As filed with the Securities and Exchange Commission on May 28, 1997
Registration No. 333-______
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
DEAN WITTER, DISCOVER & CO.
(to be renamed Morgan Stanley, Dean Witter, Discover & Co. )
(Exact name of registrant as specified in its charter)
DELAWARE 36-3145972
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
Two World Trade Center
New York, New York 10048
(212) 392-2222
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Christine A. Edwards, Esq.
Executive Vice President and General Counsel
Dean Witter, Discover & Co.
Two World Trade Center
New York, New York 10048
(212) 392-2222
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------------
Copies To:
Joseph W. Armbrust, Esq. John M. Brandow, Esq.
Brown & Wood LLP Davis Polk & Wardwell
One World Trade Center 450 Lexington Avenue
New York, New York 10048 New York, New York 10017
---------------------
Approximate date of commencement of proposed sale to the
public: As soon as practicable after this registration statement becomes
effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"), other than
securities offered only in connection with dividend or interest reinvestment
plans, check the following box. [X]
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.[ ]
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================================================================
Proposed maximum
Title of each class of Amount to offering price Proposed maximum Amount of
securities to be registered be registered per security (1) aggregate offering price (1) registration fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities.............
Warrants (2)................
Preferred Stock (3)......... $1,000,000 (7) (8) 100% $1,000,000 $304.00
Depositary Shares (4).......
Purchase Contracts (5)......
Units(6)....................
================================================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee.
(2) There are being registered hereby such indeterminate number of
Warrants as may be issued by the Registrant at indeterminate prices.
Such Warrants may be issued together with any Debt Securities or
Purchase Contracts or both. Warrants may be exercised to purchase Debt
Securities registered hereby or to purchase or sell (i) securities of
an entity unaffiliated with the Registrant, a basket of such
securities, an index or indices of such securities or any combination
of the above, (ii) currencies or composite currencies or (iii)
commodities.
(3) There are being registered hereby such indeterminate number of shares
of Preferred Stock as may from time to time be issued at indeterminate
prices.
(4) There are being registered hereby such indeterminate number of Depositary
Shares as may be issued in the event that the Registrant elects to offer
fractional interests in shares of the Preferred Stock registered hereby.
(5) There are being registered hereby such indeterminate number of Purchase
Contracts as may be issued by the Registrant at indeterminate prices.
Such Purchase Contracts may be issued together with any Debt Securities
or Warrants or both. Purchase Contracts may require the holders
thereof to purchase or sell (i) securities of an entity unaffiliated
with the Registrant, a basket of such securities, an index or indices
of such securities or any combination of the above, (ii) currencies or
composite currencies or (iii) commodities.
(6) There are being registered hereby such indeterminate number of Units as
may be issued at indeterminate prices. Units may consist of one or more
Purchase Contracts, Warrants and Debt Securities or any combination of the
above.
(7) This registration statement also relates to offers and sales of Debt
Securities, Warrants, Preferred Stock, Depositary Shares, Purchase
Contracts and Units (collectively, "Securities") in connection with
market-making transactions by and through affiliates of the Registrant
(subject, with respect to Preferred Stock and Depositary Shares, to
approval of the New York Stock Exchange in connection with market-
making transactions by and through Dean Witter Reynolds Inc. and Morgan
Stanley & Co. Incorporated).
(8) Or, if any Debt Securities are issued at an original issue discount, such
greater amount as shall result in aggregate net proceeds not in excess
of $1,000,000 to the Registrant or if any Securities are issued with an
offering price payable in a foreign currency or composite currency,
such amount as shall result in an aggregate initial offering price
equivalent to $1,000,000 at the time of initial offering.
As previously disclosed in Dean Witter, Discover & Co.'s
Current Report on Form 8-K dated February 4, 1997, Dean Witter, Discover & Co.
and Morgan Stanley Group Inc. announced a definitive agreement to merge (the
"Merger"). It is expected that, effective May 31, 1997, Morgan Stanley Group
Inc. will merge with and into Dean Witter, Discover & Co., which will be the
surviving corporation in the Merger and will continue its corporate existence
under Delaware law under the name "Morgan Stanley, Dean Witter, Discover &
Co." The following Prospectus relates to Morgan Stanley, Dean Witter,
Discover & Co. giving effect to the completion of the Merger.
The Registrant hereby amends this registration statement on
such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act or until the registration statement shall
become effective on such date as the Securities and Exchange Commission (the
"Commission"), acting pursuant to Section 8(a), may determine.
==============================================================================
Prospectus (Subject to Completion, Issued May 28, 1997)
$1,000,000
Morgan Stanley, Dean Witter, Discover & Co.
DEBT SECURITIES
WARRANTS
PREFERRED STOCK
PURCHASE CONTRACTS
UNITS
Morgan Stanley, Dean Witter, Discover & Co. (the "Company") may
offer and issue from time to time its debt securities ( "Debt Securities") in
one or more series. Debt Securities may be issuable in registered form without
coupons or in bearer form with or without coupons attached. The Company also
may issue and sell warrants to purchase Debt Securities ("Debt Warrants") or
to purchase or sell (i) securities of an entity unaffiliated with the Company,
a basket of such securities, an index or indices of such securities or any
combination of the above, (ii) currencies or composite currencies or (iii)
commodities ("Universal Warrants," and together with Debt Warrants, the
"Warrants"), as set forth in the applicable Prospectus Supplement on terms to
be determined at the time of sale. The Company also may offer and issue from
time to time purchase contracts ( "Purchase Contracts") requiring the holders
thereof to purchase or sell (i) securities of an entity unaffiliated with the
Company, a basket of such securities, an index or indices of such securities
or any combination of the above, (ii) currencies or composite currencies or
(iii) commodities, as set forth in the applicable Prospectus Supplement on
terms to be determined at the time of sale. The Company may satisfy its
obligations, if any, with respect to any Universal Warrants or Purchase
Contracts by delivering the underlying securities, currencies or commodities
or, in the case of underlying securities or commodities, the cash value
thereof, as set forth in the applicable Prospectus Supplement. Debt
Securities, Purchase Contracts and Warrants or any combination thereof may be
offered in the form of Units ("Units"). Units may be issued as Definitive
Units or Book-Entry Units.
The Company will offer Debt Securities, Warrants, Purchase
Contracts and Units to the public on terms determined by market conditions.
Debt Securities, Warrants, Purchase Contracts and Units may be sold for U.S.
dollars, foreign denominated currency or currency units; principal of and any
interest on Debt Securities and cash amounts payable with respect to Warrants
or Purchase Contracts may likewise be payable in U.S. dollars, foreign
denominated currency or currency units, in each case, as the Company
specifically designates.
The Company may also offer and issue from time to time in one
or more series its Preferred Stock, par value $0.01 per share, on terms to be
determined at the time of sale. The Debt Securities, Warrants, Purchase
Contracts, Units and Preferred Stock are hereinafter collectively referred to
as the "Securities."
The accompanying Prospectus Supplement will set forth the
specific terms of the Securities, including (i) in the case of Debt
Securities, the ranking as senior or subordinated Debt Securities, the
specific designation, aggregate principal amount, purchase price, maturity,
redemption terms, interest rate (or manner of calculation thereof), time of
payment of interest (if any), terms for any conversion or exchange (including
the terms relating to the adjustment thereof), listing (if any) on a
securities exchange and any other specific terms of the Debt Securities, (ii)
in the case of Warrants, whether such Warrants are Debt Warrants or Universal
Warrants, and in the case of Universal Warrants, the (a) security, basket of
securities, index or indices of securities, (b) currencies or composite
currencies or (c) commodities, underlying such Universal Warrants and, in any
case, the exercise price and other specific terms of the Warrants, (iii) in
the case of Purchase Contracts, the (a) security, basket of securities, index
or indices of securities, (b) currencies or composite currencies or (c)
commodities, underlying such Purchase Contracts and other specific terms of
such Purchase Contracts, (iv) in the case of Units, the particular combination
of Purchase Contracts, Warrants and Debt Securities comprising such Units and
any other specific terms of such Units and (v) in the case of a particular
series of Preferred Stock, the specific designation, the aggregate number of
shares offered, the dividend rate (or manner of calculation thereof), the
dividend periods (or manner of calculation thereof), the stated value of the
shares of such series, the voting rights of the shares of such series, whether
and on what terms the shares of such series may be redeemed at the option of
the Company, whether depositary shares representing shares of such series of
Preferred Stock will be offered and if so, the fraction of a share of
Preferred Stock represented by each depositary share, listing (if any) on a
securities exchange and any other specific terms of such series of Preferred
Stock being offered. The accompanying Prospectus Supplement will also set
forth the name of and compensation to each dealer, underwriter or agent (if
any) involved in the sale of the Securities being offered and the managing
underwriters with respect to any Securities sold to or through underwriters.
Any such underwriters (and any representative thereof), dealers or agents in
the United States will include Dean Witter Reynolds Inc. ("DWR") and/or Morgan
Stanley & Co. Incorporated ("MS & Co.") and any such underwriters (and any
representative thereof), dealers or agents outside the United States will
include Dean Witter International Ltd. ("DWIL"), Morgan Stanley & Co.
International Limited ("MSIL") or other affiliates of the Company.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
Securities may be offered through dealers, underwriters or
agents designated from time to time, as set forth in the accompanying
Prospectus Supplement. Net proceeds to the Company will be the purchase price
in the case of sales to a dealer, the public offering price less discount in
the case of sales to an underwriter or the purchase price less commission in
the case of sales through an agent -- in each case, less other expenses
attributable to issuance and distribution. See "Plan of Distribution" for
possible indemnification arrangements for dealers, underwriters and agents.
Following the initial distribution of a series of Securities,
DWR, MS & Co., DWIL, MSIL and other affiliates of the Company may offer and
sell previously issued Securities in the course of their businesses as
broker-dealers (subject, in the case of Preferred Stock and Depositary Shares,
to obtaining any necessary approval of The New York Stock Exchange for any
such offers and sales by DWR and MS & Co.). DWR, MS & Co., DWIL, MSIL and such
other affiliates may act as a principal or agent in such transactions. This
Prospectus and the accompanying Prospectus Supplement may be used by DWR, MS &
Co., DWIL, MSIL and such other affiliates in connection with such
transactions. Such sales, if any, will be made at varying prices related to
prevailing market prices at the time of sale.
MORGAN STANLEY DEAN WITTER
June , 1997
==============================================================================
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL
OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE
No dealer, salesman or any other person has been authorized to
give any information or to make any representations other than those contained
or incorporated by reference in this Prospectus and, if given or made, such
information or representations must not be relied upon as having been
authorized by the Company or any underwriter, dealer or agent. This Prospectus
does not constitute an offer to sell or a solicitation of an offer to buy
Securities by anyone in any jurisdiction in which such offer or solicitation
is not authorized or in which the person making such offer or solicitation is
not qualified to do so or to any person to whom it is unlawful to make such
offer or solicitation.
-------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities
and Exchange Commission (the "Commission"). Reports, proxy statements and
other information filed by the Company with the Commission can be inspected
and copied at the public reference facilities maintained by the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 or at its Regional
Offices located at Suite 1400, Citicorp Center, 500 West Madison Street,
Chicago, Illinois 60661 and at Seven World Trade Center, 13th Floor, New York,
New York 10048, and copies of such material can be obtained from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. In addition, the Commission maintains a Website
that contains reports, proxy and other information regarding registrants that
file electronically, such as the Company. The address of the Commission's
Website is http:/www.sec.gov. The Company's Common Stock, par value $0.01 per
share (the "Common Stock"), is listed on the New York Stock Exchange, Inc.
(the "NYSE") and the Pacific Stock Exchange, Inc. Reports, proxy statements
and other information concerning the Company can be inspected at the offices
of the NYSE, 20 Broad Street, New York, New York 10005 and the Pacific Stock
Exchange, Inc., 301 Pine Street, San Francisco, California 94104 or 618 South
Spring Street, Los Angeles, California 90014.
This Prospectus constitutes a part of a Registration Statement
filed by the Company with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"). This Prospectus omits certain of the
information contained in the Registration Statement in accordance with the
rules and regulations of the Commission. Reference is hereby made to the
Registration Statement and related exhibits for further information with
respect to the Company and the Securities. Statements contained herein
concerning the provisions of any document are not necessarily complete and, in
each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
-------------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission
under the Exchange Act by Dean Witter, Discover & Co. ("Dean Witter Discover")
(to be renamed Morgan Stanley, Dean Witter, Discover & Co. on May 31, 1997 in
connection with the merger of Morgan Stanley Group Inc. ("Morgan Stanley")
with and into Dean Witter Discover) are incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal period ended
December 31, 1996;
(b) Quarterly Report on Form 10-Q for the quarter ended March
31, 1997; and
(c) Current Reports on Form 8-K dated January 22, 1997, February
4, 1997 (two reports), February 20, 1997, February 27, 1997, February 28,
1997, April 15, 1997, April 17, 1997 (two reports), April 30, 1997 and June 2,
1997.
