency so
selected shall, where practicable, be published in the manner described in
"Notices" below. The amount of each payment in such Chosen Currency shall be
computed on the basis of the equivalent of the ECU in that currency,
determined as described below, as of the fourth business day in Brussels prior
to the date on which such payment is due.
If the principal of, premium, if any, or interest on, this Note
is payable in ECUs, then on the first business day in Brussels on which the
ECU ceases to be used as the unit of account of the EC, and has not become a
currency in its own right, replacing all or some of the currencies of the
member states of the EC, the Issuer shall choose a Chosen Currency in which
all such payments with respect to this Note having a due date prior thereto
but not yet presented for payment are to be made. The amount of each payment
in such Chosen Currency shall be computed on the basis of the equivalent of
the ECU in that currency, determined as described below, as of such first
business day.
The equivalent of the ECU in the relevant Chosen Currency as of
any date (the "Day of Valuation") shall be determined on the following basis
by, or on behalf of, an Exchange Rate Agent appointed by the Issuer. The
amounts and components composing the ECU for this purpose (the "Components")
shall be the amounts and components composing the ECU as of the last date on
which the ECU was used as the unit of account of the EC. The equivalent of
the ECU in the Chosen Currency shall be calculated by, first, aggregating the
U.S. dollar equivalents of the Components; and then, in the case of a Chosen
Currency other than U.S. dollars, using the rate used for determining the U.S.
dollar equivalent of the Components in the Chosen Currency as set forth below,
calculating the equivalent in the Chosen Currency of such aggregate amount in
U.S. dollars.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Issuer, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf; provided
that such quotations were prevailing in the country of issue not more than two
Business Days before such Day of Valuation. If such most recent quotations
were so prevailing in the country of issue more than two Business Days before
such Day of Valuation, the Exchange Rate Agent shall determine the U.S. dollar
equivalent of such Component on the basis of cross rates derived from the
middle spot delivery quotations for such component currency and for the U.S.
dollar prevailing at 2:30 P.M., Brussels time, on such Day of Valuation, as
obtained by, or on behalf of, the Exchange Rate Agent from one or more major
banks, as selected by the Issuer, in a country other than the country of issue
of such component currency. Notwithstanding the foregoing, the Exchange Rate
Agent shall determine the U.S. dollar equivalent of such Component on the
basis of such cross rates if the Issuer or such agent judges that the
equivalent so calculated is more representative than the U.S. dollar
equivalent calculated as provided in the first sentence of this paragraph.
Unless otherwise specified by the Issuer, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations or
for any other reason, the market to be referred to in respect of such currency
shall be that upon which a non-resident issuer of notes denominated in such
currency would purchase such currency in order to make payments in respect of
such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of this Note.
So long as this Note or any Coupons shall be outstanding, the
Issuer will cause to be maintained an office or agency for the payment of the
principal of and premium, if any, and interest on this Note, as herein
provided. The Paying Agents initially designated by the Issuer are listed on
the reverse of each Coupon. If this Note is listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland Limited and
such Exchange so requires, the Issuer shall maintain a Paying Agent in London.
The Issuer may designate other agencies for the payment of said principal,
premium and interest at such place or places outside the United States
(subject to applicable laws and regulations) as the Issuer may decide. So
long as there shall be such an agency, the Issuer shall keep the Trustee
advised of the names and locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes or any
Coupons that such moneys shall be repaid to the Issuer and any person claiming
such moneys shall thereafter look only to the Issuer for payment thereof and
(ii) such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease, without, however, limiting in any way any obligation
that the Issuer may have to pay the principal of or interest or premium, if
any, on this Note as the same shall become due.
No provision of this Note, any Coupon or of the Senior
Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the time, place, and rate, and in the coin or
currency, herein prescribed unless otherwise agreed between the Issuer and the
holder of this Note or any Coupon.
The Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the holder of this Note or any Coupon as the owner hereof or
thereof for all purposes, whether or not this Note or any Coupon be overdue,
and none of the Issuer, the Trustee or any such agent shall be affected by
notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note for any claim based hereon or on
any Coupon, or otherwise in respect hereof or thereof, or based on or in
respect of the Senior Indenture or any indenture supplemental thereto, against
any incorporator, shareholder, officer or director, as such, past, present or
future, of the Issuer or of any successor corporation, either directly or
through the Issuer or any successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance hereof
and as part of the consideration for the issue hereof, expressly waived and
released.
This Note and the Coupons shall for all purposes be governed
by, and construed in accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in The
City of New York or in the City of London and (i) if this Note is denominated
in a Specified Currency other than U.S. dollars, Australian dollars or ECUs,
in the principal financial center of the country of the Specified Currency,
(ii) if this Note is denominated in Australian dollars, in Sydney and (iii) if
this Note is denominated in ECUs, that is not a non-ECU clearing day, as
determined by the ECU Banking Association in Paris;
(b) the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for wire transfers of the Specified
Currency indicated on the face hereof as certified for customs purposes by the
Federal Reserve Bank of New York;
(c) the term "Notices" refers to notices to the holders of the
Notes and any Coupons to be given by publication in an authorized newspaper in
the English language and of general circulation in the Borough of Manhattan,
The City of New York, and London or, if publication in London is not
practical, in an English language newspaper with general circulation in Western
Europe. Such publication is expected to be made in the Wall Street Journal
and the Financial Times. Such Notices will be deemed to have been given on
the date of such publication, or if published in such newspapers on different
dates, on the date of the first such publication;
(d) the term "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction; and
(e) the term "United States Alien" means any person who, for
United States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership, one or more of the members of which
is a foreign corporation, a non-resident alien individual or a non-resident
alien fiduciary of a foreign estate or trust.
All other terms used in this Note and the Coupons which are
defined in the Senior Indenture and not otherwise defined herein shall have
the meanings assigned to them in the Senior Indenture.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid: _____________; and specify the denomination or denominations (which
shall not be less than the minimum authorized denomination) of the Notes to be
issued to the holder for the portion of the within Note not being repaid (in
the absence of any such specification, one such Note will be issued for the
portion not being repaid): ________________.
Dated:____________________ __________________________
[FORM OF COUPON]
SENIOR GLOBAL MEDIUM-TERM NOTE,
SERIES [D/E], NO. _______
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
Coupon Number ______***
[Interest Amount due in
Specified Currency]
Due _____________________
Unless the Note to which this coupon appertains shall have been
previously redeemed or repaid, MORGAN STANLEY GROUP INC. (the "Issuer") will,
on the date set forth herein, pay to bearer, upon surrender hereof at such
agencies in such places outside the United States as the Issuer may determine
from time to time (the "Paying Agents"), interest on the principal amount of
such Note as specified above (together with any additional amounts in respect
thereof which the Issuer may be required to pay according to the terms of such
Note), in such coin or currency as specified above as at the time of payment
shall be legal tender for the payment of public and private debts, except as
specified in such Note. Payment on this coupon shall be made, at the option
of the bearer hereof and subject to any applicable laws and regulations or
procedures of the Paying Agent, by a check mailed to an address outside the
United States furnished by such bearer or by wire transfer to an account
maintained by the payee with a bank located outside the United States, except
as otherwise provided in such Note.
MORGAN STANLEY GROUP INC.
By:_____________________
Title:
PRINCIPAL PAYING AGENT AND TRANSFER AGENT
Chemical Bank
Chemical Bank House
180 Strand
London WC2R 1EX
England
_________________
***The Coupon number, the interest amount due in the specified currency and
due date should appear in the right-hand section of the face of the Coupon.
EXHIBIT 4.W
[FORM OF FACE OF SECURITY]
Euro Fixed Rate Senior Registered Note
REGISTERED REGISTERED
No. EFXRR [PRINCIPAL AMOUNT]
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4
OF THE UNITED KINGDOM BANKING ACT 1987.](1)
[MEDIUM TERM NOTE ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4
OF THE UNITED KINGDOM BANKING ACT 1987.](2)
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET FORTH
BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES AND
EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD, 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.
- ------------------
(1) Applies only if this Note is denominated in pounds sterling and matures
not more than one year from and including the Original Issue Date.
(2) Applies only if this Note is denominated in pounds sterling and matures
more than one year and not more than five years from and including the
Original Issue Date.
IF THIS NOTE IS DENOMINATED IN JAPANESE YEN, IT SHALL HAVE A MATURITY OF NOT
LESS THAN ONE YEAR AND IT MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY,
IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT IN JAPAN PRIOR TO THE DATE
WHICH IS 90 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS NOTE. IF (i)
INTEREST PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN AND PRINCIPAL
PAYMENTS ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER THAN JAPANESE
YEN OR (ii) PRINCIPAL PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN
AND INTEREST PAYMENTS ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER
THAN JAPANESE YEN, THIS NOTE MAY NOT BE OFFERED OR SOLD, DIRECTLY OR
INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF JAPAN PRIOR
TO THE DATE WHICH IS 180 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS
NOTE.
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Fixed Rate)
ORIGINAL INITIAL REDEMPTION INTEREST RATE: MATURITY
ISSUE DATE: DATE: DATE:
INTEREST INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL
ACCRUAL DATE: PERCENTAGE: DATE: REPAYMENT
DATE(S):
TOTAL AMOUNT ANNUAL REDEMPTION APPLICABILITY OF
OF OID: PERCENTAGE MODIFIED PAYMENT MINIMUM
REDUCTION: UPON ACCELERATION DENOMINA-
OR REDEMPTION: TIONS:
ORIGINAL YIELD INITIAL ACCRUAL If yes, state SPECIFIED
TO MATURITY: PERIOD OID: Issue Price: CURRENCY:
COMMON CODE: EXCHANGE RATE OTHER
AGENT: PROVISIONS:
ISIN:
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to
, or registered assignees, the principal sum of
, on the Maturity Date specified above (except to the
extent previously redeemed or repaid) and to pay interest thereon at the
Interest Rate per annum specified above from and including the Interest
Accrual Date specified above until but excluding the date the principal hereof
is paid or duly made available for payment (except as provided below),
annually in arrears on Interest Payment Date specified above in each year
commencing on the Interest Payment Date next succeeding the Interest Accrual
Date specified above, and at maturity (or on any redemption or repayment
date); provided, however, that if the Interest Accrual Date occurs between a
Record Date, as defined below, and the next succeeding Interest Payment Date,
interest payments will commence on the second Interest Payment Date succeeding
the Interest Accrual Date to the registered holder of this Note on the Record
Date with respect to such second Interest Payment Date.
Interest on this Note will accrue from and including the most
recent Interest Payment Date to which interest has been paid or duly provided
for, or, if no interest has been paid or duly provided for, from and including
the Interest Accrual Date, until but excluding the date the principal hereof
has been paid or duly made available for payment (except as provided below).
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, subject to certain exceptions described herein, be
paid to the person in whose name this Note (or one or more predecessor Notes)
is registered at the close of business on the date 15 calendar days prior to
such Interest Payment Date (whether or not a Business Day) (each such date a
"Record Date"); provided, however, that interest payable at maturity (or on any
redemption or repayment date) will be payable to the person to whom the
principal hereof shall be payable.
Payment of the principal of this Note, any premium and the
interest due at maturity (or on any redemption or repayment date) will be made
in immediately available funds upon surrender of this Note at the office or
agency of the Principal Paying Agent, as defined on the reverse hereof, or at
such other paying agency as the Issuer may determine (each, a "Paying Agent,"
which term shall include the Principal Paying Agent). Payment of the
principal of and premium, if any, and interest on this Note will be made in
the Specified Currency indicated above; provided, however, that U.S. dollar
payments of interest, other than interest due at maturity or on any date of
redemption or repayment, will be made by U.S. dollar check mailed to the
address of the person entitled thereto as such address shall appear in the
Note register. A holder of U.S. $10,000,000 or more in aggregate principal
amount of Notes having the same Interest Payment Date will be entitled to
receive payments of interest, other than interest due at maturity or on any
date of redemption or repayment, by wire transfer of immediately available
funds if appropriate wire transfer instructions have been received by the
Principal Paying Agent in writing not less than 15 calendar days prior to the
applicable Interest Payment Date. If this Note is denominated in a Specified
Currency other than U.S. dollars, payments of interest hereon will be made by
wire transfer of immediately available funds to an account maintained by the
holder hereof with a bank located outside the United States if appropriate
wire transfer instructions have been received by the Principal Paying Agent in
writing not less than 15 calendar days prior to the applicable Interest
Payment Date. If such wire transfer instructions are not so received, such
interest payments will be made by check payable in such Specified Currency
mailed to the address of the person entitled thereto as such address shall
appear in the Note register.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By__________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
CHEMICAL BANK,
as Trustee
By _____________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series [D/E], having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable under a
Senior Indenture, dated as of April 15, 1989, as supplemented by a First
Supplemental Indenture dated as of May 15, 1991 and a Second Supplemental
Indenture dated as of April 15, 1996 (as so supplemented, the "Senior
Indenture"), between the Issuer and Chemical Bank, as Trustee (the "Trustee,"
which term includes any successor trustee under the Senior Indenture), to
which Senior Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities of the Issuer, the Trustee and holders of the Notes and
the terms upon which the Notes are, and are to be, authenticated and
delivered. The Issuer has appointed Chemical Bank, acting through its
principal corporate trust office in the Borough of Manhattan, The City of New
York, as a paying agent for the Notes in the United States and Chemical Bank,
London Branch, at its corporate trust office in London, as its principal
paying agent for the Notes outside the United States (the "Principal Paying
Agent," which term includes any additional or successor principal paying agent
appointed by the Issuer). The terms of individual Notes may vary with respect
to interest rates, interest rate formulas, issue dates, maturity dates, or
otherwise, all as provided in the Senior Indenture. To the extent not
inconsistent herewith, the terms of the Senior Indenture are hereby
incorporated by reference herein.
If this Note is denominated in pounds sterling, the Issuer
represents that it is not an authorized institution (for purposes of the
United Kingdom Banking Act 1987) and repayment of the principal of, and
payment of any interest or premium on, this Note has not been guaranteed, that
it has complied with its obligations under the listing rules of The
International Stock Exchange of the United Kingdom and the Republic of Ireland
Limited (the "Rules") and that, since the last publication in compliance with
the Rules of information about it, it, having made all reasonable inquiries,
has not become aware of any change in circumstances which could reasonably be
regarded as significantly and adversely affecting its ability to meet its
obligations in respect of the Notes as they fall due.
Unless otherwise provided on the face hereof, this Note will
not be subject to any sinking fund and, unless otherwise provided on the face
hereof in accordance with the provisions of the following two paragraphs and
except as set forth below, will not be redeemable or subject to repayment at
the option of the holder prior to maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on or after the
Initial Redemption Date specified on the face hereof on the terms set forth on
the face hereof, together with interest accrued and unpaid hereon to the date
of redemption (except as provided below). If this Note is subject to "Annual
Redemption Percentage Reduction," the Initial Redemption Percentage indicated
on the face hereof will be reduced on each anniversary of the Initial
Redemption Date by the Annual Redemption Percentage Reduction specified on the
face hereof until the redemption price of this Note is 100% of the principal
amount hereof, together with interest accrued and unpaid hereon to the date
of redemption (except as provided below). Notice of redemption shall be
mailed to the registered holders of the Notes designated for redemption at
their addresses as the same shall appear on the Note register not less than 30
nor more than 60 days prior to the date fixed for redemption, subject to all
the conditions and provisions of the Senior Indenture. In the event of
redemption of this Note in part only, a new Note or Notes for the amount of
the unredeemed portion hereof shall be issued in the name of the holder hereof
upon the cancellation hereof.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional Repayment
Date or Dates specified on the face hereof on the terms set forth herein. On
any Optional Repayment Date, this Note will be repayable in whole or in part
in increments of $1,000 or, if this Note is denominated in a Specified
Currency other than U.S. dollars, in increments of 1,000 units of such
Specified Currency (provided that any remaining principal amount hereof shall
not be less than the minimum authorized denomination hereof) at the option of
the holder hereof at a price equal to 100% of the principal amount to be
repaid, together with interest accrued and unpaid hereon to the date of
repayment (except as provided below). For this Note to be repaid at the
option of the holder hereof, the Principal Paying Agent must receive at its
office in London, at least 15 but not more than 30 days prior to the date of
repayment, (i) this Note with the form entitled "Option to Elect Repayment"
below duly completed or (ii) a telegram, telex, facsimile transmission or a
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or a trust
company in the United States, Western Europe or Japan setting forth the name
of the holder of this Note, the principal amount hereof, the certificate
number of this Note or a description of this Note's tenor and terms, the
principal amount hereof to be repaid, a statement that the option to elect
repayment is being exercised thereby and a guarantee that this Note, together
with the form entitled "Option to Elect Repayment" duly completed, will be
received by the Principal Paying Agent not later than the fifth Business Day
after the date of such telegram, telex, facsimile transmission or letter;
provided, that such telegram, telex, facsimile transmission or letter shall
only be effective if this Note and form duly completed are received by the
Principal Paying Agent by such fifth Business Day. Exercise of such repayment
option by the holder hereof shall be irrevocable. In the event of repayment
of this Note in part only, a new Note or Notes for the amount of the unpaid
portion hereof shall be issued in the name of the holder hereof upon the
cancellation hereof.
Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Interest payments for this
Note will be computed and paid on the basis of a 360-day year of twelve 30-day
months unless indicated otherwise on the face hereof.
In the case where the Interest Payment Date or the Maturity
Date (or any redemption or repayment date) does not fall on a Business Day,
payment of interest, premium, if any, or principal otherwise payable on such
date need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date or on the Maturity Date (or any redemption or repayment date), and no
interest on such payment shall accrue for the period from and after the
Interest Payment Date or the Maturity Date (or any redemption or repayment
date) to such next succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons,
and is issuable only in the minimum denominations set forth on the face hereof
or any amount in excess thereof which is an integral multiple of 1,000 units
of the Specified Currency set forth on the face hereof.
The Trustee has been appointed registrar for the Notes, and the
Trustee will maintain at its office in The City of New York, a register for
the registration and transfer of Notes. This Note may be transferred at either
the aforesaid New York office or at the London office of the Trustee by
surrendering this Note for cancellation, accompanied by a written instrument
of transfer in form satisfactory to the Trustee and duly executed by the
registered holder hereof in person or by the holder's attorney duly authorized
in writing, and thereupon the Trustee shall issue in the name of the
transferee or transferees, in exchange herefor, a new Note or Notes having
identical terms and provisions and having a like aggregate principal amount in
authorized denominations, subject to the terms and conditions set forth
herein; provided, however, that the Trustee will not be required (i) to
register the transfer of or exchange any Note that has been called for
redemption in whole or in part, except the unredeemed portion of Notes being
redeemed in part, (ii) to register the transfer of or exchange any Note if the
holder thereof has exercised his right, if any, to require the Issuer to
repurchase such Note in whole or in part, except the portion of such Note not
required to be repurchased, or (iii) to register the transfer of or exchange
Notes to the extent and during the period so provided in the Senior Indenture
with respect to the redemption of Notes. Notes are exchangeable at said
offices for other Notes of other authorized denominations of equal aggregate
principal amount having identical terms and provisions. All such exchanges and
transfers of Notes will be free of service charge, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge in
connection therewith. All Notes surrendered for exchange shall be accompanied
by a written instrument of transfer in form satisfactory to the Trustee and
executed by the registered holder in person or by the holder's attorney duly
authorized in writing. The date of registration of any Note delivered upon
any exchange or transfer of Notes shall be such that no gain or loss of
interest results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or
be destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Note so destroyed or lost or stolen, but, in the case of any destroyed or lost
or stolen Note, only upon receipt of evidence satisfactory to the Trustee and
the Issuer that such Note was destroyed or lost or stolen and, if required,
upon receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt securities
issued under the Senior Indenture, including the series of Senior Global
Medium-Term Notes of which this Note forms a part, or due to the default in
the performance or breach of any other covenant or warranty of the Issuer
applicable to the debt securities of such series but not applicable to all
outstanding debt securities issued under the Senior Indenture shall have
occurred and be continuing, either the Trustee or the holders of not less than
25% in principal amount of the debt securities of each affected series (voting
as a single class) may then declare the principal of all debt securities of
all such series and interest accrued thereon to be due and payable immediately
and (b) if an Event of Default due to a default in the performance of any
other of the covenants or agreements in the Senior Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due to
certain events of bankruptcy, insolvency and reorganization of the Issuer,
shall have occurred and be continuing, either the Trustee or the holders of
not less than 25% in principal amount of all debt securities issued under the
Senior Indenture then outstanding (treated as one class) may declare the
principal of all such debt securities and interest accrued thereon to be due
and payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt securities)
by the holders of a majority in principal amount of the debt securities of all
affected series then outstanding.
If the face hereof indicates that this Note is subject to
"Modified Payment upon Acceleration or Redemption," then (i) if the principal
hereof is declared to be due and payable as described in the preceding
paragraph, the amount of principal due and payable with respect to this Note
shall be limited to the aggregate principal amount hereof multiplied by the
sum of the Issue Price specified on the face hereof (expressed as a percentage
of the aggregate principal amount) plus the original issue discount amortized
from the Interest Accrual Date to the date of declaration, which amortization
shall be calculated using the "interest method" (computed in accordance with
generally accepted accounting principles in effect on the date of declaration),
(ii) for the purpose of any vote of securityholders taken pursuant to the
Senior Indenture prior to the acceleration of payment of this Note, the
principal amount hereof shall equal the amount that would be due and payable
hereon, calculated as set forth in clause (i) above, if this Note were
declared to be due and payable on the date of any such vote and (iii) for the
purpose of any vote of securityholders taken pursuant to the Senior Indenture
following the acceleration of payment of this Note, the principal amount
hereof shall equal the amount of principal due and payable with respect to
this Note, calculated as set forth in clause (i) above.
This Note may be redeemed, as a whole, at the option of the
Issuer at any time prior to maturity, upon the giving of a notice of
redemption as described below, at a redemption price equal to 100% of the
principal amount hereof, together with accrued interest to the date fixed for
redemption (except that if this Note is subject to "Modified Payment upon
Acceleration or Redemption," such redemption price would be limited to the
aggregate principal amount hereof multiplied by the sum of the Issue Price
specified on the face hereof (expressed as a percentage of the aggregate
principal amount) plus the original issue discount amortized from the Interest
Accrual Date to the date of redemption, which amortization shall be calculated
using the "interest method" (computed in accordance with generally accepted
accounting principles in effect on the date of redemption)), if the Issuer
determines that, as a result of any change in or amendment to the laws (or any
regulations or rulings promulgated thereunder) of the United States or of any
political subdivision or taxing authority thereof or therein affecting
taxation, or any change in official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
becomes effective on or after the Original Issue Date hereof, the Issuer has
or will become obligated to pay Additional Amounts (as defined below) with
respect to the Notes as described below. Prior to the giving of any notice of
redemption pursuant to this paragraph, the Issuer shall deliver to the Trustee
(i) a certificate stating that the Issuer is entitled to effect such
redemption and setting forth a statement of facts showing that the conditions
precedent to the right of the Issuer to so redeem have occurred, and (ii) an
opinion of independent counsel satisfactory to the Trustee to such effect
based on such statement of facts; provided that no such notice of redemption
shall be given earlier than 60 days prior to the earliest date on which the
Issuer would be obligated to pay such Additional Amounts if a payment in
respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more
than 60 days prior to the date fixed for redemption, which date and the
applicable redemption price will be specified in such notice.
The Issuer will, subject to certain exceptions and limitations
set forth below, pay such additional amounts (the "Additional Amounts") to the
holder of this Note who is a United States Alien (as defined below) as may be
necessary in order that every net payment of the principal of and interest on
this Note and any other amounts payable on this Note, after withholding for or
on account of any present or future tax, assessment or governmental charge
imposed upon or as a result of such payment by the United States (or any
political subdivision or taxing authority thereof or therein), will not be
less than the amount provided for in this Note to be then due and payable.
The Issuer will not, however, be required to make any payment of Additional
Amounts to any such holder for or on account of:
(a) any such tax, assessment or other governmental charge that
would not have been so imposed but for (i) the existence of any
present or former connection between such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of such
holder, if such holder is an estate, a trust, a partnership or a
corporation) and the United States, including, without limitation,
such holder (or such fiduciary, settlor, beneficiary, member or
shareholder) being or having been a citizen or resident thereof or
being or having been engaged in a trade or business or present
therein or having, or having had, a permanent establishment therein
or (ii) the presentation by the holder of this Note for payment on a
date more than 15 days after the date on which such payment became due
and payable or the date on which payment thereof is duly provided
for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as a personal
holding company or foreign personal holding company or controlled
foreign corporation or passive foreign investment company with
respect to the United States or as a corporation which accumulates
earnings to avoid United States federal income tax or as a private
foundation or other tax-exempt organization;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payments on or in respect
of this Note;
(e) any tax, assessment or other governmental charge required
to be withheld by any Paying Agent from any payment of principal of,
or interest on, this Note, if such payment can be made without such
withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that
would not have been imposed but for the failure to comply with
certification, information or other reporting requirements concerning
the nationality, residence or identity of the holder or beneficial
owner of this Note, if such compliance is required by statute or by
regulation of the United States or of any political subdivision or
taxing authority thereof or therein as a precondition to relief or
exemption from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power
of all classes of stock entitled to vote of the Issuer or as a direct
or indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or
(g);
nor shall Additional Amounts be paid with respect to any payment on this Note
to a United States Alien who is a fiduciary or partnership or other than the
sole beneficial owner of such payment to the extent such payment would be
required by the laws of the United States (or any political subdivision
thereof) to be included in the income, for tax purposes, of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to the Additional Amounts
had such beneficiary, settlor, member or beneficial owner been the holder of
this Note.
The Senior Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected;
or (b) reduce the aforesaid percentage in principal amount of debt securities
the consent of the holders of which is required for any such supplemental
indenture, without the consent of the holders of each debt security so
affected.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency other than
U.S. dollars and such Specified Currency is not available to the Issuer for
making payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking
community, then the Issuer will be entitled to satisfy its obligations to the
holder of this Note by making such payments in U.S. dollars on the basis of
the Market Exchange Rate (as defined below) on the date of such payment or, if
the Market Exchange Rate is not available on such date, as of the most recent
practicable date; provided, however, that if such Specified Currency is
replaced by a single European currency (expected to be named the Euro), the
payment of principal of, premium, if any, or interest on any Note denominated
in such currency shall be effected in the new single European currency in
conformity with legally applicable measures taken pursuant to, or by virtue
of, the treaty establishing the European Community (the "EC"), as amended by
the treaty on European Union (as so amended, the "Treaty"). Any payment made
under such circumstances in U.S. dollars (or, if applicable, such new single
European currency) where the required payment is in a Specified Currency other
than U.S. dollars will not constitute an Event of Default.
If the principal of, premium, if any, or interest on, this Note
is payable in ECUs, then with respect to each due date for any such payment on
or after the first business day in Brussels on which the ECU ceases to be used
as the unit of account of the European Community ("EC") and has not become a
currency in its own right, replacing all or some of the currencies of the
member states of the EC, the Issuer shall choose a substitute currency (the
"Chosen Currency") which may be any currency which was, on the last day on
which the ECU was used as the unit of account of the EC, a component currency
of the ECU basket or U.S. dollars, in which all such payments due on or after
that date with respect to this Note shall be made. Notice of the Chosen
Currency so selected shall, where practicable, be published in the manner
described in "Notices" below. The amount of each payment in such Chosen
Currency shall be computed on the basis of the equivalent of the ECU in that
currency, determined as described below, as of the fourth business day in
Brussels prior to the date on which such payment is due.
If the principal of, premium, if any, or interest on, this Note
is payable in ECUs, then on the first business day in Brussels on which the
ECU ceases to be used as the unit of account of the EC, and has not become a
currency in its own right, replacing all or some of the currencies of the
member states of the EC, the Issuer shall choose a Chosen Currency in which
all such payments with respect to this Note having a due date prior thereto
but not yet presented for payment are to be made. The amount of each payment
in such Chosen Currency shall be computed on the basis of the equivalent of
the ECU in that currency, determined as described below, as of such first
business day.
The equivalent of the ECU in the relevant Chosen Currency as of
any date (the "Day of Valuation") shall be determined on the following basis
by, or on behalf of, an Exchange Rate Agent appointed by the Issuer. The
amounts and components composing the ECU for this purpose (the "Components")
shall be the amounts and components composing the ECU as of the last date on
which the ECU was used as the unit of account of the EC. The equivalent of
the ECU in the Chosen Currency shall be calculated by, first, aggregating the
U.S. dollar equivalents of the Components; and then, in the case of a Chosen
Currency other than U.S. dollars, using the rate used for determining the U.S.
dollar equivalent of the Components in the Chosen Currency as set forth below,
calculating the equivalent in the Chosen Currency of such aggregate amount in
U.S. dollars.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Issuer, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf; provided
that such quotations were prevailing in the country of issue not more than two
Business Days before such Day of Valuation. If such most recent quotations
were so prevailing in the country of issue more than two Business Days before
such Day of Valuation, the Exchange Rate Agent shall determine the U.S. dollar
equivalent of such Component on the basis of cross rates derived from the
middle spot delivery quotations for such component currency and for the U.S.
dollar prevailing at 2:30 P.M., Brussels time, on such Day of Valuation, as
obtained by, or on behalf of, the Exchange Rate Agent from one or more major
banks, as selected by the Issuer, in a country other than the country of issue
of such component currency. Notwithstanding the foregoing, the Exchange Rate
Agent shall determine the U.S. dollar equivalent of such Component on the
basis of such cross rates if the Issuer or such agent judges that the
equivalent so calculated is more representative than the U.S. dollar
equivalent calculated as provided in the first sentence of this paragraph.
Unless otherwise specified by the Issuer, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations or
for any other reason, the market to be referred to in respect of such currency
shall be that upon which a non-resident issuer of notes denominated in such
currency would purchase such currency in order to make payments in respect of
such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of this Note.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as aforesaid
of the Notes. If this Note is listed on The International Stock Exchange of
the United Kingdom and the Republic of Ireland Limited and such Exchange so
requires, the Issuer shall maintain a Paying Agent in London. The Issuer may
designate other agencies for the payment of said principal, premium and
interest at such place or places (subject to applicable laws and regulations)
as the Issuer may decide. So long as there shall be such an agency, the
Issuer shall keep the Trustee advised of the names and locations of such
agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes that such
moneys shall be repaid to the Issuer and any person claiming such moneys shall
thereafter look only to the Issuer for payment thereof and (ii) such moneys
shall be so repaid to the Issuer. Upon such repayment all liability of the
Trustee or such Paying Agent with respect to such moneys shall thereupon cease,
without, however, limiting in any way any obligation that the Issuer may have
to pay the principal of or interest or premium, if any, on this Note as the
same shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the registered
holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and none of the Issuer,
the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Senior Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York;
As used herein:
(a) the term "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in The
City of New York or in the City of London and (i) if this Note is denominated
in a Specified Currency other than U.S. dollars, Australian dollars or ECUs,
in the principal financial center of the country of the Specified Currency,
(ii) if this Note is denominated in Australian dollars, in Sydney and (iii) if
this Note is denominated in ECUs, that is not a non-ECU clearing day, as
determined by the ECU Banking Association in Paris;
(b) the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for wire transfers of the Specified
Currency indicated on the face hereof as certified for customs purposes by the
Federal Reserve Bank of New York;
(c) the term "Notices" refers to notices to be sent to the
holders of the Notes at each holder's address as that address appears in the
register for the Notes by first class mail, postage prepaid, and to be given
by publication in an authorized newspaper in the English language and of
general circulation in the Borough of Manhattan, The City of New York, and
London or, if publication in London is not practical, in an English language
newspaper with general circulation in Western Europe. Such publication is
expected to be made in the Wall Street Journal and the Financial Times. Such
Notices will be deemed to have been given on the date of such publication, or
if published in such newspapers on different dates, on the date of the first
such publication;
(d) the term "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction; and
(e) the term "United States Alien" means any person who, for
United States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership, one or more of the members of which
is a foreign corporation, a non-resident alien individual or a non-resident
alien fiduciary of a foreign estate or trust.
All other terms used in this Note which are defined in the
Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the
above list.
__________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_______________________________________|
|
|
[PLEASE PRINT OR
TYPE NAME AND ADDRESS INCLUDING ZIP CODE,
OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing such person attorney to transfer
such note on the books of the Issuer, with full power of
substitution in the premises.
Dated:_____________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within Note in every particular
without alteration or enlargement or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
___________________________________________________________
___________________________________________________________
___________________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid: __________________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the
Notes to be issued to the holder for the portion of the within Note not being
repaid (in the absence of any such specification, one such Note will be issued
for the portion not being repaid):
____________________________.
Dated:_____________ ___________________________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as written
upon the face of the within
instrument in every particular
without alteration or enlargement.
EXHIBIT 4.X
[FORM OF FACE OF SECURITY]
Euro Fixed Rate Subordinated Registered Note
REGISTERED REGISTERED
No. EFXRR [PRINCIPAL AMOUNT]
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4
OF THE UNITED KINGDOM BANKING ACT 1987.](1)
[MEDIUM TERM NOTE ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4
OF THE UNITED KINGDOM BANKING ACT 1987.](2)
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET FORTH
BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES
AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD, 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.
IF THIS NOTE IS DENOMINATED IN JAPANESE YEN, IT SHALL HAVE A MATURITY OF NOT
LESS THAN ONE YEAR AND IT MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY,
IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT IN JAPAN PRIOR TO THE DATE
WHICH IS 90 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS NOTE. IF (i)
INTEREST PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN AND PRINCIPAL
PAYMENTS ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER THAN JAPANESE
YEN OR (ii) PRINCIPAL PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN
AND INTEREST PAYMENTS ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER
THAN JAPANESE YEN, THIS NOTE MAY NOT BE OFFERED OR SOLD, DIRECTLY OR
INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF JAPAN PRIOR
TO THE DATE WHICH IS 180 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS
NOTE.
____________
(1) Applies only if this Note is denominated in pounds sterling and matures
not more than one year from and including the Original Issue Date.
(2) Applies only if this Note is denominated in pounds sterling and matures
more than one year and not more than five years from and including the
Original Issue Date.
MORGAN STANLEY GROUP INC.
SUBORDINATED GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Fixed Rate)
ORIGINAL INITIAL REDEMPTION INTEREST RATE: MATURITY
ISSUE DATE: DATE: DATE:
INTEREST INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL
ACCRUAL DATE: PERCENTAGE: DATE: REPAYMENT
DATE(S):
TOTAL AMOUNT ANNUAL REDEMPTION APPLICABILITY OF
OF OID: PERCENTAGE MODIFIED PAYMENT MINIMUM
REDUCTION: UPON ACCELERATION DENOMINA-
OR REDEMPTION: TIONS:
ORIGINAL YIELD INITIAL ACCRUAL If yes, state SPECIFIED
TO MATURITY: PERIOD OID: Issue Price: CURRENCY:
OTHER COMMON CODE: EXCHANGE RATE
PROVISIONS: AGENT:
ISIN:
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to
, or registered assignees, the principal sum of , on the Maturity Date
specified above (except to the extent previously redeemed or repaid) and to
pay interest thereon at the Interest Rate per annum specified above from
and including the Interest Accrual Date specified above until but excluding
the date the principal hereof is paid or duly made available for payment
(except as provided below), in arrears on each Interest Payment Date
specified above commencing on the Interest Payment Date next succeeding the
Interest Accrual Date specified above, and at maturity (or on any
redemption or repayment date); provided, however, that if the Interest
Accrual Date occurs between a Record Date, as defined below, and the next
succeeding Interest Payment Date, interest payments will commence on the
second Interest Payment Date succeeding the Interest Accrual Date to the
registered holder of this Note on the Record Date with respect to such
second Interest Payment Date.
Interest on this Note will accrue from and including the
most recent Interest Payment Date to which interest has been paid or duly
provided for, or, if no interest has been paid or duly provided for, from
and including the Interest Accrual Date, until but excluding the date the
principal hereof has been paid or duly made available for payment (except
as provided below). The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the person in whose name this Note
(or one or more predecessor Notes) is registered at the close of business
on the date 15 calendar days prior to such Interest Payment Date (whether
or not a Business Day) (each such date a "Record Date"); provided,
however, that interest payable at maturity (or on any redemption or
repayment date) will be payable to the person to whom the principal hereof
shall be payable.
Payment of the principal of this Note, any premium and the
interest due at maturity (or on any redemption or repayment date) will be
made in immediately available funds upon surrender of this Note at the
office or agency of the Principal Paying Agent, as defined on the reverse
hereof, or at such other paying agency as the Issuer may determine (each, a
"Paying Agent," which term shall include the Principal Paying Agent).
Payment of the principal of and premium, if any, and interest on this Note
will be made in the Specified Currency indicated above; provided, however,
that U.S. dollar payments of interest, other than interest due at maturity
or on any date of redemption or repayment, will be made by U.S. dollar
check mailed to the address of the person entitled thereto as such address
shall appear in the Note register. A holder of U.S. $10,000,000 or more in
aggregate principal amount of Notes having the same Interest Payment Date
will be entitled to receive payments of interest, other than interest due
at maturity or on any date of redemption or repayment, by wire transfer of
immediately available funds if appropriate wire transfer instructions have
been received by the Principal Paying Agent in writing not less than 15
calendar days prior to the applicable Interest Payment Date. If this Note
is denominated in a Specified Currency other than U.S. dollars, payments of
interest hereon will be made by wire transfer of immediately available
funds to an account maintained by the holder hereof with a bank located
outside the United States if appropriate wire transfer instructions have
been received by the Principal Paying Agent in writing not less than 15
calendar days prior to the applicable Interest Payment Date. If such wire
transfer instructions are not so received, such interest payments will be
made by check payable in such Specified Currency mailed to the address of
the person entitled thereto as such address shall appear in the Note
register.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place, including,
without limitation, the provisions relating to the subordination of this Note
to the Issuer's Senior Indebtedness, as defined on the reverse hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, as defined on the reverse hereof by
manual signature, this Note shall not be entitled to any benefit under the
Subordinated Indenture, as defined on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By:_______________________________
Title:
AUTHENTICATING AGENT'S CERTIFICATE
OF Authentication
This is one of the Notes referred
to in the within-mentioned
Subordinated Indenture.
CHEMICAL BANK,
as Authenticating Agent
By:_______________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Subordinated
Global Medium-Term Notes, Series [D/E], having maturities more than nine
months from the date of issue (the "Notes") of the Issuer. The Notes are
issuable under a Subordinated Indenture, dated as of April 15, 1989, as
supplemented by a First Supplemental Indenture dated as of May 15, 1991 and
a Second Supplemental Indenture dated as of April 15, 1996 (as so
supplemented, the "Subordinated Indenture"), between the Issuer and The
First National Bank of Chicago, as Trustee (the "Trustee," which term
includes any successor trustee under the Subordinated Indenture), to which
Subordinated Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of
rights, duties and immunities of the Issuer, the Trustee and holders of the
Notes and the terms upon which the Notes are, and are to be, authenticated
and delivered. The Trustee has appointed Chemical Bank as Authenticating
Agent (the "Authenticating Agent," which term includes any successor
authenticating agent appointed by the Trustee) with respect to the Notes,
and the Issuer has appointed Chemical Bank, acting through its principal
corporate trust office in the Borough of Manhattan, The City of New York,
as a paying agent for the Notes in the United States and Chemical Bank,
London Branch, at its corporate trust office in London, as its principal
paying agent for the Notes outside the United States (the "Principal Paying
Agent," which term includes any additional or successor principal paying
agent appointed by the Issuer). The terms of individual Notes may vary
with respect to interest rates, interest rate formulas, issue dates,
maturity dates, or otherwise, all as provided in the Subordinated
Indenture. To the extent not inconsistent herewith, the terms of the
Subordinated Indenture are hereby incorporated by reference herein.
If this Note is denominated in pounds sterling, the Issuer
represents that it is not an authorized institution (for purposes of the
United Kingdom Banking Act 1987) and repayment of the principal of, and
payment of any interest or premium on, this Note has not been guaranteed,
that it has complied with its obligations under the listing rules of The
International Stock Exchange of the United Kingdom and the Republic of
Ireland Limited (the "Rules") and that, since the last publication in
compliance with the Rules of information about it, it, having made all
reasonable inquiries, has not become aware of any change in circumstances
which could reasonably be regarded as significantly and adversely affecting
its ability to meet its obligations in respect of the Notes as they fall
due.
Unless otherwise provided on the face hereof, this Note will
not be subject to any sinking fund and, unless otherwise provided on the
face hereof in accordance with the provisions of the following two
paragraphs and except as set forth below, will not be redeemable or subject
to repayment at the option of the holder prior to maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on or after the
Initial Redemption Date specified on the face hereof on the terms set forth
on the face hereof, together with interest accrued and unpaid hereon to the
date of redemption (except as provided below). If this Note is subject to
"Annual Redemption Percentage Reduction," the Initial Redemption Percentage
indicated on the face hereof will be reduced on each anniversary of the
Initial Redemption Date by the Annual Redemption Percentage Reduction
specified on the face hereof until the redemption price of this Note is
100% of the principal amount hereof, together with interest accrued and
unpaid hereon to the date of redemption (except as provided below). Notice
of redemption shall be mailed to the registered holders of the Notes
designated for redemption at their addresses as the same shall appear on
the Note register not less than 30 nor more than 60 days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Subordinated Indenture. In the event of redemption of this Note in part
only, a new Note or Notes for the amount of the unredeemed portion hereof
shall be issued in the name of the holder hereof upon the cancellation
hereof.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional Repayment
Date or Dates specified on the face hereof on the terms set forth herein. On
any Optional Repayment Date, this Note will be repayable in whole or in part
in increments of $1,000 or, if this Note is denominated in a Specified
Currency other than U.S. dollars, in increments of 1,000 units of such
Specified Currency (provided that any remaining principal amount hereof shall
not be less than the minimum authorized denomination hereof) at the option of
the holder hereof at a price equal to 100% of the principal amount to be
repaid, together with interest accrued and unpaid hereon to the date of
repayment (except as provided below). For this Note to be repaid at the
option of the holder hereof, the Principal Paying Agent must receive at its
office in London, at least 15 but not more than 30 days prior to the date of
repayment, (i) this Note with the form entitled "Option to Elect Repayment"
below duly completed or (ii) a telegram, telex, facsimile transmission or a
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or a trust
company in the United States, Western Europe or Japan setting forth the name
of the holder of this Note, the principal amount hereof, the certificate
number of this Note or a description of this Note's tenor and terms, the
principal amount hereof to be repaid, a statement that the option to elect
repayment is being exercised thereby and a guarantee that this Note, together
with the form entitled "Option to Elect Repayment" duly completed, will be
received by the Principal Paying Agent not later than the fifth Business Day
after the date of such telegram, telex, facsimile transmission or letter;
provided, that such telegram, telex, facsimile transmission or letter shall
only be effective if this Note and form duly completed are received by the
Principal Paying Agent by such fifth Business Day. Exercise of such repayment
option by the holder hereof shall be irrevocable. In the event of repayment
of this Note in part only, a new Note or Notes for the amount of the unpaid
portion hereof shall be issued in the name of the holder hereof upon the
cancellation hereof.
Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Interest payments for this
Note will be computed and paid on the basis of a 360-day year of twelve 30-day
months unless otherwise specified on the face hereof.
In the case where the Interest Payment Date or the Maturity
Date (or any redemption or repayment date) does not fall on a Business Day,
payment of interest, premium, if any, or principal otherwise payable on such
date need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date or on the Maturity Date (or any redemption or repayment date), and no
interest on such payment shall accrue for the period from and after the
Interest Payment Date or the Maturity Date (or any redemption or repayment
date) to such next succeeding Business Day.
This Note and all other obligations of the Issuer hereunder
will constitute part of the subordinated debt of the Issuer, will be issued
under the Subordinated Indenture and will be subordinate and junior in right
of payment, to the extent and in the manner set forth in the Subordinated
Indenture, to all "Senior Indebtedness" of the Issuer. The Subordinated
Indenture defines "Senior Indebtedness" as obligations (other than
non-recourse obligations, the debt securities, including this Note, issued
under the Subordinated Indenture or any other obligations specifically
designated as being subordinate in right of payment to Senior Indebtedness)
of, or guaranteed or assumed by, the Issuer for borrowed money or evidenced by
bonds, debentures, notes or other similar instruments, and amendments,
renewals, extensions, modifications and refundings of any such indebtedness or
obligation.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons,
and is issuable only in the minimum denominations set forth on the face hereof
or any amount in excess thereof which is an integral multiple of 1,000 units
of the Specified Currency set forth on the face hereof.
Chemical Bank has been appointed registrar for the Notes (the
"Registrar," which term includes any successor registrar appointed by the
Issuer), and the Registrar will maintain at its office in The City of New
York, a register for the registration and transfer of Notes. This Note may
be transferred at either the aforesaid New York office or at the London office
of the Registrar by surrendering this Note for cancellation, accompanied by a
written instrument of transfer in form satisfactory to the Registrar and duly
executed by the registered holder hereof in person or by the holder's attorney
duly authorized in writing, and thereupon the Registrar shall issue in the
name of the transferee or transferees, in exchange herefor, a new Note or
Notes having identical terms and provisions and having a like aggregate
principal amount in authorized denominations, subject to the terms and
conditions set forth herein; provided, however, that the Registrar will not be
required (i) to register the transfer of or exchange any Note that has been
called for redemption in whole or in part, except the unredeemed portion of
Notes being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of such
Note not required to be repurchased, or (iii) to register the transfer of or
exchange Notes to the extent and during the period so provided in the
Subordinated Indenture with respect to the redemption of Notes. Notes are
exchangeable at said offices for other Notes of other authorized denominations
of equal aggregate principal amount having identical terms and provisions.
All such exchanges and transfers of Notes will be free of service charge, but
the Issuer may require payment of a sum sufficient to cover any tax or other
governmental charge in connection therewith. All Notes surrendered for
exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Registrar and executed by the registered holder in person
or by the holder's attorney duly authorized in writing. The date of
registration of any Note delivered upon any exchange or transfer of Notes
shall be such that no gain or loss of interest results from such exchange or
transfer.
In case any Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and such Note or evidence of the loss,
theft or destruction thereof (together with the indemnity hereinafter
referred to and such other documents or proof as may be required in the
premises) shall be delivered to the Registrar, a new Note of like tenor
will be issued by the Issuer in exchange for the Note so mutilated or
defaced, or in lieu of the Note so destroyed or lost or stolen, but, in the
case of any destroyed or lost or stolen Note, only upon receipt of evidence
satisfactory to the Registrar and the Issuer that such Note was destroyed
or lost or stolen and, if required, upon receipt also of indemnity
satisfactory to each of them. All expenses and reasonable charges
associated with procuring such indemnity and with the preparation,
authentication and delivery of a new Note shall be borne by the owner of
the Note mutilated, defaced, destroyed, lost or stolen.
The Subordinated Indenture provides that, (a) if an Event of
Default (as defined in the Subordinated Indenture) due to the default in
payment of principal of, premium, if any, or interest on, any series of
debt securities issued under the Subordinated Indenture, including the
series of Subordinated Global Medium-Term Notes of which this Note forms a
part, or due to the default in the performance or breach of any other
covenant or warranty of the Issuer applicable to the debt securities of
such series but not applicable to all outstanding debt securities issued
under the Subordinated Indenture shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in principal amount
of the debt securities of each affected series (voting as a single class)
may then declare the principal of all debt securities of all such series
and interest accrued thereon to be due and payable immediately and (b) if
an Event of Default due to a default in the performance of any other of the
covenants or agreements in the Subordinated Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due
to certain events of bankruptcy, insolvency and reorganization of the
Issuer, shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of all debt securities
issued under the Subordinated Indenture then outstanding (treated as one
class) may declare the principal of all such debt securities and interest
accrued thereon to be due and payable immediately, but upon certain
conditions such declarations may be annulled and past defaults may be
waived (except a continuing default in payment of principal (or premium, if
any) or interest on such debt securities) by the holders of a majority in
principal amount of the debt securities of all affected series then
outstanding.
If the face hereof indicates that this Note is subject to
"Modified Payment upon Acceleration or Redemption," then (i) if the
principal hereof is declared to be due and payable as described in the
preceding paragraph, the amount of principal due and payable with respect
to this Note shall be limited to the aggregate principal amount hereof
multiplied by the sum of the Issue Price specified on the face hereof
(expressed as a percentage of the aggregate principal amount) plus the
original issue discount amortized from the Interest Accrual Date to the
date of declaration, which amortization shall be calculated using the
"interest method" (computed in accordance with generally accepted
accounting principles in effect on the date of declaration), (ii) for the
purpose of any vote of securityholders taken pursuant to the Subordinated
Indenture prior to the acceleration of payment of this Note, the principal
amount hereof shall equal the amount that would be due and payable hereon,
calculated as set forth in clause (i) above, if this Note were declared to
be due and payable on the date of any such vote and (iii) for the purpose
of any vote of securityholders taken pursuant to the Subordinated Indenture
following the acceleration of payment of this Note, the principal amount
hereof shall equal the amount of principal due and payable with respect to
this Note, calculated as set forth in clause (i) above.
This Note may be redeemed, as a whole, at the option of the
Issuer at any time prior to maturity, upon the giving of a notice of
redemption as described below, at a redemption price equal to 100% of the
principal amount hereof, together with accrued interest to the date fixed
for redemption (except that if this Note is subject to "Modified Payment
upon Acceleration or Redemption," such redemption price would be limited to
the aggregate principal amount hereof multiplied by the sum of the Issue
Price specified on the face hereof (expressed as a percentage of the
aggregate principal amount) plus the original issue discount amortized from
the Interest Accrual Date to the date of redemption, which amortization
shall be calculated using the "interest method" (computed in accordance
with generally accepted accounting principles in effect on the date of
redemption)), if the Issuer determines that, as a result of any change in
or amendment to the laws (or any regulations or rulings promulgated
thereunder) of the United States or of any political subdivision or taxing
authority thereof or therein affecting taxation, or any change in official
position regarding the application or interpretation of such laws,
regulations or rulings, which change or amendment becomes effective on or
after the Original Issue Date hereof, the Issuer has or will become
obligated to pay Additional Amounts (as defined below) with respect to the
Notes as described below. Prior to the giving of any notice of redemption
pursuant to this paragraph, the Issuer shall deliver to the Trustee (i) a
certificate stating that the Issuer is entitled to effect such redemption
and setting forth a statement of facts showing that the conditions
precedent to the right of the Issuer to so redeem have occurred, and (ii)
an opinion of independent counsel satisfactory to the Trustee to such
effect based on such statement of facts; provided that no such notice of
redemption shall be given earlier than 60 days prior to the earliest date
on which the Issuer would be obligated to pay such Additional Amounts if a
payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more
than 60 days prior to the date fixed for redemption, which date and the
applicable redemption price will be specified in such notice.
The Issuer will, subject to certain exceptions and
limitations set forth below, pay such additional amounts (the "Additional
Amounts") to the holder of this Note who is a United States Alien (as
defined below) as may be necessary in order that every net payment of the
principal of and interest on this Note and any other amounts payable on
this Note, after withholding for or on account of any present or future
tax, assessment or governmental charge imposed upon or as a result of such
payment by the United States (or any political subdivision or taxing
authority thereof or therein), will not be less than the amount provided
for in this Note to be then due and payable. The Issuer will not, however,
be required to make any payment of Additional Amounts to any such holder
for or on account of:
(a) any such tax, assessment or other governmental charge
that would not have been so imposed but for (i) the existence of
any present or former connection between such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of such
holder, if such holder is an estate, a trust, a partnership or a
corporation) and the United States, including, without limitation,
such holder (or such fiduciary, settlor, beneficiary, member or
shareholder) being or having been a citizen or resident thereof or
being or having been engaged in a trade or business or present
therein or having, or having had, a permanent establishment
therein or (ii) the presentation by the holder of this Note for
payment on a date more than 15 days after the date on which such
payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or
personal property tax or any similar tax, assessment or
governmental charge;
(c) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as a personal
holding company or foreign personal holding company or controlled
foreign corporation or passive foreign investment company with
respect to the United States or as a corporation which accumulates
earnings to avoid United States federal income tax or as a private
foundation or other tax-exempt organization;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payments on or in respect
of this Note;
(e) any tax, assessment or other governmental charge required
to be withheld by any Paying Agent from any payment of principal of,
or interest on, this Note, if such payment can be made without such
withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that
would not have been imposed but for the failure to comply with
certification, information or other reporting requirements concerning
the nationality, residence or identity of the holder or beneficial
owner of this Note, if such compliance is required by statute or by
regulation of the United States or of any political subdivision or
taxing authority thereof or therein as a precondition to relief or
exemption from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power
of all classes of stock entitled to vote of the Issuer or as a direct
or indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or
(g);
nor shall Additional Amounts be paid with respect to any payment on this Note
to a United States Alien who is a fiduciary or partnership or other than the
sole beneficial owner of such payment to the extent such payment would be
required by the laws of the United States (or any political subdivision
thereof) to be included in the income, for tax purposes, of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to the Additional Amounts
had such beneficiary, settlor, member or beneficial owner been the holder of
this Note.
The Subordinated Indenture permits the Issuer and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the debt securities of all series issued
under the Subordinated Indenture then outstanding and affected (voting as
one class), to execute supplemental indentures adding any provisions to or
changing in any manner the rights of the holders of each series so
affected; provided that the Issuer and the Trustee may not, without the
consent of the holder of each outstanding debt security affected thereby,
(a) extend the final maturity of any such debt security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any amount payable on redemption or
repayment thereof, or change the currency of payment thereof, or impair or
affect the rights of any holder to institute suit for the payment thereof
without the consent of the holder of each debt security so affected; or (b)
reduce the aforesaid percentage in principal amount of debt securities the
consent of the holders of which is required for any such supplemental
indenture, without the consent of the holders of each debt security so
affected; provided, however, that neither this Note nor the Subordinated
Indenture may be amended to alter the subordination provisions hereof or
thereof without the written consent of each holder of Senior Indebtedness
then outstanding that would be adversely affected thereby.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency other
than U.S. dollars and such Specified Currency is not available to the
Issuer for making payments hereon due to the imposition of exchange
controls or other circumstances beyond the control of the Issuer or is no
longer used by the government of the country issuing such currency or for
the settlement of transactions by public institutions within the
international banking community, then the Issuer will be entitled to
satisfy its obligations to the holder of this Note by making such payments
in U.S. dollars on the basis of the Market Exchange Rate (as defined below)
on the date of such payment or, if the Market Exchange Rate is not
available on such date, as of the most recent practicable date; provided,
however, that if such Specified Currency is replaced by a single European
currency (expected to be named the Euro), the payment of principal of,
premium, if any, or interest on any Note denominated in such currency shall
be effected in the new single European currency in conformity with legally
applicable measures taken pursuant to, or by virtue of, the treaty
establishing the European Community (the "EC"), as amended by the treaty on
European Union (as so amended, the "Treaty"). Any payment made under such
circumstances in U.S. dollars (or, if applicable, such new European
currency) where the required payment is in a Specified Currency other than
U.S. dollars will not constitute an Event of Default.
If the principal of, premium, if any, or interest on, this
Note is payable in ECUs, then with respect to each due date for any such
payment on or after the first business day in Brussels on which the ECU
ceases to be used as the unit of account of the European Community ("EC")
and has not become a currency in its own right, replacing all or some of
the currencies of the member states of the EC, the Issuer shall choose a
substitute currency (the "Chosen Currency") which may be any currency which
was, on the last day on which the ECU was used as the unit of account of
the EC, a component currency of the ECU basket or U.S. dollars, in which
all such payments due on or after that date with respect to this Note shall
be made. Notice of the Chosen Currency so selected shall, where
practicable, be published in the manner described in "Notices" below. The
amount of each payment in such Chosen Currency shall be computed on the
basis of the equivalent of the ECU in that currency, determined as
described below, as of the fourth business day in Brussels prior to the
date on which such payment is due.
If the principal of, premium, if any, or interest on, this
Note is payable in ECUs, then on the first business day in Brussels on
which the ECU ceases to be used as the unit of account of the EC and has
not become a currency in its own right, replacing all or some of the
currencies of the member states of the EC, the Issuer shall choose a Chosen
Currency in which all such payments with respect to this Note having a due
date prior thereto but not yet presented for payment are to be made. The
amount of each payment in such Chosen Currency shall be computed on the
basis of the equivalent of the ECU in that currency, determined as
described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as
of any date (the "Day of Valuation") shall be determined on the following
basis by, or on behalf of, an Exchange Rate Agent appointed by the Issuer.
The amounts and components composing the ECU for this purpose (the
"Components") shall be the amounts and components composing the ECU as of
the last date on which the ECU was used as the unit of account of the EC.
The equivalent of the ECU in the Chosen Currency shall be calculated by,
first, aggregating the U.S. dollar equivalents of the Components; and then,
in the case of a Chosen Currency other than U.S. dollars, using the rate
used for determining the U.S. dollar equivalent of the Components in the
Chosen Currency as set forth below, calculating the equivalent in the
Chosen Currency of such aggregate amount in U.S. dollars.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Issuer, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf; provided
that such quotations were prevailing in the country of issue not more than two
Business Days before such Day of Valuation. If such most recent quotations
were so prevailing in the country of issue more than two Business Days before
such Day of Valuation, the Exchange Rate Agent shall determine the U.S. dollar
equivalent of such Component on the basis of cross rates derived from the
middle spot delivery quotations for such component currency and for the U.S.
dollar prevailing at 2:30 P.M., Brussels time, on such Day of Valuation, as
obtained by, or on behalf of, the Exchange Rate Agent from one or more major
banks, as selected by the Issuer, in a country other than the country of issue
of such component currency. Notwithstanding the foregoing, the Exchange Rate
Agent shall determine the U.S. dollar equivalent of such Component on the
basis of such cross rates if the Issuer or such agent judges that the
equivalent so calculated is more representative than the U.S. dollar
equivalent calculated as provided in the first sentence of this paragraph.
Unless otherwise specified by the Issuer, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations or
for any other reason, the market to be referred to in respect of such currency
shall be that upon which a non-resident issuer of notes denominated in such
currency would purchase such currency in order to make payments in respect of
such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of this Note.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as aforesaid
of the Notes. If this Note is listed on The International Stock Exchange of
the United Kingdom and the Republic of Ireland Limited and such Exchange so
requires, the Issuer shall maintain a Paying Agent in London. The Issuer may
designate other agencies for the payment of said principal, premium and
interest at such place or places (subject to applicable laws and regulations)
as the Issuer may decide. So long as there shall be such an agency, the
Issuer shall keep the Trustee advised of the names and locations of such
agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes that
such moneys shall be repaid to the Issuer and any person claiming such
moneys shall thereafter look only to the Issuer for payment thereof and
(ii) such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease, without, however, limiting in any way any obligation
that the Issuer may have to pay the principal of or interest or premium, if
any, on this Note as the same shall become due.
No provision of this Note or of the Subordinated Indenture
shall alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the registered
holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and none of the Issuer,
the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Subordinated
Indenture or any indenture supplemental thereto, against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Issuer or of any successor corporation, either directly or through the Issuer
or any successor corporation, whether by virtue of any constitution, statute
or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of
the consideration for the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York;
As used herein:
(a) the term "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in The
City of New York or in the City of London and (i) if this Note is denominated
in a Specified Currency other than U.S. dollars, Australian dollars or ECUs,
in the principal financial center of the country of the Specified Currency,
(ii) if this Note is denominated in Australian dollars, in Sydney and (iii) if
this Note is denominated in ECUs, that is not a non-ECU clearing day, as
determined by the ECU Banking Association in Paris;
(b) the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for wire transfers of the Specified
Currency indicated on the face hereof as certified for customs purposes by the
Federal Reserve Bank of New York;
(c) the term "Notices" refers to notices to be sent to the
holders of the Notes at each holder's address as that address appears in the
register for the Notes by first class mail, postage prepaid, and to be given
by publication in an authorized newspaper in the English language and of
general circulation in the Borough of Manhattan, The City of New York, and
London or, if publication in London is not practical, in an English language
newspaper with general circulation in Western Europe. Such publication is
expected to be made in the Wall Street Journal and the Financial Times. Such
Notices will be deemed to have been given on the date of such publication, or
if published in such newspapers on different dates, on the date of the first
such publication;
(d) the term "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction; and
(e) the term "United States Alien" means any person who, for
United States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership, one or more of the members of which
is a foreign corporation, a non-resident alien individual or a non-resident
alien fiduciary of a foreign estate or trust.
All other terms used in this Note which are defined in the
Subordinated Indenture and not otherwise defined herein shall have the
meanings assigned to them in the Subordinated Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the
above list.
__________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_________________________________________________
_________________________________________________
_______________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE,
OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably
_______________________________________________________________
constituting and appointing such person attorney to transfer
_______________________________________________________________
such note on the books of the Issuer, with full power of
_______________________________________________________________
substitution in the premises.
Dated:_____________________ ____________________________________________
NOTICE: The signature to this assignment
must correspond with the name
as written upon the face of the
within Note in every particular
without alteration or enlargement
or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid: __________________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the
Notes to be issued to the holder for the portion of the within Note not being
repaid (in the absence of any such specification, one such Note will be issued
for the portion not being repaid):
____________________________.
Dated:_____________ ___________________________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as written
upon the face of the within
instrument in every particular
without alteration or enlargement.
EXHIBIT 4.Y
[FORM OF FACE OF SECURITY]
Temporary Global Floating Rate Senior Bearer Note
BEARER BEARER
No. TGFL _____
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SEC- TION 4
OF THE UNITED KINGDOM BANKING ACT 1987.](*)
[MEDIUM TERM NOTE ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SEC- TION 4
OF THE UNITED KINGDOM BANKING ACT 1987.](**)
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR AN INTEREST IN A
PERMANENT GLOBAL BEARER NOTE, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET
FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES AND
EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD, 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.
IF THIS NOTE IS DENOMINATED IN JAPANESE YEN, IT SHALL HAVE A MATURITY OF NOT
LESS THAN ONE YEAR AND IT MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY,
IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT IN JAPAN PRIOR TO THE DATE
WHICH IS 90 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS NOTE. IF (i)
INTEREST PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN AND PRINCIPAL
PAYMENTS ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER THAN JAPANESE
YEN OR (ii) PRINCIPAL PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN
AND INTEREST PAYMENTS ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER
THAN JAPANESE YEN, THIS NOTE MAY NOT BE OFFERED OR SOLD, DIRECTLY OR
INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF JAPAN PRIOR
TO THE DATE WHICH IS 180 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS
NOTE.
____________
(*) Applies only if this Note is denominated in pounds sterling and
matures not more than one year from and including the Original Issue
Date.
(**) Applies only if this Note is denominated in pounds sterling and
matures more than one year and not more than five years from and
including the Original Issue Date.
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Floating Rate)
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INTEREST PAYMENT
DATE(S):
MATURITY DATE: INITIAL INTEREST RATE: INTEREST PAYMENT
PERIOD:
BASE RATE: INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
INDEX MATURITY: MAXIMUM INTEREST RATE: INTEREST RESET DATES:
SPREAD (PLUS OR MINIMUM INTEREST RATE: CALCULATION AGENT:
MINUS):
ALTERNATE RATE SPREAD INITIAL REDEMPTION SPECIFIED CURRENCY:
EVENT: DATE:
SPREAD MULTIPLIER: INITIAL REDEMPTION LIBOR CURRENCY:
PERCENTAGE:
EUROCLEAR NO: ANNUAL REDEMPTION TOTAL AMOUNT OF OID:
PERCENTAGE REDUCTION:
CEDEL NO: OPTIONAL REPAYMENT ORIGINAL YIELD TO
DATE(S): MATURITY:
COMMON CODE: EXCHANGE RATE AGENT: INITIAL ACCRUAL PERIOD
OID:
ISIN: DESIGNATED CMT MINIMUM DENOMINATIONS:
TELERATE PAGE:
REPORTING SERVICE: DESIGNATED CMT MATURITY
INDEX:
OTHER PROVISIONS:
Morgan Stanley Group Inc., a Delaware corporation
(together with its successors and assigns, the "Issuer"), for value
received, hereby promises to pay to bearer, upon surrender hereof, the
principal amount specified in Schedule A hereto, on the Maturity Date
specified above (except to the extent previously redeemed or repaid) and to
pay interest thereon, from and including the Interest Accrual Date
specified above at a rate per annum equal to the Initial Interest Rate
specified above until but excluding the Initial Interest Reset Date
specified above, and on and after at a rate per annum determined in
accordance with the provisions specified in the Permanent Global Bearer
Note (as defined below) until but excluding the date such principal amount
is paid or duly made available for payment. The Issuer will pay interest
in arrears monthly, quarterly, semiannually or annually as specified above
as the Interest Payment Period on each Interest Payment Date (as specified
above), commencing with the first Interest Payment Date next succeeding the
Interest Accrual Date specified above, and at maturity (or on any
redemption or repayment date); provided, however, that if the Interest
Accrual Date occurs fifteen days or less prior to the first Interest
Payment Date occurring after the Interest Accrual Date, interest payments
will commence on the second Interest Payment Date succeeding the Interest
Accrual Date; and provided, further, that if an Interest Payment Date
(other than the Maturity Date (as specified above) or redemption or
repayment date) would fall on a day that is not a Business Day, as defined
below, such Interest Payment Date shall be the following day that is a
Business Day, except that if the Base Rate specified above is LIBOR and
such next Business Day falls in the next calendar month, such Interest
Payment Date shall be the immediately preceding day that is a Business Day;
and provided, further, that if the Maturity Date or redemption or repayment
date would fall on a day that is not a Business Day, the payment of
principal, premium, if any, and interest will be made on the next
succeeding Business Day and no interest shall accrue for the period from
and after such Maturity Date or redemption or repayment date.
Interest on this Note will accrue from and including the
most recent Interest Payment Date to which interest has been paid or duly
provided for, or, if no interest has been paid or duly provided for, from
and including the Interest Accrual Date, until but excluding the date the
principal amount hereof has been paid or duly made available for payment.
Upon any payment of interest on this Note, the Principal Paying Agent (as
defined below) shall cause Schedule A of this Note to be endorsed to
reflect such payment. No payment on this Note will be made at any office
or agency of the Issuer in the United States or by check mailed to an
address in the United States (as defined below) or by wire transfer to an
account maintained by the holder of this Note with a bank in the United
States except as may be permitted under United States federal tax laws and
regulations then in effect without adverse tax consequences to the Issuer.
Notwithstanding the foregoing, in the event that payment in U.S. dollars of
the full amount payable on this Note at the offices of all Paying Agents
(as defined below) would be illegal or effectively precluded as a result of
exchange controls or similar restrictions, payment on this Note will be
made by a paying agency in the United States, if such paying agency, under
applicable law and regulations, would be able to make such payment.