The following documents previously filed with the Commission
under the Exchange Act by Morgan Stanley, a predecessor of the Company, are
incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal period ended
November 30, 1996;
(b) Quarterly Report on Form 10-Q for the quarter ended February
28, 1997; and
(c) Current Reports on Form 8-K dated December 18, 1996,
December 26, 1996, January 7, 1997, January 24, 1997, February 4, 1997,
February 5, 1997, February 20, 1997, February 21, 1997, February 28, 1997,
March 27, 1997, April 14, 1997, April 17, 1997 and April 30, 1997.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the later of (i) the termination of the offering of
the Securities and (ii) the date on which DWR, MS & Co., DWIL, MSIL and other
affiliates of the Company cease offering and selling previously issued
Securities shall be deemed to be incorporated by reference in this Prospectus
and to be a part hereof from the date of filing of such documents. Any
document incorporated or deemed to be incorporated by reference herein has not
been nor shall be submitted for review under the clearance procedures of the
Commission des Operations de Bourse of the Paris Bourse, except as required in
connection with the listing of any Securities on the Paris Bourse.
Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document that also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
Copies of the above documents (excluding exhibits) may be
obtained upon request without charge from the Company, 1585 Broadway, New
York, New York 10036, Attention: Investor Relations (telephone number (212)
762-8131).
-------------------
CERTAIN PERSONS PARTICIPATING IN THE OFFERING OF THE SECURITIES
MAY ENGAGE IN TRANSACTIONS THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE
PRICE OF THE SECURITIES OR ANY SECURITIES THE PRICES OF WHICH MAY BE USED TO
DETERMINE PAYMENTS ON THE SECURITIES. SPECIFICALLY, THE AGENTS SPECIFIED IN
THE RELEVANT PROSPECTUS SUPPLEMENT OR PRICING SUPPLEMENT MAY OVERALLOT IN
CONNECTION WITH THE OFFERING, AND MAY BID FOR, AND PURCHASE, THE SECURITIES OR
ANY SECURITIES THE PRICES OF WHICH MAY BE USED TO DETERMINE PAYMENTS ON THE
SECURITIES IN THE OPEN MARKET. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE
"PLAN OF DISTRIBUTION" IN THIS PROSPECTUS AND "PLAN OF DISTRIBUTION" OR
"UNDERWRITING" IN THE RELEVANT PROSPECTUS SUPPLEMENT AND PRICING SUPPLEMENT.
THE COMPANY
Dean Witter, Discover & Co. ("Dean Witter Discover") and Morgan
Stanley Group Inc. ("Morgan Stanley") have entered into a merger agreement
pursuant to which the parties agreed to merge Morgan Stanley with and into Dean
Witter Discover (the "Merger"). The Merger is subject to customary closing
conditions, including the approval of the stockholders of both companies.
Meetings of the stockholders of both companies were held on May 28, 1997 and
stockholder approvals were obtained. The Merger is expected to be effective
as of May 31, 1997. The following description of the Company, and all
references to the Company in this Registration Statement, assume that the
Merger has occurred. Pursuant to the Merger, the combined company will be
named Morgan Stanley, Dean Witter, Discover & Co.
Morgan Stanley, Dean Witter, Discover & Co. is a preeminent
global financial services firm that maintains leading market positions in each
of its three primary businesses -- securities, asset management and credit
services. The Company is a combination of Dean Witter Discover and Morgan
Stanley pursuant to a merger (the "Merger") that was effected on May 31, 1997
in which Morgan Stanley was merged with and into Dean Witter Discover. The
Company combines three well recognized brands in the financial services
industry: Discover([Registered]) Card, Morgan Stanley and Dean Witter. The
Company combines Morgan Stanley's global strengths in investment banking,
including in the origination of quality underwritten public offerings and
mergers and acquisitions, institutional sales and trading and global asset
management with Dean Witter Discover's strengths in providing investment and
asset management services to its customers and in providing quality consumer
credit products to its customers, primarily through its Discover Card brand.
At December 31, 1996, the Company had the third largest account executive
sales organization in the United States, with approximately 9,100 professional
account executives and 371 branches, and one of the largest global asset
management operations, with total assets under management and administration
of approximately $271 billion. In addition, based on its approximately 39
million general purpose credit card accounts as of December 31, 1996, the
Company is the nation's largest credit card issuer as measured by number of
accounts and cardmembers.
The Company conducts its business from its head office in New
York City, regional offices and branches throughout the United States, and
through 28 principal offices in 19 countries outside the United States. Dean
Witter Discover was incorporated under the laws of the State of Delaware in
1981 and its predecessor companies date back to 1924. Morgan Stanley was
incorporated under the laws of the State of Delaware in 1975 and its
predecessor companies date back to 1935. The Company's principal executive
offices are at 1585 Broadway, New York, New York 10036, and its telephone
number is (212) 761-4000. Unless the context otherwise requires, the term
"Company" means Morgan Stanley, Dean Witter, Discover & Co. and its
consolidated subsidiaries.
USE OF PROCEEDS
The net proceeds from the sale of the Securities offered hereby
will be used for general corporate purposes of the Company, which may include
additions to working capital, the redemption of outstanding preferred stock
and the repayment of indebtedness or for such other purposes set forth in the
applicable Prospectus Supplement. The Company anticipates that it will raise
additional funds from time to time through equity or debt financing, including
borrowings under revolving credit agreements, to finance its businesses
worldwide.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the consolidated ratios of
earnings to fixed charges and earnings to fixed charges and preferred stock
dividends for the Company for the periods indicated. The fiscal year
information combines the historical financial information of Dean Witter
Discover for the fiscal years ended December 31, 1996, 1995, 1994, 1993 and
1992 with the historical financial information of Morgan Stanley for the
fiscal years ended November 30, 1996, 1995, 1994, 1993 and 1992. The first
fiscal quarter information combines the unaudited historical financial
information of Dean Witter Discover for the fiscal quarters ended March 31,
1997 and 1996 with the historical financial information of Morgan Stanley for
the fiscal quarters ended February 28, 1997 and February 29, 1996.
<TABLE>
<CAPTION>
First Fiscal Quarter Fiscal Year
-------------------------- --------------------------------------------
1997 1996 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges.......... 1.4 1.4 1.3 1.3 1.3 1.4 1.3
Ratio of earnings to
fixed charges and
preferred stock
dividends.............. 1.3 1.4 1.3 1.3 1.3 1.4 1.3
</TABLE>
For the purpose of calculating the ratio of earnings to fixed
charges and the ratio of earnings to fixed charges and preferred stock
dividends, earnings consist of income before income taxes and fixed charges
(exclusive of preferred stock dividends). Additionally, "earnings" in 1992
excludes a nonrecurring gain of $32.1 million from the initial public offering
of 25.7% of SPS Transaction Services, Inc. For the purposes of calculating
both ratios, fixed charges include interest expense, capitalized interest and
that portion of rentals representative of an interest factor. Additionally,
for the purposes of calculating the ratio of earnings to fixed charges and
preferred stock dividends, preferred stock dividends (on a pre-tax basis) are
included in the denominator of the ratio.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute either senior or
subordinated debt of the Company and will be issued, in the case of Debt
Securities that will be senior debt, 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 Senior Indenture dated as of
April 15, 1996, each between Morgan Stanley (as predecessor to the Company)
and The Chase Manhattan Bank (formerly known as Chemical Bank), as Trustee,
and by a Third Supplemental Senior Indenture dated as of June 1, 1997, between
the Company and The Chase Manhattan Bank, as Trustee (as so supplemented, the
"Senior Debt Indenture"), and, in the case of Debt Securities that will be
subordinated debt, under 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 each between Morgan Stanley (as predecessor to the Company) and The
First National Bank of Chicago, as Trustee, and by a Third Supplemental
Subordinated Indenture dated as of June 1, 1997, between the Company and The
First National Bank of Chicago, as Trustee (as so supplemented, the
"Subordinated Debt Indenture"). The Senior Debt Indenture and Subordinated
Debt Indenture are sometimes hereinafter referred to individually as an
"Indenture" and collectively as the "Indentures." The Chase Manhattan Bank
and The First National Bank of Chicago are hereinafter referred to
individually as a "Trustee" and collectively as the "Trustees."
The following summaries of certain provisions of the Indentures
and the Debt Securities do not purport to be complete and such summaries are
subject to the detailed provisions of the applicable Indenture to which
reference is hereby made for a full description of such provisions, including
the definition of certain terms used herein, and for other information
regarding the Debt Securities. Numerical references in parentheses below are
to sections in the applicable Indenture. Wherever particular sections or
defined terms of the applicable Indenture are referred to, such sections or
defined terms are incorporated herein by reference as part of the statement
made, and the statement is qualified in its entirety by such reference. The
Indentures are substantially identical, except for the provisions relating to
subordination and the Company's negative pledge. See "Subordinated Debt" and
"Certain Covenants." The Debt Securities offered by this Prospectus and the
accompanying Prospectus Supplement are referred to herein as the "Offered Debt
Securities." As used under this caption and the captions "Description of
Warrants," "Description of Capital Stock," "Description of Purchase Contracts"
and "Description of Units," the term "Company" means Morgan Stanley, Dean
Witter, Discover & Co.
General
Neither of the Indentures limits the amount of additional
indebtedness that the Company or any of its subsidiaries may incur. The Debt
Securities will be unsecured senior or subordinated obligations of the
Company. Most of the assets of the Company are owned by its subsidiaries.
Therefore, the Company's rights and the rights of its creditors, including
holders of Debt Securities, to participate in the assets of any subsidiary
upon such subsidiary's liquidation or recapitalization will be subject to the
prior claims of such subsidiary's creditors, except to the extent that the
Company may itself be a creditor with recognized claims against the
subsidiary. In addition, dividends, loans and advances from certain
subsidiaries to the Company are restricted by legal requirements, including
(in the case of DWR and MS & Co.) net capital requirements under the Exchange
Act and under rules of certain exchanges and other regulatory bodies and (in
the case of Greenwood Trust Company, a Delaware chartered bank and an indirect
wholly owned subsidiary of the Company, and other bank subsidiaries) by
banking regulations.
The Indentures provide that Debt Securities may be issued from
time to time in one or more series and may be denominated and payable in
foreign currencies or units based on or relating to foreign currencies,
including European Currency Units ("ECUs"). Special United States federal
income tax considerations applicable to any Debt Securities so denominated are
described in the relevant Prospectus Supplement.
Reference is made to the Prospectus Supplement for the
following terms of and information relating to the Offered Debt Securities (to
the extent such terms are applicable to such Debt Securities): (i)
classification as senior or subordinated Debt Securities, the specific
designation, aggregate principal amount, purchase price and denomination; (ii)
currency or units based on or relating to currencies in which such Debt
Securities are denominated and/or in which principal (and premium, if any)
and/or interest will or may be payable; (iii) any date of maturity; (iv)
interest rate or rates (or the method by which such rate or rates will be
determined), if any; (v) the dates on which any such interest will be payable;
(vi) the place or places where the principal of, premium, if any, and
interest, if any, on the Offered Debt Securities will be payable; (vii) any
repayment, redemption, prepayment or sinking fund provisions; (viii) whether
the Offered Debt Securities will be issuable in registered form or bearer form
("Bearer Securities") or both and, if Bearer Securities are issuable, any
restrictions applicable to the exchange of one form for another and to the
offer, sale and delivery of Bearer Securities; (ix) the terms, if any, on
which such Debt Securities may be converted into or exchanged for stock or
other securities of the Company or other entities, any specific terms relating
to the adjustment thereof and the period during which such Debt Securities may
be so converted or exchanged; (x) any applicable United States federal income
tax consequences, including whether and under what circumstances the Company
will pay additional amounts on Offered Debt Securities held by a person who is
not a U.S. person (as defined in the Prospectus Supplement) in respect of any
tax, assessment or governmental charge withheld or deducted and, if so,
whether the Company will have the option to redeem such Debt Securities rather
than pay such additional amounts; and (xi) any other specific terms of the
Offered Debt Securities, including any additional events of default or
covenants provided for with respect to such Debt Securities, and any terms
which may be required by or advisable under applicable laws or regulations.
Debt Securities may be presented for exchange and registered
Debt Securities may be presented for transfer in the manner, at the places and
subject to the restrictions set forth in the Debt Securities and the
Prospectus Supplement. Such services will be provided without charge, other
than any tax or other governmental charge payable in connection therewith, but
subject to the limitations provided in the applicable Indenture. Debt
Securities in bearer form and the coupons, if any, appertaining thereto will
be transferable by delivery.
Debt Securities will bear interest at a fixed rate (a "Fixed
Rate Security") or a floating rate (a "Floating Rate Security"). Debt
Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate will be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par which are treated as having been issued at a
discount for United States federal income tax purposes will be described in
the relevant Prospectus Supplement.