Notwithstanding any other provision of this Note, no payment of principal
or interest shall be made on any portion of this Note unless there shall
have been delivered to the Principal Paying Agent a certificate
substantially in the form of Exhibit A hereto with respect to the portion
of this Note with respect to which such principal or interest is to be
paid. Such certificate shall have been delivered to the holder hereof by
Morgan Guaranty Trust Company of New York, Brussels office, as operator of
the Euroclear System (the "Euroclear Operator") Cedel Bank, societe
anonyme ("Cedel") and/or any other relevant clearing system (including
Societe Interprofessionelle pour la Compensation des Valeurs Mobilieres and
the Intermediaires financiers habilites authorized to maintain accounts
therein (SICOVAM")), as the case may be, and shall be based on a
certificate substantially in the form of Exhibit B hereto provided to the
Euroclear Operator, Cedel and/or any other relevant clearing system, as the
case may be, by those of its account holders who are to receive such
payment of principal or interest.
This Note is issued in temporary global bearer form and
represents all or a portion of a duly authorized issue of Senior Global
Medium-Term Notes, Series [D/E] (the "Notes"), issued under a Senior
Indenture, dated as of April 15, 1989, as supplemented by a First
Supplemental Indenture dated as of May 15, 1991 and a Second Supplemental
Indenture dated as of April 15, 1996 (as so supplemented, the "Senior
Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed Chemical Bank,
London Branch, as its principal paying agent for the Notes (the "Principal
Paying Agent," which term includes any additional or successor Principal
Paying Agent appointed by the Issuer). The Notes are issuable (i) in
temporary or permanent global bearer form without coupons attached (the
"Global Bearer Notes") in the minimum denominations set forth on the face
hereof or thereof or any amount in excess thereof which is an integral
multiple of 1,000 units of the Specified Currency set forth on the face
hereof or thereof, (ii) in definitive bearer form with interest coupons
attached (the "Definitive Bearer Notes") in the minimum denominations set
forth on the face thereof or any amount in excess thereof which is an
integral multiple of 1,000 units of the Specified Currency set forth on the
face thereof and (iii) in fully registered definitive form without coupons
(the "Registered Notes"), in the minimum denominations set forth on the
face thereof or any amount in excess thereof which is an integral multiple
of 1,000 units of the Specified Currency set forth on the face thereof.
Except as otherwise provided herein, this Note is governed
by the terms and conditions of the Permanent Global Floating Rate Senior
Bearer Note (the "Permanent Global Bearer Note") to be issued in exchange for
this Note, which terms and conditions are hereby incorporated by reference
herein mutatis mutandis and shall be binding on the Company and the holder
hereof as if fully set forth herein. The form of the Permanent Global Bearer
Note is attached hereto.
This Note is exchangeable in whole or from time to time
in part on or after the Exchange Date (as defined below) for an interest
(equal to the principal amount of the portion of this Note being exchanged)
in a single Permanent Global Bearer Note upon the request of the Euroclear
Operator, Cedel and/or any other relevant clearing system, acting on behalf
of the owner of a beneficial interest in this Note, to the Principal Paying
Agent upon delivery to the Principal Paying Agent of a certificate
substantially in the form of Exhibit A hereto with respect to the portion
of this Note to be exchanged. Such certificate shall have been delivered
to the holder hereof by the Euroclear Operator, Cedel and/or any other
relevant clearing system, as the case may be, and shall be based on a
certificate substantially in the form of Exhibit B hereto provided to the
Euroclear Operator, Cedel and/or any other relevant clearing system, as the
case may be, by those of its account holders having an interest in the
portion hereof to be exchanged. Notwithstanding the foregoing, if this
Note is subject to a tax redemption as described on the reverse of the
Permanent Global Bearer Note attached hereto, interests in this Note may be
exchanged for interests in a permanent Global Bearer Note on and after such
redemption date as if such redemption date had been the Exchange Date,
subject to receipt of the certificates described in the preceding sentence.
Upon exchange of any portion of this Note for an interest in a Permanent
Global Bearer Note, the Principal Paying Agent shall cause Schedule A of
this Note to be endorsed to reflect the reduction of its principal amount
by an amount equal to the aggregate principal amount being so exchanged.
Except as otherwise provided herein, until exchanged for a Permanent Global
Bearer Note, this Note shall in all respects be entitled to the same
benefits under the Senior Indenture as a duly authenticated and delivered
Permanent Global Bearer Note.
As used herein:
(a) the term "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to
close in The City of New York or in the City of London and (i) with respect
to Notes bearing interest calculated by reference to LIBOR, that is also a
London Banking Day, (ii) with respect to Notes denominated in a Specified
Currency other than U.S. dollars, Australian dollars or ECUs, in the
principal financial center of the country of the Specified Currency, (iii)
with respect to Notes denominated in Australian dollars, in Sydney and (iv)
with respect to Notes denominated in ECUs, that is not a non-ECU clearing
day, as determined by the ECU Banking Association in Paris.
(b) the term "Exchange Date" means the date that is 40
days after the date on which the Issuer receives the proceeds of the sale of
this Note (the "Closing Date"), provided that if this Note is held by Morgan
Stanley International, or any other manager participating in the distribution
of the tranche of Notes of which this Note forms a part, as part of an unsold
allotment or subscription more than 40 days after the Closing Date for this
Note, the Exchange Date shall be the day after the date this Note is sold by
Morgan Stanley International or such other manager, all as determined and
notified to the Trustee by Morgan Stanley International, or if Morgan Stanley
International did not participate in the distribution of such tranche, by the
Issuer.
(c) the term "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.
All other terms used in this Note which are defined in the
Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Note shall not be entitled
to any benefit under the Senior Indenture, as defined on the reverse hereof,
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be
duly executed.
DATED: MORGAN STANLEY GROUP INC.
By _______________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
CHEMICAL BANK,
as Trustee
By _______________________________
Authorized Officer
SCHEDULE A
SCHEDULE OF EXCHANGES
The Initial Principal Amount of this Note is US $10,000,000. The
following payments of interest and exchanges of a part of this Note for an
interest in a single Permanent Global Bearer Note have been made:
Principal
Amount Remaining
Exchanged Principal
Date of For Amount
Exchange Permanent Outstanding Notation Made
Behalf Payment Global Following by or on Behalf
or Interest of Bearer Such of Principal
Payment Interest Note Exchange Paying Agent
- ----------- -------- --------- ----------- ----------------
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EXHIBIT A
[FORM OF CERTIFICATE TO BE GIVEN BY
THE EUROCLEAR OPERATOR, CEDEL AND/OR
ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
Morgan Stanley Group Inc.
Global Medium-Term Notes, Series [D/E]
Represented by Temporary Global 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 any estate or trust the
income of which is subject to United States Federal income taxation
regardless of its source ("United States persons"), (ii) is owned by United
States persons that are (a) foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section 1.165-
12(c)(1)(v)) ("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 U.S.
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the further
effect that 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.
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 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: 19__
[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]]
[MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, BRUSSELS OFFICE, as Operator of the
Euroclear System]
[CEDEL BANK S.A.]
[OTHER]
By _______________________________
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF THE EUROCLEAR OPERATOR, CEDEL
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
Morgan Stanley Group Inc.
Global Medium-Term Notes, Series [D/E]
Represented by Temporary Global 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 any
estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States person(s)"), (ii)
are owned by United States person(s) that are (a) foreign branches of
United States financial institutions (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (b) United States
person(s) 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 U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), 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 $ 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 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.
Dated: 19__
[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:
EXHIBIT 4.Z
[FORM OF FACE OF SECURITY]
Permanent Global Floating Rate Senior Bearer Note
BEARER
BEARER
No. PGFL ____
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4
OF THE UNITED KINGDOM BANKING ACT 1987.]*(1)
[MEDIUM TERM NOTE ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4
OF THE UNITED KINGDOM BANKING ACT 1987.]**(2)
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR DEFINITIVE BEARER NOTES OR IN
WHOLE OR IN PART FOR REGISTERED NOTES, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET FORTH
BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES AND
EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD, 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.
IF THIS NOTE IS DENOMINATED IN JAPANESE YEN, IT SHALL HAVE A MATURITY OF NOT
LESS THAN ONE YEAR AND IT MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY,
IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT IN JAPAN PRIOR TO THE DATE
WHICH IS 90 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS NOTE. IF (i)
INTEREST PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN AND PRINCIPAL
PAYMENTS ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER THAN JAPANESE
YEN OR (ii) PRINCIPAL PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN
AND INTEREST PAYMENTS ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER
THAN JAPANESE YEN, THIS NOTE MAY NOT BE OFFERED OR SOLD, DIRECTLY OR
INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF JAPAN PRIOR
TO THE DATE WHICH IS 180 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS
NOTE.
____________
(1)* Applies only if this Note is denominated in pounds sterling and matures
not more than one year from and including the Original Issue Date.
(2)** Applies only if this Note is denominated in pounds sterling and
matures more than one year and not more than five years from and
including the MORGAN STANLEY GROUP INC. Original Issue Date.
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Floating Rate)
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INTEREST PAYMENT
DATE(S):
MATURITY DATE: INITIAL INTEREST RATE: INTEREST PAYMENT
PERIOD:
BASE RATE: INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
INDEX MATURITY: MAXIMUM INTEREST RATE: INTEREST RESET DATES:
SPREAD (PLUS OR MINIMUM INTEREST RATE: CALCULATION AGENT:
MINUS):
ALTERNATE RATE SPREAD INITIAL REDEMPTION SPECIFIED CURRENCY:
EVENT: DATE:
SPREAD MULTIPLIER: INITIAL REDEMPTION INDEX CURRENCY:
PERCENTAGE:
EUROCLEAR NO: ANNUAL REDEMPTION TOTAL AMOUNT OF OID:
PERCENTAGE REDUCTION:
CEDEL NO: OPTIONAL REPAYMENT ORIGINAL YIELD TO
DATE(S): MATURITY:
COMMON CODE: INITIAL ACCRUAL PERIOD
OID:
ISIN: MINIMUM DENOMINATIONS:
REPORTING SERVICE:
DESIGNATED CMT
TELERATE PAGE:
DESIGNATED CMT
MATURITY INDEX:
OTHER PROVISIONS:
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to bearer, upon surrender hereof, the principal amount
specified in Schedule A hereto, on the Maturity Date specified above
(except to the extent previously redeemed or repaid) and to pay interest
thereon, from and including the Interest Accrual Date specified above at a
rate per annum equal to the Initial Interest Rate specified above until the
Initial Interest Reset Date specified above, and on and after at a rate per
annum determined in accordance with the provisions specified on the reverse
hereof until but excluding the date such principal amount is paid or duly
made available for payment. The Issuer will pay interest in arrears
monthly, quarterly, semiannually or annually as specified above as the
Interest Payment Period on each Interest Payment Date (as specified above),
commencing with the first Interest Payment Date next succeeding the
Interest Accrual Date specified above, and on the Maturity Date specified
above (or any redemption or repayment date); provided, however, that if the
Interest Accrual Date occurs fifteen days or less prior to the first
Interest Payment Date occurring after the Interest Accrual Date, interest
payments will commence on the second Interest Payment Date succeeding the
Interest Accrual Date; and provided, further, that if an Interest Payment
Date (other than the Maturity Date or redemption or repayment date) would
fall on a day that is not a Business Day, as defined on the reverse hereof,
such Interest Payment Date shall be the following day that is a Business
Day, except that if the Base Rate specified above is LIBOR and such next
Business Day falls in the next calendar month, such Interest Payment Date
shall be the immediately preceding day that is a Business Day; and
provided, further, that if the Maturity Date or redemption or repayment
date would fall on a day that is not a Business Day, the payment of
principal, premium, if any, and interest shall be made on the next
succeeding Business Day and no interest shall accrue for the period from
and after such Maturity Date or redemption or repayment date.
Interest on this Note will accrue from and including the
most recent Interest Payment Date to which interest has been paid or duly
provided for, or, if no interest has been paid or duly provided for, from
and including the Interest Accrual Date, until but excluding the date the
principal hereof has been paid or duly made available for payment (except
as provided below). The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the holder of this Note at the
office or agency of the Principal Paying Agent (this and certain other
capitalized terms used herein are defined on the reverse of this Note) or
at the office or agency of such other paying agents outside the United
States as the Issuer may determine for that purpose (each, a "Paying
Agent," which term shall include the Principal Paying Agent).
Payment of the principal of this Note, any premium and the
interest due at maturity (or on any redemption or repayment date) will be
made upon presentation and surrender of this Note at the office or agency
of the Principal Paying Agent or at the office of any Paying Agent.
Payment of the principal of and premium, if any, and
interest on this Note will be made in the Specified Currency indicated
above, except as provided on the reverse hereof. If this Note is
denominated in U.S. dollars, any payment of the principal of, premium, if
any, and interest on this Note will be made in such coin or currency of the
United States of America as at the time of payment is legal tender for
payment of public and private debts. Such payments on this Note will be
made either by a check mailed to an address outside the United States
furnished by the payee or, at the option of the payee and subject to
applicable laws and regulations and the procedures of the Paying Agent, by
wire transfer of immediately available funds to an account maintained by
the payee with a bank located outside the United States if appropriate wire
transfer instructions have been received by the Paying Agent not less than
15 calendar days prior to the applicable payment date. Notwithstanding the
foregoing, in the event that payment in U.S. dollars of the full amount
payable on this Note at the offices of all Paying Agents would be illegal
or effectively precluded as a result of exchange controls or similar
restrictions, payment on this Note will be made by a paying agency in the
United States, if such paying agency, under applicable law and regulations,
would be able to make such payment. If this Note is denominated in a
Specified Currency other than U.S. dollars, then, except as provided on the
reverse hereof, payment of the principal of and premium, if any, and
interest on this Note will be made in such Specified Currency either by a
check drawn on a bank outside the United States or, at the option of the
payee and subject to applicable laws and regulations and the procedures of
the Paying Agent, by wire transfer of immediately available funds to an
account maintained by the payee with a bank located outside the United
States.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By _______________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
CHEMICAL BANK,
as Trustee
By _______________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series [D/E], having maturities more than nine months
from the date of issue (the "Notes") of the Issuer. The Notes are issuable
under a Senior Indenture, dated as of April 15, 1989, as supplemented by a
First Supplemental Indenture dated as of May 15, 1991 and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Senior Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed Chemical Bank,
London Branch, as its principal paying agent for the Notes (the "Principal
Paying Agent," which term includes any additional or successor Principal
Paying Agent appointed by the Issuer). The terms of individual Notes may
vary with respect to interest rates, interest rate formulas, issue dates,
maturity dates, or otherwise, all as provided in the Senior Indenture. To
the extent not inconsistent herewith, the terms of the Senior Indenture are
hereby incorporated by reference herein.
If this Note is denominated in pounds sterling, the Issuer
represents that it is not an authorized institution (for purposes of the
United Kingdom Banking Act 1987) and repayment of the principal of, and
payment of any interest or premium on, this Note has not been guaranteed,
that it has complied with its obligations under the listing rules of The
International Stock Exchange of the United Kingdom and the Republic of
Ireland Limited (the "Rules") and that, since the last publication in
compliance with the Rules of information about it, it, having made all
reasonable inquiries, has not become aware of any change in circumstances
which could reasonably be regarded as significantly and adversely affecting
its ability to meet its obligations in respect of the Notes as they fall
due.
Unless otherwise provided on the face hereof, this Note will
not be subject to any sinking fund and, unless otherwise provided on the
face hereof in accordance with the provisions of the following two
paragraphs and except as set forth below, will not be redeemable or subject
to repayment at the option of the holder prior to maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on or after the
Initial Redemption Date specified on the face hereof on the terms set forth
on the face hereof, together with interest accrued and unpaid hereon to the
date of redemption (except as provided below). If this Note is subject to
"Annual Redemption Percentage Reduction," the Initial Redemption Percentage
indicated on the face hereof will be reduced on each anniversary of the
Initial Redemption Date by the Annual Redemption Percentage Reduction
specified on the face hereof until the redemption price of this Note is
100% of the principal amount hereof, together with interest accrued and
unpaid hereon to the date of redemption (except as provided below). Notice
of redemption shall be mailed to the holders of the Notes designated for
redemption who have filed their names and addresses with the Principal
Paying Agent, not less than 30 nor more than 60 days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Senior Indenture. Notice of redemption to all other holders of Notes shall
be published in the manner set forth in "Notices" as defined below, once in
each of the three successive calendar weeks, the first publication to be
not less than 30 nor more than 60 days prior to the date set for
redemption. In the event of redemption of this Note in part only, the
Principal Paying Agent shall cause Schedule A of this Note to be endorsed
to reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of this Note so redeemed, whereupon the
principal amount hereof shall be reduced for all purposes by the amount so
redeemed and noted.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional Repayment
Date or Dates specified on the face hereof on the terms set forth herein.
On any Optional Repayment Date, this Note will be repayable in whole or in
part in increments of $1,000 or, if this Note is denominated in a Specified
Currency other than U.S. dollars, in increments of 1,000 units of such
Specified Currency (provided that any remaining principal amount hereof
shall not be less than the minimum authorized denomination hereof) at the
option of the holder hereof at a price equal to 100% of the principal
amount to be repaid, together with interest accrued and unpaid hereon to
the date of repayment (except as provided below). For this Note to be
repaid at the option of the holder hereof, the Principal Paying Agent must
receive at its office in London, at least 15 but not more than 30 days
prior to the date of repayment, (i) this Note with the form entitled
"Option to Elect Repayment" below duly completed or (ii) a telegram, telex,
facsimile transmission or a letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or a trust company in the United States, Western Europe or
Japan setting forth the name of the holder of this Note, the principal
amount hereof, the certificate number of this Note or a description of this
Note's tenor and terms, the principal amount hereof to be repaid, a
statement that the option to elect repayment is being exercised thereby and
a guarantee that this Note, together with the form entitled "Option to
Elect Repayment" duly completed, will be received by the Principal Paying
Agent not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter; provided, that such
telegram, telex, facsimile transmission or letter shall only be effective
if this Note and form duly completed are received by the Principal Paying
Agent by such fifth Business Day. Exercise of such repayment option by the
holder hereof shall be irrevocable. In the event of repayment of this Note
in part only, the Principal Paying Agent shall cause Schedule A of this
Note to be endorsed to reflect the reduction of its principal amount by an
amount equal to the aggregate principal amount of this Note so repaid,
whereupon the principal amount hereof shall be reduced for all purposes by
the amount so repaid and noted.
This Note will bear interest at the rate determined in
accordance with the applicable provisions below by reference to the Base
Rate shown on the face hereof based on the Index Maturity, if any, shown on
the face hereof (i) plus or minus the Spread, if any, or (ii) multiplied by
the Spread Multiplier, if any, specified on the face hereof. Commencing
with the Initial Interest Reset Date specified on the face hereof, the rate
at which interest on this Note is payable shall be reset as of each
Interest Reset Date (as used herein, the term "Interest Reset Date" shall
include the Initial Interest Reset Date). The determination of the rate of
interest at which this Note will be reset on any Interest Reset Date shall
be made on the Interest Determination Date (as defined below) pertaining to
such Interest Reset Date. The Interest Reset Dates will be the Interest
Reset Dates specified on the face hereof; provided, however, that the
interest rate in effect for the period from the Interest Accrual Date to
the Initial Interest Reset Date will be the Initial Interest Rate. If any
Interest Reset Date would otherwise be a day that is not a Business Day,
such Interest Reset Date shall be postponed to the next succeeding day that
is a Business Day, except that if the Base Rate specified on the face
hereof is LIBOR and such Business Day is in the next succeeding calendar
month, such Interest Reset Date shall be the next preceding Business Day.
The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to the CD
Rate, Commercial Paper Rate, Federal Funds Rate, Prime Rate and CMT Rate
will be the second Business Day next preceding such Interest Reset Date.
The Interest Determination Date pertaining to an Interest Reset Date for
Notes bearing interest calculated by reference to LIBOR shall be the second
London Banking Day preceding such Interest Reset Date except that the
Interest Determination Date pertaining to an Interest Reset Date for a
LIBOR Note for which the Index Currency is pounds sterling will be such
Interest Reset Date. As used herein, "London Banking Day" means any day on
which dealings in deposits in the Index Currency (as defined herein) are
transacted in the London interbank market. The Interest Determination Date
pertaining to an Interest Reset Date for Notes bearing interest calculated
by reference to the Treasury Rate shall be the day of the week in which
such Interest Reset Date falls on which Treasury bills normally would be
auctioned; provided, however, that if as a result of a legal holiday an
auction is held on the Friday of the week preceding such Interest Reset
Date, the related Interest Determination Date shall be such preceding
Friday; and provided, further, that if an auction shall fall on any
Interest Reset Date, then the Interest Reset Date shall instead be the
first Business Day following the date of such auction.
Unless otherwise specified on the face hereof, the
"Calculation Date" pertaining to an Interest Determination Date will be the
earlier of (i) the tenth calendar day after such Interest Determination
Date or, if such day is not a Business Day, the next succeeding Business
Day, or (ii) the Business Day preceding the applicable Interest Payment
Date or Maturity Date (or, with respect to any principal amount to be
redeemed or repaid, any redemption or repayment date), as the case may be.
Determination of CD Rate. If the Base Rate specified on the
face hereof is the CD Rate, the CD Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate on
such date for negotiable certificates of deposit having the Index Maturity
specified on the face hereof as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates," or any successor publication of the Board of Governors of the
Federal Reserve System ("H.15(519)"), under the heading "CDs (Secondary
Market)," or, if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the CD
Rate will be the rate on such Interest Determination Date for negotiable
certificates of deposit of the Index Maturity specified on the face hereof
as published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 P.M. Quotations for U.S. Government
Securities" (the "Composite Quotations") under the heading "Certificates of
Deposit." If such rate is not yet published in either H.15(519) or the
Composite Quotations by 3:00 P.M., New York City time, on such Calculation
Date, then the CD Rate on such Interest Determination Date will be
calculated by the Calculation Agent referred to on the face hereof and will
be the arithmetic mean of the secondary market offered rates as of 10:00
A.M., New York City time, on such Interest Determination Date for
certificates of deposit in an amount that is representative for a single
transaction at that time with a remaining maturity closest to the Index
Maturity specified on the face hereof of three leading nonbank dealers in
negotiable U.S. dollar certificates of deposit in The City of New York
selected by the Calculation Agent for negotiable certificates of deposit of
major United States money center banks; provided, however, that if the
dealers selected as aforesaid by the Calculation Agent are not quoting as
set forth above, the "CD Rate" in effect for the applicable period will be
the same as the CD Rate for the immediately preceding Interest Reset Period
(or, if there was no such Interest Reset Period, the rate of interest
payable hereon shall be the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate
specified on the face hereof is the Commercial Paper Rate, the Commercial
Paper Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the Money Market Yield (as defined herein)
of the rate on such date for commercial paper having the Index Maturity
specified on the face hereof, as such rate shall be published in H.15(519)
under the heading "Commercial Paper." In the event that such rate is not
published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, then the Commercial Paper
Rate shall be the Money Market Yield of the rate on such Interest
Determination Date for commercial paper of the Index Maturity specified on
the face hereof as published in Composite Quotations under the heading
"Commercial Paper." If by 3:00 P.M., New York City time, on such
Calculation Date, such rate is not yet available in either H.15(519) or
Composite Quotations, then the Commercial Paper Rate shall be the Money
Market Yield of the arithmetic mean of the offered rates as of 11:00 A.M.,
New York City time, on such Interest Determination Date of three leading
dealers in commercial paper in The City of New York selected by the
Calculation Agent for commercial paper of the Index Maturity specified on
the face hereof, placed for an industrial issuer whose bond rating is "AA,"
or the equivalent, from a nationally recognized rating agency; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting offered rates as mentioned in this sentence, the
"Commercial Paper Rate" in effect for the applicable period will be the
same as the Commercial Paper Rate for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in
accordance with the following formula:
Money Market Yield = D x 360
---------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the Index Maturity specified on the face hereof.
Determination of Federal Funds Rate. If the Base Rate
specified on the face hereof is the Federal Funds Rate, the Federal Funds
Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the rate on such date for Federal Funds as
published in H.15(519) under the heading "Federal Funds (Effective)," or,
if not so published by 9:00 A.M., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, the Federal Funds Rate
will be the rate on such Interest Determination Date as published in
Composite Quotations under the heading "Federal Funds/Effective Rate." If
such rate is not yet published in either H.15(519) or the Composite
Quotations by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the Federal Funds Rate for
such Interest Determination Date will be calculated by the Calculation
Agent and will be the arithmetic mean of the rates for the last transaction
in overnight Federal funds as of 11:00 A.M., New York City time, on such
Interest Determination Date, arranged by three leading brokers in Federal
funds transactions in The City of New York selected by the Calculation
Agent; provided, however, that if the brokers selected as aforesaid by the
Calculation Agent are not quoting as set forth above, the "Federal Funds
Rate" in effect for the applicable period will be the same as the Federal
Funds Rate for the immediately preceding Interest Reset Period (or, if
there was no such Interest Reset Period, the rate of interest payable
hereon shall be the Initial Interest Rate).
Determination of LIBOR. If the Base Rate specified on the face
hereof is LIBOR, LIBOR with respect to this Note shall be determined on each
Interest Determination Date as follows:
(i) As of the Interest Determination Date, the Calculation Agent
will determine (a) if "LIBOR Reuters" is specified as the Reporting Service
on the face hereof, the arithmetic mean of the offered rates (unless the
specified Designated LIBOR Page (as defined below) by its terms provides
only for a single rate, in which case such single rate shall be used) for
deposits in the Index Currency for the period of the Index Maturity
specified on the face hereof, commencing on the second London Banking Day
immediately following such Interest Determination Date, which appear on the
Designated LIBOR Page at approximately 11:00 A.M., London time, on such
Interest Determination Date, if at least two such offered rates appear
(unless, as aforesaid, only a single rate is required) on such Designated
LIBOR Page, or (b) if "LIBOR Telerate" is specified as the Reporting
Service on the face hereof, the rate for deposits in the Index Currency for
the period of the Index Maturity, each as designated on the face hereof,
commencing on the second London Banking Day following such Interest
Determination Date (or, if pounds sterling is the Index Currency,
commencing on such Interest Determination Date), that appears on the
Designated LIBOR Page at approximately 11:00 A.M., London time, on such
Interest Determination Date. If fewer than two offered rates appear (if
"LIBOR Reuters" is specified as the Reporting Service on the face hereof
and calculation of LIBOR is based on the arithmetic mean of the offered
rates) or if no rate appears (if the Reporting Service on the face hereof
specifies either (x) "LIBOR Reuters" and the Designated LIBOR Page by its
terms provides only for a single rate or (y) "LIBOR Telerate"), LIBOR in
respect of that Interest Determination Date will be determined as if the
parties had specified the rate described in (ii) below.
(ii) With respect to an Interest Determination Date on which
fewer than two offered rates appear (if "LIBOR Reuters" is specified as the
Reporting Service on the face hereof and calculation of LIBOR is based on
the arithmetic mean of the offered rates) or no rate appears (if the
Reporting Service on the face hereof specifies either (x) "LIBOR Reuters"
and the Designated LIBOR Page by its terms provides only for a single rate
or (y) "LIBOR Telerate"), the Calculation Agent will request the principal
London offices of each of four major reference banks in the London
interbank market, as selected by the Calculation Agent (after consultation
with the Issuer), to provide the Calculation Agent with its offered
quotations for deposits in the Index Currency for the period of the Index
Maturity specified on the face hereof, commencing on the second London
Banking Day immediately following such Interest Determination Date (or, if
pounds sterling is the Index Currency, commencing on such Interest
Determination Date), to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such Interest Determination Date
and in a principal amount equal to an amount of not less than U.S.$1
million (or the equivalent in the Index Currency if the Index Currency is
not the U.S. dollar) that is representative of a single transaction in such
Index Currency in such market at such time. If at least two such
quotations are provided, LIBOR determined on such Interest Determination
Date will be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR determined on such Interest Determination
Date will be the arithmetic mean of rates quoted at approximately 11:00
A.M. (or such other time specified on the face hereof), in the applicable
principal financial center for the country of the Index Currency on such
Interest Determination Date, by three major banks in such principal
financial center selected by the Calculation Agent (after consultation with
the Issuer) on such Interest Determination Date for loans in the Index
Currency to leading European banks, for the period of the Index Maturity
specified on the face hereof commencing on the second London Banking Day
immediately following such Interest Determination Date (or, if pounds
sterling is the Index Currency, commencing on such Interest Determination
Date) and in a principal amount of not less than U.S.$1 million (or the
equivalent in the Index Currency if the Index Currency is not the U.S.
dollar) that is representative of a single transaction in such Index
Currency in such market at such time; provided, however, that if the banks
selected as aforesaid by the Calculation Agent are not quoting rates as
mentioned in this sentence, "LIBOR" for such Interest Reset Period will be
the same as LIBOR for the immediately preceding Interest Reset Period (or,
if there was no such Interest Reset Period, the rate of interest payable on
the LIBOR Notes for which LIBOR is being determined shall be the Initial
Interest Rate). "Index Currency" means the currency (including composite
currencies) specified as Index Currency on the face hereof. If no such
currency is specified as Index Currency on the face hereof, the Index
Currency shall be U.S. dollars. "Designated LIBOR Page" means either (a) if
"LIBOR Reuters" is designated as the Reporting Service on the face hereof,
the display on the Reuters Monitor Money Rates Service for the purpose of
displaying the London interbank rates of major banks for the applicable
Index Currency, or (b) if "LIBOR Telerate" is designated as the Reporting
Service on the face hereof, the display on the Dow Jones Telerate Service
for the purpose of displaying the London interbank rates of major banks for
the applicable Index Currency. If neither LIBOR Reuters nor LIBOR Telerate
is specified as the Reporting Service on the face hereof, LIBOR for the
applicable Index Currency will be determined as if LIBOR Telerate (and, if
the U.S. dollar is the Index Currency, Page 3750) had been specified.
Determination of Prime Rate. If the Base Rate specified on
the face hereof is the Prime Rate, the Prime Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
rate set forth in H.15(519) for such date opposite the caption "Bank Prime
Loan." If such rate is not yet published by 9:00 A.M., New York City time,
on the Calculation Date pertaining to such Interest Determination Date, the
Prime Rate for such Interest Determination Date will be the arithmetic mean
of the rates of interest publicly announced by each bank named on the
Reuters Screen USPRIME1 Page (as defined below) as such bank's prime rate
or base lending rate as in effect for such Interest Determination Date as
quoted on the Reuters Screen USPRIME1 Page on such Interest Determination
Date, or, if fewer than four such rates appear on the Reuters Screen
USPRIME1 Page for such Interest Determination Date, the rate shall be the
arithmetic mean of the prime rates quoted on the basis of the actual number
of days in the year divided by 360 as of the close of business on such
Interest Determination Date by at least two of the three major money center
banks in The City of New York selected by the Calculation Agent from which
quotations are requested. If fewer than two quotations are provided, the
Prime Rate shall be calculated by the Calculation Agent and shall be
determined as the arithmetic mean on the basis of the prime rates in The
City of New York by the appropriate number of substitute banks or trust
companies organized and doing business under the laws of the United States,
or any State thereof, in each case having total equity capital of at least
U.S. $500 million and being subject to supervision or examination by
federal or state authority, selected by the Calculation Agent to quote such
rate or rates; provided, however, that if the banks or trust companies
selected as aforesaid by the Calculation Agent are not quoting rates as set
forth above, the "Prime Rate" in effect for such Interest Reset Period will
be the same as the Prime Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate).
"Reuters Screen USPRIME1 Page" means the display designated as
Page "USPRIME1" on the Reuters Monitor Money Rates Service (or such other page
as may replace the USPRIME1 page on that service for the purpose of displaying
prime rates or base lending rates of major United States banks.
Determination of Treasury Rate. If the Base Rate specified
on the face hereof is the Treasury Rate, the Treasury Rate with respect to
this Note shall be determined on each Interest Determination Date and shall
be the rate for the auction held on such date of direct obligations of the
United States ("Treasury Bills") having the Index Maturity specified on the
face hereof, as published in H.15(519) under the heading "Treasury Bills--
auction average (investment)," or if not so published by 9:00 A.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the auction average rate on such Interest Determination
Date (expressed as a bond equivalent, on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) as otherwise announced
by the United States Department of the Treasury. In the event that the
results of the auction of Treasury Bills having the Index Maturity
specified on the face hereof are not published or reported as provided
above by 3:00 P.M., New York City time, on such Calculation Date or if no
such auction is held on such Interest Determination Date, then the Treasury
Rate shall be calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) calculated using the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
P.M., New York City time, on such Interest Determination Date, of three
leading primary United States government securities dealers selected by the
Calculation Agent for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified on the face hereof; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting bid rates as mentioned in this sentence, the "Treasury
Rate" for such Interest Reset Date will be the same as the Treasury Rate
for the immediately preceding Interest Reset Period (or, if there was no
such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate).