Debt Securities may be issued, from time to time, with the
principal amount payable on any principal payment date, or the amount of
interest payable on any interest payment date, to be determined by reference
to one or more currency exchange rates, securities or baskets of securities,
commodity prices or indices. Holders of such Debt Securities may receive a
payment of principal on any principal payment date, or a payment of interest
on any interest payment date, that is greater than or less than the amount of
principal or interest otherwise payable on such dates, depending upon the
value on such dates of the applicable currency, security or basket of
securities, commodity or index. Information as to the methods for determining
the amount of principal or interest payable on any date, the currencies,
securities or baskets of securities, commodities or indices to which the
amount payable on such date is linked and certain additional tax
considerations will be set forth in the applicable Prospectus Supplement.
Senior Debt
The Debt Securities and, in the case of Bearer Securities, any
coupons appertaining thereto (the "Coupons"), that will constitute part of the
senior debt of the Company will be issued under the Senior Debt Indenture and
will rank pari passu with all other unsecured and unsubordinated debt of the
Company.
Subordinated Debt
The Debt Securities and Coupons that will constitute part of
the subordinated debt of the Company will be issued under the Subordinated
Debt Indenture and will be subordinate and junior in right of payment, to the
extent and in the manner set forth in the Subordinated Debt Indenture, to all
"Senior Indebtedness" of the Company. The Subordinated Debt Indenture defines
"Senior Indebtedness" as obligations (other than nonrecourse obligations, the
subordinated Debt Securities or any other obligations specifically designated
as being subordinate in right of payment to Senior Indebtedness) of, or
guaranteed or assumed by, the Company 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
obligations. (Subordinated Debt Indenture, Section 1.1)
In the event (a) of any insolvency or bankruptcy proceedings,
or any receivership, liquidation, reorganization or other similar proceedings
in respect of the Company or a substantial part of its property, or (b) that
(i) a default shall have occurred with respect to the payment of principal of
(and premium, if any) or any interest on or other monetary amounts due and
payable on any Senior Indebtedness or (ii) there shall have occurred an event
of default (other than a default in the payment of principal, premium, if any,
or interest, or other monetary amounts due and payable) with respect to any
Senior Indebtedness, as defined therein or in the instrument under which the
same is outstanding, permitting the holder or holders thereof to accelerate
the maturity thereof (with notice or lapse of time, or both), and such event
of default shall have continued beyond the period of grace, if any, in respect
thereof, and such default or event of default shall not have been cured or
waived or shall not have ceased to exist, or (c) that the principal of and
accrued interest on the subordinated Debt Securities shall have been declared
due and payable upon an Event of Default pursuant to Section 5.1 of the
Subordinated Debt Indenture and such declaration shall not have been rescinded
and annulled as provided therein, then the holders of all Senior Indebtedness
shall first be entitled to receive payment of the full amount unpaid thereon,
or provision shall be made for such payment in money or money's worth, before
the holders of any of the subordinated Debt Securities or Coupons are entitled
to receive a payment on account of the principal of (and premium, if any)
or any interest on the indebtedness evidenced by such subordinated Debt
Securities or such Coupons. (Subordinated Debt Indenture, Section 13.1)
If this Prospectus is being delivered in connection with a series of
subordinated Debt Securities, the accompanying Prospectus Supplement or the
information incorporated herein by reference will set forth the approximate
amount of Senior Indebtedness outstanding as of the end of the most recent
fiscal quarter.
Certain Covenants
Negative Pledge. The Senior Debt Indenture provides that the
Company and any successor corporation will not, and will not permit any
Subsidiary (as defined below) to, create, assume, incur or guarantee any
indebtedness for borrowed money secured by a pledge, lien or other encumbrance
(except for certain liens specifically permitted by such Indenture) on (i) the
Voting Securities (as defined below) of MS & Co., MSIL, DWR, Greenwood Trust
Company, or any Subsidiary succeeding to any substantial part of the business
now conducted by any of such corporations (collectively, the "Principal
Subsidiaries") or (ii) Voting Securities of a Subsidiary that owns, directly
or indirectly, Voting Securities of any of the Principal Subsidiaries (other
than directors' qualifying shares) without making effective provisions whereby
the Debt Securities issued under such Indenture will be secured equally and
ratably with such secured indebtedness. "Subsidiary" means any corporation,
partnership or other entity of which at the time of determination the Company
owns or controls directly or indirectly more than 50% of the shares of the
voting stock or equivalent interest. "Voting Securities" means stock of any
class or classes having general voting power under ordinary circumstances to
elect a majority of the board of directors, managers or trustees of the
Subsidiary in question, provided that, for the purposes hereof, stock which
carries only the right to vote conditionally on the happening of an event
shall not be considered voting stock whether or not such event shall have
happened. (Senior Debt Indenture, Section 3.6)
Merger, Consolidation, Sale, Lease or Conveyance. Each
Indenture provides that the Company will not merge or consolidate with any
other person and will not sell, lease or convey all or substantially all its
assets to any person, unless the Company shall be the continuing corporation,
or the successor corporation or person that acquires all or substantially all
the assets of the Company shall be a corporation organized under the laws of
the United States or a state thereof or the District of Columbia and shall
expressly assume all obligations of the Company under the Indenture and the
Debt Securities issued thereunder, and immediately after such merger,
consolidation, sale, lease or conveyance, the Company, such person or such
successor corporation shall not be in default in the performance of the
covenants and conditions of such Indenture to be performed or observed by the
Company. (Indentures, Section 9.1) This covenant would not apply to a
recapitalization transaction, a change of control of the Company or a highly
leveraged transaction unless such transactions or change of control were
structured to include a merger or consolidation or sale, lease or
conveyance of all or substantially all of the assets of the Company.
Except as may be described in a Prospectus Supplement
applicable to a particular series of Debt Securities, there are no covenants
or other provisions in the Indentures providing for a put or increased
interest or otherwise that would afford holders of Debt Securities additional
protection in the event of a recapitalization transaction, a change of control
of the Company or a highly leveraged transaction.
Events of Default
An Event of Default is defined under each Indenture with
respect to Debt Securities of any series issued under such Indenture as being:
(a) default in payment of any principal of the Debt Securities of such series,
either at maturity (or upon any redemption), by declaration or otherwise; (b)
default for 30 days in payment of any interest on any Debt Securities of such
series; (c) default for 60 days after written notice in the observance or
performance of any other covenant or agreement in the Debt Securities of such
series or such Indenture other than a covenant included in such Indenture
solely for the benefit of a series of Debt Securities other than such series;
(d) certain events of bankruptcy, insolvency or reorganization; (e) failure by
the Company to make any payment at maturity, including any applicable grace
period, in respect of indebtedness, which term as used in each of the
Indentures means obligations (other than nonrecourse obligations or the Debt
Securities of such series issued under such Indenture) of, or guaranteed or
assumed by, the Company for borrowed money or evidenced by bonds, debentures,
notes or other similar instruments ("Indebtedness") in an amount in excess of
$10,000,000 and continuance of such failure for a period of 30 days after
written notice thereof to the Company by the Trustee, or to the Company and
the Trustee by the holders of not less than 25% in principal amount of such
outstanding Debt Securities (treated as one class) issued under such
Indenture; or (f) default with respect to any Indebtedness, which default
results in the acceleration of Indebtedness in an amount in excess of
$10,000,000 without such Indebtedness having been discharged or such
acceleration having been cured, waived, rescinded or annulled for a period of
30 days after written notice thereof to the Company by the Trustee, or to the
Company and the Trustee by the holders of not less than 25% in principal
amount of such outstanding Debt Securities (treated as one class) issued under
such Indenture; provided, however, that if any such failure, default or
acceleration referred to in clause (e) or clause (f) above shall cease or be
cured, waived, rescinded or annulled, then the Event of Default by reason
thereof shall be deemed likewise to have been thereupon cured. (Indentures,
Section 5.1)
Each Indenture provides that (a) if an Event of Default due to
the default in payment of principal of, premium, if any, or interest on, any
series of Debt Securities issued under such Indenture or due to the default in
the performance or breach of any other covenant or warranty of the Company
applicable to the Debt Securities of such series but not applicable to all
outstanding Debt Securities issued under such Indenture shall have occurred
and be continuing, either the Trustee or the holders of not less than 25% in
principal amount of such Debt Securities of each such affected series (treated
as one class) issued under such Indenture and then outstanding may then
declare the principal of all Debt Securities of each such affected 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 such Indenture applicable to all outstanding Debt
Securities issued under such Indenture and then outstanding or due to certain
events of bankruptcy, insolvency or reorganization of the Company 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 such Indenture and
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 of (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 such
affected series then outstanding. (Indentures, Sections 5.1 and 5.10)
Each Indenture contains a provision entitling the Trustee,
subject to the duty of the Trustee during a default to act with the required
standard of care, to be indemnified by the holders of Debt Securities (treated
as one class) issued under such Indenture before proceeding to exercise any
right or power under such Indenture at the request of such holders.
(Indentures, Section 6.2) Subject to such provisions in each Indenture for the
indemnification of the Trustee and certain other limitations, the holders of a
majority in principal amount of the outstanding Debt Securities (treated as
one class) issued under such Indenture may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee. (Indentures, Section
5.9)
Each Indenture provides that no holder of Debt Securities
issued under such Indenture may institute any action against the Company under
such Indenture (except actions for payment of overdue principal or interest)
unless such holder previously shall have given to the Trustee written notice
of default and continuance thereof and unless the holders of not less than 25%
in principal amount of the Debt Securities of each affected series (treated as
one class) issued under such Indenture and then outstanding shall have
requested the Trustee to institute such action and shall have offered the
Trustee reasonable indemnity, the Trustee shall not have instituted such
action within 60 days of such request and the Trustee shall not have received
direction inconsistent with such written request by the holders of a majority
in principal amount of the Debt Securities of each affected series (treated as
one class) issued under such Indenture and then outstanding. (Indentures,
Sections 5.6 and 5.9)
Each Indenture contains a covenant that the Company will file
annually with the Trustee a certificate of no default or a certificate
specifying any default that exists. (Indentures, Section 3.5)
Discharge, Defeasance and Covenant Defeasance
The Company can discharge or defease its obligations under an
Indenture as set forth below. (Indentures, Section 10.1)
Under terms satisfactory to the Trustee, the Company may
discharge certain obligations to holders of any series of Debt Securities
issued under such Indenture which have not already been delivered to the
Trustee for cancellation and which have either become due and payable or are
by their terms due and payable within one year (or scheduled for redemption
within one year) by irrevocably depositing with the Trustee cash or, in the
case of Debt Securities payable only in U.S. dollars, U.S. Government
Obligations (as defined in such Indenture), as trust funds in an amount
certified to be sufficient to pay at maturity (or upon redemption) the
principal of and interest on such Debt Securities.
The Company may also discharge any and all of the obligations
to holders of any series of Debt Securities issued under an Indenture at any
time ("defeasance"), but may not thereby avoid any duty to register the
transfer or exchange of such series of Debt Securities, to replace any
mutilated, defaced, destroyed, lost, or stolen Debt Securities of such series
or to maintain an office or agency in respect of such series of Debt
Securities. Under terms satisfactory to the relevant Trustee, the Company may
instead be released with respect to any outstanding series of Debt Securities
issued under the relevant Indenture from the obligations imposed by Sections
3.6 (in the case of the Senior Debt Indenture) and 9.1 (which Sections contain
the covenants described above limiting liens and consolidations, mergers,
asset sales and leases), and elect not to comply with such Sections without
creating an Event of Default ("covenant defeasance"). Defeasance or covenant
defeasance may be effected only if, among other things: (i) the Company
irrevocably deposits with the relevant Trustee cash or, in the case of Debt
Securities payable only in U.S. dollars, U.S. Government Obligations, as trust
funds in an amount certified to be sufficient to pay at maturity (or upon
redemption) the principal of and interest on all outstanding Debt Securities
of such series issued under such Indenture; (ii) the Company delivers to the
relevant Trustee an opinion of counsel to the effect that the holders of such
series of Debt Securities will not recognize income, gain or loss for United
States federal income tax purposes as a result of such defeasance or covenant
defeasance and that defeasance or covenant defeasance will not otherwise alter
such holders' United States federal income tax treatment of principal and
interest payments on such series of Debt Securities (in the case of a
defeasance, such opinion must be based on a ruling of the Internal Revenue
Service or a change in United States federal income tax law occurring after
the date of such Indenture, since such a result would not occur under current
tax law); and (iii) in the case of the Subordinated Debt Indenture (a) no
event or condition shall exist that, pursuant to certain provisions described
under "Subordinated Debt" above, would prevent the Company from making
payments of principal of (and premium, if any) and interest on the
subordinated Debt Securities at the date of the irrevocable deposit referred
to above or at any time during the period ending on the 91st day after such
deposit date and (b) the Company delivers to the Trustee for the Subordinated
Debt Indenture an opinion of counsel to the effect that (1) the trust funds
will not be subject to any rights of holders of Senior Indebtedness and (2)
after the 91st day following the deposit, the trust funds will not be subject
to the effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally, except that if a court
were to rule under any such law in any case or proceeding that the trust funds
remained property of the Company, then the relevant Trustee and the holders of
the subordinated Debt Securities would be entitled to certain rights as
secured creditors in such trust funds.
Modification of the Indentures
Each Indenture provides that the Company and the Trustee may
enter into supplemental indentures without the consent of the holders of Debt
Securities to: (a) secure any Debt Securities, (b) evidence the assumption by
a successor corporation of the obligations of the Company, (c) add covenants
for the protection of the holders of Debt Securities, (d) cure any ambiguity
or correct any inconsistency in such Indenture, (e) establish the forms or
terms of Debt Securities of any series and (f) evidence the acceptance of
appointment by a successor trustee. (Indentures, Section 8.1)
Each Indenture also contains provisions permitting the Company
and the Trustee, with the consent of the holders of not less than a majority
in principal amount of Debt Securities of all series issued under such
Indenture then outstanding and affected (voting as one class), to add any
provisions to, or change in any manner or eliminate any of the provisions of,
such Indenture or modify in any manner the rights of the holders of the Debt
Securities of each series so affected; provided that the Company and the
Trustee may not, without the consent of the holder of each outstanding Debt
Security affected thereby, (a) extend the stated maturity of the principal of
any 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 in which the principal
thereof (including any amount in respect of original issue discount), premium,
if any, or interest thereon is payable or reduce the amount of any original
issue discount security payable upon acceleration or provable in bankruptcy or
alter certain provisions of such Indenture relating to the Debt Securities
issued thereunder not denominated in U.S. dollars or impair the right to
institute suit for the enforcement of any payment on any Debt Security when
due or (b) reduce the aforesaid percentage in principal amount of Debt
Securities of any series issued under such Indenture, the consent of the
holders of which is required for any such modification. (Indentures, Section
8.2)
The Subordinated Debt Indenture may not be amended to alter
the subordination of any outstanding subordinated Debt Securities without
the written consent of each holder of Senior Indebtedness then outstanding
that would be adversely affected thereby. (Subordinated Debt Indenture,
Section 8.6)
Concerning the Trustees
The Chase Manhattan Bank and The First National Bank of Chicago
are two of a number of banks with which the Company and its subsidiaries
maintain ordinary banking relationships and with which the Company and its
subsidiaries maintain credit facilities.
DESCRIPTION OF WARRANTS
The Company may issue, together with Debt Securities or
separately, Debt Warrants for the purchase of Debt Securities on terms to be
determined at the time of sale. The Company may also issue Universal Warrants
to purchase or sell (i) securities of an entity unaffiliated with the Company,
a basket of such securities, an index or indices of such securities or any
combination of the above, (ii) currencies or composite currencies or (iii)
commodities, on terms to be determined at the time of sale. The Company may
satisfy its obligations, if any, with respect to any Universal Warrants by
delivering the underlying securities, currencies or commodities or, in the
case of underlying securities or commodities, the cash value thereof, as set
forth in the applicable Prospectus Supplement. Warrants may be offered
separately or together with one or more additional Warrants, Purchase
Contracts or Debt Securities or any combination thereof in the form of Units,
as set forth in the applicable Prospectus Supplement. If Warrants are issued
as part of a Unit, the accompanying Prospectus Supplement will specify whether
such Warrants may be separated from the other Securities in such Unit prior to
the Warrants' expiration date. The Warrants offered by this Prospectus and the
accompanying Prospectus Supplement are referred to herein as the "Offered
Warrants."
The Offered Warrants are to be issued under one or more Warrant
Agreements (each, a "Warrant Agreement") to be entered into between the
Company and a bank or trust company, as Warrant Agent (the "Warrant Agent"),
and may be issued in one or more series, all as shall be set forth in the
Prospectus Supplement relating thereto. Reference is made to the Prospectus
Supplement for any further description of the terms of any Warrant Agreement
governing the Offered Warrants. The forms of Warrant Agreement for the
Warrants are filed as exhibits to the Registration Statement of which this
Prospectus is a part. The following summaries of certain provisions of the
applicable Warrant Agreement and the Warrants do not purport to be complete
and such summaries are subject to the detailed provisions of such Warrant
Agreement to which reference is hereby made for a full description of such
provisions, including the definition of certain terms used herein, and for
other information regarding the Warrants. Wherever particular provisions of
the Warrant Agreement are referred to, such provisions are incorporated by
reference as a part of the statements made, and the statements are qualified
in their entirety by such reference.
General
Reference is made to the Prospectus Supplement for the
following terms of and information relating to the Offered Warrants: (i) the
specific designation and aggregate number of and the price at which the
Offered Warrants will be issued; (ii) the currency or composite currency for
which the Offered Warrants may be purchased; (iii) the date on which the right
to exercise the Offered Warrants shall commence and the date (the "Warrant
Expiration Date") on which such right shall expire or, if the Offered Warrants
are not continuously exercisable throughout such period, the specific date or
dates on which they will be exercisable (each, a "Warrant Exercise Date,"
which term shall also mean, with respect to Offered Warrants continuously
exercisable for a period of time, every date during such period); (iv) whether
the Warrant certificates representing the Offered Warrants (the "Warrant
Certificates") will be in registered form ("Registered Warrants") or bearer
form ("Bearer Warrants") or both; (v) whether any Offered Warrants will be
issued in global or definitive form or both; (vi) any applicable United States
federal income tax consequences; (vii) the identity of the Warrant Agent in
respect of the Offered Warrants and of any other depositaries, execution or
paying agents, transfer agents, registrars or determination or other agents;
(viii) the proposed listing, if any, of the Offered Warrants or the securities
purchasable upon exercise thereof on any securities exchange; (ix) whether the
Offered Warrants are to be sold separately or with other Offered Securities as
part of Units; and (x) any other terms of the Offered Warrants.
Reference is made to the Prospectus Supplement for the
following terms of and information relating to any Offered Debt Warrants: (i)
the designation, aggregate principal amount, currency or composite currency
and terms of the Debt Securities that may be purchased upon exercise of the
Offered Debt Warrants, (ii) if applicable, the designation and terms of the
Debt Securities with which the Offered Debt Warrants are issued and the number
of the Offered Debt Warrants issued with each of such Debt Securities, (iii)
if applicable, the date on and after which the Offered Securities and the
related Debt Securities will be separately transferable and (iv) the principal
amount of Debt Securities purchasable upon exercise of each Offered Debt
Warrant, the price at which and the currency or composite currency in which
such principal amount of Debt Securities may be purchased upon such exercise
and the method of such exercise.
Reference is made to the Prospectus Supplement for the
following terms of and information relating to any Offered Universal Warrants:
(i) whether such Offered Universal Warrants are put Warrants or call Warrants;
(ii)(a) the specific security, basket of securities, index or indices of
securities or combination of the above, (b) currencies or composite currencies
or (c) commodities (and, in each case, the amount thereof or the method for
determining the same) purchasable or saleable upon exercise of each Offered
Universal Warrant; (iii) the price at which and the currency or composite
currency with which such underlying securities, currencies or commodities may
be purchased or sold upon such exercise (or the method of determining the
same); (iv) whether such exercise price may be paid in cash, by the exchange
of any other Security offered with such Offered Universal Warrants or both and
the method of such exercise; and (v) whether the exercise of such Offered
Universal Warrants is to be settled in cash or by delivery of the underlying
securities or commodities or both.
Registered Warrants of each series will be evidenced by Warrant
Certificates in registered form, which may be global Registered Warrants or
definitive Registered Warrants, as specified in the applicable Prospectus
Supplement. Bearer Warrants of each series will be evidenced by one or more
global Warrant Certificates in bearer form and, if specified in the applicable
Prospectus Supplement, in definitive form. Bearer Debt Warrants will not be
issued in definitive form. See "Global Securities" herein.
At the option of the holder upon request confirmed in writing,
and subject to the terms of the applicable Warrant Agreement, Registered
Warrants in definitive form may be presented for exchange and for registration
of transfer (with the form of transfer endorsed thereon duly executed) at the
corporate trust office of the Warrant Agent for such series of Warrants (or
any other office indicated in the Prospectus Supplement relating to such
series of Warrants) without service charge and upon payment of any taxes and
other governmental charges as described in such Warrant Agreement. Such
transfer or exchange will be effected only if the Warrant Agent for such
series of Warrants is satisfied with the documents of title and identity of
the person making the request.
Modifications
Each Warrant Agreement and the terms of the Warrants and the
Warrant Certificates may be amended by the Company and the Warrant Agent,
without the consent of the holders, for the purpose of curing any ambiguity,
or of curing, correcting or supplementing any defective or inconsistent
provision therein or in any other manner which the Company may deem necessary
or desirable and which will not adversely affect the interests of the affected
holders in any material respect.
The Company and any Warrant Agent may also modify or amend the
Warrant Agreement between them and the terms of the Warrants issued
thereunder, with the consent of the owners of not less than a majority in
number of the then outstanding unexercised Warrants affected, provided that no
such modification or amendment that changes the exercise price of the
Warrants, reduces the amount receivable upon exercise, cancellation or
expiration, shortens the period of time during which the Warrants may be
exercised or otherwise materially and adversely affects the rights of the
owners of the Warrants or reduces the percentage of outstanding Warrants, the
consent of whose owners is required for modification or amendment of the
applicable Warrant Agreement or the terms of the Warrants issued thereunder,
may be made without the consent of the owners affected thereby.
Merger, Consolidation, Sale or Other Disposition
If at any time there shall be a merger or consolidation of the
Company or a transfer of substantially all of its assets as permitted under
the applicable Indentures, the successor corporation thereunder shall succeed
to and assume all obligations of the Company under each Warrant Agreement and
the Warrant Certificates. The Company shall thereupon be relieved of any
further obligation under such Warrant Agreements and such Warrants. The
Company shall notify the Warrantholders of the occurrence of any such event.
See "Description of Debt Securities -- Certain Covenants."
Enforceability of Rights of Warrantholders; Governing Law
The Warrant Agents will act solely as agents of the Company in
connection with the Warrant Certificates and will not assume any obligation or
relationship of agency or trust for or with any holders of Warrant
Certificates or beneficial owners of Warrants. Any holder of Warrant
Certificates and any beneficial owner of Warrants may, without the consent of
the Warrant Agent, any other holder or beneficial owner, the relevant Trustee,
the holder of any Debt Securities or other securities issuable upon exercise
of Warrants or, if applicable, the common depositary for the Euroclear System
currently operated by Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System ("Euroclear") and
Cedel Bank, societe anonyme or its successor ("Cedel Bank"), enforce by
appropriate legal action, on its own behalf, its right to exercise the
Warrants evidenced by such Warrant Certificates, in the manner provided
therein and in the applicable Warrant Agreement. No holder of any Warrant
Certificate or beneficial owner of any Warrants shall be entitled to any of
the rights of a holder of the Debt Securities or other securities purchasable
upon exercise of such Warrants, including, without limitation, the right to
receive the payment of dividends, principal of or premium, if any, or
interest, if any, on such Debt Securities or other securities or to enforce
any of the covenants or rights in the relevant Indenture or any other similar
agreement. The Warrants and each Warrant Agreement will be governed by, and
construed in accordance with, the laws of the State of New York.
Unsecured Obligations of the Company
The Warrants are unsecured contractual obligations of the
Company and will rank pari passu with the Company's other unsecured
contractual obligations and with the Company's unsecured and unsubordinated
debt. Most of the assets of the Company are owned by its subsidiaries.
Therefore, the Company's rights and the rights of its creditors, including
Warrantholders, to participate in the distribution of assets of any subsidiary
upon such subsidiary's liquidation or recapitalization will be subject to the
prior claims of such subsidiary's creditors, except to the extent that the
Company may itself be a creditor with recognized claims against the
subsidiary. In addition, dividends, loans and advances from certain
subsidiaries to the Company are restricted by legal requirements, including
(in the case of DWR and MS & Co.) net capital requirements under the Exchange
Act and under rules of certain exchanges and other regulatory bodies and (in
the case of Greenwood Trust Company and other bank subsidiaries) by banking
regulations.
DESCRIPTION OF PURCHASE CONTRACTS
The Company may issue Purchase Contracts for the purchase or
sale of (i) securities of an entity unaffiliated with the Company, a basket of
such securities, an index or indices of such securities or any combination of
the above as specified in the applicable Prospectus Supplement, (ii)
currencies or composite currencies or (iii) commodities. Each Purchase
Contract will entitle the holder thereof to purchase or sell, and obligate the
Company to sell or purchase, on specified dates, such securities, currencies
or commodities at a specified purchase price, all as set forth in the
applicable Prospectus Supplement. The applicable Prospectus Supplement will
also specify the methods by which the holders may purchase or sell such
securities, currencies or commodities and any acceleration, cancellation or
termination provisions or other provisions relating to the settlement of a
Purchase Contract.
Purchase Contracts may require holders to satisfy their
obligations thereunder when such Purchase Contracts are issued ("Pre-paid
Purchase Contracts"). The Company's obligation to settle such Pre-paid
Purchase Contracts on the relevant settlement date will constitute Senior
Indebtedness or subordinated indebtedness of the Company. Accordingly, such
Pre-paid Purchase Contracts will be issued under the Senior Debt Indenture or
the Subordinated Debt Indenture, as specified in the applicable Prospectus
Supplement.