Determination of CMT Rate. If the Base Rate specified on
the face hereof is the CMT Rate, the CMT Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
rate displayed for the Index Maturity specified on the face hereof on the
Designated CMT Telerate Page (as defined below) under the caption "Daily
Treasury Constant Maturities and Money Markets/Federal Reserve Board
Release H.15 " under the column for the Designated CMT Maturity Index (as
defined below) for (i) if the Designated CMT Telerate Page is 7055, the
rate on such Interest Determination Date and (ii) if the Designated CMT
Telerate Page is 7052, the week or the month, as applicable, ended
immediately preceding the week in which the related Interest Determination
Date occurs. If such rate is no longer displayed on the relevant page, or
if not displayed by 3:00 P.M., New York City time, on the related
Calculation Date, then the CMT Rate for such Interest Determination Date
will be such Treasury Constant Maturity rate for the Designated CMT
Maturity Index as published in the relevant H.15(519). If such rate is no
longer published, or if not published by 3:00 P.M., New York City time, on
the related Calculation Date, then the CMT Rate for such Interest
Determination Date will be such Treasury Constant Maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the Interest Determination Date with
respect to the related Interest Reset Date as may then be published by
either the Board of Governors of the Federal Reserve System or the United
States Department of the Treasury that the Calculation Agent determines to
be comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519). If such information is not
provided by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate for the Interest Determination Date will be calculated by
the Calculation Agent and will be a yield to maturity, based on the
arithmetic mean of the secondary market closing offer side prices as of
approximately 3:30 P.M., New York City time, on the Interest Determination
Date reported, according to their written records, by three leading primary
United States government securities dealers (each a "Reference Dealer") in
The City of New York (which may include affiliates of the Issuer or their
affiliates) selected by the Calculation Agent (from five such Reference
Dealers selected by the Calculation Agent, after consultation with the
Issuer) and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation(or, in the event of
equality, one of the lowest)), for the most recently issued direct
noncallable fixed rate obligations of the United States ("Treasury Notes")
with an original maturity of approximately the Designated CMT Maturity
Index and remaining term to maturity of not less than such Designated CMT
Maturity Index minus one year. If the Calculation Agent cannot obtain
three such Treasury Notes quotations, the CMT Rate for such Interest
Determination Date will be calculated by the Calculation Agent and will be
a yield to maturity based on the arithmetic mean of the secondary market
offer side prices as of approximately 3:30 P.M., New York City time, on the
Interest Determination Date of three Reference Dealers in The City of New
York (from five such Reference Dealers selected by the Calculation Agent,
after consultation with the Issuer, and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation
(or, in the event of equality, one of the lowest)), for Treasury Notes with
an original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to
the Designated CMT Maturity Index and in an amount of at least
$100,000,000. If three or four (and not five) of such Reference Dealers
are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest not
the lowest of such quotes will be eliminated; provided, however, that if
fewer than three Reference Dealers selected by the Calculation Agent are
quoting as described herein, the CMT Rate for such Interest Reset Date will
be the same as the CMT Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate). If two
Treasury Notes with an original maturity as described in the second
preceding sentence have remaining terms to maturity equally close to the
Designated CMT Maturity Index, the quotes for the Treasury Note with the
shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow
Jones Telerate Service specified on the face hereof (or any other page as
may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)), for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no
such page is specified on the face hereof, the Designated CMT Telerate Page
shall be 7052, for the most recent week.
"Designated CMT Maturity Index" shall be the original period
to maturity of the U.S. Treasury securities (either 1,2,3,5,7,10,20 or 30
years) specified on the face hereof with respect to which the CMT Rate will
be calculated. If no such maturity is specified on the face hereof, the
designated CMT Maturity Index shall be two years.
Notwithstanding the foregoing, the interest rate hereon
shall not be greater than the Maximum Interest Rate, if any, or less than
the Minimum Interest Rate, if any, specified on the face hereof. The
Calculation Agent shall calculate the interest rate hereon in accordance
with the foregoing on or before each Calculation Date. The interest rate
on this Note will in no event be higher than the maximum rate permitted by
New York law, as the same may be modified by United States Federal law of
general application.
At the request of the holder hereof, the Calculation Agent
will provide to the holder hereof the interest rate hereon then in effect
and, if determined, the interest rate that will become effective as of the
next Interest Reset Date.
Interest payments on this Note will include interest accrued
to but excluding the Interest Payment Dates or the Maturity Date (or any
earlier redemption or repayment date), as the case may be. Accrued
interest hereon shall be an amount calculated by multiplying the principal
amount hereof shown on Schedule A hereto by an accrued interest factor.
Such accrued interest factor shall be computed by adding the interest
factor calculated for each day in the period for which interest is being
paid. Unless otherwise specified on the face hereof, the interest factor
for each such date shall be computed by dividing the interest rate
applicable to such day by 360 if the Base Rate is CD Rate, Commercial Paper
Rate, Federal Funds Rate, Prime Rate or LIBOR, as specified on the face
hereof, or by the actual number of days in the year if the Base Rate is the
Treasury Rate or the CMT Rate, as specified on the face hereof. All
percentages resulting from any calculation of the rate of interest on this
Note will be rounded, if necessary, to the nearest one hundred-thousandth
of a percentage point (.0000001), with five one-millionths of a percentage
point rounded upward, and all dollar amounts used in or resulting from such
calculation on this Note will be rounded to the nearest cent (with one-half
cent rounded upward). The interest rate in effect on any Interest Reset
Date will be the applicable rate as reset on such date. The interest rate
applicable to any other day is the interest rate from the immediately
preceding Interest Reset Date (or, if none, the Initial Interest Rate).
This Note and all the obligations of the Issuer hereunder
are direct, unsecured obligations of the Issuer and rank without preference
or priority among themselves and pari passu with all other existing and
future unsecured and unsubordinated indebtedness of the Issuer, subject to
certain statutory exceptions in the event of liquidation upon insolvency.
This Note is issued in permanent global bearer form without
interest coupons attached (a "Global Bearer Note"). The beneficial owner
of all or a portion of this Note may exchange its interest in this Note
upon not less than 30 days' written notice to the Principal Paying Agent,
in whole, for Notes in bearer form with interest coupons, if any, attached
(the "Definitive Bearer Notes," and, together with the Global Bearer Notes,
the "Bearer Notes") or, in whole or from time to time in part, for Notes in
fully registered form without coupons (the "Registered Notes"), in each
case, in the minimum denominations set forth on the face hereof or any
amount in excess thereof which is an integral multiple of 1,000 units of
the Specified Currency set forth on the face hereof, at the office of the
Principal Paying Agent, or, in the case of Registered Notes, at the office
of the transfer agent for the Registered Notes in London, which transfer
agent will initially be Chemical Bank, London Branch, upon compliance with
any procedures set forth in, or established pursuant to, the Senior
Indenture; provided, however, that the Issuer shall not be required (i) to
exchange this Note for a period of fifteen calendar days preceding the
first publication of a notice of redemption of all or any portion hereof or
(ii) to exchange any portion of this Note selected for redemption or
surrendered for optional repayment, except that all or a portion of this
Note may be exchanged for a Registered Note of like tenor, provided that
such Registered Note shall be simultaneously surrendered for redemption or
repayment, as the case may be; and provided, further, that if a Registered
Note is issued in exchange for any portion of this Note after the close of
business at the office of the Principal Paying Agent on any record date
(whether or not a Business Day) for the payment of interest on such
Registered Note and before the opening of business at such office on the
relevant Interest Payment Date, any interest will not be payable on such
Interest Payment Date in respect of such Registered Note, but will be
payable on such Interest Payment Date only to the holder of this Note.
Upon exchange of this Note in whole for a Definitive Bearer Note or
Definitive Bearer Notes, or in whole or in part for a Registered Note or
Registered Notes, the Principal Paying Agent shall cause Schedule A of this
Note to be endorsed to reflect the reduction of the principal amount hereof
by an amount equal to the aggregate principal amount of such Definitive
Bearer Note or Definitive Bearer Notes, or such Registered Note or
Registered Notes, whereupon the principal amount hereof shall be reduced
for all purposes by the amount so exchanged and noted. All such exchanges
of Notes will be free of service charge, but the Issuer may require payment
of a sum sufficient to cover any tax or other governmental charge payable
in connection therewith. The date of any Note delivered upon any exchange
of this Note shall be such that no gain or loss of interest results from
such exchange.
All (and not less than all) interests in this Note will be
exchanged for Definitive Bearer Notes in accordance with the procedures set
forth in the following two sentences as soon as practicable after the first
beneficial owner of an interest in this Note exchanges its interest for a
Definitive Bearer Note, provided that a common depository located outside
the United States (the "common depository") holding this Note for Morgan
Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System (the "Euroclear Operator"), Cedel Bank, societe anonyme
("Cedel") and/or any other relevant clearing system (including "Societe
Interprofessionelle pour la Compensation des Valeurs Mobilieres
("SICOVAM")) instructs the Principal Paying Agent regarding the aggregate
principal amount of Definitive Bearer Notes and the denominations of such
Definitive Bearer Notes that must be authenticated and delivered to each of
the Euroclear Operator and Cedel in exchange for this Note. Thereafter,
the Principal Paying Agent, acting solely in reliance on such instructions,
shall, upon surrender to it of this Note and subject to the conditions in
the preceding paragraph, authenticate and deliver Definitive Bearer Notes
in exchange for this Note in accordance with such instructions and shall
cause Schedule A of this Note to be endorsed to reflect the reduction of
its principal amount by an amount equal to the aggregate principal amount
of this Note. Nothing in this paragraph shall prevent the further exchange
of Definitive Bearer Notes into Registered Notes.
This Note may be transferred by delivery; provided, however,
that this Note may be transferred only to a common depositary outside the
United States for the Euroclear Operator, Cedel and/or any other relevant
clearing system or to a nominee of such a depositary.
In case any Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and such Note or evidence of the loss,
theft or destruction thereof (together with the indemnity hereinafter
referred to and such other documents or proof as may be required in the
premises) shall be delivered to the Trustee, a new Note of like tenor will
be issued by the Issuer in exchange for the Note so mutilated or defaced,
or in lieu of the Note so destroyed or lost or stolen, but, in the case of
any destroyed or lost or stolen Note, only upon receipt of evidence
satisfactory to the Trustee and the Issuer that such Note was destroyed or
lost or stolen and, if required, upon receipt also of indemnity
satisfactory to each of them. All expenses and reasonable charges
associated with procuring such indemnity and with the preparation,
authentication and delivery of a new Note shall be borne by the owner of
the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of
Default (as defined in the Senior Indenture) due to the default in payment
of principal of, premium, if any, or interest on, any series of debt
securities issued under the Senior Indenture, including the series of
Senior Global Medium-Term Notes of which this Note forms a part, or due to
the default in the performance or breach of any other covenant or warranty
of the Issuer applicable to the debt securities of such series but not
applicable to all outstanding debt securities issued under the Senior
Indenture shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of the debt securities of
each affected series (voting as a single class) may then declare the
principal of all debt securities of all such series and interest accrued
thereon to be due and payable immediately and (b) if an Event of Default
due to a default in the performance of any other of the covenants or
agreements in the Senior Indenture applicable to all outstanding debt
securities issued thereunder, including this Note, or due to certain events
of bankruptcy, insolvency and reorganization of the Issuer, shall have
occurred and be continuing, either the Trustee or the holders of not less
than 25% in principal amount of all debt securities issued under the Senior
Indenture then outstanding (treated as one class) may declare the principal
of all such debt securities and interest accrued thereon to be due and
payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt
securities) by the holders of a majority in principal amount of the debt
securities of all affected series then outstanding.
This Note may be redeemed, as a whole, at the option of the
Issuer at any time prior to maturity, upon the giving of a notice of
redemption as described below, at a redemption price equal to 100% of the
principal amount hereof, together with accrued interest to the date fixed
for redemption, if the Issuer determines that, as a result of any change in
or amendment to the laws (or any regulations or rulings promulgated
thereunder) of the United States or of any political subdivision or taxing
authority thereof or therein affecting taxation, or any change in official
position regarding the application or interpretation of such laws,
regulations or rulings, which change or amendment becomes effective on or
after the Original Issue Date hereof, the Issuer has or will become
obligated to pay Additional Amounts (as defined below) with respect to this
Note as described below. Prior to the giving of any Notice of redemption
pursuant to this paragraph, the Issuer shall deliver to the Trustee (i) a
certificate stating that the Issuer is entitled to effect such redemption
and setting forth a statement of facts showing that the conditions
precedent to the right of the Issuer to so redeem have occurred, and (ii)
an opinion of independent counsel satisfactory to the Trustee to such
effect based on such statement of facts; provided that no such notice of
redemption shall be given earlier than 60 days prior to the earliest date
on which the Issuer would be obligated to pay such Additional Amounts if a
payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more
than 60 days prior to the date fixed for redemption, which date and the
applicable redemption price will be specified in the Notice.
If the Issuer shall determine that any payment made outside
the United States by the Issuer or any Paying Agent of principal, premium
or interest due in respect of this Note would, under any present or future
laws or regulations of the United States, be subject to any certification,
identification or other information reporting requirement of any kind, the
effect of which is the disclosure to the Issuer, any Paying Agent or any
governmental authority of the nationality, residence or identity of a
beneficial owner of this Note who is a United States Alien (as defined
below) (other than such a requirement (a) that would not be applicable to
a payment made by the Issuer or any Paying Agent (i) directly to the
beneficial owner or (ii) to a custodian, nominee or other agent of the
beneficial owner, or (b) that can be satisfied by such custodian, nominee
or other agent certifying to the effect that such beneficial owner is a
United States Alien; provided that in each case referred to in clauses
(a)(ii) and (b) payment by such custodian, nominee or agent to such
beneficial owner is not otherwise subject to any such requirement), the
Issuer shall redeem this Note, as a whole, at a redemption price equal to
100% of the principal amount thereof, together with accrued interest to the
date fixed for redemption, or, at the election of the Issuer if the
conditions of the next succeeding paragraph are satisfied, pay the
additional amounts specified in such paragraph. The Issuer shall make such
determination and election as soon as practicable, shall promptly notify
the Trustee thereof and shall publish prompt notice thereof (the
"Determination Notice") stating the effective date of such certification,
identification or other information reporting requirements, whether the
Issuer will redeem this Note or has elected to pay the additional amounts
specified in the next succeeding paragraph, and (if applicable) the last
date by which the redemption of this Note must take place, as provided in
the next succeeding sentence. If the Issuer redeems this Note, such
redemption shall take place on such date, not later than one year after the
publication of the Determination Notice, as the Issuer shall elect by
notice to the Trustee at least 60 days prior to the date fixed for
redemption. Notice of such redemption of this Note will be given to the
holder of this Note not more than 60 nor less than 30 days prior to the
date fixed for redemption. Such redemption notice shall include a
statement as to the last date by which this Note to be redeemed may be
exchanged for Registered Notes. Notwithstanding the foregoing, the Issuer
shall not so redeem this Note if the Issuer shall subsequently determine,
not less than 30 days prior to the date fixed for redemption, that
subsequent payments would not be subject to any such requirement, in which
case the Issuer shall publish prompt notice of such determination and any
earlier redemption notice shall be revoked and of no further effect. The
right of the holder of this Note to exchange this Note for Registered Notes
will terminate at the close of business of the Principal Paying Agent on
the fifteenth day prior to the date fixed for redemption, and no further
exchanges of this Note for Registered Notes shall be permitted.
If and so long as the certification, identification or other
information reporting requirements referred to in the preceding paragraph
would be fully satisfied by payment of a backup withholding tax or similar
charge, the Issuer may elect by notice to the Trustee to pay as additional
amounts such amounts as may be necessary so that every net payment made
outside the United States following the effective date of such requirements
by the Issuer or any Paying Agent of principal, premium or interest due in
respect of this Note of which the beneficial owner is a United States Alien
(but without any requirement that the nationality, residence or identity of
such beneficial owner be disclosed to the Issuer, any Paying Agent or any
governmental authority, with respect to the payment of such additional
amounts), after deduction or withholding for or on account of such backup
withholding tax or similar charge (other than a backup withholding tax or
similar charge that (i) would not be applicable in the circumstances
referred to in the second parenthetical clause of the first sentence of the
preceding paragraph, or (ii) is imposed as a result of presentation of this
Note for payment more than 15 days after the date on which such payment
becomes due and payable or on which payment thereof is duly provided for,
whichever occurs later), will not be less than the amount provided for in
this Note to be then due and payable. In the event the Issuer elects to
pay any additional amounts pursuant to this paragraph, the Issuer shall
have the right to redeem this Note as a whole at any time pursuant to the
applicable provisions of the immediately preceding paragraph and the
redemption price of this Note will not be reduced for applicable
withholding taxes. If the Issuer elects to pay additional amounts pursuant
to this paragraph and the condition specified in the first sentence of this
paragraph should no longer be satisfied, then the Issuer will redeem this
Note as a whole, pursuant to the applicable provisions of the immediately
preceding paragraph.
The Issuer will, subject to certain exceptions and
limitations set forth below, pay such additional amounts (the "Additional
Amounts") to the holder of this Note who is a United States Alien as may be
necessary in order that every net payment of the principal of and interest
on this Note and any other amounts payable on this Note, after withholding
for or on account of any present or future tax, assessment or governmental
charge imposed upon or as a result of such payment by the United States (or
any political subdivision or taxing authority thereof or therein), will not
be less than the amount provided for in this Note to be then due and
payable. The Issuer will not, however, be required to make any payment of
Additional Amounts to any such holder for or on account of:
(a) any such tax, assessment or other governmental charge
that would not have been so imposed but for (i) the existence of
any present or former connection between such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of such
holder, if such holder is an estate, a trust, a partnership or a
corporation) and the United States, including, without limitation,
such holder (or such fiduciary, settlor, beneficiary, member or
shareholder) being or having been a citizen or resident thereof or
being or having been engaged in a trade or business or present
therein or having, or having had, a permanent establishment
therein or (ii) the presentation by the holder of this Note for
payment on a date more than 15 days after the date on which such
payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as a personal
holding company or foreign personal holding company or controlled
foreign corporation or passive foreign investment company with
respect to the United States or as a corporation which accumulates
earnings to avoid United States federal income tax or as a private
foundation or other tax-exempt organization;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payments on or in respect
of this Note;
(e) any tax, assessment or other governmental charge required
to be withheld by any Paying Agent from any payment of principal of,
or interest on, this Note, if such payment can be made without such
withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that
would not have been imposed but for the failure to comply with
certification, information or other reporting requirements concerning
the nationality, residence or identity of the holder or beneficial
owner of this Note, if such compliance is required by statute or by
regulation of the United States or of any political subdivision or
taxing authority thereof or therein as a precondition to relief or
exemption from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power
of all classes of stock entitled to vote of the Issuer or as a direct
or indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or
(g);
nor shall Additional Amounts be paid with respect to any payment on this Note
to a United States Alien who is a fiduciary or partnership or other than the
sole beneficial owner of such payment to the extent such payment would be
required by the laws of the United States (or any political subdivision
thereof) to be included in the income, for tax purposes, of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to the Additional Amounts
had such beneficiary, settlor, member or beneficial owner been the holder of
this Note.
The Senior Indenture permits the Issuer and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the debt securities of all series issued under the
Senior Indenture then outstanding and affected (voting as one class), to
execute supplemental indentures adding any provisions to or changing in any
manner the rights of the holders of each series so affected; provided that
the Issuer and the Trustee may not, without the consent of the holder of
each outstanding debt security affected thereby, (a) extend the final
maturity of any such debt security, or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of interest thereon, or
reduce any amount payable on redemption or repayment thereof, or change the
currency of payment thereof, or impair or affect the rights of any holder
to institute suit for the payment thereof without the consent of the holder
of each debt security so affected; or (b) reduce the aforesaid percentage
in principal amount of debt securities the consent of the holders of which
is required for any such supplemental indenture, without the consent of the
holders of each debt security so affected.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency other
than U.S. dollars and such Specified Currency is not available to the
Issuer for making payments hereon due to the imposition of exchange
controls or other circumstances beyond the control of the Issuer or is no
longer used by the government of the country issuing such currency or for
the settlement of transactions by public institutions within the
international banking community, then the Issuer will be entitled to
satisfy its obligations to the holder of this Note by making such payments
in U.S. dollars on the basis of the Market Exchange Rate (as defined below)
on the date of such payment or, if the Market Exchange Rate is not
available on such date, as of the most recent practicable date; provided,
however, that if such Specified Currency is replaced by a single European
currency (expected to be named the Euro), the payment of principal of,
premium, if any, or interest on any Note denominated in such currency shall
be effected in the new single European currency in conformity with legally
applicable measures taken pursuant to, or by virtue of, the treaty
establishing the European Community (the "EC"), as amended by the treaty on
European Union (as so amended, the "Treaty"). Any payment made under such
circumstances in U.S. dollars (or, if applicable, such new single European
currency) where the required payment is in a Specified Currency other than
U.S. dollars will not constitute an Event of Default.
If the principal of, premium, if any, or interest on, this
Note is payable in ECUs, then with respect to each due date for any such
payment on or after the first business day in Brussels on which the ECU
ceases to be used as the unit of account of the European Community ("EC")
and has not become a currency in its own right, replacing all or some of
the currencies of the member states of the EC, the Issuer shall choose a
substitute currency (the "Chosen Currency") which may be any currency which
was, on the last day on which the ECU was used as the unit of account of
the EC, a component currency of the ECU basket or U.S. dollars, in which
all such payments due on or after that date with respect to this Note shall
be made. Notice of the Chosen Currency so selected shall, where
practicable, be published in the manner described in "Notices" below. The
amount of each payment in such Chosen Currency shall be computed on the
basis of the equivalent of the ECU in that currency, determined as
described below, as of the fourth business day in Brussels prior to the
date on which such payment is due.
If the principal of, premium, if any, or interest on, this
Note is payable in ECUs, then on the first business day in Brussels on
which the ECU ceases to be used as the unit of account of the EC, and has
not become a currency in its own right, replacing all or some of the
currencies of the member states of the EC, the Issuer shall choose a Chosen
Currency in which all such payments with respect to this Note having a due
date prior thereto but not yet presented for payment are to be made. The
amount of each payment in such Chosen Currency shall be computed on the
basis of the equivalent of the ECU in that currency, determined as
described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as
of any date (the "Day of Valuation") shall be determined on the following
basis by, or on behalf of, an Exchange Rate Agent appointed by the Issuer.
The amounts and components composing the ECU for this purpose (the
"Components") shall be the amounts and components composing the ECU as of
the last date on which the ECU was used as the unit of account of the EC.
The equivalent of the ECU in the Chosen Currency shall be calculated by,
first, aggregating the U.S. dollar equivalents of the Components; and then,
in the case of a Chosen Currency other than U.S. dollars, using the rate
used for determining the U.S. dollar equivalent of the Components in the
Chosen Currency as set forth below, calculating the equivalent in the
Chosen Currency of such aggregate amount in U.S. dollars.
The U.S. dollar equivalent of each of the Components shall
be determined by, or on behalf of, the Exchange Rate Agent on the basis of
the middle spot delivery quotations prevailing at 2:30 P.M., Brussels time,
on the Day of Valuation, as obtained by, or on behalf of, the Exchange Rate
Agent from one or more major banks, as selected by the Issuer, in the
country of issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf;
provided that such quotations were prevailing in the country of issue not
more than two Business Days before such Day of Valuation. If such most
recent quotations were so prevailing in the country of issue more than two
Business Days before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of
cross rates derived from the middle spot delivery quotations for such
component currency and for the U.S. dollar prevailing at 2:30 P.M.,
Brussels time, on such Day of Valuation, as obtained by, or on behalf of,
the Exchange Rate Agent from one or more major banks, as selected by the
Issuer, in a country other than the country of issue of such component
currency. Notwithstanding the foregoing, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of such
cross rates if the Issuer or such agent judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent
calculated as provided in the first sentence of this paragraph. Unless
otherwise specified by the Issuer, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations
or for any other reason, the market to be referred to in respect of such
currency shall be that upon which a non-resident issuer of notes
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of this Note.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided. If this
Note is listed on The International Stock Exchange of the United Kingdom and
the Republic of Ireland Limited and such Exchange so requires, the Issuer
shall maintain a Paying Agent in London. The Issuer may designate other
agencies for the payment of said principal, premium and interest at such place
or places outside the United States (subject to applicable laws and
regulations) as the Issuer may decide. So long as there shall be such an
agency, the Issuer shall keep the Trustee advised of the names and locations
of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes that
such moneys shall be repaid to the Issuer and any person claiming such
moneys shall thereafter look only to the Issuer for payment thereof and
(ii) such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease, without, however, limiting in any way any obligation
that the Issuer may have to pay the principal of or interest or premium, if
any, on this Note as the same shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the holder of this
Note.
The Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the holder of this Note as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Senior Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in The
City of New York or in the City of London and (i) if this Note bears interest
calculated by reference to LIBOR, that is also a London Banking Day, (ii) if
this Note is denominated in a Specified Currency other than U.S. dollars,
Australian dollars or ECUs, in the principal financial center of the country
of the Specified Currency, (iii) if this Note is denominated in Australian
dollars, in Sydney and (iv) if this Note is denominated in ECUs, that is not a
non-ECU clearing day, as determined by the ECU Banking Association in Paris.
(b) the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for wire transfers of the Specified
Currency indicated on the face hereof as certified for customs purposes by the
Federal Reserve Bank of New York;
(c) the term "Notices" refers to notices to the holders of
the Notes to be given by publication in an authorized newspaper in the
English language and of general circulation in the Borough of Manhattan,
The City of New York, and London or, if publication in London is not
practical, in an English language newspaper with general circulation in
Western Europe. Such publication is expected to be made in the Wall Street
Journal and the Financial Times. Such Notices will be deemed to have been
given on the date of such publication, or if published in such newspapers
on different dates, on the date of the first such publication;
(d) the term "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction; and
(e) the term "United States Alien" means any person who, for
United States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership, one or more of the members of which
is a foreign corporation, a non-resident alien individual or a non-resident
alien fiduciary of a foreign estate or trust.
All other terms used in this Note which are defined in the
Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and
instructs the Issuer to repay the within Note (or portion thereof specified
below) pursuant to its terms at a price equal to the principal amount thereof,
together with interest to the Optional Repayment Date, to the undersigned at
____________________________________________________________
____________________________________________________________
____________________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid: __________________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the
Notes to be issued to the holder for the portion of the within Note not being
repaid (in the absence of any such specification, one such Note will be issued
for the portion not being repaid): ____________________________.
Dated:______________________ ___________________________
SCHEDULE A
EXCHANGES FOR DEFINITIVE BEARER NOTES, DEFINITIVE
REGISTERED NOTES AND FROM TEMPORARY GLOBAL BEARER NOTE,
REDEMPTIONS AND REPAYMENTS
The initial principal amount of this Note is _________. The
following (A) exchanges of (i) portions of this Note for Definitive Bearer
Notes or Registered Notes and (ii) portions of a Temporary Global Bearer Note
for an Interest in this Note or (B) (x) redemptions at the option of the
Issuer or (y) repayments at the option of the Holder have been made:
<TABLE>
<CAPTION>
Remaining
Principal Principal Principal Principal
Amount Amount Amount Principal Principal Amount Notation
Exchanged Exchanged Exchanged Amount Amount Outstanding Made by
Date of From For For Redeemed Repaid Following Such or on
Exchange, Temporary Definitive Definitive at the at the Exchange, behalf of
Redemption, Global Bearer Registered option of option of Redemption or Paying
or Repayment Notes Notes Notes the Issuer the Holder Repayment Agent
____________ _________ __________ __________ __________ __________ ______________ _________
<S> <C> <C> <C> <C> <C> <C> <C>
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
</TABLE>
EXHIBIT 4.AA
[FORM OF FACE OF SECURITY]
Permanent Global Senior Bull Note
BEARER BEARER
No. PGFX
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4
OF THE UNITED KINGDOM BANKING ACT 1987.](*)
[MEDIUM TERM NOTE ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4
OF THE UNITED KINGDOM BANKING ACT 1987.](**)
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR DEFINITIVE BEARER NOTES OR IN
WHOLE OR IN PART FOR REGISTERED NOTES, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET FORTH
BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES AND
EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD, 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.
IF THIS NOTE IS DENOMINATED IN JAPANESE YEN, IT SHALL HAVE A MATURITY OF NOT
LESS THAN ONE YEAR AND IT MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY,
IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT IN JAPAN PRIOR TO THE DATE
WHICH IS 90 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS NOTE. IF (i)
INTEREST PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN AND PRINCIPAL
PAYMENTS ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER THAN JAPANESE
YEN OR (ii) PRINCIPAL PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN
AND INTEREST PAYMENTS ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER
THAN JAPANESE YEN, THIS NOTE MAY NOT BE OFFERED OR SOLD, DIRECTLY OR
INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF JAPAN PRIOR
TO THE DATE WHICH IS 180 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS
NOTE.
____________
(*) Applies only if this Note is denominated in pounds sterling and
matures not more than one year from and including the Original
Issue Date.
(**) Applies only if this Note is denominated in pounds sterling and matures
more than one year and not more than five years from and including the
Original Issue Date.
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Bull Note)
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INTEREST PAYMENT
DATE(S):
MATURITY DATE: INTEREST RATE: INTEREST PAYMENT
PERIOD:
EUROCLEAR NO.: INITIAL REDEMPTION DATE: CALCULATION AGENT:
INITIAL REDEMPTION PERCENTAGE: SPECIFIED CURRENCY:
CEDEL NO.: ANNUAL REDEMPTION PERCENTAGE INDEX CURRENCY:
REDUCTION:
COMMON CODE: EXCHANGE RATE AGENT:
ISIN:
REPORTING SERVICE: OPTIONAL REPAYMENT DATES(S): TOTAL AMOUNT OF OID:
REDEMPTION PRICE: ORIGINAL YIELD TO
MATURITY:
PRINCIPAL AMOUNT: FINAL REDEMPTION PRICE:
INITIAL ACCRUAL
PERIOD OID:
OTHER PROVISIONS: MINIMUM DENOMINATIONS: INDEX MATURITY:
Morgan Stanley Group Inc., a Delaware corporation
(together with its successors and assigns, the "Issuer"), for value
received, hereby promises to pay to bearer, upon surrender hereof, the
Final Redemption Price as specified above, on the Maturity Date specified
above (except to the extent previously redeemed or repaid) and to pay
interest thereon at the Interest Rate per annum specified above from and
including the Interest Accrual Date specified above until but excluding the
date the Final Redemption Price is paid or duly made available for payment
(except as provided below), in arrears on the Interest Payment Dates
specified above, (or on any redemption or repayment date); provided,
however, that if the Interest Accrual Date occurs fifteen days or less
prior to the first Interest Payment Date occurring after the Interest
Accrual Date, interest payments will commence on the second Interest
Payment Date succeeding the Interest Accrual Date.
Interest on this Note will accrue from and including the
most recent Interest Payment Date to which interest has been paid or duly
provided for, or, if no interest has been paid or duly provided for, from
and including the Interest Accrual Date, until but excluding the date the
Final Redemption Price is paid or duly made available for payment (except
as provided below). The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the holder of this Note at the
office or agency of the Principal Paying Agent (this and certain other
capitalized terms used herein are defined on the reverse of this Note) or
at the office or agency of such other paying agents outside the United
States as the Issuer may determine for that purpose (each, a "Paying
Agent," which term shall include the Principal Paying Agent).
Payment of the principal of this Note, any premium and the
interest due at maturity (or on any redemption or repayment date) will be
made upon presentation and surrender of this Note at the office or agency
of the Principal Paying Agent or at the office of any Paying Agent.
Payment of the principal of and premium, if any, and
interest on this Note will be made in the Specified Currency indicated
above, except as provided on the reverse hereof. If this Note is
denominated in U.S. dollars, any payment of the principal of, premium, if
any, and interest on this Note will be made in such coin or currency of the
United States of America as at the time of payment is legal tender for
payment of public and private debts. Such payments on this Note will be
made either by a check mailed to an address outside the United States
furnished by the payee or, at the option of the payee and subject to
applicable laws and regulations and the procedures of the Paying Agent, by
wire transfer of immediately available funds to an account maintained by
the payee with a bank located outside the United States if appropriate wire
transfer instructions have been received by the Paying Agent not less than
15 calendar days prior to the applicable payment date. Notwithstanding the
foregoing, in the event that payment in U.S. dollars of the full amount
payable on this Note at the offices of all Paying Agents would be illegal
or effectively precluded as a result of exchange controls or similar
restrictions, payment on this Note will be made by a paying agency in the
United States, if such paying agency, under applicable law and regulations,
would be able to make such payment. If this Note is denominated in a
Specified Currency other than U.S. dollars, then, except as provided on the
reverse hereof, payment of the principal of and premium, if any, and
interest on this Note will be made in such Specified Currency either by a
check drawn on a bank outside the United States or, at the option of the
payee and subject to applicable laws and regulations and the procedures of
the Paying Agent, by wire transfer of immediately available funds to an
account maintained by the payee with a bank located outside the United
States.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be
duly executed.
DATED: MORGAN STANLEY GROUP INC.
By _______________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
CHEMICAL BANK,
as Trustee
By _______________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series E, having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable
under a Senior Indenture, dated as of April 15, 1989, as supplemented by a
First Supplemental Indenture dated as of May 15, 1991 and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Senior Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed Chemical Bank,
London Branch, as its principal paying agent for the Notes (the "Principal
Paying Agent," which term includes any additional or successor Principal
Paying Agent appointed by the Issuer). The terms of individual Notes may
vary with respect to interest rates, interest rate formulas, issue dates,
maturity dates, or otherwise, all as provided in the Senior Indenture. To
the extent not inconsistent herewith, the terms of the Senior Indenture are
hereby incorporated by reference herein.
If this Note is denominated in pounds sterling, the Issuer
represents that it is not an authorized institution (for purposes of the
United Kingdom Banking Act 1987) and repayment of the principal of, and
payment of any interest or premium on, this Note has not been guaranteed,
that it has complied with its obligations under the listing rules of The
International Stock Exchange of the United Kingdom and the Republic of
Ireland Limited (the "Rules") and that, since the last publication in
compliance with the Rules of information about it, it, having made all
reasonable inquiries, has not become aware of any change in circumstances
which could reasonably be regarded as significantly and adversely affecting
its ability to meet its obligations in respect of the Notes as they fall
due.
Unless otherwise provided on the face hereof, this Note will not
be subject to any sinking fund and, unless otherwise provided on the face
hereof in accordance with the provisions of the following two paragraphs
and except as set forth below, will not be redeemable or subject to
repayment at the option of the holder prior to maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole at the option of the Issuer on or after the Initial
Redemption Date specified on the face hereof on the terms set forth on the
face hereof, together with interest accrued and unpaid hereon to the date
of redemption (except as provided below). If this Note is subject to
"Annual Redemption Percentage Reduction," the Initial Redemption Percentage
indicated on the face hereof will be reduced on each anniversary of the
Initial Redemption Date by the Annual Redemption Percentage Reduction
specified on the face hereof until the redemption price of this Note is
100% of the principal amount hereof, together with interest accrued and
unpaid hereon to the date of redemption (except as provided below). Notice
of redemption shall be mailed to the holders of the Notes designated for
redemption who have filed their names and addresses with the Principal
Paying Agent, not less than 30 nor more than 60 days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Senior Indenture. Notice of redemption to all other holders of Notes shall
be published in the manner set forth in "Notices" as defined below, once in
each of the three successive calendar weeks, the first publication to be
not less than 30 nor more than 60 days prior to the date set for
redemption. In the event of redemption of this Note in part only, the
Principal Paying Agent shall cause Schedule A of this Note to be endorsed
to reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of this Note so redeemed, whereupon the
principal amount hereof shall be reduced for all purposes by the amount so
redeemed and noted.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional Repayment
Date or Dates specified on the face hereof on the terms set forth herein.
On any Optional Repayment Date, this Note will be repayable in whole or in
part in increments of $1,000 or, if this Note is denominated in a Specified
Currency other than U.S. dollars, in increments of 1,000 units of such
Specified Currency (provided that any remaining principal amount hereof
shall not be less than the minimum authorized denomination hereof) at the
option of the holder hereof at a price equal to 100% of the principal
amount to be repaid, together with interest accrued and unpaid hereon to
the date of repayment (except as provided below). For this Note to be
repaid at the option of the holder hereof, the Principal Paying Agent must
receive at its office in London, at least 15 but not more than 30 days
prior to the date of repayment, (i) this Note with the form entitled
"Option to Elect Repayment" below duly completed or (ii) a telegram, telex,
facsimile transmission or a letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or a trust company in the United States, Western Europe or
Japan setting forth the name of the holder of this Note, the principal
amount hereof, the certificate number of this Note or a description of this
Note's tenor and terms, the principal amount hereof to be repaid, a
statement that the option to elect repayment is being exercised thereby and
a guarantee that this Note, together with the form entitled "Option to
Elect Repayment" duly completed, will be received by the Principal Paying
Agent not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter; provided, that such
telegram, telex, facsimile transmission or letter shall only be effective
if this Note and form duly completed are received by the Principal Paying
Agent by such fifth Business Day. Exercise of such repayment option by the
holder hereof shall be irrevocable. In the event of repayment of this Note
in part only, the Principal Paying Agent shall cause Schedule A of this
Note to be endorsed to reflect the reduction of its principal amount by an
amount equal to the aggregate principal amount of this Note so repaid,
whereupon the principal amount hereof shall be reduced for all purposes by
the amount so repaid and noted.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Interest payments for this
Note will be computed and paid on the basis of a 360-day year of twelve 30-day
months unless otherwise specified on the face hereof.
In the case where the Interest Payment Date or the Maturity Date (or
any redemption or repayment date) does not fall on a Business Day, payment of
interest, premium, if any, or principal otherwise payable on such date need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the Interest Payment Date or on
the Maturity Date (or any redemption or repayment date), and no interest on
such payment shall accrue for the period from and after the Interest Payment
Date or the Maturity Date (or any redemption or repayment date) to such next
succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note is issued in permanent global bearer form without
interest coupons attached (a "Global Bearer Note"). The beneficial owner
of all or a portion of this Note may exchange its interest in this Note
upon not less than 30 days' written notice to the Principal Paying Agent,
in whole, for Notes in bearer form with interest coupons, if any, attached
(the "Definitive Bearer Notes," and, together with the Global Bearer Notes,
the "Bearer Notes") or, in whole or from time to time in part, for Notes in
fully registered form without coupons (the "Registered Notes"), in each
case, in the minimum denominations set forth on the face hereof or any
amount in excess thereof which is an integral multiple of 1,000 units of
the Specified Currency set forth on the face hereof, at the office of the
Principal Paying Agent, or, in the case of Registered Notes, at the office
of the transfer agent for the Registered Notes in London, which transfer
agent will initially be Chemical Bank, London Branch, upon compliance with
any procedures set forth in, or established pursuant to, the Senior
Indenture; provided, however, that the Issuer shall not be required (i) to
exchange this Note for a period of fifteen calendar days preceding the
first publication of a notice of redemption of all or any portion hereof or
(ii) to exchange any portion of this Note selected for redemption or
surrendered for optional repayment, except that all or a portion of this
Note may be exchanged for a Registered Note of like tenor, provided that
such Registered Note shall be simultaneously surrendered for redemption or
repayment, as the case may be; and provided, further, that if a Registered
Note is issued in exchange for any portion of this Note after the close of
business at the office of the Principal Paying Agent on any record date
(whether or not a Business Day) for the payment of interest on such
Registered Note and before the opening of business at such office on the
relevant Interest Payment Date, any interest will not be payable on such
Interest Payment Date in respect of such Registered Note, but will be
payable on such Interest Payment Date only to the holder of this Note.
Upon exchange of this Note in whole for a Definitive Bearer Note or
Definitive Bearer Notes, or in whole or in part for a Registered Note or
Registered Notes, the Principal Paying Agent shall cause Schedule A of this
Note to be endorsed to reflect the reduction of the principal amount hereof
by an amount equal to the aggregate principal amount of such Definitive
Bearer Note or Definitive Bearer Notes, or such Registered Note or
Registered Notes, whereupon the principal amount hereof shall be reduced
for all purposes by the amount so exchanged and noted. All such exchanges
of Notes will be free of service charge, but the Issuer may require payment
of a sum sufficient to cover any tax or other governmental charge payable
in connection therewith. The date of any Note delivered upon any exchange
of this Note shall be such that no gain or loss of interest results from
such exchange.
All (and not less than all) interests in this Note will be
exchanged for Definitive Bearer Notes in accordance with the procedures set
forth in the following two sentences as soon as practicable after the first
beneficial owner of an interest in this Note exchanges its interest for a
Definitive Bearer Note, provided that a common depository located outside
the United States (the "common depository") holding this Note for Morgan
Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System (the "Euroclear Operator"), Cedel Bank, societe anonyme
("Cedel") and/or any other relevant clearing system (including "Societe
Interprofessionelle pour la Compensation des Valeurs Mobilieres
("SICOVAM")) instructs the Principal Paying Agent regarding the aggregate
principal amount of Definitive Bearer Notes and the denominations of such
Definitive Bearer Notes that must be authenticated and delivered to each of
the Euroclear Operator and Cedel in exchange for this Note. Thereafter,
the Principal Paying Agent, acting solely in reliance on such instructions,
shall, upon surrender to it of this Note and subject to the conditions in
the preceding paragraph, authenticate and deliver Definitive Bearer Notes
in exchange for this Note in accordance with such instructions and shall
cause Schedule A of this Note to be endorsed to reflect the reduction of
its principal amount by an amount equal to the aggregate principal amount
of this Note. Nothing in this paragraph shall prevent the further exchange
of Definitive Bearer Notes into Registered Notes.
This Note may be transferred by delivery; provided, however, that
this Note may be transferred only to a common depositary outside the United
States for the Euroclear Operator, Cedel and/or any other relevant clearing
system or to a nominee of such a depositary.
In case any Note shall at any time become mutilated, defaced or
be destroyed, lost or stolen and such Note or evidence of the loss, theft
or destruction thereof (together with the indemnity hereinafter referred to
and such other documents or proof as may be required in the premises) shall
be delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Note so destroyed or lost or stolen, but, in the case of any destroyed or
lost or stolen Note, only upon receipt of evidence satisfactory to the
Trustee and the Issuer that such Note was destroyed or lost or stolen and,
if required, upon receipt also of indemnity satisfactory to each of them.
All expenses and reasonable charges associated with procuring such
indemnity and with the preparation, authentication and delivery of a new
Note shall be borne by the owner of the Note mutilated, defaced, destroyed,
lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt
securities issued under the Senior Indenture, including the series of
Senior Global Medium-Term Notes of which this Note forms a part, or due to
the default in the performance or breach of any other covenant or warranty
of the Issuer applicable to the debt securities of such series but not
applicable to all outstanding debt securities issued under the Senior
Indenture shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of the debt securities of
each affected series (voting as a single class) may then declare the
principal of all debt securities of all such series and interest accrued
thereon to be due and payable immediately and (b) if an Event of Default
due to a default in the performance of any other of the covenants or
agreements in the Senior Indenture applicable to all outstanding debt
securities issued thereunder, including this Note, or due to certain events
of bankruptcy, insolvency and reorganization of the Issuer, shall have
occurred and be continuing, either the Trustee or the holders of not less
than 25% in principal amount of all debt securities issued under the Senior
Indenture then outstanding (treated as one class) may declare the principal
of all such debt securities and interest accrued thereon to be due and
payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt
securities) by the holders of a majority in principal amount of the debt
securities of all affected series then outstanding.
If the face hereof indicates that this Note is subject to
"Modified Payment upon Acceleration or Redemption," then (i) if the
principal hereof is declared to be due and payable as described in the
preceding paragraph, the amount of principal due and payable with respect
to this Note shall be calculated on the basis of the aggregate principal
amount hereof multiplied by the sum of the Issue Price specified on the
face hereof (expressed as a percentage of the aggregate principal amount)
plus the original issue discount amortized from the Interest Accrual Date
to the date of declaration, which amortization shall be calculated using
the "interest method" (computed in accordance with generally accepted
accounting principles in effect on the date of declaration), (ii) for the
purpose of any vote of securityholders taken pursuant to the Senior
Indenture prior to the acceleration of payment of this Note, the principal
amount hereof shall equal the amount that would be due and payable hereon,
calculated as set forth in clause (i) above, if this Note were declared to
be due and payable on the date of any such vote and (iii) for the purpose
of any vote of securityholders taken pursuant to the Senior Indenture
following the acceleration of payment of this Note, the principal amount
hereof shall equal the amount of principal due and payable with respect to
this Note, calculated as set forth in clause (i) above.
This Note may be redeemed, as a whole, at the option of the
Issuer at any time prior to maturity, upon the giving of a notice of
redemption as described below, at the Redemption Price, as specified on the
face hereof, together with accrued interest to the date fixed for
redemption (except that if this Note is subject to "Modified Payment upon
Acceleration or Redemption," such redemption price would be limited to the
aggregate principal amount hereof multiplied by the sum of the Issue Price
specified on the face hereof (expressed as a percentage of the aggregate
principal amount) plus the original issue discount amortized from the
Interest Accrual Date to the date of redemption, which amortization shall
be calculated using the "interest method" (computed in accordance with
generally accepted accounting principles in effect on the date of
redemption) (the "Amortized Amount")), if the Issuer determines that, as a
result of any change in or amendment to the laws (or any regulations or
rulings promulgated thereunder) of the United States or of any political
subdivision or taxing authority thereof or therein affecting taxation, or
any change in official position regarding the application or interpretation
of such laws, regulations or rulings, which change or amendment becomes
effective on or after the Original Issue Date hereof, the Issuer has or
will become obligated to pay Additional Amounts (as defined below) with
respect to this Note as described below. Prior to the giving of any Notice
of redemption pursuant to this paragraph, the Issuer shall deliver to the
Trustee (i) a certificate stating that the Issuer is entitled to effect
such redemption and setting forth a statement of facts showing that the
conditions precedent to the right of the Issuer to so redeem have occurred,
and (ii) an opinion of independent counsel satisfactory to the Trustee to
such effect based on such statement of facts; provided that no such notice
of redemption shall be given earlier than 60 days prior to the earliest
date on which the Issuer would be obligated to pay such Additional Amounts
if a payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more than 60
days prior to the date fixed for redemption, which date and the formula for
determining the applicable redemption price will be specified in the Notice.
If the Issuer shall determine that any payment made outside the
United States by the Issuer or any Paying Agent of principal, premium or
interest due in respect of this Note would, under any present or future
laws or regulations of the United States, be subject to any certification,
identification or other information reporting requirement of any kind, the
effect of which is the disclosure to the Issuer, any Paying Agent or any
governmental authority of the nationality, residence or identity of a
beneficial owner of this Note who is a United States Alien (as defined
below) (other than such a requirement (a) that would not be applicable to
a payment made by the Issuer or any Paying Agent (i) directly to the
beneficial owner or (ii) to a custodian, nominee or other agent of the
beneficial owner, or (b) that can be satisfied by such custodian, nominee
or other agent certifying to the effect that such beneficial owner is a
United States Alien; provided that in each case referred to in clauses
(a)(ii) and (b) payment by such custodian, nominee or agent to such
beneficial owner is not otherwise subject to any such requirement), the
Issuer shall redeem this Note, as a whole, at the Redemption Price, as
specified on the face hereof (except that if this Note is subject to
"Modified Payment upon Acceleration or Redemption," such redemption price
would be calculated on the basis of the aggregate principal amount hereof
multiplied by the sum of the Issue Price specified on the face hereof
(expressed as a percentage of the aggregate principal amount) plus the
Amortized Amount), together with accrued interest to the date fixed for
redemption, or, at the election of the Issuer if the conditions of the next
succeeding paragraph are satisfied, pay the additional amounts specified in
such paragraph. The Issuer shall make such determination and election as
soon as practicable, shall promptly notify the Trustee thereof and shall
publish prompt notice thereof (the "Determination Notice") stating the
effective date of such certification, identification or other information
reporting requirements, whether the Issuer will redeem this Note or has
elected to pay the additional amounts specified in the next succeeding
paragraph, and (if applicable) the last date by which the redemption of
this Note must take place, as provided in the next succeeding sentence. If
the Issuer redeems this Note, such redemption shall take place on such
date, not later than one year after the publication of the Determination
Notice, as the Issuer shall elect by notice to the Trustee at least 60 days
prior to the date fixed for redemption. Notice of such redemption of this
Note will be given to the holder of this Note not more than 60 nor less
than 30 days prior to the date fixed for redemption. Such redemption
notice shall include a statement as to the last date by which this Note to
be redeemed may be exchanged for Registered Notes. Notwithstanding the
foregoing, the Issuer shall not so redeem this Note if the Issuer shall
subsequently determine, not less than 30 days prior to the date fixed for
redemption, that subsequent payments would not be subject to any such
requirement, in which case the Issuer shall publish prompt notice of such
determination and any earlier redemption notice shall be revoked and of no
further effect. The right of the holder of this Note to exchange this Note
for Registered Notes will terminate at the close of business of the
Principal Paying Agent on the fifteenth day prior to the date fixed for
redemption, and no further exchanges of this Note for Registered Notes
shall be permitted.
If and so long as the certification, identification or other
information reporting requirements referred to in the preceding paragraph
would be fully satisfied by payment of a backup withholding tax or similar
charge, the Issuer may elect by notice to the Trustee to pay as additional
amounts such amounts as may be necessary so that every net payment made
outside the United States following the effective date of such requirements
by the Issuer or any Paying Agent of principal, premium or interest due in
respect of this Note of which the beneficial owner is a United States Alien
(but without any requirement that the nationality, residence or identity of
such beneficial owner be disclosed to the Issuer, any Paying Agent or any
governmental authority, with respect to the payment of such additional
amounts), after deduction or withholding for or on account of such backup
withholding tax or similar charge (other than a backup withholding tax or
similar charge that (i) would not be applicable in the circumstances
referred to in the second parenthetical clause of the first sentence of the
preceding paragraph, or (ii) is imposed as a result of presentation of this
Note for payment more than 15 days after the date on which such payment
becomes due and payable or on which payment thereof is duly provided for,
whichever occurs later), will not be less than the amount provided for in
this Note to be then due and payable. In the event the Issuer elects to
pay any additional amounts pursuant to this paragraph, the Issuer shall
have the right to redeem this Note as a whole at any time pursuant to the
applicable provisions of the immediately preceding paragraph and the
redemption price of this Note will not be reduced for applicable
withholding taxes. If the Issuer elects to pay additional amounts pursuant
to this paragraph and the condition specified in the first sentence of this
paragraph should no longer be satisfied, then the Issuer will redeem this
Note as a whole, pursuant to the applicable provisions of the immediately
preceding paragraph.
The Issuer will, subject to certain exceptions and limitations
set forth below, pay such additional amounts (the "Additional Amounts") to
the holder of this Note who is a United States Alien as may be necessary in
order that every net payment of the principal of and interest on this Note
and any other amounts payable on this Note, after withholding for or on
account of any present or future tax, assessment or governmental charge
imposed upon or as a result of such payment by the United States (or any
political subdivision or taxing authority thereof or therein), will not be
less than the amount provided for in this Note to be then due and payable.
The Issuer will not, however, be required to make any payment of Additional
Amounts to any such holder for or on account of:
(a) any such tax, assessment or other governmental charge
that would not have been so imposed but for (i) the existence of any
present or former connection between such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of such
holder, if such holder is an estate, a trust, a partnership or a
corporation) and the United States, including, without limitation,
such holder (or such fiduciary, settlor, beneficiary, member or
shareholder) being or having been a citizen or resident thereof or
being or having been engaged in a trade or business or present
therein or having, or having had, a permanent establishment therein
or (ii) the presentation by the holder of this Note for payment on a
date more than 15 days after the date on which such payment became
due and payable or the date on which payment thereof is duly provided
for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or
personal property tax or any similar tax, assessment or governmental
charge;
(c) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as a personal
holding company or foreign personal holding company or controlled
foreign corporation or passive foreign investment company with
respect to the United States or as a corporation which accumulates
earnings to avoid United States federal income tax or as a private
foundation or other tax-exempt organization;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payments on or in respect
of this Note;
(e) any tax, assessment or other governmental charge required
to be withheld by any Paying Agent from any payment of principal of,
or interest on, this Note, if such payment can be made without such
withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that
would not have been imposed but for the failure to comply with
certification, information or other reporting requirements concerning
the nationality, residence or identity of the holder or beneficial
owner of this Note, if such compliance is required by statute or by
regulation of the United States or of any political subdivision or
taxing authority thereof or therein as a precondition to relief or
exemption from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power
of all classes of stock entitled to vote of the Issuer or as a direct
or indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or
(g);
nor shall Additional Amounts be paid with respect to any payment on this Note
to a United States Alien who is a fiduciary or partnership or other than the
sole beneficial owner of such payment to the extent such payment would be
required by the laws of the United States (or any political subdivision
thereof) to be included in the income, for tax purposes, of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to the Additional Amounts
had such beneficiary, settlor, member or beneficial owner been the holder of
this Note.
The Final Redemption Price or the Redemption Price shall be
determined by the Calculation Agent not later than the close of business on
the date that is two (2) London Banking Days prior to the Maturity Date or
date of redemption as the case may be (the "Determination Date"). For the
purpose of determining the Final Redemption Price or the Redemption Price
LIBOR shall be determined as follows:
(i) As of the Determination Date, the Calculation Agent
will determine (a) if "LIBOR Reuters" is specified as the
Reporting Service on the face hereof, the arithmetic mean of the
offered rates (unless the specified Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in
which case such single rate shall be used) for deposits in the
Index Currency for the period of the Index Maturity specified on
the face hereof, commencing on the second London Banking Day
immediately following such Determination Date, which appear on the
Designated LIBOR Page at approximately 11:00 A.M., London time, on
such Determination Date, if at least two such offered rates appear
(unless, as aforesaid, only a single rate is required) on such
Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified as
the Reporting Service on the face hereof, the rate for deposits in
the Index Currency for the period of the Index Maturity, each as
designated on the face hereof, commencing on the second London
Banking Day following such Determination Date (or, if pounds
sterling is the Index Currency, commencing on such Determination
Date), that appears on the Designated LIBOR Page at approximately
11:00 A.M., London time, on such Determination Date. If fewer
than two offered rates appear (if "LIBOR Reuters" is specified as
the Reporting Service on the face hereof and calculation of LIBOR
is based on the arithmetic mean of the offered rates) or if no
rate appears (if the Reporting Service on the face hereof
specifies either (x) "LIBOR Reuters" and the Designated LIBOR Page
by its terms provides only for a single rate or (y) "LIBOR
Telerate"), LIBOR in respect of that Determination Date will be
determined as if the parties had specified the rate described in
(ii) below.
(ii) With respect to a Determination Date on which fewer
than two offered rates appear (if "LIBOR Reuters" is specified as
the Reporting Service on the face hereof and calculation of LIBOR
is based on the arithmetic mean of the offered rates) or no rate
appears (if the Reporting Service on the face hereof specifies
either (x) "LIBOR Reuters" and the Designated LIBOR Page by its
terms provides only for a single rate or (y) "LIBOR Telerate"),
the Calculation Agent will request the principal London offices of
each of four major reference banks in the London interbank market,
as selected by the Calculation Agent (after consultation with the
Issuer), to provide the Calculation Agent with its offered
quotations for deposits in the Index Currency for the period of
the Index Maturity specified on the face hereof, commencing on the
second London Banking Day immediately following such Determination
Date (or, if pounds sterling is the Index Currency, commencing on
such Determination Date), to prime banks in the London interbank
market at approximately 11:00 A.M., London time, on such
Determination Date and in a principal amount equal to an amount of
not less than U.S.$1 million (or the equivalent in the Index
Currency if the Index Currency is not the U.S. dollar) that is
representative of a single transaction in such Index Currency in
such market at such time. If at least two such quotations are
provided, LIBOR determined on such Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations
are provided, LIBOR determined on such Determination Date will be
the arithmetic mean of rates quoted at approximately 11:00 A.M.
(or such other time specified on the face hereof), in the
applicable principal financial center for the country of the Index
Currency on such Determination Date, by three major banks in such
principal financial center selected by the Calculation Agent
(after consultation with the Issuer) on such Determination Date
for loans in the Index Currency to leading European banks, for the
period of the Index Maturity specified on the face hereof
commencing on the second London Banking Day immediately following
such Determination Date (or, if pounds sterling is the Index
Currency, commencing on such Determination Date) and in a
principal amount of not less than U.S.$1 million (or the
equivalent in the Index Currency if the Index Currency is not the
U.S. dollar) that is representative of a single transaction in
such Index Currency in such market at such time. "Index Currency"
means the currency (including composite currencies) specified as
Index Currency on the face hereof. If no such currency is
specified as Index Currency on the face hereof, the Index Currency
shall be U.S. dollars. "Designated LIBOR Page" means either (a) if
"LIBOR Reuters" is designated as the Reporting Service on the face
hereof, the display on the Reuters Monitor Money Rates Service for
the purpose of displaying the London interbank rates of major
banks for the applicable Index Currency, or (b) if "LIBOR
Telerate" is designated as the Reporting Service on the face
hereof, the display on the Dow Jones Telerate Service for the
purpose of displaying the London interbank rates of major banks
for the applicable Index Currency. If neither LIBOR Reuters nor
LIBOR Telerate is specified as the Reporting Service on the face
hereof, LIBOR for the applicable Index Currency will be determined
as if LIBOR Telerate (and, if the U.S. dollar is the Index
Currency, Page 3750) had been specified.
The Senior Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior
Indenture then outstanding and affected (voting as one class), to execute
supplemental indentures adding any provisions to or changing in any manner
the rights of the holders of each series so affected; provided that the
Issuer and the Trustee may not, without the consent of the holder of each
outstanding debt security affected thereby, (a) extend the final maturity
of any such debt security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or
reduce any amount payable on redemption or repayment thereof, or change the
currency of payment thereof, or impair or affect the rights of any holder
to institute suit for the payment thereof without the consent of the holder
of each debt security so affected; or (b) reduce the aforesaid percentage
in principal amount of debt securities the consent of the holders of which
is required for any such supplemental indenture, without the consent of the
holders of each debt security so affected.
Except as set forth below, if the principal of, premium, if any,
or interest on, this Note is payable in a Specified Currency other than
U.S. dollars and such Specified Currency is not available to the Issuer for
making payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking
community, then the Issuer will be entitled to satisfy its obligations to
the holder of this Note by making such payments in U.S. dollars on the
basis of the Market Exchange Rate (as defined below) on the date of such
payment or, if the Market Exchange Rate is not available on such date, as
of the most recent practicable date; provided, however, that if such
Specified Currency is replaced by a single European currency (expected to
be named the Euro), the payment of principal of, premium, if any, or
interest on any Note denominated in such currency shall be effected in the
new single European currency in conformity with legally applicable measures
taken pursuant to, or by virtue of, the treaty establishing the European
Community (the "EC"), as amended by the treaty on European Union (as so
amended, the "Treaty"). Any payment made under such circumstances in U.S.
dollars (or, if applicable, such new European currency) where the required
payment is in a Specified Currency other than U.S. dollars will not
constitute an Event of Default.
If the principal of, premium, if any, or interest on, this
Note is payable in ECUs, then with respect to each due date for any such
payment on or after the first business day in Brussels on which the ECU
ceases to be used as the unit of account of the European Community and has
not become a currency in its own right, replacing all or some of the
currencies of the member states of the EC, the Issuer shall choose a
substitute currency (the "Chosen Currency") which may be any currency which
was, on the last day on which the ECU was used as the unit of account of
the EC, a component currency of the ECU basket or U.S. dollars, in which
all such payments due on or after that date with respect to this Note shall
be made. Notice of the Chosen Currency so selected shall, where
practicable, be published in the manner described in "Notices" below. The
amount of each payment in such Chosen Currency shall be computed on the
basis of the equivalent of the ECU in that currency, determined as
described below, as of the fourth business day in Brussels prior to the
date on which such payment is due.
If the principal of, premium, if any, or interest on, this Note
is payable in ECUs, then on the first business day in Brussels on which the
ECU ceases to be used as the unit of account of the EC, and has not become a
currency in its own right, replacing all or some of the currencies of the
member states of the EC, the Issuer shall choose a Chosen Currency in which
all such payments with respect to this Note having a due date prior thereto
but not yet presented for payment are to be made. The amount of each payment
in such Chosen Currency shall be computed on the basis of the equivalent of
the ECU in that currency, determined as described below, as of such first
business day.
The equivalent of the ECU in the relevant Chosen Currency as of
any date (the "Day of Valuation") shall be determined on the following basis
by, or on behalf of, an Exchange Rate Agent appointed by the Issuer. The
amounts and components composing the ECU for this purpose (the "Components")
shall be the amounts and components composing the ECU as of the last date on
which the ECU was used as the unit of account of the EC. The equivalent of
the ECU in the Chosen Currency shall be calculated by, first, aggregating the
U.S. dollar equivalents of the Components; and then, in the case of a Chosen
Currency other than U.S. dollars, using the rate used for determining the U.S.
dollar equivalent of the Components in the Chosen Currency as set forth below,
calculating the equivalent in the Chosen Currency of such aggregate amount in
U.S. dollars.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Issuer, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf;
provided that such quotations were prevailing in the country of issue not
more than two Business Days before such Day of Valuation. If such most
recent quotations were so prevailing in the country of issue more than two
Business Days before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of
cross rates derived from the middle spot delivery quotations for such
component currency and for the U.S. dollar prevailing at 2:30 P.M.,
Brussels time, on such Day of Valuation, as obtained by, or on behalf of,
the Exchange Rate Agent from one or more major banks, as selected by the
Issuer, in a country other than the country of issue of such component
currency. Notwithstanding the foregoing, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of such
cross rates if the Issuer or such agent judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent
calculated as provided in the first sentence of this paragraph. Unless
otherwise specified by the Issuer, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations
or for any other reason, the market to be referred to in respect of such
currency shall be that upon which a non-resident issuer of notes
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of this Note.
So long as this Note shall be outstanding, the Issuer will cause
to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided. If this
Note is listed on The International Stock Exchange of the United Kingdom
and the Republic of Ireland Limited and such Exchange so requires, the
Issuer shall maintain a Paying Agent in London. The Issuer may designate
other agencies for the payment of said principal, premium and interest at
such place or places outside the United States (subject to applicable laws
and regulations) as the Issuer may decide. So long as there shall be such
an agency, the Issuer shall keep the Trustee advised of the names and
locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or
any Paying Agent for payment of the principal of or interest or premium, if
any, on any Notes that remain unclaimed at the end of two years after such
principal, interest or premium shall have become due and payable (whether at
maturity or upon call for redemption or otherwise), (i) the Trustee or such
Paying Agent shall notify the holders of such Notes that such moneys shall be
repaid to the Issuer and any person claiming such moneys shall thereafter look
only to the Issuer for payment thereof and (ii) such moneys shall be so repaid
to the Issuer. Upon such repayment all liability of the Trustee or such
Paying Agent with respect to such moneys shall thereupon cease, without,
however, limiting in any way any obligation that the Issuer may have to pay
the principal of or interest or premium, if any, on this Note as the same
shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the holder of this
Note.
The Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the holder of this Note as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Senior Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in The
City of New York or in the City of London and (i) if this Note is denominated
in a Specified Currency other than U.S. dollars, Australian dollars or ECUs,
in the principal financial center of the country of the Specified Currency,
(ii) if this Note is denominated in Australian dollars, in Sydney and (iii) if
this Note is denominated in ECUs, that is not a non-ECU clearing day, as
determined by the ECU Banking Association in Paris;
(b) the term "London Banking Day" means any day on which
dealings in deposits in the Index Currency (as defined herein) are transacted
in the London interbank market.
(c) the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for wire transfers of the Specified
Currency indicated on the face hereof as certified for customs purposes by the
Federal Reserve Bank of New York;
(d) the term "Notices" refers to notices to the holders of the
Notes to be given by publication in an authorized newspaper in the English
language and of general circulation in the Borough of Manhattan, The City of
New York, and London or, if publication in London is not practical, in an
English language newspaper with general circulation in Western Europe. Such
publication is expected to be made in the Wall Street Journal and the
Financial Times. Such Notices will be deemed to have been given on the date
of such publication, or if published in such newspapers on different dates, on
the date of the first such publication;
(e) the term "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction; and
(f) the term "United States Alien" means any person who, for
United States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership, one or more of the members of which
is a foreign corporation, a non-resident alien individual or a non-resident
alien fiduciary of a foreign estate or trust.
All other terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and
instructs the Issuer to repay the within Note (or portion thereof specified
below) pursuant to its terms at a price equal to the principal amount thereof,
together with interest to the Optional Repayment Date, to the undersigned at
____________________________________________________________
____________________________________________________________
____________________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the
within Note is to be repaid, specify the portion thereof which the holder
elects to have repaid: __________________; and specify the denomination or
denominations (which shall not be less than the minimum authorized
denomination) of the Notes to be issued to the holder for the portion of
the within Note not being repaid (in the absence of any such specification,
one such Note will be issued for the portion not being repaid):
____________________________.
Dated:______________________ ___________________________
SCHEDULE A
EXHIBIT 4.BB
[FORM OF FACE OF SECURITY]
Definitive Floating Rate Senior Bearer Note
BEARER BEARER No. PGFL ____
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4
OF THE UNITED KINGDOM BANKING ACT 1987.]*(1)
[MEDIUM TERM NOTE ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4
OF THE UNITED KINGDOM BANKING ACT 1987.]**(2)
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET FORTH
BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES AND
EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD, 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.
IF THIS NOTE IS DENOMINATED IN JAPANESE YEN, IT SHALL HAVE A MATURITY OF NOT
LESS THAN ONE YEAR AND IT MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY,
IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT IN JAPAN PRIOR TO THE DATE
WHICH IS 90 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS NOTE. IF (i)
INTEREST PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN AND PRINCIPAL
PAYMENTS ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER THAN JAPANESE
YEN OR (ii) PRINCIPAL PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN
AND INTEREST PAYMENTS ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER
THAN JAPANESE YEN, THIS NOTE MAY NOT BE OFFERED OR SOLD, DIRECTLY OR
INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF JAPAN PRIOR
TO THE DATE WHICH IS 180 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS
NOTE.
____________
(1)* Applies only if this Note is denominated in pounds sterling and matures
not more than one year from and including the Original Issue Date.
(2)** Applies only if this Note is denominated in pounds sterling and matures
more than one year and not more than five years from and including the
Original Issue Date.
MORGAN STANLEY GROUP INC.
SENIOR DEFINITIVE MEDIUM-TERM NOTE, SERIES [D/E] (Floating Rate)
Floating Rate Senior Note
MORGAN STANLEY GROUP INC.