DESCRIPTION OF UNITS
As specified in the applicable Prospectus Supplement, Units
will consist of one or more Purchase Contracts, Warrants and Debt Securities
or any combination thereof. Reference is made to the applicable Prospectus
Supplement for (i) all terms of Units and of the Purchase Contracts, Warrants
and Debt Securities, or any combination thereof, comprising such Units,
including whether and under what circumstances the Securities comprising such
Units may or may not be traded separately, (ii) a description of the terms of
any Unit Agreement governing the Units and (iii) a description of the
provisions for the payment, settlement, transfer or exchange of the Units.
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES AND BEARER DEBT WARRANTS
In compliance with United States federal income tax laws and
regulations, Bearer Securities (including Bearer Securities in global form)
and Bearer Debt Warrants will not be offered, sold, resold or delivered,
directly or indirectly, in the United States or its possessions or to United
States persons (as defined below), except as otherwise permitted by United
States Treasury Regulations Section 1.163-5(c)(2)(i)(D). Any underwriters,
agents or dealers participating in the offerings of Bearer Securities or
Bearer Debt Warrants, directly or indirectly, must agree that (i) they will
not, in connection with the original issuance of any Bearer Securities or
during the restricted period (as defined in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)) (the "restricted period"), offer, sell, resell
or deliver, directly or indirectly, any Bearer Securities in the United States
or its possessions or to United States persons (other than as permitted by the
applicable Treasury Regulations described above) and (ii) they will not, at
any time, offer, sell, resell or deliver, directly or indirectly, any Bearer
Debt Warrants in the United States or its possessions or to United States
persons (other than as permitted by the applicable Treasury Regulations
described above). In addition, any such underwriters, agents or dealers must
have procedures reasonably designed to ensure that its employees or agents who
are directly engaged in selling Bearer Securities or Bearer Debt Warrants are
aware of the above restrictions on the offering, sale, resale or delivery of
Bearer Securities or Bearer Debt Warrants. Moreover, Bearer Securities (other
than temporary global Debt Securities and Bearer Securities that satisfy the
requirements of United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(3)(iii)) and any Coupons appertaining thereto will not be
delivered in definitive form, and no interest will be paid thereon, unless the
Company has received a signed certificate in writing (or an electronic
certificate described in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(3)(ii)) stating that on such date such Bearer Security (i)
is owned by a person that is not a United States person, (ii) is owned by a
United States person that (a) is a foreign branch of a United States financial
institution (as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v)) (a "financial institution") purchasing for its own account
or for resale, or (b) is acquiring such Bearer Security through a foreign
branch of a United States financial institution and who holds the Bearer
Security through such financial institution through such date (and in either
case (a) or (b) above, each such United States financial institution agrees,
on its own behalf or through its agent, that the Company may be advised that
it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations thereunder)
or (iii) is owned by a United States or foreign financial institution for the
purposes of resale during the restricted period and, in addition, if the owner
of such Bearer Security is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i)
or clause (ii) above), such financial institution certifies that it has not
acquired the Bearer Security for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions. Bearer Debt Warrants will not be issued in definitive form.
Payments on Bearer Securities and Bearer Debt Warrants will be made only
outside the United States and its possessions except as permitted by the above
regulations.
Bearer Securities (other than temporary global Securities) and
any Coupons appertaining thereto will bear the following legend: "Any United
States person who holds this obligation will be subject to limitations under
the United States federal income tax laws, including the limitations provided
in Sections 165(j) and 1287(a) of the United States Internal Revenue Code."
The sections referred to in such legend provide that, with certain exceptions,
a United States person will not be permitted to deduct any loss, and will not
be eligible for capital gain treatment with respect to any gain, realized on
the sale, exchange or redemption of such Bearer Security or Coupon.
As used in the preceding two paragraphs, the term Bearer
Securities includes Bearer Securities that are part of Units and the term
Bearer Debt Warrants includes Bearer Debt Warrants that are part of Units. As
used herein, "United States person" means, for United States federal income
tax purposes, 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 the income of
which is subject to United States federal income taxation regardless of its
source, or a trust if both: (A) a United States court is able to exercise
primary supervision over the administration of the trust, and (B) one or more
United States trustees or fiduciaries have the authority to control all
substantial decisions of the trust.
DESCRIPTION OF CAPITAL STOCK
As of the date of this Prospectus, the Company's authorized
capital stock consists of 1,750,000,000 shares of Common Stock, par value
$0.01 per share, and 30,000,000 shares of Preferred Stock, par value $0.01 per
share ("Preferred Stock"). The Board of Directors of the Company has the
power, without further action by the stockholders unless action is required by
applicable laws or regulations or by the terms of outstanding Preferred Stock,
to issue Preferred Stock in one or more series and to fix the voting rights,
designations, preferences and relative, participating, optional and other
special rights, and the qualifications, limitations and restrictions
applicable thereto.
The rights of holders of the Preferred Stock offered hereby
(the "Offered Preferred Stock") will be subject to, and may be adversely
affected by, the rights of holders of any Preferred Stock that may be issued
in the future. The Board of Directors may cause shares of Preferred Stock to
be issued to obtain additional financing, in connection with acquisitions, to
officers, directors or employees of the Company and its subsidiaries pursuant
to benefit plans or otherwise and for other proper corporate purposes. Shares
of Preferred Stock issued by the Company may have the effect, under certain
circumstances, alone or in combination with certain other provisions of the
Company's Amended and Restated Certificate of Incorporation ("Certificate of
Incorporation") described below, of rendering more difficult or discouraging
an acquisition of the Company deemed undesirable by the Board of Directors.
As of June 2, 1997, there were approximately shares of
Common Stock outstanding. On June 2, 1997, the Company also had outstanding
the following series of Preferred Stock: approximately shares of ESOP
Convertible Preferred Stock, with a liquidation value of $35.875 per share
(the "ESOP Preferred Stock"), issued in connection with the Company's Employee
Stock Ownership Plan (the "ESOP"), 1,000,000 shares of 7 3/8% Cumulative
Preferred Stock, with a stated value of $200.00 per share (the "7 3/8%
Preferred Stock"), 1,000,000 shares of 7 3/4% Cumulative Preferred Stock, with
a stated value of $200.00 per share (the "7 3/4% Preferred Stock") and
1,725,000 shares of Series A Fixed/Adjustable Rate Cumulative Preferred Stock,
with a stated value of $200.00 per share (the "Series A Fixed/Adjustable Rate
Preferred Stock"). The 7 3/8% Preferred Stock, the 7 3/4% Preferred Stock and
the Series A Fixed/Adjustable Rate Preferred Stock are collectively referred
to herein as the "Existing Cumulative Preferred Stock." In addition, the
Company and its wholly owned subsidiary Morgan Stanley Finance plc have
outstanding Capital Units that may result in up to 611,238 shares of the
Company's 7.82% Cumulative Preferred Stock, with a stated value of $200.00 per
share (the "7.82% Preferred Stock"), being issued at any time, up to 1,150,000
shares of the Company's 7.80% Cumulative Preferred Stock, with a stated value
of $200.00 per share (the "7.80% Preferred Stock"), being issued at any time,
up to 720,900 shares of the Company's 9.00% Cumulative Preferred Stock, with a
stated value of $200.00 per share (the "9.00% Preferred Stock"), being issued
at any time, up to 996,776 shares of the Company's 8.40% Cumulative Preferred
Stock, with a stated value of $200.00 per share (the "8.40% Preferred Stock"),
being issued at any time, up to 847,500 shares of the Company's 8.20%
Cumulative Preferred Stock, with a stated value of $200.00 per share (the
"8.20% Preferred Stock"), being issued at any time, and up to 670,000 shares
of the Company's 8.03% Cumulative Preferred Stock, with a stated value of
$200.00 per share (the "8.03% Preferred Stock"), being issued at any time on
or after February 28, 1998. The following summary does not purport to be
complete and is qualified by the Company's Certificate of Incorporation, by a
Certificate of Designation of Preferences and Rights of the ESOP Preferred
Stock, by a Certificate of Designation of Preferences and Rights for each of
the 7.82% Preferred Stock, the 7.80% Preferred Stock, the 9.00% Preferred
Stock, the 8.40% Preferred Stock, the 8.20% Preferred Stock and the 8.03%
Preferred Stock and by a Certificate of Designation of Preferences and Rights
of each series of Existing Cumulative Preferred Stock.
Offered Preferred Stock
The Board of Directors of the Company has authorized the
issuance in series of additional shares of Preferred Stock and has authorized
a committee of the Board of Directors (the "Committee") to establish and
designate series and to fix the number of shares and the relative rights,
preferences and limitations of the respective series of the Offered Preferred
Stock. The shares of Offered Preferred Stock, when issued and sold, will be
fully paid and nonassessable.
The following description of the terms of the Offered
Preferred Stock sets forth certain general terms and provisions of the
Offered Preferred Stock to which a Prospectus Supplement relates. The
number of shares and all of the terms and conditions of the relative
rights, preferences and limitations of the respective series of Offered
Preferred Stock as established by the Board of Directors or the Committee
will be set forth in the Prospectus Supplement accompanying this Prospectus
relating to the particular series of Offered Preferred Stock being offered
thereby. The terms of particular series of Offered Preferred Stock may
differ, among other things, in (i) the number of shares that constitute
such series, (ii) the dividend rate (or the method of calculation thereof)
on the shares of such series, (iii) the dividend periods (or the method of
calculation thereof), (iv) the stated value of the shares of such series,
(v) the voting rights of the shares of such series, (vi) the preferences
and rights of the shares of such series upon any liquidation or winding-up
of the Company, (vii) whether or not and on what terms the shares of such
series will be subject to redemption at the option of the Company, (viii)
whether depositary shares representing shares of such series of Offered
Preferred Stock will be offered and, if so, the fraction or multiple of a
share of such series of Offered Preferred Stock represented by each
depositary share and (ix) the other rights and privileges and any
qualifications, limitations or restrictions of such rights or privileges of
such series.
As described under "Depositary Shares" below, the Company may,
at its option, elect to offer depositary shares (the "Depositary Shares")
evidenced by depositary receipts, each representing a fraction or a multiple
(to be specified in the Prospectus Supplement relating to the particular
series of Offered Preferred Stock) of a share of the particular series of
Offered Preferred Stock issued and deposited with a depositary, in lieu of
offering individual shares of such series of Offered Preferred Stock.
The following statements are brief summaries of certain
provisions that will be contained in the Certificate of Designation
authorizing the issuance of a series of Offered Preferred Stock, do not
purport to be complete and are qualified in their entirety by reference to
such Certificate of Designation, the form of which has been filed as an
exhibit to the Registration Statement of which this Prospectus is a part,
and by the Company's Certificate of Incorporation. The resolutions to be
set forth in the Certificate of Designation will be adopted by the Board of
Directors or the Committee prior to the issuance of a series of Offered
Preferred Stock (except for the voting rights of the Offered Preferred
Stock, which will be established by the Board of Directors), and such
Certificate of Designation will be filed with the Secretary of State of the
State of Delaware as soon thereafter as reasonably practicable. In the
event the Company elects to issue Depositary Shares, each representing a
fraction or a multiple of a share of a particular series of Offered
Preferred Stock, subject to the terms of the Deposit Agreement (as defined
below), each such Depositary Share will be entitled, in proportion to the
applicable fraction or multiple of a share of Offered Preferred Stock
represented by such Depositary Share, to all the rights and preferences of
the Offered Preferred Stock represented thereby (including dividend,
voting, redemption and liquidation rights). See "Depositary Shares" below.
The following statements concerning Depositary Shares, Depositary Receipts
(as defined below) and the Deposit Agreement do not purport to be complete
and are qualified in their entirety by reference to the forms of such
documents, which have been filed as exhibits to the Registration Statement
of which this Prospectus is a part.
Rank. Each series of Offered Preferred Stock will rank, with
respect to voting powers, preferences or relative, participating, optional and
other special rights and the qualifications, limitations and restrictions
thereof, including with respect to the payment of dividends and the
distribution of assets, whether upon liquidation or otherwise, junior to any
series of capital stock of the Company expressly stated to be senior to such
series of the Offered Preferred Stock, senior to any class of capital stock
expressly stated to be junior to such series of the Offered Preferred Stock,
and on a parity with each other series of Offered Preferred Stock and all
other classes of capital stock of the Company. The Offered Preferred Stock
will rank, as to payment of dividends and amounts payable on liquidation,
prior to the Common Stock (see "Common Stock" below) and on a parity with the
ESOP Preferred Stock, each series of the Existing Cumulative Preferred Stock
and, if issued, the 7.82% Preferred Stock, the 7.80% Preferred Stock, the
9.00% Preferred Stock, the 8.40% Preferred Stock, the 8.20% Preferred Stock
and the 8.03% Preferred Stock.
Dividends. Holders of shares of the Offered Preferred Stock
will be entitled to receive, when and as declared by the Board of Directors or
the Committee out of funds legally available for payment, cumulative cash
dividends at an annual rate set forth in, or determined or calculated in
accordance with the method or formula set forth in, and on the dates, for the
periods and otherwise in the manner set forth in, the Prospectus Supplement.
Dividends on the Offered Preferred Stock will be payable to holders of record
as they appear on the stock books of the Company 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 of Directors or the Committee. Dividends will
be cumulative from the date of original issue of such series. The Offered
Preferred Stock will be junior as to dividends to any Preferred Stock that may
be issued in the future that is expressly senior as to dividends to the
Offered Preferred Stock. If at any time the Company has failed to pay accrued
dividends on any such senior shares at the time such dividends are payable,
the Company may not pay any dividend on any series of Offered Preferred Stock
or redeem or otherwise repurchase any shares of any series of Offered
Preferred Stock until such accumulated but unpaid dividends on such senior
shares have been paid (or set aside for payment) in full by the Company.
No dividends may be declared or paid or set apart for payment
on any Preferred Stock ranking on a parity as to dividends with the Offered
Preferred Stock unless there shall also be or have been declared and paid or
set apart for payment on the outstanding shares of Offered Preferred Stock
dividends for all dividend payment periods of each series of the Offered
Preferred Stock ending on or before the dividend payment date of such parity
stock, ratably in proportion to the respective amounts of dividends (i)
accumulated and unpaid or payable on such parity stock, on the one hand, and
(ii) accumulated and unpaid or payable through the dividend payment period or
periods of each series of the Offered Preferred Stock next preceding such
dividend payment date, on the other hand.
Except as set forth above, unless full cumulative dividends on
the outstanding shares of Offered Preferred Stock have been paid, dividends
(other than in Common Stock) may not be paid or declared and set aside for
payment and other distributions may not be made upon the Common Stock or on
any other Preferred Stock of the Company ranking junior to or on a parity with
the Offered Preferred Stock as to dividends (which parity Preferred Stock
currently includes the ESOP Preferred Stock and the Existing Cumulative
Preferred Stock and, if issued, would include the 7.82% Preferred Stock, the
7.80% Preferred Stock, the 9.00% Preferred Stock, the 8.40% Preferred Stock,
the 8.20% Preferred Stock and the 8.03% Preferred Stock), nor may any Common
Stock or such other Preferred Stock of the Company be redeemed, purchased or
otherwise acquired by the Company 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 monies theretofore deposited in any sinking
fund with respect to any Preferred Stock 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 Offered Preferred Stock outstanding on the last
dividend payment date for any series of Offered Preferred Stock 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 Company ranking junior to the Offered Preferred
Stock as to dividends.
The amount of dividends payable for the initial dividend period
or any period shorter than a full dividend period shall be computed on the
basis of a 360-day year of twelve 30-day months. Accrued but unpaid dividends
will not bear interest.
The ability of the Company, as a holding company, to pay
dividends on the Offered Preferred Stock will be dependent upon, among other
factors, the Company's earnings, financial condition and cash requirements at
the time such payment is considered, and the payment to it of dividends or
principal and interest by, or the availability of other funds from, its
subsidiaries. Dividends, loans and advances from certain subsidiaries to the
Company are restricted by legal requirements including, (in the case of DWR
and MS & Co.) net capital requirements under the Exchange Act and under rules
of certain exchanges and other regulatory bodies and (in the case of Greenwood
Trust Company and other bank subsidiaries) by banking regulations. Such
restrictions could limit the ability of the Company to pay dividends to its
stockholders.
Liquidation Rights. In the event of any liquidation,
dissolution or winding up of the Company, the holders of shares of Offered
Preferred Stock will be entitled to receive out of the assets of the Company
available for distribution to stockholders, before any distribution is made to
holders of (i) any other shares of Preferred Stock ranking junior to the
Offered Preferred Stock as to rights upon liquidation, dissolution or winding
up that may be issued in the future or (ii) Common Stock, liquidating
distributions in an amount equal to the stated value per share of each series
of Offered Preferred Stock, as set forth in the applicable Prospectus
Supplement, plus accrued and accumulated but unpaid dividends to the date of
final distribution; but the holders of the shares of Offered Preferred Stock
will not be entitled to receive the liquidation price of such shares until the
liquidation preference of any other shares of the Company's capital stock
ranking senior to the Offered 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. If upon any liquidation,
dissolution or winding up of the Company, the amounts payable with respect to
the Offered Preferred Stock and any other Preferred Stock ranking as to rights
upon liquidation, dissolution or winding up on a parity with the Offered
Preferred Stock are not paid in full, the holders of the Offered Preferred
Stock and of such other Preferred Stock will share ratably in any such
distribution in proportion to the full respective preferential amounts to
which they are entitled. After payment of the full amount of the liquidating
distribution to which they are entitled, the holders of the Offered Preferred
Stock will not be entitled to any further participation in any distribution of
assets by the Company. Neither a consolidation or merger of the Company with
or into another corporation nor a merger of another corporation with or into
the Company nor a sale or transfer of all or part of the Company's assets for
cash or securities shall be considered a liquidation, dissolution or winding
up of the Company.
Because the Company is a holding company, its rights and the
rights of its creditors and its stockholders, including the holders of the
shares of Offered Preferred Stock, to participate in the assets of any
subsidiary upon the latter's liquidation or recapitalization may be subject
to the prior claims of the subsidiary's creditors, except to the extent
that the Company may itself be a creditor with recognized claims against
the subsidiary.
Optional Redemption. The Prospectus Supplement will indicate
whether, and if so on what terms, shares of a series of the Offered Preferred
Stock will be subject to any mandatory redemption or sinking fund provision.
The Prospectus Supplement will also indicate whether, and if so on what terms
(including the date on or after which redemption may occur), shares of a
series of the Offered Preferred Stock will be redeemable. Any such redemption
would be effected upon not less than 30 days' notice at a redemption price of
not less than the stated value per share of the applicable series of Offered
Preferred Stock plus accrued and accumulated but unpaid dividends to but
excluding the date fixed for redemption. If full cumulative dividends on all
outstanding shares of Offered Preferred Stock have not been paid, no shares of
Offered Preferred Stock may be redeemed in part and the Company may not
purchase or acquire any shares of Offered Preferred Stock otherwise than
pursuant to a purchase or exchange offer made on the same terms to all holders
of the Offered Preferred Stock. If fewer than all the outstanding shares of a
series of Offered Preferred Stock are to be redeemed, the Company will select
those to be redeemed by lot or a substantially equivalent method.
Voting Rights. Unless otherwise determined by the Board of
Directors of the Company and indicated in the Prospectus Supplement, holders
of the Offered Preferred Stock will not have any voting rights except as set
forth below or as otherwise from time to time required by law. Whenever
dividends on any shares of Offered Preferred Stock or any other class or
series of stock ranking on a parity with the Offered Preferred Stock with
respect to the payment of dividends shall be in arrears for dividend periods,
whether or not consecutive, containing in the aggregate a number of days
equivalent to six calendar quarters, the holders of shares of each series of
Offered Preferred Stock (voting separately as a class with all other series of
Preferred Stock (including the Existing Cumulative Preferred Stock) upon which
like voting rights have been conferred and are exercisable) will be entitled
to vote for the election of two of the authorized number of directors of the
Company at the next annual meeting of stockholders and at each subsequent
meeting until all dividends accumulated on such series of Offered Preferred
Stock have been fully paid or set apart for payment. The term of office of all
directors elected by the holders of Preferred Stock shall terminate
immediately upon the termination of the right of the holders of Preferred
Stock to vote for directors. Each holder of shares of the Offered Preferred
Stock will have one vote for each share of Offered Preferred Stock held.
So long as any shares of the Offered Preferred Stock remain
outstanding, the Company shall not, without the consent of the holders of at
least two-thirds of the shares of Offered Preferred Stock outstanding at the
time, voting separately as a class with all other series of Preferred Stock
(including the Existing Cumulative Preferred Stock and, if issued, the 7.82%
Preferred Stock, the 7.80% Preferred Stock, the 9.00% Preferred Stock, the
8.40% Preferred Stock, the 8.20% Preferred Stock and the 8.03% Preferred
Stock) upon which like voting rights have been conferred and are exercisable,
(i) issue or increase the authorized amount of any class or series of stock
ranking prior to the outstanding Offered Preferred Stock as to dividends or
upon liquidation or (ii) amend, alter or repeal the provisions of the
Company's Certificate of Incorporation or of the resolutions contained in the
Certificate of Designation, whether by merger, consolidation or otherwise,
so as to materially and adversely affect any power, preference or special
right of the outstanding Offered Preferred Stock or the holders thereof;
provided, however, that any increase in the amount of the authorized Common
Stock or authorized Preferred Stock or the creation and issuance of other
series of Common Stock or Preferred Stock ranking on a parity with or
junior to the Offered Preferred Stock as to dividends and upon liquidation
shall not be deemed to materially and adversely affect such powers,
preferences or special rights.
The transfer agent, dividend disbursing agent and registrar for
each series of Offered Preferred Stock will be The Bank of New York.
Depositary Shares
General. The Company may, at its option, elect to offer
fractional shares or some multiple of shares of Offered Preferred Stock,
rather than individual shares of Offered Preferred Stock. In the event such
option is exercised, the Company will issue receipts for Depositary Shares,
each of which will represent a fraction or a multiple (to be set forth in the
Prospectus Supplement relating to a particular series of Offered Preferred
Stock) of a share of a particular series of Offered Preferred Stock as
described below.
The shares of any series of Offered Preferred Stock represented
by Depositary Shares will be deposited under a Deposit Agreement (the "Deposit
Agreement") among the Company, The Bank of New York, as depositary (the
"Preferred Stock Depositary"), and the holders from time to time of depositary
receipts issued thereunder. Subject to the terms of the Deposit Agreement,
each holder of a Depositary Share will be entitled, in proportion to the
applicable fraction or multiple of a share of Offered Preferred Stock
represented by such Depositary Share, to all the rights and preferences of the
Offered Preferred Stock represented thereby (including dividend, voting and
liquidation rights).
The Depositary Shares will be evidenced by depositary receipts
issued pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary
Receipts will be distributed to those persons purchasing the fractional or
multiple shares of the related series of Offered Preferred Stock. Copies of
the forms of Deposit Agreement and Depositary Receipt are filed as exhibits to
the Registration Statement of which this Prospectus is a part, and the
following summary is qualified in its entirety by reference to such exhibits.
Immediately following the issuance of shares of a series of Offered Preferred
Stock by the Company, the Company will deposit such shares with the Preferred
Stock Depositary, which will then issue and deliver the Depositary Receipts to
the purchasers thereof. Depositary Receipts will only be issued evidencing
whole Depositary Shares. A Depositary Receipt may evidence any number of whole
Depositary Shares.
Pending the preparation of definitive engraved Depositary
Receipts, the Preferred Stock Depositary may, upon the written order of the
Company, issue temporary Depositary Receipts substantially identical to (and
entitling the holders thereof to all the rights pertaining to) the definitive
Depositary Receipts but not in definitive form. Definitive Depositary Receipts
will be prepared thereafter without unreasonable delay, and such temporary
Depositary Receipts will be exchangeable for definitive Depositary Receipts at
the Company's expense.
Dividends and Other Distributions. The Preferred Stock
Depositary will distribute all cash dividends or other cash distributions
received in respect of the related series of Offered Preferred Stock to the
record holders of Depositary Shares relating to such series of Offered
Preferred Stock in proportion to the number of such Depositary Shares owned
by such holders.
In the event of a distribution other than in cash, the
Preferred Stock Depositary will distribute property received by it to the
record holders of Depositary Shares entitled thereto in proportion to the
number of Depositary Shares owned by such holders, unless the Preferred Stock
Depositary determines that such distribution cannot be made proportionately
among such holders or that it is not feasible to make such distribution, in
which case the Preferred Stock Depositary may, with the approval of the
Company, sell such property and distribute the net proceeds from such sale to
such holders in proportion to the number of Depositary Shares owned by such
holders.
The amount distributed in any of the foregoing cases will be
reduced by any amounts required to be withheld by the Company or the Preferred
Stock Depositary on account of taxes or other governmental charges.
Withdrawal of Stock. Upon surrender of the Depositary Receipts
at the corporate trust office of the Preferred Stock Depositary and upon
payment of the taxes, charges and fees provided for in the Deposit Agreement
and subject to the terms thereof, the holder of the Depositary Shares
evidenced thereby is entitled to delivery at such office, to or upon his or
her order, of the number of whole shares of the related series of Offered
Preferred Stock and any money or other property, if any, represented by such
Depositary Shares. Holders of Depositary Shares will be entitled to receive
whole shares of the related series of Offered Preferred Stock, but holders of
such whole shares of Offered Preferred Stock will not thereafter be entitled
to deposit such shares of Offered Preferred Stock with the Preferred Stock
Depositary or to receive Depositary Shares therefor. If the Depositary
Receipts delivered by the holder evidence a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of the related series of Offered Preferred Stock to be withdrawn, the
Preferred Stock Depositary will deliver to such holder, or upon his or her
order, at the same time a new Depositary Receipt evidencing such excess number
of Depositary Shares.