ORIGINAL ISSUE INTEREST ACCRUAL INTEREST PAYMENT
DATE: DATE: DATES:
MATURITY DATE: INTEREST PAYMENT
INITIAL INTEREST PERIOD:
RATE:
INITIAL INTEREST INTEREST RESET
BASE RATE: RESET DATE: PERIOD:
INTEREST RESET
INDEX MATURITY: MAXIMUM INTEREST DATES:
RATE:
SPREAD (PLUS OR MINIMUM INTEREST CALCULATION AGENT:
MINUS): RATE:
ALTERNATE RATE INITIAL REDEMPTION SPECIFIED CURRENCY:
EVENT SPREAD: DATE:
SPREAD INITIAL REDEMPTION INDEX CURRENCY:
MULTIPLIER: PERCENTAGE:
REPORTING ANNUAL REDEMPTION TOTAL AMOUNT OF OID:
SERVICE: PERCENTAGE REDUCTION:
COMMON CODE: OPTIONAL REPAYMENT ORIGINAL YIELD TO
DATE(S): MATURITY:
ISIN: EXCHANGE RATE AGENT: INITIAL ACCRUAL
PERIOD OID:
DESIGNATED CMT MINIMUM
TELERATE PAGE: DENOMINATIONS:
DESIGNATED CMT
MATURITY INDEX:
OTHER
PROVISIONS:
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to bearer, upon surrender hereof, the principal amount of ,
on the Maturity Date specified above (except to the extent previously
redeemed or repaid) and to pay interest thereon to the bearer of the
coupons, if any, appertaining hereto, from and including the Interest
Accrual Date specified above at a rate per annum equal to the Initial
Interest Rate specified above until and excluding the Initial Interest
Reset Date specified above, and on and after at a rate per annum determined
in accordance with the provisions specified on the reverse hereof until but
excluding the date such principal amount is paid or duly made available for
payment. The Issuer will pay interest in arrears monthly, quarterly,
semiannually or annually as specified above as the Interest Payment Period
on each Interest Payment Date (as specified above), commencing with the
first Interest Payment Date next succeeding the Interest Accrual Date
specified above, and on the Maturity Date specified above (or any
redemption or repayment date); provided, however, that if the Interest
Accrual Date occurs fifteen days or less prior to the first Interest
Payment Date occurring after the Interest Accrual Date, interest payments
will commence on the second Interest Payment Date succeeding the Interest
Accrual Date; and provided, further, that if an Interest Payment Date
(other than the Maturity Date or redemption or repayment date) would fall
on a day that is not a Business Day, as defined on the reverse hereof, such
Interest Payment Date shall be the following day that is a Business Day,
except that if the Base Rate specified above is LIBOR and such next
Business Day falls in the next calendar month, such Interest Payment Date
shall be the immediately preceding day that is a Business Day; and
provided, further, that if the Maturity Date or redemption or repayment
date would fall on a day that is not a Business Day, the payment of
principal, premium, if any, and interest shall be made on the next
succeeding Business Day and no interest shall accrue for the period from
and after such Maturity Date or redemption or repayment date.
Interest on this Note will accrue from and including the
most recent Interest Payment Date to which interest has been paid or duly
provided for, or, if no interest has been paid or duly provided for, from
and including the Interest Accrual Date, until but excluding the date the
principal hereof has been paid or duly made available for payment (except
as provided below). The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will be payable only upon
presentation and surrender at the office or agency of the Principal Paying
Agent (this and certain other capitalized terms used herein are defined on
the reverse of this Note) or at the office or agency of such other paying
agents outside the United States as the Issuer may determine for that
purpose (each, a "Paying Agent," which term shall include the Principal
Paying Agent) of the interest coupons hereto attached as they severally
mature.
Payment of the principal of and premium, if any, on this
Note, at maturity (or on any redemption or repayment date) will be made
upon presentation and surrender of this Note at the office or agency of the
Principal Paying Agent or at the office of any Paying Agent.
Payment of the principal of and premium, if any, and
interest on this Note will be made in the Specified Currency indicated
above, except as provided on the reverse hereof. If this Note is
denominated in U.S. dollars, any payment of the principal of, premium, if
any, and interest on this Note will be made in such coin or currency of the
United States of America as at the time of payment is legal tender for
payment of public and private debts. Such payments on this Note will be
made either by a check mailed to an address outside the United States
furnished by the payee or, at the option of the payee and subject to
applicable laws and regulations and the procedures of the Paying Agent, by
wire transfer of immediately available funds to an account maintained by
the payee with a bank located outside the United States if appropriate wire
transfer instructions have been received by the Paying Agent not less than
15 calendar days prior to the applicable payment date. Notwithstanding the
foregoing, in the event that payment in U.S. dollars of the full amount
payable on this Note at the offices of all Paying Agents would be illegal
or effectively precluded as a result of exchange controls or similar
restrictions, payment on this Note will be made by a paying agency in the
United States, if such paying agency, under applicable law and regulations,
would be able to make such payment. If this Note is denominated in a
Specified Currency other than U.S. dollars, then, except as provided on the
reverse hereof, payment of the principal of and premium, if any, and
interest on this Note will be made in such Specified Currency either by a
check drawn on a bank outside the United States or, at the option of the
payee and subject to applicable laws and regulations and the procedures of
the Paying Agent, by wire transfer of immediately available funds to an
account maintained by the payee with a bank located outside the United
States.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual
signature, neither this Note nor any coupons appertaining hereto shall be
entitled to any benefit under the Senior Indenture, as defined on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed and coupons bearing the facsimile signature of its
____________________ to be annexed hereto.
DATED: MORGAN STANLEY GROUP INC.
By _______________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Senior Indenture.
CHEMICAL BANK,
as Trustee
By _______________________________
Authorized Officer
REVERSE OF SECURITY
This Note is one of a duly authorized issue of Senior
Medium-Term Notes, Series [D/E], having maturities more than nine months
from the date of issue (the "Notes") of the Issuer. The Notes are issuable
under a Senior Indenture, dated as of April 15, 1989, as supplemented by a
First Supplemental Indenture dated as of May 15, 1991 and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Senior Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and any coupons appertaining thereto and the terms
upon which the Notes are, and are to be, authenticated and delivered. The
Issuer has appointed Chemical Bank, London Branch, as its principal paying
agent for the Notes and the coupons appertaining hereto (the "Principal
Paying Agent," which term includes any additional or successor Principal
Paying Agent appointed by the Issuer). The terms of individual Notes may
vary with respect to interest rates, interest rate formulas, issue dates,
maturity dates, or otherwise, all as provided in the Senior Indenture. To
the extent not inconsistent herewith, the terms of the Senior Indenture are
hereby incorporated by reference herein.
If this Note is denominated in pounds sterling, the Issuer
represents that it is not an authorized institution (for purposes of the
United Kingdom Banking Act 1987) and repayment of the principal of, and
payment of any interest or premium on, this Note has not been guaranteed,
that it has complied with its obligations under the listing rules of The
International Stock Exchange of the United Kingdom and the Republic of
Ireland Limited (the "Rules") and that, since the last publication in
compliance with the Rules of information about it, it, having made all
reasonable inquiries, has not become aware of any change in circumstances
which could reasonably be regarded as significantly and adversely affecting
its ability to meet its obligations in respect of the Notes as they fall
due.
Unless otherwise provided on the face hereof, this Note will
not be subject to any sinking fund and, unless otherwise provided on the face
hereof in accordance with the provisions of the following two paragraphs and
except as set forth below, will not be redeemable or subject to repayment at
the option of the holder prior to maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on or after the
Initial Redemption Date specified on the face hereof on the terms set forth
on the face hereof, together with interest accrued and unpaid hereon to the
date of redemption (except as provided below). If this Note is subject to
"Annual Redemption Percentage Reduction," the Initial Redemption Percentage
indicated on the face hereof will be reduced on each anniversary of the
Initial Redemption Date by the Annual Redemption Percentage Reduction
specified on the face hereof until the redemption price of this Note is
100% of the principal amount hereof, together with interest accrued and
unpaid hereon to the date of redemption (except as provided below). Notice
of redemption shall be mailed to the holders of the Notes designated for
redemption who have filed their names and addresses with the Principal
Paying Agent, not less than 30 nor more than 60 days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Senior Indenture. Notice of redemption to all other holders of Notes shall
be published in the manner set forth in "Notices" as defined below, once in
each of the three successive calendar weeks, the first publication to be
not less than 30 nor more than 60 days prior to the date set for
redemption. In the event of redemption of this Note in part only, a new
Note or Notes for the amount of the unredeemed portion hereof shall be
issued upon the cancellation hereof. If redeemed prior to maturity, this
Note must be presented for payment together with all unmatured coupons, if
any, appertaining hereto, failing which the amount of any missing unmatured
coupon will be deducted from the sum due for payment; provided, however,
that such deduction may be waived by the Issuer and the Principal Paying
Agent if there is furnished to each of them such security or indemnity as
they may require.
The Company will not be required (i) to exchange any Bearer
Note to be redeemed for a period of fifteen calendar days preceding the
first publication of the relevant notice of redemption or (ii) to exchange
any Bearer Note selected for redemption or surrendered for optional
repayment, except that such Bearer Note may be exchanged for a Registered
Note of like tenor unless indicated otherwise on the face of this Note,
provided that such Registered Note shall be simultaneously surrendered for
redemption or repayment, as the case may be.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional Repayment
Date or Dates specified on the face hereof on the terms set forth herein.
On any Optional Repayment Date, this Note will be repayable in whole or in
part in increments of $1,000 or, if this Note is denominated in a Specified
Currency other than U.S. dollars, in increments of 1,000 units of such
Specified Currency (provided that any remaining principal amount hereof
shall not be less than the minimum authorized denomination hereof) at the
option of the holder hereof at a price equal to 100% of the principal
amount to be repaid, together with interest accrued and unpaid hereon to
the date of repayment (except as provided below). For this Note to be
repaid at the option of the holder hereof, the Principal Paying Agent must
receive at its office in London, at least 15 but not more than 30 days
prior to the date of repayment, (i) this Note, together with all unmatured
coupons appertaining thereto, with the form entitled "Option to Elect
Repayment" below duly completed or (ii) a telegram, telex, facsimile
transmission or a letter from a member of a national securities exchange or
the National Association of Securities Dealers, Inc. or a commercial bank
or a trust company in the United States, Western Europe or Japan setting
forth the name of the holder of this Note, the principal amount hereof, the
certificate number of this Note or a description of this Note's tenor and
terms, the principal amount hereof to be repaid, a statement that the
option to elect repayment is being exercised thereby and a guarantee that
this Note, together with the form entitled "Option to Elect Repayment" duly
completed together with any unmatured coupons, will be received by the
Principal Paying Agent not later than the fifth Business Day after the date
of such telegram, telex, facsimile transmission or letter; provided, that
such telegram, telex, facsimile transmission or letter shall only be
effective if this Note, together with all unmatured coupons appertaining
thereto, and form duly completed are received by the Principal Paying Agent
by such fifth Business Day. Exercise of such repayment option by the
holder hereof shall be irrevocable.
This Note will bear interest at the rate determined in
accordance with the applicable provisions below by reference to the Base
Rate shown on the face hereof based on the Index Maturity, if any, shown on
the face hereof (i) plus or minus the Spread, if any, or (ii) multiplied by
the Spread Multiplier, if any, specified on the face hereof. Commencing
with the Initial Interest Reset Date specified on the face hereof, the rate
at which interest on this Note is payable shall be reset as of each
Interest Reset Date (as used herein, the term "Interest Reset Date" shall
include the Initial Interest Reset Date). The determination of the rate of
interest at which this Note will be reset on any Interest Reset Date shall
be made on the Interest Determination Date (as defined below) pertaining to
such Interest Reset Date. The Interest Reset Dates will be the Interest
Reset Dates specified on the face hereof; provided, however, that the
interest rate in effect for the period from the Interest Accrual Date to
the Initial Interest Reset Date will be the Initial Interest Rate. If any
Interest Reset Date would otherwise be a day that is not a Business Day,
such Interest Reset Date shall be postponed to the next succeeding day that
is a Business Day, except that if the Base Rate specified on the face
hereof is LIBOR and such Business Day is in the next succeeding calendar
month, such Interest Reset Date shall be the next preceding Business Day.
The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to the CD
Rate, Commercial Paper Rate, Federal Funds Rate, Prime Rate and CMT Rate
will be the second Business Day next preceding such Interest Reset Date.
The Interest Determination Date pertaining to an Interest Reset Date for
Notes bearing interest calculated by reference to LIBOR shall be the second
London Banking Day preceding such Interest Reset Date except that the
Interest Determination Date pertaining to an Interest Reset Date for a
LIBOR Note for which the Index Currency is pounds sterling will be such
Interest Reset Date. As used herein, "London Banking Day" means any day on
which dealings in deposits in the Index Currency (as defined herein) are
transacted in the London interbank market. The Interest Determination Date
pertaining to an Interest Reset Date for Notes bearing interest calculated
by reference to the Treasury Rate shall be the day of the week in which
such Interest Reset Date falls on which Treasury bills normally would be
auctioned; provided, however, that if as a result of a legal holiday an
auction is held on the Friday of the week preceding such Interest Reset
Date, the related Interest Determination Date shall be such preceding
Friday; and provided, further, that if an auction shall fall on any
Interest Reset Date, then the Interest Reset Date shall instead be the
first Business Day following the date of such auction.
Unless otherwise specified on the face hereof, the
"Calculation Date" pertaining to an Interest Determination Date will be the
earlier of (i) the tenth calendar day after such Interest Determination
Date or, if such day is not a Business Day, the next succeeding Business
Day, or (ii) the Business Day preceding the applicable Interest Payment
Date or Maturity Date (or, with respect to any principal amount to be
redeemed or repaid, any redemption or repayment date), as the case may be.
Determination of CD Rate. If the Base Rate specified on the face hereof is
the CD Rate, the CD Rate with respect to this Note shall be determined on
each Interest Determination Date and shall be the rate on such date for
negotiable certificates of deposit having the Index Maturity specified on
the face hereof as published by the Board of Governors of the Federal
Reserve System in "Statistical Release H.15(519), Selected Interest Rates,"
or any successor publication of the Board of Governors of the Federal
Reserve System ("H.15(519)"), under the heading "CDs (Secondary Market),"
or, if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the CD
Rate will be the rate on such Interest Determination Date for negotiable
certificates of deposit of the Index Maturity specified on the face hereof
as published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 P.M. Quotations for U.S. Government
Securities" (the "Composite Quotations") under the heading "Certificates of
Deposit." If such rate is not yet published in either H.15(519) or the
Composite Quotations by 3:00 P.M., New York City time, on such Calculation
Date, then the CD Rate on such Interest Determination Date will be
calculated by the Calculation Agent referred to on the face hereof and will
be the arithmetic mean of the secondary market offered rates as of 10:00
A.M., New York City time, on such Interest Determination Date for
certificates of deposit in an amount that is representative for a single
transaction at that time with a remaining maturity closest to the Index
Maturity specified on the face hereof of three leading nonbank dealers in
negotiable U.S. dollar certificates of deposit in The City of New York
selected by the Calculation Agent for negotiable certificates of deposit of
major United States money center banks of the highest credit standing in
the market for negotiable certificates of deposit; provided, however, that
if the dealers selected as aforesaid by the Calculation Agent are not
quoting as set forth above, the "CD Rate" in effect for the applicable
period will be the same as the CD Rate for the immediately preceding
Interest Reset Period (or, if there was no such Interest Reset Period, the
rate of interest payable hereon shall be the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate
specified on the face hereof is the Commercial Paper Rate, the Commercial
Paper Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the Money Market Yield (as defined herein)
of the rate on such date for commercial paper having the Index Maturity
specified on the face hereof, as such rate shall be published in H.15(519)
under the heading "Commercial Paper." In the event that such rate is not
published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, then the Commercial Paper
Rate shall be the Money Market Yield of the rate on such Interest
Determination Date for commercial paper of the Index Maturity specified on
the face hereof as published in Composite Quotations under the heading
"Commercial Paper." If by 3:00 P.M., New York City time, on such
Calculation Date, such rate is not yet available in either H.15(519) or
Composite Quotations, then the Commercial Paper Rate shall be the Money
Market Yield of the arithmetic mean of the offered rates as of 11:00 A.M.,
New York City time, on such Interest Determination Date of three leading
dealers in commercial paper in The City of New York selected by the
Calculation Agent for commercial paper of the Index Maturity specified on
the face hereof, placed for an industrial issuer whose bond rating is "AA,"
or the equivalent, from a nationally recognized rating agency; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting offered rates as mentioned in this sentence, the
"Commercial Paper Rate" in effect for the applicable period will be the
same as the Commercial Paper Rate for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in
accordance with the following formula:
Money Market Yield = D x 360
---------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the Index Maturity specified on the face hereof.
Determination of Federal Funds Rate. If the Base Rate
specified on the face hereof is the Federal Funds Rate, the Federal Funds
Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the rate on such date for Federal Funds as
published in H.15(519) under the heading "Federal Funds (Effective)," or,
if not so published by 9:00 A.M., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, the Federal Funds Rate
will be the rate on such Interest Determination Date as published in
Composite Quotations under the heading "Federal Funds/Effective Rate." If
such rate is not yet published in either H.15(519) or the Composite
Quotations by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the Federal Funds Rate for
such Interest Determination Date will be calculated by the Calculation
Agent and will be the arithmetic mean of the rates for the last transaction
in overnight Federal funds as of 11:00 A.M., New York City time, on such
Interest Determination Date, arranged by three leading brokers in Federal
funds transactions in The City of New York selected by the Calculation
Agent; provided, however, that if the brokers selected as aforesaid by the
Calculation Agent are not quoting as set forth above, the "Federal Funds
Rate" in effect for the applicable period will be the same as the Federal
Funds Rate for the immediately preceding Interest Reset Period (or, if
there was no such Interest Reset Period, the rate of interest payable
hereon shall be the Initial Interest Rate).
Determination of LIBOR. If the Base Rate specified on the face
hereof is LIBOR, LIBOR with respect to this Note shall be determined on each
Interest Determination Date as follows:
(i) As of the Interest Determination Date, the Calculation
Agent will determine (a) if "LIBOR Reuters" is specified as the
Reporting Service on the face hereof, the arithmetic mean of the
offered rates (unless the specified Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in
which case such single rate shall be used) for deposits in the
London interbank market in the Index Currency for the period of
the Index Maturity specified on the face hereof, commencing on the
second London Banking Day immediately following such Interest
Determination Date, which appear on the Designated LIBOR Page at
approximately 11:00 A.M., London time, on such Interest
Determination Date, if at least two such offered rates appear
(unless, as aforesaid, only a single rate is required) on such
Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified as
the Reporting Service on the face hereof, the rate for deposits in
the Index Currency for the period of the Index Maturity, each as
designated on the face hereof, commencing on the second London
Banking Day following such Interest Determination Date (or, if
pounds sterling is the Index Currency, commencing on such Interest
Determination Date), that appears on the Designated LIBOR Page at
approximately 11:00 A.M., London time, on such Interest
Determination Date. If fewer than two offered rates appear (if
"LIBOR Reuters" is specified as the Reporting Service on the face
hereof and calculation of LIBOR is based on the arithmetic mean of
the offered rates) or if no rate appears (if the Reporting Service
on the face hereof specifies either (x) "LIBOR Reuters" and the
Designated LIBOR Page by its terms provides only for a single rate
or (y) "LIBOR Telerate"), LIBOR in respect of that Interest
Determination Date will be determined as if the parties had
specified the rate described in (ii) below.
(ii) With respect to an Interest Determination Date on
which fewer than two offered rates appear (if "LIBOR Reuters" is
specified as the Reporting Service on the face hereof and
calculation of LIBOR is based on the arithmetic mean of the
offered rates) or no rate appears (if the Reporting Service on the
face hereof specifies either (x) "LIBOR Reuters" and the
Designated LIBOR Page by its terms provides only for a single rate
or (y) "LIBOR Telerate"), the Calculation Agent will request the
principal London offices of each of four major reference banks in
the London interbank market, as selected by the Calculation Agent
(after consultation with the Issuer), to provide the Calculation
Agent with its offered quotations for deposits in the Index
Currency for the period of the Index Maturity specified on the
face hereof, commencing on the second London Banking Day
immediately following such Interest Determination Date (or, if
pounds sterling is the Index Currency, commencing on such Interest
Determination Date), to prime banks in the London interbank market
at approximately 11:00 A.M., London time, on such Interest
Determination Date and in a principal amount equal to an amount of
not less than U.S.$1 million (or the equivalent in the Index
Currency if the Index Currency is not the U.S. dollar) that is
representative of a single transaction in such Index Currency in
such market at such time. If at least two such quotations are
provided, LIBOR determined on such Interest Determination Date
will be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR determined on such Interest
Determination Date will be the arithmetic mean of rates quoted at
approximately 11:00 A.M. (or such other time specified on the
face hereof), in the applicable principal financial center for the
country of the Index Currency on such Interest Determination Date,
by three major banks in such principal financial center selected
by the Calculation Agent (after consultation with the Issuer) on
such Interest Determination Date for loans in the Index Currency
to leading European banks, for the period of the Index Maturity
specified on the face hereof commencing on the second London
Banking Day immediately following such Interest Determination Date
(or, if pounds sterling is the Index Currency, commencing on such
Interest Determination Date) and in a principal amount of not less
than U.S.$1 million (or the equivalent in the Index Currency) that
is representative of a single transaction in such Index Currency
in such market at such time; provided, however, that if the banks
selected as aforesaid by the Calculation Agent are not quoting
rates as mentioned in this sentence, "LIBOR" for such Interest
Reset Period will be the same as LIBOR for the immediately
preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the rate of interest payable on the LIBOR Notes for
which LIBOR is being determined shall be the Initial Interest
Rate). "Index Currency" means the currency (including composite
currencies) specified as Index Currency on the face hereof. If no
such currency is specified as Index Currency on the face hereof,
the Index Currency shall be U.S. dollars. "Designated LIBOR Page"
means either (a) if "LIBOR Reuters" is designated as the Reporting
Service on the face hereof, the display on the Reuters Monitor
Money Rates Service for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency,
or (b) if "LIBOR Telerate" is designated as the Reporting Service
on the face hereof, the display on the Dow Jones Telerate Service
for the purpose of displaying the London interbank rates of major
banks for the applicable Index Currency. If neither LIBOR Reuters
nor LIBOR Telerate is specified as the Reporting Service on the
face hereof, LIBOR for the applicable Index Currency will be
determined as if LIBOR Telerate (and, if the U.S. dollar is the
Index Currency, Page 3750) had been specified.
Determination of Prime Rate. If the Base Rate specified on
the face hereof is the Prime Rate, the Prime Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
rate set forth in H.15(519) for such date opposite the caption "Bank Prime
Loan." If such rate is not yet published by 9:00 A.M., New York City time,
on the Calculation Date pertaining to such Interest Determination Date, the
Prime Rate for such Interest Determination Date will be the arithmetic mean
of the rates of interest publicly announced by each bank named on the
Reuters Screen USPRIME 1 Page (as defined below) as such bank's prime rate
or base lending rate as in effect for such Interest Determination Date as
quoted on the Reuters Screen USPRIME 1 Page on such Interest Determination
Date, or, if fewer than four such rates appear on the Reuters Screen
USPRIME 1 Page for such Interest Determination Date, the rate shall be the
arithmetic mean of the prime rates quoted on the basis of the actual number
of days in the year divided by 360 as of the close of business on such
Interest Determination Date by at least two of the three major money center
banks in The City of New York selected by the Calculation Agent from which
quotations are requested. If fewer than two quotations are provided, the
Prime Rate shall be calculated by the Calculation Agent and shall be
determined as the arithmetic mean on the basis of the prime rates in The
City of New York by the appropriate number of substitute banks or trust
companies organized and doing business under the laws of the United States,
or any State thereof, in each case having total equity capital of at least
U.S. $500 million and being subject to supervision or examination by
federal or state authority, selected by the Calculation Agent to quote such
rate or rates; provided, however, that if the banks or trust companies
selected as aforesaid by the Calculation Agent are not quoting rates as set
forth above, the "Prime Rate" in effect for such Interest Reset Period will
be the same as the Prime Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate).
"Reuters Screen US PRIME1 Page" means the display designated
as Page "US PRIME1" on the Reuters Monitor Money Rates Service (or such
other page as may replace the US PRIME1 Page on that service for the
purpose of displaying prime rates or base lending rates of major United
States banks).
Determination of Treasury Rate. If the Base Rate specified
on the face hereof is the Treasury Rate, the Treasury Rate with respect to
this Note shall be determined on each Interest Determination Date and shall
be the rate for the auction held on such date of direct obligations of the
United States ("Treasury Bills") having the Index Maturity specified on the
face hereof, as published in H.15(519) under the heading "Treasury Bills--
auction average (investment)," or if not so published by 9:00 A.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the auction average rate on such Interest Determination
Date (expressed as a bond equivalent, on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) as otherwise announced
by the United States Department of the Treasury. In the event that the
results of the auction of Treasury Bills having the Index Maturity
specified on the face hereof are not published or reported as provided
above by 3:00 P.M., New York City time, on such Calculation Date or if no
such auction is held on such Interest Determination Date, then the Treasury
Rate shall be calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) calculated using the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
P.M., New York City time, on such Interest Determination Date, of three
leading primary United States government securities dealers selected by the
Calculation Agent for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified on the face hereof; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting bid rates as mentioned in this sentence, the "Treasury
Rate" for such Interest Reset Date will be the same as the Treasury Rate
for the immediately preceding Interest Reset Period (or, if there was no
such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate).
Determination of CMT Rate. If the Base Rate specified on
the face hereof is the CMT Rate, the CMT Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
rate displayed for the Index Maturity specificed on the face hereof on the
Designated CMT Telerate Page (as defined below) under the caption "Daily
Treasury Constant Maturities and Money Markets/Federal Reserve Board
Release H.15" under the column for the Designated CMT Maturity Index (as
defined below) for (i) if the Designated CMT Telerate Page is 7055, the
rate on such Interest Determination Date and (ii) if the Designated CMT
Telerate Page is 7052, the week or the month, as applicable, ended
immediately preceding the week in which the related Interest Determination
Date occurs. If such rate is no longer displayed on the relevant page, or
if not displayed by 3:00 P.M., New York City time, on the related
Calculation Date, then the CMT Rate for such Interest Determination Date
will be such Treasury Constant Maturity rate for the Designated CMT
Maturity Index as published in the relevant H.15(519). If such rate is no
longer published, or if not published by 3:00 P.M., New York City time, on
the related Calculation Date, then the CMT Rate for such Interest
Determination Date will be such Treasury Constant Maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the Interest Determination Date with
respect to the related Interest Reset Date as may then be published by
either the Board of Governors of the Federal Reserve System or the United
States Department of the Treasury that the Calculation Agent determines to
be comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519). If such information is not
provided by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate for the Interest Determination Date will be calculated by
the Calculation Agent and will be a yield to maturity, based on the
arithmetic mean of the secondary market closing offer side prices as of
approximately 3:30 P.M., New York City time, on the Interest Determination
Date reported, according to their written records, by three leading primary
United States government securities dealers (each a "Reference Dealer") in
The City of New York (which may include the affiliates of the Issuer or
their affiliates) selected by the Calculation Agent (from five such
Reference Dealers selected by the Calculation Agent, after consultation
with the Issuer) and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation(or, in the event of
equality, one of the lowest)), for the most recently issued direct
noncallable fixed rate obligations of the United States ("Treasury Notes")
with an original maturity of approximately the Designated CMT Maturity
Index and remaining term to maturity of not less than such Designated CMT
Maturity Index minus one year. If the Calculation Agent cannot obtain
three such Treasury Notes quotations, the CMT Rate for such Interest
Determination Date will be calculated by the Calculation Agent and will be
a yield to maturity based on the arithmetic mean of the secondary market
offer side prices as of approximately 3:30 P.M., New York City time, on the
Interest Determination Date of three Reference Dealers in The City of New
York (from five such Reference Dealers selected by the Calculation Agent,
after consultation with the Issuer, and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation
(or, in the event of equality, one of the lowest)), for Treasury Notes with
an original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to
the Designated CMT Maturity Index and in an amount of at least
$100,000,000. If three or four (and not five) of such Reference Dealers
are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest not
the lowest of such quotes will be eliminated; provided, however, that if
fewer than three Reference Dealers selected by the Calculation Agent are
quoting as described herein, the CMT Rate for such Interest Reset Date will
be the same as the CMT Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate). If two
Treasury Notes with an original maturity as described in the second
preceding sentence have remaining terms to maturity equally close to the
Designated CMT Maturity Index, the quotes for the Treasury Note with the
shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow
Jones Telerate Service specified on the face hereof (or any other page as
may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)), for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no
such page is specified on the face hereof, the Designated CMT Telerate Page
shall be 7052, for the most recent week.
"Designated CMT Maturity Index" shall be the original period to
maturity of the U.S. Treasury securities (either 1,2,3,5,7,10,20 or 30 years)
specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the
designated CMT Maturity Index shall be two years.
Notwithstanding the foregoing, the interest rate hereon shall
not be greater than the Maximum Interest Rate, if any, or less than the
Minimum Interest Rate, if any, specified on the face hereof. The Calculation
Agent shall calculate the interest rate hereon in accordance with the
foregoing on or before each Calculation Date. The interest rate on this Note
will in no event be higher than the maximum rate permitted by New York law, as
the same may be modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next
Interest Reset Date.
Interest payments on this Note will include interest accrued
to but excluding the Interest Payment Dates or the Maturity Date (or any
earlier redemption or repayment date), as the case may be. Accrued
interest hereon shall be an amount calculated by multiplying the principal
amount by an accrued interest factor. Such accrued interest factor shall
be computed by adding the interest factor calculated for each day in the
period for which interest is being paid. Unless otherwise specified on the
face hereof, the interest factor for each such date shall be computed by
dividing the interest rate applicable to such day by 360 if the Base Rate
is CD Rate, Commercial Paper Rate, Federal Funds Rate, Prime Rate or LIBOR,
as specified on the face hereof, or by the actual number of days in the
year if the Base Rate is the Treasury Rate or the CMT Rate, as specified on
the face hereof. All percentages resulting from any calculation of the
rate of interest on this Note will be rounded, if necessary, to the nearest
one hundred-thousandth of a percentage point (.0000001), with five one-
millionths of a percentage point rounded upward, and all dollar amounts
used in or resulting from such calculation on this Note will be rounded to
the nearest cent (with one-half cent rounded upward). The interest rate in
effect on any Interest Reset Date will be the applicable rate as reset on
such date. The interest rate applicable to any other day is the interest
rate from the immediately preceding Interest Reset Date (or, if none, the
Initial Interest Rate).
This Note and the coupons appertaining hereto and all the
obligations of the Issuer hereunder are direct, unsecured obligations of the
Issuer and rank without preference or priority among themselves and pari passu
with all other existing and future unsecured and unsubordinated indebtedness
of the Issuer, subject to certain statutory exceptions in the event of
liquidation upon insolvency.
This Note is issued in definitive bearer form with coupons
attached (a "Definitive Bearer Note") and, unless otherwise indicated on
the face hereof, is issuable only in the minimum denominations set forth on
the face hereof or any amount in excess thereof which is an integral
multiple of 1,000 units of the Specified Currency set forth on the face
hereof. Notes also are issuable in global bearer form without coupons (the
"Global Bearer Notes" and, together with the Definitive Bearer Notes, the
"Bearer Notes") or in definitive registered form (the "Registered Notes"),
in each case, unless otherwise indicated on the face thereof, only in the
minimum denominations set forth on the face thereof or any amount in excess
thereof which is an integral multiple of 1,000 units of the Specified
Currency set forth on the face thereof.
This Note and the coupons appertaining hereto may be
transferred by delivery. At the option of the holder of this Note, and
subject to the terms of the Senior Indenture, this Note (with all unmatured
coupons, and all matured coupons, if any, in default appertaining hereto)
will be exchanged for two or more Definitive Bearer Notes (if this Note is
issuable in more than one authorized denomination) or for a Registered
Note, in each case, of any authorized denomination of like tenor and in an
equal aggregate principal amount, in accordance with the provisions of the
Senior Indenture, at the office of the Trustee in The City of New York
(which initially has been appointed registrar and transfer agent for the
Notes) or at the office of the Principal Paying Agent in London (which
initially has been appointed transfer agent for the Notes), or at the
office of any transfer agent designated by the Issuer for such purpose. If
this Note is surrendered in exchange for a Registered Note after the close
of business at any such office on any record date (whether or not a
Business Day) for the payment of interest on such Registered Note and
before the opening of business at such office on the relevant Interest
Payment Date, this Note shall be surrendered without the coupon relating to
such Interest Payment Date. All such exchanges of Notes and coupons will
be free of service charge, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith. None of the Issuer, the Trustee or any agent of the
Issuer or the Trustee shall be required to exchange this Note for a
Registered Note if such exchange would result in adverse United States
Federal income tax consequences to the Issuer under then applicable United
States federal income tax laws.
The date of any Registered Note delivered upon any exchange of
this Note shall be such that no gain or loss of interest results from such
exchange.
In case any Note or any coupons appertaining thereto shall
at any time become mutilated, defaced or be destroyed, lost or stolen and
such Note or coupon or evidence of the loss, theft or destruction thereof
(together with the indemnity hereinafter referred to and such other
documents or proof as may be required in the premises) shall be delivered
to the Trustee, a new Note of like tenor will be issued by the Issuer in
exchange for the Note so mutilated or defaced, or in lieu of the Note so
destroyed or lost or stolen, with coupons corresponding to the coupons
appertaining to the Note so mutilated, defaced, destroyed, lost or stolen,
or in exchange for the Note to which such mutilated, defaced, destroyed,
lost or stolen coupon appertained, with coupons appertaining thereto
corresponding to the coupons so mutilated, defaced, destroyed, lost or
stolen, but, in the case of any destroyed or lost or stolen Note or coupon,
only upon receipt of evidence satisfactory to the Trustee and the Issuer
that such Note or coupon was destroyed or lost or stolen and, if required,
upon receipt also of indemnity satisfactory to each of them. All expenses
and reasonable charges associated with procuring such indemnity and with
the preparation, authentication and delivery of a new Note and coupons
shall be borne by the owner of the Note or the coupons mutilated, defaced,
destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of
Default (as defined in the Senior Indenture) due to the default in payment
of principal of, premium, if any, or interest on, any series of debt
securities issued under the Senior Indenture, including the series of
Senior Medium-Term Notes of which this Note forms a part, or due to the
default in the performance or breach of any other covenant or warranty of
the Issuer applicable to the debt securities of such series but not
applicable to all outstanding debt securities issued under the Senior
Indenture shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of the debt securities of
each affected series (voting as a single class) may then declare the
principal of all debt securities of all such series and interest accrued
thereon to be due and payable immediately and (b) if an Event of Default
due to a default in the performance of any other of the covenants or
agreements in the Senior Indenture applicable to all outstanding debt
securities issued thereunder, including this Note, or due to certain events
of bankruptcy, insolvency and reorganization of the Issuer, shall have
occurred and be continuing, either the Trustee or the holders of not less
than 25% in principal amount of all debt securities issued under the Senior
Indenture then outstanding (treated as one class) may declare the principal
of all such debt securities and interest accrued thereon to be due and
payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt
securities) by the holders of a majority in principal amount of the debt
securities of all affected series then outstanding.