Voting the Offered Preferred Stock. Upon receipt of notice of
any meeting at which the holders of any series of the Offered Preferred Stock
are entitled to vote, the Preferred Stock Depositary will mail the information
contained in such notice of meeting to the record holders of the Depositary
Shares relating to such series of Offered Preferred Stock. Each record holder
of such Depositary Shares on the record date (which will be the same date as
the record date for the related series of Offered Preferred Stock) will be
entitled to instruct the Preferred Stock Depositary as to the exercise of the
voting rights pertaining to the number of shares of the series of Offered
Preferred Stock represented by such holder's Depositary Shares. The Preferred
Stock Depositary will endeavor, insofar as practicable, to vote or cause to
be voted the number of shares of the Offered Preferred Stock represented by
such Depositary Shares in accordance with such instructions, provided the
Preferred Stock Depositary receives such instructions sufficiently in advance
of such meeting to enable it to so vote or cause to be voted the shares of
Offered Preferred Stock, and the Company will agree to take all reasonable
action that may be deemed necessary by the Preferred Stock Depositary in order
to enable the Preferred Stock Depositary to do so. The Preferred Stock
Depositary will abstain from voting shares of the Offered Preferred Stock to
the extent it does not receive specific instructions from the holders of
Depositary Shares representing such Offered Preferred Stock.
Redemption of Depositary Shares. If a series of the Offered
Preferred Stock underlying the Depositary Shares is subject to redemption, the
Depositary Shares will be redeemed from the proceeds received by the Preferred
Stock Depositary resulting from any redemption, in whole or in part, of such
series of the Offered Preferred Stock held by the Preferred Stock Depositary.
The redemption price per Depositary Share will be equal to the applicable
fraction or multiple of the redemption price per share payable with respect to
such series of the Offered Preferred Stock. If the Company redeems shares of a
series of Offered Preferred Stock held by the Preferred Stock Depositary, the
Preferred Stock Depositary will redeem as of the same redemption date the
number of Depositary Shares representing the shares of Offered Preferred Stock
so redeemed. If less than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by lot or substantially
equivalent method determined by the Preferred Stock Depositary.
After the date fixed for redemption, the Depositary Shares so
called for redemption will no longer be deemed to be outstanding and all
rights of the holders of the Depositary Shares will cease, except the right to
receive the moneys payable upon such redemption and any money or other
property to which the holders of such Depositary Shares were entitled upon
such redemption, upon surrender to the Preferred Stock Depositary of the
Depositary Receipts evidencing such Depositary Shares. Any funds deposited by
the Company with the Preferred Stock Depositary for any Depositary Shares that
the holders thereof fail to redeem will be returned to the Company after a
period of two years from the date such funds are so deposited.
Amendment and Termination of the Deposit Agreement. The form
of Depositary Receipt evidencing the Depositary Shares and any provision of
the Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Preferred Stock Depositary. However, any
amendment that materially and adversely alters the rights of the holders of
Depositary Shares will not be effective unless such amendment has been
approved by the holders of at least a majority of the Depositary Shares then
outstanding. Notwithstanding the foregoing, in no event may any amendment
impair the right of any holder of any Depositary Shares, upon surrender of the
Depositary Receipts evidencing such Depositary Shares and subject to any
conditions specified in the Deposit Agreement, to receive shares of the
related series of Offered Preferred Stock and any money or other property
represented thereby, except in order to comply with mandatory provisions of
applicable law. The Deposit Agreement may be terminated by the Company at any
time upon not less than 60 days' prior written notice to the Depositary, in
which case, on a date that is not later than 30 days after the date of such
notice, the Preferred Stock Depositary shall deliver or make available for
delivery to holders of Depositary Shares, upon surrender of the Depositary
Receipts evidencing such Depositary Shares, such number of whole or fractional
shares of the related series of Offered Preferred Stock as are represented by
such Depositary Shares. The Deposit Agreement shall automatically terminate
after there has been a final distribution in respect of the related series of
Offered Preferred Stock in connection with any liquidation, dissolution or
winding up of the Company and such distribution has been distributed to the
holders of Depositary Shares.
Charges of Preferred Stock Depositary. The Company will pay
all transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company will pay charges of the
Preferred Stock Depositary, including charges in connection with the initial
deposit of the related series of Offered Preferred Stock and the initial
issuance of the Depositary Shares and all withdrawals of shares of the related
series of Offered Preferred Stock, except that holders of Depositary Shares
will pay other transfer and other taxes and governmental charges and such
other charges as are expressly provided in the Deposit Agreement to be for
their accounts.
Miscellaneous. The Preferred Stock Depositary will forward to
the holders of Depositary Shares all reports and communications from the
Company that are delivered to the Preferred Stock Depositary and which the
Company is required to furnish to the holders of the Offered Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will be
liable if it is prevented or delayed by law or any circumstance beyond its
control in performing its obligations under the Deposit Agreement. The
obligations of the Company and the Preferred Stock Depositary under the
Deposit Agreement will be limited to performance with best judgment and in
good faith of their duties thereunder, except that they are liable for
negligence and willful misconduct in the performance of their duties
thereunder, and they will not be obligated to appear in, prosecute or defend
any legal proceeding in respect of any Depositary Receipts, Depositary Shares
or series of Offered Preferred Stock unless satisfactory indemnity is
furnished. The Preferred Stock Depositary and the Company may rely on advice
of legal counsel or accountants of their choice, or information provided by
persons presenting Offered Preferred Stock for deposit, holders of
Depositary Shares or other persons believed in good faith to be competent
and on documents believed to be genuine.
The Preferred Stock Depositary's corporate trust office is
currently located at 101 Barclay Street, New York, New York 10286. The
Preferred Stock Depositary will act as transfer agent and registrar for
Depositary Receipts and if shares of a series of Offered Preferred Stock are
redeemable, the Preferred Stock Depositary will act as redemption agent for
the corresponding Depositary Receipts.
Resignation and Removal of Preferred Stock Depositary. The
Preferred Stock Depositary may resign at any time by delivering to the Company
written notice of its election to do so, and the Company may at any time
remove the Preferred Stock Depositary, any such resignation or removal to take
effect upon the appointment of a successor Preferred Stock Depositary, which
successor Preferred Stock Depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a bank or trust
company having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000.
Common Stock
Each holder of Common Stock is entitled to one vote per share
on all matters voted on generally by the stockholders, including the election
of directors, and except as otherwise required by law or except as provided
with respect to any series of Preferred Stock (including the ESOP Preferred
Stock), the holders of such shares, together with the holders of ESOP
Preferred Stock, will possess all voting power. The Board is divided into
three classes of directors with the term of one class expiring at each annual
meeting of stockholders. Because the Company's Certificate of Incorporation
does not provide for cumulative voting rights, the holders of a plurality of
the voting power of the then outstanding shares of capital stock entitled to
be voted generally in the election of directors (the "Voting Stock")
represented at a meeting will be able to elect all the directors standing for
election at such meeting. As of June 2, 1997, certain current and former
Managing Directors and Principals of MS & Co. owned in the aggregate
approximately 79,546,500 shares of Common Stock subject to voting restrictions
contained in certain agreements (the "Voting Agreements"). As of such date,
such shares constituted approximately % of the votes that are entitled to
be cast by the Common Stock and ESOP Preferred Stock at any meeting of the
Company's stockholders.
The holders of the Common Stock are entitled to share equally
in such dividends as may be declared by the Board of Directors out of funds
legally available therefor, but only after payment of dividends required to be
paid on outstanding shares of Offered Preferred Stock, ESOP Preferred Stock,
Existing Cumulative Preferred Stock and any other class or series of stock
having preference over the Common Stock as to dividends, including, if issued,
the 7.82% Preferred Stock, the 7.80% Preferred Stock, the 9.00% Preferred
Stock, the 8.40% Preferred Stock, the 8.20% Preferred Stock and the 8.03%
Preferred Stock. The ability of the Company, as a holding company, to pay
dividends on its Common Stock will be dependent upon, among other factors, the
Company's earnings, financial condition and cash requirements at the time such
payment is considered, and payment to it of dividends or principal and
interest by, or the availability of other funds from, its subsidiaries.
Dividends, loans and advances from certain subsidiaries to the Company are
restricted by legal requirements, including (in the case of DWR and MS & Co.)
net capital requirements under the Exchange Act and under rules of certain
exchanges and other regulatory bodies and (in the case of Greenwood Trust
Company and other bank subsidiaries) by banking regulations. Such
restrictions could limit the ability of the Company to pay dividends to its
stockholders.
Upon voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of the Common Stock share pro rata in
the assets remaining after payments to creditors and provision for the
preference of any Offered Preferred Stock, ESOP Preferred Stock, Existing
Cumulative Preferred Stock and any other class or series of stock having
preference over the Common Stock upon liquidation, dissolution or winding up
that may be then outstanding, including, if issued, the 7.82% Preferred Stock,
the 7.80% Preferred Stock, the 9.00% Preferred Stock, the 8.40% Preferred
Stock, the 8.20% Preferred Stock and the 8.03% Preferred Stock. There are no
preemptive or other subscription rights, conversion rights or redemption or
sinking fund provisions with respect to shares of Common Stock.
All of the outstanding shares of Common Stock are fully paid
and nonassessable.
The transfer agent and registrar for the Common Stock is Dean
Witter Trust Company.
ESOP Convertible Preferred Stock
The ESOP Preferred Stock is senior to the Company's Common
Stock and ranks on a parity with the Offered Preferred Stock and the Existing
Cumulative Preferred Stock (and, if issued, the 7.82% Preferred Stock, the
7.80% Preferred Stock, the 9.00% Preferred Stock, the 8.40% Preferred Stock,
the 8.20% Preferred Stock and the 8.03% Preferred Stock) as to the payment of
dividends and upon liquidation. The holders of shares of the ESOP Preferred
Stock are entitled to receive, when declared out of funds legally available
therefor, cash dividends in the amount of $2.78 per share per annum, subject
to adjustment, payable either annually or semiannually, at the election of the
Board of Directors of the Company. Holders of ESOP Preferred Stock are
entitled to receive $35.875 per share, subject to adjustment (the "ESOP
Preferred Stock Liquidation Price"), upon dissolution or liquidation of the
Company.
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 (which parity Preferred Stock currently includes the Offered
Preferred Stock and the Existing Cumulative Preferred Stock and, if issued,
would include the 7.82% Preferred Stock, the 7.80% Preferred Stock, the 9.00%
Preferred Stock, the 8.40% Preferred Stock, the 8.20% Preferred Stock and the
8.03% Preferred Stock), 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 (i) accumulated and unpaid or payable on such
parity stock, on the one hand, and (ii) 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.
Holders of ESOP Preferred Stock are entitled to vote on all
matters submitted to a vote of the holders of shares of Common Stock, voting
together with the holders of shares of Common Stock as one class. Each share
of ESOP Preferred Stock is entitled to the number of votes equal to 1.35 times
the number of shares of Common Stock into which such share of ESOP Preferred
Stock could be converted on the record date for such vote. Shares of ESOP
Preferred Stock are allocated to each participant in the ESOP on December 31
in each year.
Each share of ESOP Preferred Stock is convertible into
shares of Common Stock by the trustee of the ESOP at any time prior to the
date fixed for redemption of the ESOP Preferred Stock at a conversion rate
of one share of ESOP Preferred Stock to 3.3 shares of Common Stock, which
rate is subject to adjustment. The conversion price per share at which
shares of Common Stock will be issued upon conversion of any shares of ESOP
Preferred Stock is $35.875, subject to adjustment.
The ESOP Preferred Stock is redeemable at the Company's option
at the ESOP Preferred Stock Liquidation Price plus accrued dividends at any
time after September 19, 2000 and prior thereto under certain circumstances at
specified prices. The Company may pay the redemption price of the ESOP
Preferred Stock in cash, in shares of Common Stock or a combination thereof.
Neither ESOP Preferred Stock nor shares of Common Stock issued to participants
in the ESOP are subject to the restrictions on voting and disposition
contained in the Voting Agreements.
Existing Cumulative Preferred Stock
Other than as described below, the terms of the 7 3/8%
Preferred Stock, the 7 3/4% Preferred Stock and the Series A Fixed/Adjustable
Rate Preferred Stock are identical. Unless otherwise indicated, the terms and
provisions described below relate to each of the 7 3/8% Preferred Stock, the 7
3/4% Preferred Stock and the Series A Fixed/Adjustable Rate Preferred Stock,
which are collectively referred to as the "Existing Cumulative Preferred
Stock." Unless otherwise indicated below, the terms and provisions described
below for the Existing Cumulative Preferred Stock also relate to each of the
7.82% Preferred Stock, the 7.80% Preferred Stock, the 9.00% Preferred Stock,
the 8.40% Preferred Stock, the 8.20% Preferred Stock and the 8.03% Preferred
Stock, if issued.