This Note may be redeemed, as a whole, at the option of the
Issuer at any time prior to maturity, upon the giving of a notice of
redemption as described below, at a redemption price equal to 100% of the
principal amount hereof, together with accrued interest to the date fixed
for redemption, if the Issuer determines that, as a result of any change in
or amendment to the laws (or any regulations or rulings promulgated
thereunder) of the United States or of any political subdivision or taxing
authority thereof or therein affecting taxation, or any change in official
position regarding the application or interpretation of such laws,
regulations or rulings, which change or amendment becomes effective on or
after the Original Issue Date hereof, the Issuer has or will become
obligated to pay Additional Amounts (as defined below) with respect to this
Note as described below. Prior to the giving of any Notice of redemption
pursuant to this paragraph, the Issuer shall deliver to the Trustee (i) a
certificate stating that the Issuer is entitled to effect such redemption
and setting forth a statement of facts showing that the conditions
precedent to the right of the Issuer to so redeem have occurred, and (ii)
an opinion of independent counsel satisfactory to the Trustee to such
effect based on such statement of facts; provided that no such notice of
redemption shall be given earlier than 60 days prior to the earliest date
on which the Issuer would be obligated to pay such Additional Amounts if a
payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more
than 60 days prior to the date fixed for redemption, which date and the
applicable redemption price will be specified in the Notice.
If the Issuer shall determine that any payment made outside
the United States by the Issuer or any Paying Agent of principal, premium
or interest due in respect of this Note or any coupons appertaining thereto
would, under any present or future laws or regulations of the United
States, be subject to any certification, identification or other
information reporting requirement of any kind, the effect of which is the
disclosure to the Issuer, any Paying Agent or any governmental authority of
the nationality, residence or identity of a beneficial owner of this Note
or any coupons appertaining thereto who is a United States Alien (as
defined below) (other than such a requirement (a) that would not be
applicable to a payment made by the Issuer or any Paying Agent (i) directly
to the beneficial owner or (ii) to a custodian, nominee or other agent of
the beneficial owner, or (b) that can be satisfied by such custodian,
nominee or other agent certifying to the effect that such beneficial owner
is a United States Alien; provided that in each case referred to in clauses
(a)(ii) and (b) payment by such custodian, nominee or agent to such
beneficial owner is not otherwise subject to any such requirement), the
Issuer shall redeem this Note, as a whole, at a redemption price equal to
100% of the principal amount thereof, together with accrued interest to the
date fixed for redemption, or, at the election of the Issuer if the
conditions of the next succeeding paragraph are satisfied, pay the
additional amounts specified in such paragraph. The Issuer shall make such
determination and election as soon as practicable, shall promptly notify
the Trustee thereof and shall publish prompt notice thereof (the
"Determination Notice") stating the effective date of such certification,
identification or other information reporting requirements, whether the
Issuer will redeem this Note or has elected to pay the additional amounts
specified in the next succeeding paragraph, and (if applicable) the last
date by which the redemption of this Note must take place, as provided in
the next succeeding sentence. If the Issuer redeems this Note, such
redemption shall take place on such date, not later than one year after the
publication of the Determination Notice, as the Issuer shall elect by
notice to the Trustee at least 60 days prior to the date fixed for
redemption. Notice of such redemption of this Note will be given to the
holder of this Note not more than 60 nor less than 30 days prior to the
date fixed for redemption. Such redemption notice shall include a
statement as to the last date by which this Note to be redeemed may be
exchanged for Registered Notes. Notwithstanding the foregoing, the Issuer
shall not so redeem this Note if the Issuer shall subsequently determine,
not less than 30 days prior to the date fixed for redemption, that
subsequent payments would not be subject to any such requirement, in which
case the Issuer shall publish prompt notice of such determination and any
earlier redemption notice shall be revoked and of no further effect. The
right of the holder of this Note to exchange this Note for Registered Notes
will terminate at the close of business of the Principal Paying Agent on
the fifteenth day prior to the date fixed for redemption, and no further
exchanges of this Note for Registered Notes shall be permitted.
If and so long as the certification, identification or other
information reporting requirements referred to in the preceding paragraph
would be fully satisfied by payment of a backup withholding tax or similar
charge, the Issuer may elect by notice to the Trustee to pay as additional
amounts such amounts as may be necessary so that every net payment made
outside the United States following the effective date of such requirements
by the Issuer or any Paying Agent of principal, premium or interest due in
respect of this Note or any coupons appertaining thereto of which the
beneficial owner is a United States Alien (but without any requirement that
the nationality, residence or identity of such beneficial owner be
disclosed to the Issuer, any Paying Agent or any governmental authority,
with respect to the payment of such additional amounts), after deduction or
withholding for or on account of such backup withholding tax or similar
charge (other than a backup withholding tax or similar charge that (i)
would not be applicable in the circumstances referred to in the second
parenthetical clause of the first sentence of the preceding paragraph, or
(ii) is imposed as a result of presentation of this Note or any coupons
appertaining hereto for payment more than 15 days after the date on which
such payment becomes due and payable or on which payment thereof is duly
provided for, whichever occurs later), will not be less than the amount
provided for in this Note or any coupons appertaining hereto to be then due
and payable. In the event the Issuer elects to pay any additional amounts
pursuant to this paragraph, the Issuer shall have the right to redeem this
Note as a whole at any time pursuant to the applicable provisions of the
immediately preceding paragraph and the redemption price of this Note will
not be reduced for applicable withholding taxes. If the Issuer elects to
pay additional amounts pursuant to this paragraph and the condition
specified in the first sentence of this paragraph should no longer be
satisfied, then the Issuer will redeem this Note as a whole, pursuant to
the applicable provisions of the immediately preceding paragraph.
The Issuer will, subject to certain exceptions and
limitations set forth below, pay such additional amounts (the "Additional
Amounts") to the holder of this Note or any coupons appertaining hereto who
is a United States Alien as may be necessary in order that every net
payment of the principal of and interest on this Note and any other amounts
payable on this Note, after withholding for or on account of any present or
future tax, assessment or governmental charge imposed upon or as a result
of such payment by the United States (or any political subdivision or
taxing authority thereof or therein), will not be less than the amount
provided for in this Note or in any such coupon appertaining hereto to be
then due and payable. The Issuer will not, however, be required to make
any payment of Additional Amounts to any such holder for or on account of:
(a) any such tax, assessment or other governmental charge
that would not have been so imposed but for (i) the existence of
any present or former connection between such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of such
holder, if such holder is an estate, a trust, a partnership or a
corporation) and the United States, including, without limitation,
such holder (or such fiduciary, settlor, beneficiary, member or
shareholder) being or having been a citizen or resident thereof or
being or having been engaged in a trade or business or present
therein or having, or having had, a permanent establishment
therein or (ii) the presentation by the holder of this Note or any
coupons appertaining hereto for payment on a date more than 15
days after the date on which such payment became due and payable
or the date on which payment thereof is duly provided for,
whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or
personal property tax or any similar tax, assessment or
governmental charge;
(c) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as a personal
holding company or foreign personal holding company or controlled
foreign corporation or passive foreign investment company with
respect to the United States or as a corporation which accumulates
earnings to avoid United States federal income tax or as a private
foundation or other tax-exempt organization;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payments on or in respect
of this Note or any coupons appertaining hereto;
(e) any tax, assessment or other governmental charge required
to be withheld by any Paying Agent from any payment of principal of,
or interest on, this Note, if such payment can be made without such
withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that
would not have been imposed but for the failure to comply with
certification, information or other reporting requirements
concerning the nationality, residence or identity of the holder or
beneficial owner of this Note or any coupons appertaining hereto,
if such compliance is required by statute or by regulation of the
United States or of any political subdivision or taxing authority
thereof or therein as a precondition to relief or exemption from
such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting
power of all classes of stock entitled to vote of the Issuer or as
a direct or indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or
(g);
nor shall Additional Amounts be paid with respect to any payment on this Note
or any coupons appertaining thereto to a United States Alien who is a
fiduciary or partnership or other than the sole beneficial owner of such
payment to the extent such payment would be required by the laws of the United
States (or any political subdivision thereof) to be included in the income,
for tax purposes, of a beneficiary or settlor with respect to such fiduciary
or a member of such partnership or a beneficial owner who would not have been
entitled to the Additional Amounts had such beneficiary, settlor, member or
beneficial owner been the holder of this Note or any coupons appertaining
hereto.
The Senior Indenture permits the Issuer and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the debt securities of all series issued under the
Senior Indenture then outstanding and affected (voting as one class), to
execute supplemental indentures adding any provisions to or changing in any
manner the rights of the holders of debt securities of each series or of
the coupons appertaining thereto so affected; provided that the Issuer and
the Trustee may not, without the consent of the holder of each outstanding
debt security affected thereby, (a) extend the final maturity of any such
debt security, or reduce the principal amount thereof, or reduce the rate
or extend the time of payment of interest thereon, or reduce any amount
payable on redemption or repayment thereof, or change the currency of
payment thereof, or impair or affect the rights of any holder to institute
suit for the payment thereof without the consent of the holder of each debt
security so affected; or (b) reduce the aforesaid percentage in principal
amount of debt securities the consent of the holders of which is required
for any such supplemental indenture, without the consent of the holders of
each debt security so affected.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency other
than U.S. dollars and such Specified Currency is not available to the
Issuer for making payments hereon due to the imposition of exchange
controls or other circumstances beyond the control of the Issuer or is no
longer used by the government of the country issuing such currency or for
the settlement of transactions by public institutions within the
international banking community, then the Issuer will be entitled to
satisfy its obligations to the holder of this Note or any coupons
appertaining hereto by making such payments in U.S. dollars on the basis of
the Market Exchange Rate (as defined below) on the date of such payment or,
if the Market Exchange Rate is not available on such date, as of the most
recent practicable date; provided, however, that if such Specified Currency
is replaced by a single European currency (expected to be named the Euro),
the payment of principal of, premium, if any, or interest on any Note
denominated in such currency shall be effected in the new single European
currency in conformity with legally applicable measures taken pursuant to,
or by virtue of, the treaty establishing the European Community (the "EC"),
as amended by the treaty on European Union (as so amended, the "Treaty").
Any payment made under such circumstances in U.S. dollars where the
required payment is in a Specified Currency other than U.S. dollars (or, if
applicable, such new single European currency, will not constitute an Event
of Default.
If the principal of, premium, if any, or interest on, this
Note is payable in ECUs, then with respect to each due date for any such
payment on or after the first business day in Brussels on which the ECU
ceases to be used as the unit of account of the European Community ("EC")
and has not become a currency in its own right, replacing all or some of
the currencies of the member States of the EC, the Issuer shall choose a
substitute currency (the "Chosen Currency") which may be any currency which
was, on the last day on which the ECU was used as the unit of account of
the EC, a component currency of the ECU basket or U.S. dollars, in which
all such payments due on or after that date with respect to this Note shall
be made. Notice of the Chosen Currency so selected shall, where
practicable, be published in the manner described in "Notices" below. The
amount of each payment in such Chosen Currency shall be computed on the
basis of the equivalent of the ECU in that currency, determined as
described below, as of the fourth business day in Brussels prior to the
date on which such payment is due.
If the principal of, premium, if any, or interest on, this
Note is payable in ECUs, then on the first business day in Brussels on
which the ECU ceases to be used as the unit of account of the EC and has
not become a currency in its own right, replacing all or some of the
currencies of the member states of the EC, the Issuer shall choose a Chosen
Currency in which all such payments with respect to this Note having a due
date prior thereto but not yet presented for payment are to be made. The
amount of each payment in such Chosen Currency shall be computed on the
basis of the equivalent of the ECU in that currency, determined as
described below, as of such first business day.
\ The equivalent of the ECU in the relevant Chosen Currency as
of any date (the "Day of Valuation") shall be determined on the following
basis by, or on behalf of, an Exchange Rate Agent appointed by the Issuer.
The amounts and components composing the ECU for this purpose (the
"Components") shall be the amounts and components composing the ECU as of
the last date on which the ECU was used as the unit of account of the EC.
The equivalent of the ECU in the Chosen Currency shall be calculated by,
first, aggregating the U.S. dollar equivalents of the Components; and then,
in the case of a Chosen Currency other than U.S. dollars, using the rate
used for determining the U.S. dollar equivalent of the Components in the
Chosen Currency as set forth below, calculating the equivalent in the
Chosen Currency of such aggregate amount in U.S. dollars.
The U.S. dollar equivalent of each of the Components shall
be determined by, or on behalf of, the Exchange Rate Agent on the basis of
the middle spot delivery quotations prevailing at 2:30 P.M., Brussels time,
on the Day of Valuation, as obtained by, or on behalf of, the Exchange Rate
Agent from one or more major banks, as selected by the Issuer, in the
country of issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf;
provided that such quotations were prevailing not more than two Business
Days before such Day of Valuation. If such most recent quotations were so
prevailing in the country of issue more than two Business Days before such
Day of Valuation, the Exchange Rate Agent shall determine the U.S. dollar
equivalent of such Component on the basis of cross rates derived from the
middle spot delivery quotations for such component currency and for the
U.S. dollar prevailing at 2:30 P.M., Brussels time, on such Day of
Valuation, as obtained by, or on behalf of, the Exchange Rate Agent from
one or more major banks, as selected by the Issuer, in a country other than
the country of issue of such component currency. Notwithstanding the
foregoing, the Exchange Rate Agent shall determine the U.S. dollar
equivalent of such Component on the basis of such cross rates if the Issuer
or such agent judges that the equivalent so calculated is more
representative than the U.S. dollar equivalent calculated as provided in
the first sentence of this paragraph. Unless otherwise specified by the
Issuer, if there is more than one market for dealing in any component
currency by reason of foreign exchange regulations or for any other reason,
the market to be referred to in respect of such currency shall be that upon
which a non-resident issuer of notes denominated in such currency would
purchase such currency in order to make payments in respect of such
securities.
Payments in the Chosen Currency will be made at the
specified office of a paying agent in the country of the Chosen Currency,
or, if none, or at the option of the holder, at the specified office of any
Paying Agent either by a check drawn on, or by transfer to an account
maintained by the holder with, a bank in the principal financial center of
the country of the Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of this Note.
So long as this Note or any coupons appertaining hereto
shall be outstanding, the Issuer will cause to be maintained an office or
agency for the payment of the principal of and premium, if any, and
interest on this Note and the coupons appertaining hereto as herein
provided. The Paying Agents initially designated by the Issuer are listed
on the reverse of each coupon appertaining thereto. If this Note is listed
on The International Stock Exchange of the United Kingdom and the Republic
of Ireland Limited and such Exchange so requires, the Issuer shall maintain
a Paying Agent in London. The Issuer may designate other agencies for the
payment of said principal, premium and interest at such place or places
outside the United States (subject to applicable laws and regulations) as
the Issuer may decide. So long as there shall be such an agency, the
Issuer shall keep the Trustee advised of the names and locations of such
agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes or coupons appertaining thereto that remain
unclaimed at the end of two years after such principal, interest or premium
shall have become due and payable (whether at maturity or upon call for
redemption or otherwise), (i) the Trustee or such Paying Agent shall notify
the holders of such Notes and coupons that such moneys shall be repaid to
the Issuer and any person claiming such moneys shall thereafter look only
to the Issuer for payment thereof and (ii) such moneys shall be so repaid
to the Issuer. Upon such repayment all liability of the Trustee or such
Paying Agent with respect to such moneys shall thereupon cease, without,
however, limiting in any way any obligation that the Issuer may have to pay
the principal of or interest or premium, if any, on this Note as the same
shall become due.
No provision of this Note or any coupons appertaining hereto
or of the Senior Indenture shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Note at the time, place, and rate,
and in the coin or currency, herein prescribed unless otherwise agreed
between the Issuer and the holder of this Note or any coupons appertaining
hereto.
The Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the holder of this Note or any coupons appertaining
hereto as the absolute owner thereof for all purposes, whether or not this
Note or such coupon be overdue, and none of the Issuer, the Trustee or any
such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal
of, premium, if any, or the interest on this Note for any claim based
hereon or on any coupon appertaining hereto, or otherwise in respect
hereof, or based on or in respect of the Senior Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any
successor corporation, whether by virtue of any constitution, statute or
rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part
of the consideration for the issue hereof, expressly waived and released.
This Note and the coupons appertaining hereto shall for all
purposes be governed by, and construed in accordance with, the laws of the
State of New York.
As used herein:
(a) the term "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in The
City of New York or in the City of London and (i) if this Note bears interest
calculated by reference to LIBOR, that is also a London Banking Day, (ii) if
this Note is denominated in a Specified Currency other than U.S. dollars,
Australian dollars or ECUs, in the principal financial center of the country
of the Specified Currency, (iii) if this Note is denominated in Australian
dollars, in Sydney and (iv) if this Note is denominated in ECUs, that is not a
non-ECU clearing day, as determined by the ECU Banking Association in Paris.
(b) the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for wire transfers of the Specified
Currency indicated on the face hereof as certified for customs purposes by the
Federal Reserve Bank of New York;
(c) the term "Notices" refers to notices to the holders of the
Notes and any coupons appertaining thereto to be given by publication in an
authorized newspaper in the English language and of general circulation in the
Borough of Manhattan, The City of New York, and London or, if publication in
London is not practical, in an English language newspaper with general
circulation in Western Europe. Such publication is expected to be made in the
Wall Street Journal and the Financial Times. Such Notices will be deemed to
have been given on the date of such publication, or if published in such
newspapers on different dates, on the date of the first such publication;
(d) the term "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction; and
(e) the term "United States Alien" means any person who, for
United States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership, one or more of the members of which
is a foreign corporation, a non-resident alien individual or a non-resident
alien fiduciary of a foreign estate or trust.
All other terms used in this Note or the coupons appertaining
hereto which are defined in the Senior Indenture and not otherwise defined
herein shall have the meanings assigned to them in the Senior Indenture.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid: __________________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the
Notes to be issued to the holder for the portion of the within Note not being
repaid (in the absence of any such specification, one such Note will be issued
for the portion not being repaid): ____________________________.
Dated:______________________ ___________________________
EXHIBIT 4.CC
[FORM OF FACE OF SECURITY]
Temporary Global Senior ECU Puttable Floating Rate Note
Due _________
BEARER BEARER
No. TGFL ___
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR AN INTEREST IN A
PERMANENT GLOBAL BEARER NOTE, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET FORTH
BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES
AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD, 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.
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Senior ECU Puttable Floating Rate Notes)
ORIGINAL ISSUE INTEREST ACCRUAL DATE: INITIAL INTEREST PAYMENT
DATE: DATE:
INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
MATURITY DATE:
INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
INDEX MATURITY: MAXIMUM INTEREST RATE:
CALCULATION AGENT:
SPREAD (PLUS OR MINIMUM INTEREST RATE:
MINUS):
INITIAL REDEMPTION DATE:
TOTAL AMOUNT OF OID:
INITIAL REDEMPTION
PERCENTAGE: ORIGINAL YIELD TO
SPREAD MULTIPLIER: MATURITY:
ANNUAL REDEMPTION
EUROCLEAR NO.: PERCENTAGE REDUCTION: INITIAL ACCRUAL
PERIOD OID:
REPAYMENT OPTION:
[YES/NO] EXCHANGE RATE AGENT:
CEDEL NO.: OPTIONAL REPAYMENT
PERCENTAGE: MINIMUM DENOMINATIONS:
COMMON CODE: OTHER PROVISIONS:
ISIN:
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to bearer, upon surrender hereof, the principal amount
specified in Schedule A hereto, on the Maturity Date specified above
(except to the extent previously redeemed or repaid) and to pay interest
thereon, from and including the Interest Accrual Date specified above at a
rate per annum equal to the Initial Interest Rate specified above until but
excluding the Initial Interest Reset Date specified above, and on and after
at a rate per annum determined in accordance with the provisions specified
in the Permanent Global Bearer Note (as defined below) until but excluding
the date such principal amount is paid or duly made available for payment.
The Issuer will pay interest in arrears on each date (an "Interest Payment
Date") which falls one month, three months, six months or one year as
specified above as the Interest Payment Period, after the preceding
Interest Payment Date, or the Interest Accrual Date in the case of the
Initial Interest Payment Date specified above, and on the Maturity Date
specified above (or on any redemption or repayment date); provided,
however, that if an Interest Payment Date or the Maturity Date (as
specified above) or redemption or repayment date would fall on a day that
is not a Business Day, as defined below, such Interest Payment Date,
Maturity Date or redemption or repayment date shall be the following day
that is a Business Day, except that if such next Business Day falls in the
next calendar month, (i) the Interest Payment Date, Maturity Date or
redemption or repayment date shall be the immediately preceding day that is
a Business Day and (ii) each subsequent Interest Payment Date shall be the
last day that is a Business Day in the last month of the Interest Payment
Period commencing on the immediately preceding Interest Payment Date.
Interest on this Note will accrue from and including the most
recent Interest Payment Date to which interest has been paid or duly
provided for, or, if no interest has been paid or duly provided for, from
and including the Interest Accrual Date, until but excluding the date the
principal amount hereof has been paid or duly made available for payment.
Upon any payment of interest on this Note, the Principal Paying Agent (as
defined below) shall cause Schedule A of this Note to be endorsed to
reflect such payment. No payment on this Note will be made at any office
or agency of the Issuer in the United States or by check mailed to an
address in the United States (as defined below) or by wire transfer to an
account maintained by the holder of this Note with a bank in the United
States except as may be permitted under United States federal tax laws and
regulations then in effect without adverse tax consequences to the Issuer.
Notwithstanding the foregoing, in the event that payment in U.S. dollars of
the full amount payable on this Note at the offices of all Paying Agents
(as defined below) would be illegal or effectively precluded as a result of
exchange controls or similar restrictions, payment on this Note will be
made by a paying agency in the United States, if such paying agency, under
applicable law and regulations, would be able to make such payment.
Notwithstanding any other provision of this Note, no payment of principal
or interest shall be made on any portion of this Note unless there shall
have been delivered to the Principal Paying Agent a certificate
substantially in the form of Exhibit A hereto with respect to the portion
of this Note with respect to which such principal or interest is to be
paid. Such certificate shall have been delivered to the holder hereof by
Morgan Guaranty Trust Company of New York, Brussels office, as operator of
the Euroclear System (the "Euroclear Operator"), Cedel Bank, Societe
anonyme ("Cedel") and/or any other relevant clearing system (including
Societe Interprofessionelle pour la Compensation des Valeurs Mobilieres and
the Intermediaires financiers habilites authorized to maintain accounts
therein ("SICOVAM")) as the case may be, and shall be based on a
certificate substantially in the form of Exhibit B hereto provided to the
Euroclear Operator, Cedel or any other relevant clearing system, as the
case may be, by those of its account holders who are to receive such
payment of principal or interest.
This Note is issued in temporary global bearer form and
represents all or a portion of a duly authorized issue of Senior Global
Medium-Term Notes, Series [D/E] (the "Notes"), issued under a Senior
Indenture, dated as of April 15, 1989, as supplemented by a First
Supplemental Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Senior Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed Chemical Bank,
London branch, as its principal paying agent for the Notes (the "Principal
Paying Agent," which term includes any additional or successor Principal
Paying Agent appointed by the Issuer). The Notes are issuable (i) in
temporary or permanent global bearer form without coupons attached (the
"Global Bearer Notes") in the minimum denominations set forth on the face
hereof or thereof or any amount in excess thereof which is an integral
multiple of ECU 100,000 and (ii) in definitive bearer form with interest
coupons attached (the "Definitive Bearer Notes") in the minimum
denominations set forth on the face thereof or any amount in excess thereof
which is an integral multiple of ECU 100,000.
Except as otherwise provided herein, this Note is governed by the
terms and conditions of the Permanent Global Floating Rate Senior Bearer Note
(the "Permanent Global Bearer Note") to be issued in exchange for this Note,
which terms and conditions are hereby incorporated by reference herein mutatis
mutandis and shall be binding on the Issuer and the holder hereof as if fully
set forth herein. The form of the Permanent Global Bearer Note is attached
hereto.
This Note is exchangeable in whole or from time to time in part
on or after the Exchange Date (as defined below) for an interest (equal to
the principal amount of the portion of this Note being exchanged) in a
single Permanent Global Bearer Note upon the request of the Euroclear
Operator, Cedel and/or any other relevant clearing system, acting on behalf
of the owner of a beneficial interest in this Note, to the Principal Paying
Agent upon delivery to the Principal Paying Agent of a certificate
substantially in the form of Exhibit A hereto with respect to the portion
of this Note to be exchanged. Such certificate shall have been delivered
to the holder hereof by the Euroclear Operator, Cedel and/or any other
relevant clearing system, as the case may be, and shall be based on a
certificate substantially in the form of Exhibit B hereto provided to the
Euroclear Operator, Cedel and/or any other relevant clearing system, as the
case may be, by those of its account holders having an interest in the
portion hereof to be exchanged. Notwithstanding the foregoing, if this
Note is subject to a tax redemption as described on the reverse of the
Permanent Global Bearer Note attached hereto, interests in this Note may be
exchanged for interests in a permanent Global Bearer Note on and after such
redemption date as if such redemption date had been the Exchange Date,
subject to receipt of the certificates described in the preceding sentence.
Upon exchange of any portion of this Note for an interest in a Permanent
Global Bearer Note, the Principal Paying Agent shall cause Schedule A of
this Note to be endorsed to reflect the reduction of its principal amount
by an amount equal to the aggregate principal amount being so exchanged.
Except as otherwise provided herein, until exchanged for a Permanent Global
Bearer Note, this Note shall in all respects be entitled to the same
benefits under the Senior Indenture as a duly authenticated and delivered
Permanent Global Bearer Note.
As used herein:
(a) the term "Business Day" means any day other than a Saturday
or Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in The
City of New York or in the City of London and that is not a non-ECU clearing
day, as determined by the ECU Banking Association in Paris;
(b) the term "Exchange Date" means the date that is 40 days after
the date on which the Issuer receives the proceeds of the sale of this Note
(the "Closing Date") provided that if this Note is held by Morgan Stanley
International, or any other manager participating in the distribution of the
tranche of Notes of which this Note forms a part, as part of an unsold
allotment or subscription more than 40 days after the Closing Date for this
Note, the Exchange Date shall be the day after the date this Note is sold by
Morgan Stanley International or such other manager, all as determined and
notified to the Trustee by Morgan Stanley International, or if Morgan Stanley
International did not participate in the distribution of the Notes, by the
Issuer.
(c) the term "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.
All other terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
Unless the certificate of authentication hereon has been executed
by the Trustee by manual signature, this Note shall not be entitled to any
benefit under the Senior Indenture, as defined on the reverse hereof, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By______________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned
Senior Indenture.
CHEMICAL BANK,
as Trustee
By_____________________________
Authorized Officer
SCHEDULE A
SCHEDULE OF EXCHANGES
The Initial Principal Amount of this Note is __________. The
following payments of interest and exchanges of a part of this Note for an
interest in a single Permanent Global Bearer Note have been made:
<TABLE>
<S> <C> <C> <C> <C>
Principal
Amount Remaining
Exchanged Principal
For Amount
Date of Permanent Outstanding Notation Made
Exchange Payment Global Following by or on Behalf
or Interest of Bearer Such of Principal
Payment Interest Note Exchange Paying Agent
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
- ----------- ----------- ------------- ------------ ---------------
</TABLE>
EXHIBIT A
[FORM OF CERTIFICATE TO BE GIVEN BY THE EUROCLEAR
OPERATOR, CEDEL AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
_______________________________________
Morgan Stanley Group Inc.
Global Medium-Term Notes, Series [D/E]
Represented by Temporary Global 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 any
estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States persons"), (ii) is
owned by United States persons that are (a) foreign branches of United
States financial institutions (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v)) ("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 U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and
to the further effect that 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.
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 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: ________________, 19__
[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]]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
as Operator of the Euroclear
System]
[CEDEL BANK S.A.]
[OTHER]
By____________________________
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF THE EUROCLEAR OPERATOR, CEDEL
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
______________________________________________
Morgan Stanley Group Inc.
Global Medium-Term Notes, Series [D/E]
Represented by Temporary Global 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 any estate or trust
the income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) are owned by
United States person(s) that are (a) foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) 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 U.S. Treasury Regulations Section 1.63-
5(c)(2)(i)(D)(7)), 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
$______________ 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 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.
Dated: ______________, 19__
[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:____________________________
EXHIBIT 4.DD
[FORM OF FACE OF SECURITY]
Permanent Global Senior ECU Puttable Floating Rate Note
Due _________
BEARER BEARER
No. PGFL _________
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR DEFINITIVE BEARER NOTES, THIS
GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET FORTH
BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES AND
EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD, 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.
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Senior ECU Puttable Floating Rate Notes)
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INITIAL INTEREST PAYMENT
DATE:
INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
MATURITY DATE:
INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
INDEX MATURITY: MAXIMUM INTEREST RATE: CALCULATION AGENT:
SPREAD (PLUS OR MINIMUM INTEREST RATE:
MINUS):
INITIAL REDEMPTION DATE: TOTAL AMOUNT OF OID:
INITIAL REDEMPTION ORIGINAL YIELD TO
PERCENTAGE: MATURITY:
SPREAD MULTIPLIER:
EUROCLEAR NO.: ANNUAL REDEMPTION INITIAL ACCRUAL PERIOD
PERCENTAGE REDUCTION: OID:
REPAYMENT OPTION: MINIMUM DENOMINATIONS:
[YES/NO]
CEDEL NO.: OPTIONAL REPAYMENT EXCHANGE RATE AGENT:
PERCENTAGE:
COMMON CODE: OTHER PROVISIONS:
ISIN:
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to bearer, upon surrender hereof, the principal amount
specified in Schedule A hereto, on the Maturity Date specified above (except to
the extent previously redeemed or repaid) and to pay interest thereon, from
and including the Interest Accrual Date specified above at a rate per annum
equal to the Initial Interest Rate specified above until and excluding the
Initial Interest Reset Date specified above, and on and after at a rate per
annum determined in accordance with the provisions specified on the reverse
hereof until but excluding the date such principal amount is paid or duly made
available for payment. The Issuer will pay interest in arrears on each date
(an "Interest Payment Date") which falls one month, three months, six months
or one year, as specified above as the Interest Payment Period, after the
preceding Interest Payment Date, or the Interest Accrual Date in the case of
the Initial Interest Payment Date specified above and on the Maturity Date
specified above (or any redemption or repayment date); provided, however, that
if an Interest Payment Date or the Maturity Date or redemption or repayment
date would fall on a day that is not a Business Day, as defined on the reverse
hereof, such Interest Payment Date, Maturity Date or redemption or repayment
date shall be the following day that is a Business Day, except that if such
next Business Day falls in the next calendar month, (i) the Interest Payment
Date, Maturity Date or redemption or repayment date shall be the immediately
preceding day that is a Business Day and (ii) each subsequent Interest Payment
Date shall be the last day that is a Business Day in the last month of the
Interest Payment Period commencing on the immediately preceding Interest
Payment Date.
Interest on this Note will accrue from and including the most
recent Interest Payment Date to which interest has been paid or duly provided
for, or, if no interest has been paid or duly provided for, from and including
the Interest Accrual Date, until but excluding the date the principal hereof
has been paid or duly made available for payment (except as provided below).
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, subject to certain exceptions described herein, be
paid to the holder of this Note at the office or agency of the Principal
Payment Agent (this and certain other capitalized terms used herein are
defined on the reverse of this Note) or at the office or agency of such other
paying agents outside the United States as the Issuer may determine for that
purpose (each, a "Paying Agent," which term shall include the Principal
Payment Agent).
Payment of the principal of this Note, any premium and the
interest due at maturity (or on any redemption or repayment date) will be made
upon presentation and surrender of this Note at the office or agency of the
Principal Paying Agent or at the office of any Paying Agent.
Payment of the principal of and premium, if any, and
interest on this Note will be made in ECU, except as provided on the
reverse hereof. Payment of the principal of and premium, if any, and
interest on this Note will be made in ECU either by a check drawn on a bank
outside the United States and mailed to an address outside the United
States furnished by the payee or, at the option of the payee and subject to
applicable laws and regulations and the procedures of the Paying Agent, by
wire transfer of immediately available funds to an account maintained by
the payee with a bank located outside the United States. To the extent any
payment of the principal of, premium, if any, and interest on this Note is
payable in U.S. dollars, such payment will be made in such coin or currency
of the United States of America as at the time of payment is legal tender
for payment of public and private debts. Such payments on this Note will
be made either by a check mailed to an address outside the United States
furnished by the payee or, at the option of the payee and subject to
applicable laws and regulations and the procedures of the Paying Agent, by
wire transfer of immediately available funds to an account maintained by
the payee with a bank located outside the United States if appropriate wire
transfer instructions have been received by the Paying Agent not less than
15 calendar days prior to the applicable payment date. Notwithstanding the
foregoing, in the event that any such payment in U.S. dollars on this Note
at the offices of all Paying Agents would be illegal or effectively
precluded as a result of exchange controls or similar restrictions, payment
on this Note will be made by a paying agency in the United States, if such
paying agency, under applicable law and regulations, would be able to make
such payment.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY GROUP INC.
By________________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned
Senior Indenture.
CHEMICAL BANK,
as Trustee
By________________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series [D/E], having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable under a
Senior Indenture, dated as of April 15, 1989, as supplemented by a First
Supplemental Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Indenture dated as of April 15, 1996 (as so supplemented, the
"Senior Indenture"), between the Issuer and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities of the Issuer, the Trustee and holders of the
Notes and the terms upon which the Notes are, and are to be, authenticated and
delivered. The Issuer has appointed Chemical Bank, London Branch, as its
principal paying agent for the Notes (the "Principal Paying Agent," which term
includes any additional or successor Principal Paying Agent appointed by the
Issuer). The terms of individual Notes may vary with respect to interest
rates, interest rate formulas, issue dates, maturity dates, or otherwise, all
as provided in the Senior Indenture. To the extent not inconsistent herewith,
the terms of the Senior Indenture are hereby incorporated by reference herein.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of the
following two paragraphs and except as set forth below, will not be redeemable
or subject to repayment at the option of the holder prior to maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on the first
Interest Payment Date occurring on or after the Initial Redemption Date
specified on the face hereof and thereafter on any Interest Payment Date,
on the terms set forth on the face hereof, together with interest accrued
and unpaid hereon to the date of redemption (except as provided below). If
this Note is subject to "Annual Redemption Percentage Reduction," the
Initial Redemption Percentage indicated on the face hereof will be reduced
on each anniversary of the Initial Redemption Date by the Annual Redemption
Percentage Reduction specified on the face hereof until the redemption
price of this Note is 100% of the principal amount hereof, together with
interest accrued and unpaid hereon to the date of redemption (except as
provided below). Notice of redemption shall be mailed to the holders of
the Notes designated for redemption who have filed their names and
addresses with the Principal Paying Agent, not less than 90 nor more than
120 days prior to the date fixed for redemption, subject to all the
conditions and provisions of the Senior Indenture. Notice of redemption to
all other holders of Notes shall be published in the manner set forth in
"Notices" as defined below, once in each of the three successive calendar
weeks, the first publication to be not less than 90 nor more than 120 days
prior to the date set for redemption. In the event of redemption of this
Note in part only, the Principal Paying Agent shall cause Schedule A of
this Note to be endorsed to reflect the reduction of its principal amount
by an amount equal to the aggregate principal amount of this Note so
redeemed, whereupon the principal amount hereof shall be reduced for all
purposes by the amount so redeemed and noted. The Issuer will deliver to
the Trustee at least 130 days prior to the date fixed for redemption an
Officer's Certificate stating the aggregate principal amount of Notes to be
redeemed pursuant to this paragraph.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the terms set forth
herein. On any Interest Payment Date, this Note will be repayable in whole
or in part in increments of ECU 1,000 (provided that any remaining
principal amount hereof shall not be less than the minimum authorized
denomination hereof) at the option of the holder hereof at a price equal to
the Optional Repayment Percentage specified on the face hereof of the
principal amount to be repaid, together with interest accrued and unpaid
hereon to the date of repayment (except as provided below). For this Note
to be repaid at the option of the holder hereof, the Principal Paying Agent
must receive at its office in London, at least 90 but not more than 120
days prior to the date of repayment, (i) this Note with the form entitled
"Option to Elect Repayment" below duly completed or (ii) a telegram, telex,
facsimile transmission or a letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or a trust company in the United States, Western Europe or
Japan setting forth the name of the holder of this Note, the principal
amount hereof, the certificate number of this Note or a description of this
Note's tenor and terms, the principal amount hereof to be repaid, a
statement that the option to elect repayment is being exercised thereby and
a guarantee that this Note, together with the form entitled "Option to
Elect Repayment" duly completed, will be received by the Principal Paying
Agent not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter; provided, that such
telegram, telex, facsimile transmission or letter shall only be effective
if this Note and form duly completed are received by the Principal Paying
Agent by such fifth Business Day. Exercise of such repayment option by the
holder hereof shall be irrevocable. In the event of repayment of this Note
in part only, the Principal Paying Agent shall cause Schedule A of this
Note to be endorsed to reflect the reduction of its principal amount by an
amount equal to the aggregate principal amount of this Note so repaid,
whereupon the principal amount hereof shall be reduced for all purposes by
the amount so repaid and noted.
This Note will bear interest at the rate determined in
accordance with the applicable provisions below by reference to ECU LIBOR
based on the Index Maturity, if any, shown on the face hereof (i) plus or
minus the Spread, if any, or (ii) multiplied by the Spread Multiplier, if any,
specified on the face hereof. Commencing with the Initial Interest Reset Date
specified on the face hereof and thereafter on each Interest Payment Date
(each such date, including the Initial Interest Reset Date, an "Interest Reset
Date"), the rate at which interest on this Note is payable shall be reset as
of each Interest Reset Date; provided, however, that the interest rate in
effect for the period from the Interest Accrual Date to the Initial Interest
Reset Date will be the Initial Interest Rate.
The Interest Determination Date pertaining to an Interest Reset
Date shall be the second London Banking Day preceding such Interest Reset
Date. As used herein, "London Banking Day" means any day on which dealings in
deposits in U.S. dollars are transacted in the London interbank market.
Determination of ECU LIBOR. ECU LIBOR with respect to this
Note shall be determined on each Interest Determination Date as follows:
(i) As of the Interest Determination Date, the Calculation
Agent will determine the rate for deposits in ECU for the period of
the Index Maturity specified on the face hereof which appear on
Telerate Page 3750 (or such other page as may replace such page on
that service for the purpose of displaying London interbank offered
rates of major banks) at approximately 11:00 A.M., London time, on
such Interest Determination Date.
(ii) If such rate does not appear on the Telerate Page 3750
(or such other replacement page), the Calculation Agent will
request the principal London offices of each of four major banks
in the London interbank market, as selected by the Calculation
Agent (the "Reference Banks"), to provide the Calculation Agent
with its offered quotations for deposits in ECU for the period of
the Index Maturity, specified on the face hereof, to prime banks
in the London interbank market at approximately 11:00 A.M., London
time, on such Interest Determination Date and in a principal
amount that is representative of a single transaction in such
market at such time. If at least two such quotations are
provided, ECU LIBOR will be the arithmetic mean of such
quotations.
(iii) If fewer than two quotations are provided pursuant to
(ii) above, ECU LIBOR in respect of such Interest Determination
Date will be the arithmetic mean of the rates quoted by three
major banks in Luxembourg selected by the Calculation Agent at
approximately 11:00 A.M., Luxembourg time, on such Interest
Determination Date for loans in ECU to leading European banks, for
the period of the Index Maturity specified on the face hereof and
in a principal amount that is representative of a single
transaction in such market at such time.
(iv) If fewer than three banks selected as aforesaid by the
Calculation Agent are quoting rates as mentioned in (iii) above,
the Calculation Agent will request each of the Reference Banks to
provide the Calculation Agent with the offered quotations provided
to them by leading banks in each relevant interbank market for
deposits in each of the then component currencies of the ECU (the
"Relevant Currencies") for the period of the Index Maturity
specified on the face hereof as at 11:00 a.m., London time, on the
Interest Determination Date (provided that, if the ECU is not then
used as the unit of account of the European Community, the
component currencies of the ECU shall be those determined by the
Calculation Agent in the manner set forth below in the nineteenth
succeeding paragraph with respect to payments in ECU) and the
Calculation Agent will determine ECU LIBOR on the basis of the
respective offered rates so communicated by the Reference Banks or
any two or more of them weighted in the manner provided below,
provided that, if on any Interest Determination Date the Reference
Banks which are providing quotations do not provide offered
quotations for all the Relevant Currencies, but do provide such
quotations for Relevant Currencies representing in aggregate 95
percent (determined by the Calculation Agent as provided below) or
more of one ECU on such Interest Determination Date, then ECU
LIBOR for the applicable Interest Payment Period shall
nevertheless be calculated pursuant to this sub-paragraph (iv) on
the basis of the quotations so provided and ignoring the Relevant
Currencies for which such quotations are not provided.
(v) If the Reference Banks or any two or more of them (if
only such provide quotations) provide the Calculation Agent with
offered quotations pursuant to (iv) above for Relevant Currencies
representing in aggregate less than 95 percent (determined as
provided below) of one ECU on such Interest Determination Date
then, with respect to each of the Relevant Currencies for which
quotations are not so provided, the Calculation Agent shall
determine such offered rates as are reasonably representative of
the rates at which deposits in such Relevant Currency are being
offered between leading banks selected by it in the relevant
interbank market as of the Interest Determination Date for a
period substantially co-extensive with the Index Maturity
specified on the face hereof. If on any Interest Determination
Date the Relevant Currencies for which quotations are provided by
the Reference Banks pursuant to (iv) above and the Relevant
Currencies for which rates are determined by the Calculation Agent
pursuant to this sub-paragraph (v) represent in aggregate 95
percent or more (determined as provided below) of one ECU on such
Interest Determination Date, then ECU LIBOR for the applicable
Interest Payment Period shall be calculated on the basis of such
quotations and rates.
(vi) If on any Interest Determination Date fewer than two
Reference Banks provide the Calculation Agent with offered quotations
pursuant to (iv) above or if the Relevant Currencies for which
quotations are provided by the Reference Banks pursuant to (iv) above
and the Relevant Currencies for which rates are determined by the
Calculation Agent pursuant to (v) above represent in aggregate less
than 95 percent (determined as provided below) of one ECU, then ECU
LIBOR for the applicable Interest Payment Period will be the same as
ECU LIBOR for the immediately preceding Interest Payment Period (or
if the Interest Determination Date is the Initial Interest
Determination Date, the rate of interest payable hereon will be
Initial Interest Rate).
The weighting to be given to a Relevant Currency, or the
percentage which it bears to one ECU, shall be determined by the Calculation
Agent by reference to the proportion that the amount of such Relevant Currency
included in one ECU bears to one ECU and calculated on the basis of the U.S.
dollar equivalent of each of the Relevant Currencies as at the Interest
Determination Date. Such U.S. dollar equivalent shall be determined by the
Calculation Agent in the manner provided in the nineteenth succeeding
paragraph except that, (i) any reference therein to a Day of Valuation shall
be deemed to refer to the Interest Determination Date, (ii) all decisions or
choices to be made by the Exchange Rate Agent thereunder shall be made by the
Calculation Agent and (iii) if the ECU is being used as the unit of account of
the European Community on such Interest Determination Date, the components of
the ECU shall be the currency amounts that are components of the ECU on such
date.
Notwithstanding the foregoing, the interest rate hereon shall
not be greater than the Maximum Interest Rate, if any, or less than the
Minimum Interest Rate, if any, specified on the face hereof. The interest
rate on this Note will in no event be higher than the maximum rate permitted
by New York law, as the same may be modified by United States Federal law of
general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next
Interest Reset Date.
Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Accrued interest hereon
shall be an amount calculated by multiplying the principal amount hereof shown
on Schedule A hereto by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the period for which interest is being paid. The interest factor for each
such date shall be computed by dividing the interest rate applicable to such
day by 360. All percentages resulting from any calculation of the rate of
interest on this Note will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point (.0000001), with five one-millionths
of a percentage point rounded upward, and all dollar amounts used in or
resulting from such calculation on this Note will be rounded to the nearest
cent (with one-half cent rounded upward). The interest rate in effect on any
Interest Reset Date will be the applicable rate as reset on such date. The
interest rate applicable to any other day is the interest rate from the
immediately preceding Interest Reset Date (or, if none, the Initial Interest
Rate).
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note is issued in permanent global bearer form without
interest coupons attached (a "Global Bearer Note"). The beneficial owner of
all or a portion of this Note may exchange its interest in this Note upon not
less than 30 days' written notice to the Principal Paying Agent, in whole for
Notes in bearer form with interest coupons attached (the "Definitive Bearer
Notes," and, together with the Global Bearer Notes, the "Bearer Notes") in the
minimum denominations set forth on the face hereof or any amount in excess
thereof which is an integral multiple of ECU 100,000, at the office of the
Principal Paying Agent, upon compliance with any procedures set forth in, or
established pursuant to, the Senior Indenture; provided, however, that the
Issuer shall not be required (i) to exchange this Note for a period of fifteen
calendar days preceding the first publication of a notice of redemption of all
or any portion hereof or (ii) to exchange any portion of this Note selected
for redemption or surrendered for optional repayment. Upon exchange of any
portion of this Note for a Definitive Bearer Note or Definitive Bearer Notes,
this Note will be exchanged in whole for Definitive Bearer Notes, whereupon
this Note will be cancelled. All such exchanges of Notes will be free of
service charge, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Registered Notes will not be issuable in exchange for this Note or for a
Definitive Bearer Note or Definitive Bearer Notes. The date of any Note
delivered upon any exchange of this Note shall be such that no gain or loss of
interest results from such exchange.
All (and not less than all) interests in this Note will be
exchanged for Definitive Bearer Notes in accordance with the procedures set
forth in the following two sentences as soon as practicable after the first
beneficial owner of an interest in this Note exchanges its interest for a
Definitive Bearer Note, provided that a common depository located outside
the United States (the "common depository") holding this Note for Morgan
Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System (the "Euroclear Operator"), Cedel Bank, societe anonyme
("Cedel") and/or any other relevant clearing system (including "Societe
Interprofessionelle pour la Compensation des Valeurs Mobilieres
("SICOVAM")) instructs the Principal Paying Agent regarding the aggregate
principal amount of Definitive Bearer Notes and the denominations of such
Definitive Bearer Notes that must be authenticated and delivered to each of
the Euroclear Operator and Cedel in exchange for this Note. Thereafter,
the Principal Paying Agent, acting solely in reliance on such instructions,
shall, upon surrender to it of this Note and subject to the conditions in
the preceding paragraph, authenticate and deliver Definitive Bearer Notes
in exchange for this Note in accordance with such instructions and shall
cause Schedule A of this Note to be endorsed to reflect the reduction of
its principal amount by an amount equal to the aggregate principal amount
of this Note.
This Note may be transferred by delivery; provided, however,
that this Note may be transferred only to a common depositary outside the
United States for the Euroclear Operator, Cedel and/or any other relevant
clearing system or to a nominee of such depositary.
In case any Note shall at any time become mutilated, defaced or
be destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Note so destroyed or lost or stolen, but, in the case of any destroyed or lost
or stolen Note, only upon receipt of evidence satisfactory to the Trustee and
the Issuer that such Note was destroyed or lost or stolen and, if required,
upon receipt also of indemnify satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt securities
issued under the Senior Indenture, including the series of Senior Global
Medium-Term Notes of which this Note forms a part, or due to the default in
the performance or breach of any other covenant or warranty of the Issuer
applicable to the debt securities of such series but not applicable to all
outstanding debt securities issued under the Senior Indenture shall have
occurred and be continuing, either the Trustee or the holders of not less than
25% in principal amount of the debt securities of each affected series (voting
as a single class) may then declare the principal of all debt securities of
all such series and interest accrued thereon to be due and payable immediately
and (b) if an Event of Default due to a default in the performance of any
other of the covenants or agreements in the Senior Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due to
certain events of bankruptcy, insolvency and reorganization of the Issuer,
shall have occurred and be continuing, either the Trustee or the holders of
not less than 25% in principal amount of all debt securities issued under the
Senior Indenture then outstanding (treated as one class) may declare the
principal of all such debt securities and interest accrued thereon to be due
and payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt securities)
by the holders of a majority in principal amount of the debt securities of all
affected series then outstanding.
This Note may be redeemed, as a whole, at the option of the
Issuer at any time prior to maturity, upon the giving of a notice of
redemption as described below, at a redemption price equal to 100% of the
principal amount hereof, together with accrued interest to the date fixed for
redemption, if the Issuer determines that, as a result of any change in or
amendment to the laws (or any regulations or rulings promulgated thereunder)
of the United States or of any political subdivision or taxing authority
thereof or therein affecting taxation, or any change in official position
regarding the application or interpretation of such laws, regulations or
rulings, which change or amendment becomes effective on or after the Original
Issue Date hereof, the Issuer has or will become obligated to pay Additional
Amounts (as defined below) with respect to this Note as described below.
Prior to the giving of any notice of redemption pursuant to this paragraph,
the Issuer shall deliver to the Trustee (i) a certificate stating that the
Issuer is entitled to effect such redemption and setting forth a statement of
facts showing that the conditions precedent to the right of the Issuer to so
redeem have occurred, and (ii) an opinion of independent counsel satisfactory
to the Trustee to such effect based on such statement of facts; provided that
no such notice of redemption shall be given earlier than 60 days prior to the
earliest date on which the Issuer would be obligated to pay such Additional
Amounts if a payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more
than 60 days prior to the date fixed for redemption, which date and the
applicable redemption price will be specified in the Notice.
If the Issuer shall determine that any payment made outside
the United States by the Issuer or any Paying Agent of principal, premium
or interest due in respect of this Note would, under any present or future
laws or regulations of the United States, be subject to any certification,
identification or other information reporting requirement of any kind, the
effect of which is the disclosure to the Issuer, any Paying Agent or any
governmental authority of the nationality, residence or identity of a
beneficial owner of this Note who is a United States Alien (as defined
below (other than such a requirement (a) that would not be applicable to a
payment made by the Issuer or any Paying Agent (i) directly to the
beneficial owner or (ii) to a custodian, nominee or other agent of the
beneficial owner, or (b) that can be satisfied by such custodian, nominee
or other agent certifying to the effect that such beneficial owner is a
United States Alien; provided that in each case referred to in clauses
(a)(ii) and (b) payment by such custodian, nominee or agent to such
beneficial owner is not otherwise subject to any such requirement), the
Issuer shall redeem this Note, as a whole, at a redemption price equal to
100% of the principal amount thereof, together with accrued interest to the
date fixed for redemption, or, at the election of the Issuer if the
conditions of the next succeeding paragraph are satisfied, pay the
additional amounts specified in such paragraph. The Issuer shall make such
determination and election as soon as practicable, shall promptly notify
the Trustee thereof and shall publish prompt notice thereof (the
"Determination Notice") stating the effective date of such certification,
identification or other information reporting requirements, whether the
Issuer will redeem this Note or has elected to pay the additional amounts
specified in the next succeeding paragraph, and (if applicable) the last
date by which the redemption of this Note must take place, as provided in
the next succeeding sentence. If the Issuer redeems this Note, such
redemption shall take place on such date, not later than one year after the
publication of the Determination Notice, as the Issuer shall elect by
notice to the Trustee at least 60 days prior to the date fixed for
redemption. Notice of such redemption of this Note will be given to the
holder of this Note not more than 60 nor less than 30 days prior to the
date fixed for redemption. Notwithstanding the foregoing, the Issuer shall
not so redeem this Note if the Issuer shall subsequently determine, not
less than 30 days prior to the date fixed for redemption, that subsequent
payments would not be subject to any such requirement, in which case the
Issuer shall publish prompt notice of such determination and any earlier
redemption notice shall be revoked and of no further effect.
If and so long as the certification, identification or other
information reporting requirements referred to in the preceding paragraph
would be fully satisfied by payment of a backup withholding tax or similar
charge, the Issuer may elect by notice to the Trustee to pay as additional
amounts such amounts as may be necessary so that every net payment made
outside the United States following the effective date of such requirements by
the Issuer or any Paying Agent of principal, premium or interest due in
respect of this Note of which the beneficial owner is a United States Alien
(but without any requirement that the nationality, residence or identity of
such beneficial owner be disclosed to the Issuer, any Paying Agent or any
governmental authority, with respect to the payment of such additional
amounts), after deduction or withholding for or on account of such backup
withholding tax or similar charge (other than a backup withholding tax or
similar charge that (i) would not be applicable in the circumstances referred
to in the second parenthetical clause of the first sentence of the preceding
paragraph, or (ii) is imposed as a result of presentation of this Note for
payment more than 15 days after the date on which such payment becomes due and
payable or on which payment thereof is duly provided for, whichever occurs
later), will not be less than the amount provided for in this Note to be then
due and payable. In the event the Issuer elects to pay any additional amounts
pursuant to this paragraph, the Issuer shall have the right to redeem this
Note as a whole at any time pursuant to the applicable provisions of the
immediately preceding paragraph and the redemption price of this Note will not
be reduced for applicable withholding taxes. If the Issuer elects to pay
additional amounts pursuant to this paragraph and the condition specified in
the first sentence of this paragraph should no longer be satisfied, then the
issuer will redeem this Note as a whole, pursuant to the applicable provisions
of the immediately preceding paragraph.
The Issuer will, subject to certain exceptions and limitations
set forth below, pay such additional amounts (the "Additional Amounts") to the
holder of this Note who is a United States Alien as may be necessary in order
than every net payment of the principal of and interest on this Note and any
other amounts payable on this Note, after withholding for or on account of any
present or future tax, assessment or governmental charge imposed upon or as a
result of such payment by the United States (or any political subdivision or
taxing authority thereof or therein), will not be less than the amount
provided for in this Note to be then due and payable. The Issuer will not,
however, be required to make any payment of Additional Amounts to any such
holder for or on account of:
(a) any such tax, assessment or other governmental charge
that would not have been so imposed but for (i) the existence of
any present or former connection between such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of such
holder, if such holder is an estate, a trust, a partnership or a
corporation) and the United States, including, without limitation,
such holder (or such fiduciary, settlor, beneficiary, member or
shareholder) being or having been a citizen or resident thereof or
being or having been engaged in a trade or business or present
therein or having, or having had, a permanent establishment
therein or (ii) the presentation by the holder of this Note for
payment on a date more than 15 days after the date on which such
payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or
personal property tax or any similar tax, assessment or governmental
charge;
(c) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as a personal
holding company or foreign personal holding company or controlled
foreign corporation or passive foreign investment company with
respect to the United States or as a corporation which accumulates
earnings to avoid United States federal income tax or as a private
foundation or other tax-exempt organization;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payments on or in respect
of this Note;
(e) any tax, assessment or other governmental charge required
to be withheld by any Paying Agent from any payment of principal of,
or interest on, this Note, if such payment can be made without such
withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that
would not have been imposed but for the failure to comply with
certification, information or other reporting requirements concerning
the nationality, residence or identity of the holder or beneficial
owner of this Note, if such compliance is required by statute or by
regulation of the United States or of any political subdivision or
taxing authority thereof or therein as a precondition to relief or
exemption from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power
of all classes of stock entitled to vote of the Issuer or as a direct
or indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or
(g);
nor shall Additional Amounts be paid with respect to any payment on this note
to a United States Alien who is a fiduciary or partnership or other than the
sole beneficial owner of such payment to the extent such payment would be
required by the laws of the United States (or any political subdivision
thereof) to be included in the income, for tax purposes, of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to the Additional Amounts
had such beneficiary, settlor, member or beneficial owner been the holder of
this Note.
The Senior Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected;
or (b) reduce the aforesaid percentage in principal amount of debt securities
the consent of the holders of which is required for any such supplemental
indenture, without the consent of the holders of each debt security so
affected.
With respect to each due date for the payment of the principal
of, premium, if any, or interest on, this Note on or after the first business
day in Brussels on which the ECU ceases to be used as the unit of account of
the European Community ("EC") and has not become a currency in its own right,
replacing all or some of the currencies of the member states of the EC, the
Issuer shall choose a substitute currency (the "Chosen Currency") which may be
any currency which was, on the last day on which the ECU was used as the unit
of account of the EC, a component currency of the ECU basket or U.S. dollars,
in which all such payments due on or after that date with respect to this Note
shall be made. Notice of the Chosen Currency so selected shall, where
practicable, be published in the manner described in "Notices" below. The
amount of each payment in such Chosen Currency shall be computed on the basis
of the equivalent of the ECU in that currency, determined as described below,
as of the fourth business day in Brussels prior to the date on which such
payment is due.
On the first business day in Brussels on which the ECU ceases
to be used neither as the unit of account of the EC, and has not become a
currency in its own right, replacing all or some of the currencies of the
member states of the EC, the Issuer shall choose a Chosen Currency in which
all payments of principal, premium, if any, or interest with respect to this
Note having a due date prior thereto but not yet presented for payment are to
be made. The amount of each payment in such Chosen Currency shall be
computed on the basis of the equivalent of the ECU in that currency,
determined as described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as of
any date (the "Day of Valuation") shall be determined on the following basis
by, or on behalf of, an Exchange Rate Agent appointed by the Issuer. The
amounts and components composing the ECU for this purpose (the "Components")
shall be the amounts and components composing the ECU as of the last date on
which the ECU was used as the unit of account of the EC. The equivalent of
the ECU in the Chosen Currency shall be calculated by, first, aggregating the
U.S. dollar equivalents of the Components; and then, in the case of a Chosen
Currency other than U.S. dollars, using the rate used for determining the U.S.
dollar equivalent of the Components in the Chosen Currency as set forth below,
calculating the equivalent in the Chosen Currency of such aggregate amount in
U.S. dollars.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Issuer, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf; provided
that such quotations were prevailing in the country of issue not more than two
Business Days before such Day of Valuation. If such most recent quotations
were so prevailing in the country of issue more than two Business Days before
such Day of Valuation, the Exchange Rate Agent shall determine the U.S. dollar
equivalent of such Component on the basis of cross rates derived from the
middle spot delivery quotations for such component currency and for the U.S.
dollar prevailing at 2:30 P.M., Brussels time, on such Day of Valuation, as
obtained by, or on behalf of, the Exchange Rate Agent from one or more major
banks, as selected by the Issuer, in a country other than the country of issue
of such component currency. Notwithstanding the foregoing, the Exchange Rate
Agent shall determine the U.S. dollar equivalent of such Component on the
basis of such cross rates if the Issuer or such agent judges that the
equivalent so calculated is more representative than the U.S. dollar
equivalent calculated as provided in the first sentence of this paragraph.
Unless otherwise specified by the Issuer, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations or
for any other reason, the market to be referred to in respect of such currency
shall be that upon which a non-resident issuer of notes denominated in such
currency would purchase such currency in order to make payments in respect of
such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of this Note.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided. If this
Note is listed on The International Stock Exchange of the United Kingdom and
the Republic of Ireland Limited and such Exchange so requires, the Issuer
shall maintain a Paying Agent in London. The Issuer may designate other
agencies for the payment of said principal, premium and interest at such place
or places outside the United States (subject to applicable laws and
regulations) as the Issuer may decide. So long as there shall be such an
agency, the Issuer shall keep the Trustee advised of the names and locations
of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes that
such moneys shall be repaid to the Issuer and any person claiming such
moneys shall thereafter look only to the Issuer for payment thereof and
(ii) such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease, without, however, limiting in any way any obligation
that the Issuer may have to pay the principal of or interest or premium, if
any, on this Note as the same shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the holder of this
Note.
The Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the holder of this Note as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Senior Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day" means any day, other than a
Saturday or Sunday, that is nether a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation
to close in The City of New York or in the City of London and that
is not a non-ECU clearing day, as determined by the ECU Banking
Association in Paris;
(b) the term "Notices" refers to notices to the holders of
the Notes to be given by publication in an authorized newspaper in
the English language and of general circulation in the Borough of
Manhattan, The City of New York, and London or, if publication in
London is not practical, in an English language newspaper with
general circulation in Western Europe. Such publication is expected
to be made in the Wall Street Journal and the Financial Times. Such
Notices will be deemed to have been given on the date of such
publication, or if published in such newspapers on different dates,
on the date of the first such publication;
(c) the term "United States" means the United States of
America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction; and
(d) the term "United States Alien" means any person who, for
United States federal income tax purposes, is a foreign corporation,
a non-resident alien individual, a non-resident alien fiduciary of a
foreign estate or trust, or a foreign partnership, one or more of the
members of which is a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or
trust.
All other terms used in this Note which are defined in the
Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the Optional Repayment Percentage of the
principal amount thereof, together with interest to the Optional Repayment
Date, to the undersigned at
____________________________________________________________
____________________________________________________________
____________________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid: _____________; and specify the denomination or denominations (which
shall not be less than the minimum authorized denomination) of the Notes to be
issued to the holder for the portion of the within Note not being repaid (in
the absence of any such specification, one such Note will be issued for the
portion not being repaid): ______________________.
Dated:___________________ _______________________________
SCHEDULE A
EXCHANGES FROM TEMPORARY GLOBAL DEALER NOTE,
REDEMPTIONS AND REPAYMENTS
The initial principal amount of this Note is ____________. The
following (A) exchanges of portions of a Temporary Global Bearer Note for an
interest in this Note or (B) (x) redemptions at the option of the Issuer or
(y) repayments at the option of the holder have been made:
<TABLE>
<S> <C> <C>
Principal Amount
Exchanged From Principal Amount
Date of Redemption, Temporary Global Redeemed at the
or Repayment Note option of the Issuer
- -------------------- -------------------- --------------------
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
</TABLE>
<TABLE>
<C> <C> <C>
Remaining Principal
Amount Outstanding
Principal Amount Following Such Notation Made by or
Repaid at the option Redemption or on Behalf of Paying
of the Holder Repayment Agent
- -------------------- -------------------- --------------------
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
</TABLE>
EXHIBIT 8.A
May 1, 1996
Morgan Stanley Group Inc.
1585 Broadway
New York, NY 10036
Morgan Stanley Group Inc.
Global Medium-Term Notes, Series C
Ladies and Gentlemen:
We have acted as special tax counsel to Morgan Stanley
Group Inc. (the "Company") in connection with the preparation and filing
with the Securities and Exchange Commission under the Securities Act of
1933, as amended, of a Prospectus Supplement dated May 1, 1996 relating to
a Prospectus dated May 1, 1996 contained in the Company's Registration
Statement on Form S-3 (Registration Statement No. 333-01655) (the
"Registration Statement").
We are of the opinion that the statements set forth under
the caption "United States Federal Taxation" in the Prospectus Supplement
dated May 1, 1996 relating to the Prospectus dated May 1, 1996 and under
the caption "Limitations on Issuance of Bearer Debt Securities and Bearer
Debt Warrants" in the Prospectus dated May 1, 1996, contained in the
Registration Statement, 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.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
/s/ Shearman & Sterling
PHB/LGZ
May 2, 1996
Morgan Stanley Group Inc.
1585 Broadway
New York, NY 10036
Morgan Stanley Group Inc.
Global Medium-Term Notes, Series D
Global Medium-Term Notes, Series E
Ladies and Gentlemen:
We have acted as special tax counsel to Morgan Stanley
Group Inc. (the "Company") in connection with the preparation and filing
with the Securities and Exchange Commission under the Securities Act of
1933, as amended, of a Prospectus Supplement dated May 2, 1996 relating to
a Prospectus dated May 1, 1996 contained in the Company's Registration
Statement on Form S-3 (Registration Statement No. 333-01655) (the
"Registration Statement").
We are of the opinion that the statements set forth under
the caption "United States Federal Taxation -- Foreign Holders" and "United
States Federal Taxation -- United States Holders" in the Prospectus
Supplement dated May 2, 1996 relating to the Prospectus dated May 1, 1996
and under the caption "Limitations on Issuance of Bearer Debt Securities
and Bearer Debt Warrants" in the Prospectus dated May 1, 1996, contained in
the Registration Statement, 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.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
/s/ Shearman & Sterling
PHB/LGZ
EXHIBIT 23.A
May 1, 1996
Morgan Stanley Group Inc.
1585 Broadway
New York, NY 10036
Morgan Stanley Group Inc.
Global Medium-Term Notes, Series C
Ladies and Gentlemen:
We have acted as special tax counsel to Morgan Stanley
Group Inc. (the "Company") in connection with the preparation and filing
with the Securities and Exchange Commission under the Securities Act of
1933, as amended, of a Prospectus Supplement dated May 1, 1996 relating to
a Prospectus dated May 1, 1996 contained in the Company's Registration
Statement on Form S-3 (Registration Statement No. 333-01655) (the
"Registration Statement").
We are of the opinion that the statements set forth under
the caption "United States Federal Taxation" in the Prospectus Supplement
dated May 1, 1996 relating to the Prospectus dated May 1, 1996 and under
the caption "Limitations on Issuance of Bearer Debt Securities and Bearer
Debt Warrants" in the Prospectus dated May 1, 1996, contained in the
Registration Statement, 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.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
/s/ Shearman & Sterling
PHB/LGZ
EXHIBIT 23.B
May 2, 1996
Morgan Stanley Group Inc.
1585 Broadway
New York, NY 10036
Morgan Stanley Group Inc.
Global Medium-Term Notes, Series D
Global Medium-Term Notes, Series E
Ladies and Gentlemen:
We have acted as special tax counsel to Morgan Stanley
Group Inc. (the "Company") in connection with the preparation and filing
with the Securities and Exchange Commission under the Securities Act of
1933, as amended, of a Prospectus Supplement dated May 2, 1996 relating to
a Prospectus dated May 1, 1996 contained in the Company's Registration
Statement on Form S-3 (Registration Statement No. 333-01655) (the
"Registration Statement").
We are of the opinion that the statements set forth under
the caption "United States Federal Taxation -- Foreign Holders" and "United
States Federal Taxation -- United States Holders" in the Prospectus
Supplement dated May 2, 1996 relating to the Prospectus dated May 1, 1996
and under the caption "Limitations on Issuance of Bearer Debt Securities
and Bearer Debt Warrants" in the Prospectus dated May 1, 1996, contained in
the Registration Statement, 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.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
/s/ Shearman & Sterling
PHB/LGZ