Each series of the Existing Cumulative Preferred Stock and, if
issued, the 7.82% Preferred Stock, the 7.80% Preferred Stock, the 9.00%
Preferred Stock, the 8.40% Preferred Stock, the 8.20% Preferred Stock and the
8.03% Preferred Stock ranks on a parity with each other and with the Offered
Preferred Stock and the ESOP Preferred Stock and prior to the Common Stock as
to payment of dividends and amounts payable on liquidation. The shares of
Existing Cumulative Preferred Stock are fully paid and nonassessable, are not
convertible into Common Stock of the Company and have no preemptive rights.
Dividends. Holders of the shares of Existing Cumulative
Preferred Stock (except for the Series A Fixed/Adjustable Rate Preferred
Stock) are entitled to receive, when and as declared by the Board of Directors
of the Company out of funds legally available therefor, cumulative cash
dividends payable quarterly at the rate of 7 3/8% per annum, 7 3/4% per annum,
7.82% per annum (if the 7.82% Preferred Stock is issued), 7.80% per annum (if
the 7.80% Preferred Stock is issued), 9.00% per annum (if the 9.00% Preferred
Stock is issued), 8.40% per annum (if the 8.40% Preferred Stock is issued),
8.20% per annum (if the 8.20% Preferred Stock is issued) and 8.03% per annum
(if the 8.03% Preferred Stock is issued), as the case may be. Holders of the
shares of Series A Fixed/Adjustable Rate Preferred Stock are entitled to
receive, when and as declared by the Board of Directors of the Company out of
funds legally available therefor, cumulative cash dividends payable quarterly
at a rate of 5.91% per annum through November 30, 2001 and thereafter at a
rate of .37% plus the highest of the Treasury Bill Rate, the Ten-Year Constant
Maturity Rate and the Thirty-Year Constant Maturity Rate (each as defined in
the applicable Certificate of Designation); provided, however, that the
dividends so payable will not be less than 6.41% nor greater than 12.41% per
annum (subject to certain adjustments described below). The amount of
dividends payable in respect of the 7 3/4% Preferred Stock and the Series A
Fixed/Adjustable Rate Preferred Stock will be adjusted in the event of certain
amendments to the Code in respect of the dividends received deduction. The
Existing Cumulative Preferred Stock will be junior as to dividends to any
preferred stock that may be issued in the future that is expressly senior as
to dividends to the Existing Cumulative Preferred Stock. If at any time the
Company has failed to pay accrued dividends on any such senior shares at the
time such dividends are payable, the Company may not pay any dividend on the
Existing Cumulative Preferred Stock or redeem or otherwise repurchase any
shares of Existing Cumulative Preferred Stock until such accumulated but
unpaid dividends on such senior shares have been paid (or set aside for
payment) in full by the Company.
No dividends may be declared or paid or set apart for payment
on any preferred stock ranking on a parity as to dividends with the Existing
Cumulative Preferred Stock unless there shall also be or have been declared
and paid or set apart for payment on each series of the Existing Cumulative
Preferred Stock dividends for all dividend payment periods of the Existing
Cumulative Preferred Stock ending on or before the dividend payment date of
such parity stock, ratably in proportion to the respective amounts of
dividends (i) accumulated and unpaid or payable on such parity stock, on the
one hand, and (ii) accumulated and unpaid or payable through the dividend
payment period or periods of the Existing Cumulative Preferred Stock next
preceding such dividend payment date, on the other hand.
Except as set forth above, unless full cumulative dividends on
the Existing Cumulative Preferred Stock have been paid, dividends (other than
in Common Stock) may not be paid or declared and set aside for payment and
other distributions may not be made upon the Common Stock or on any other
preferred stock of the Company ranking junior to or on a parity with the
Existing Cumulative Preferred Stock as to dividends (which parity preferred
stock currently includes the Offered Preferred Stock and the ESOP Preferred
Stock), nor may any Common Stock or such other preferred stock of the Company
be redeemed, purchased or otherwise acquired by the Company 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 monies
theretofore deposited in any sinking fund with respect to any preferred stock
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 each series of the
Existing Cumulative Preferred Stock outstanding on 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 Company ranking junior to the
Existing Cumulative Preferred Stock as to dividends.
Optional Redemption. The Existing Cumulative Preferred Stock is
not subject to any mandatory redemption or sinking fund provision. The 7 3/8%
Preferred Stock is not redeemable prior to August 30, 1998; the 7 3/4%
Preferred Stock is not redeemable prior to August 30, 2001, except under
certain circumstances, prior thereto, and at specified prices; the Series A
Fixed/Adjustable Rate Preferred Stock is not redeemable prior to November 30,
2001, except that under certain circumstances prior thereto, it may be
redeemed at specified prices; if issued, the 7.82% Preferred Stock will not be
redeemable prior to November 30, 1998; if issued, the 7.80% Preferred Stock
will not be redeemable prior to February 28, 1999; if issued, the 9.00%
Preferred Stock will not be redeemable prior to February 28, 2000; if issued,
the 8.40% Preferred Stock will not be redeemable prior to August 30, 2000; if
issued, the 8.20% Preferred Stock will not be redeemable prior to November 30,
2000; and if issued, the 8.03 Preferred Stock will not be redeemable prior to
February 28, 2007, except that under certain circumstances prior thereto, it
may be redeemed at specified prices. On or after such dates, the applicable
series of Existing Cumulative Preferred Stock and, if issued, the 7.82%
Preferred Stock, the 7.80% Preferred Stock, the 9.00% Preferred Stock, the
8.40% Preferred Stock, the 8.20% Preferred Stock and the 8.03% Preferred
Stock, will be redeemable at the option of the Company, in whole or in part,
upon not less than 30 days' notice at a redemption price equal to $200.00 per
share in the case of each of the series of Existing Cumulative Preferred Stock
and, if issued, the 7.82% Preferred Stock, the 7.80% Preferred Stock, the
9.00% Preferred Stock, the 8.40% Preferred Stock, the 8.20% Preferred Stock
and the 8.03% Preferred Stock, in each case plus accrued and accumulated but
unpaid dividends to but excluding the date fixed for redemption.
Liquidation Rights. In the event of any liquidation,
dissolution or winding up of the Company, the holders of shares of Existing
Cumulative Preferred Stock and, if issued, the 7.82 Preferred Stock, the 7.80
Preferred Stock, the 9.00% Preferred Stock, the 8.40% Preferred Stock, the
8.20% Preferred Stock and the 8.03% Preferred Stock, will be entitled to
receive out of the assets of the Company available for distribution to
stockholders, before any distribution is made to holders of (i) any other
shares of preferred stock ranking junior to the Existing Cumulative Preferred
Stock as to rights upon liquidation, dissolution or winding up which may be
issued in the future and (ii) Common Stock, liquidating distributions in the
amount of $200.00 per share in the case of each of the series of Existing
Cumulative Preferred Stock and, if issued, the 7.82% Preferred Stock, the
7.80% Preferred Stock, the 9.00% Preferred Stock, the 8.40% Preferred Stock,
the 8.20% Preferred Stock and the 8.03% Preferred Stock, in each case plus
accrued and accumulated but unpaid dividends to the date of final
distribution, but the holders of the shares of Existing Cumulative Preferred
Stock and, if issued, the 7.82 Preferred Stock, the 7.80 Preferred Stock, the
9.00% Preferred Stock, the 8.40% Preferred Stock, the 8.20% Preferred Stock
and the 8.03% Preferred Stock, will not be entitled to receive the liquidation
price of such shares until the liquidation preference of any other shares of
the Company's capital stock ranking senior to the Existing 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. If upon any liquidation, dissolution or winding up of the Company,
the amounts payable with respect to the Existing Cumulative Preferred Stock
and any other preferred stock ranking as to rights upon liquidation,
dissolution or winding up on a parity with the Existing Cumulative Preferred
Stock (including the Offered Preferred Stock) are not paid in full, the
holders of the Existing Cumulative Preferred Stock and of such other preferred
stock will share ratably in any such distribution in proportion to the full
respective preferential amounts to which they are entitled. After payment of
the full amount of the liquidating distribution to which they are entitled,
the holders of Existing Cumulative Preferred Stock and, if issued, the 7.82%
Preferred Stock, the 7.80% Preferred Stock, the 9.00% Preferred Stock, the
8.40% Preferred Stock, the 8.20% Preferred Stock and the 8.03% Preferred
Stock, will not be entitled to any further participation in any distribution
of assets by the Company.
Voting Rights. Holders of Existing Cumulative Preferred Stock,
which for purposes of this section shall include, if issued, the 7.82%
Preferred Stock, the 7.80% Preferred Stock, the 9.00% Preferred Stock, the
8.40% Preferred Stock, the 8.20% Preferred Stock and the 8.03% Preferred
Stock, do not have any voting rights except as set forth below or as otherwise
from time to time required by law. Whenever dividends on any series of
Existing Cumulative Preferred Stock or any other class or series of stock
ranking on a parity with such series of Existing Cumulative Preferred Stock
with respect to the payment of dividends shall be in arrears for dividend
periods, whether or not consecutive, containing in the aggregate a number of
days equivalent to six calendar quarters, the holders of shares of such series
of Existing Cumulative Preferred Stock (voting separately as a class with all
other series of preferred stock upon which like voting rights have been
conferred and are exercisable) will be entitled to vote for the election of
two of the authorized number of directors of the Company at the next annual
meeting of stockholders and at each subsequent meeting until all dividends
accumulated on such series of Existing Cumulative Preferred Stock have been
fully paid or set aside for payment. The term of office of all directors
elected by the holders of Preferred Stock shall terminate immediately upon the
termination of the right of the holders of Preferred Stock to vote for
directors. Each holder of shares of Existing Cumulative Preferred Stock will
have one vote for each share of Existing Cumulative Preferred Stock held.
So long as any shares of Existing Cumulative Preferred Stock
remain outstanding, the Company shall not, without the consent of the holders
of at least two-thirds of the shares of each series of Existing Cumulative
Preferred Stock outstanding at the time, voting separately as a class with all
other series of preferred stock upon which like voting rights have been
conferred and are exercisable, (i) issue or increase the authorized amount of
any class or series of stock ranking prior to the Existing Cumulative
Preferred Stock as to dividends or upon liquidation or (ii) amend, alter or
repeal the provisions of the Company's Certificate of Incorporation or of the
resolutions contained in the Certificate of Designation relating to such
series of Existing Cumulative Preferred Stock, whether by merger,
consolidation or otherwise, so as to materially and adversely affect any
power, preference or special right of such series of Existing Cumulative
Preferred Stock or the holders thereof; provided, however, that any increase
in the amount of the authorized Common Stock or authorized preferred stock or
the creation and issuance of other series of Common Stock or preferred stock
ranking on a parity with or junior to the Existing Cumulative Preferred Stock
as to dividends and upon liquidation shall not be deemed to materially and
adversely affect such powers, preferences or special rights.
The transfer agent and registrar for each series of Existing
Cumulative Preferred Stock is The Bank of New York.
Additional Provisions of the Company's Amended and Restated Certificate of
Incorporation and By-laws
Size of the Board of Directors, Removal of Directors and
Filling Vacancies on the Board of Directors. The Company's Certificate of
Incorporation provides for a Board of Directors initially consisting of 14
directors, divided into classes initially consisting of four, four and six
directors, respectively, with initial terms expiring at the annual meetings of
stockholders to be held in 1998, 1999 and 2000, respectively. Thereafter,
directors shall hold office for a term expiring at the third succeeding annual
meeting of stockholders after their election. Under the Company's Amended and
Restated By-Laws ("By-Laws"), a majority of the Board may increase or decrease
the number of directors, except that until December 31, 2000, a three-quarters
vote of the Board will be required to change the number of directors to an odd
number. The Company's Certificate of Incorporation also provides that
directors may be removed only for cause and with the approval of the holders
of at least 80% of the voting power of the Voting Stock, voting together as a
single class. Any vacancy on the Board of Directors or newly created
directorship shall be filled by a majority of the remaining directors then in
office though less than a quorum, and such newly elected director shall serve
for a term expiring at the annual meeting of stockholders at which the term of
office of the class to which they have been elected expires.
Calling Special Meetings of Stockholders. The Company's By-Laws
provide that special meetings of the stockholders may be called at any time
only by the Secretary of the Company at the direction of the Board.
Amendment of Governing Documents. The Company's Certificate of
Incorporation provides that, generally, it can be amended pursuant to the
provisions of the laws of the State of Delaware. Under Section 242 of the
Delaware General Corporation Law (the "DGCL"), the Board may propose, and the
stockholders may adopt by a majority vote of the Voting Stock, an amendment to
the Company's Certificate of Incorporation. However, the Company's
Certificate of Incorporation also provides that the approval of 80% of the
voting power of the Voting Stock, voting together as a single class, is
required in order to amend, repeal or adopt any provision inconsistent with
the provisions in the Certificate relating to amendment of the By-Laws, action
of stockholders and the Board of Directors and to change the provisions
establishing such 80% vote requirement.
The Company's Certificate of Incorporation provides that the
Company's By-Laws may be altered, amended or repealed or new provisions may be
adopted by a majority of the Company's Board of Directors or with the approval
of at least 80% of the voting power of the Voting Stock of the Company, voting
together as a single class. Furthermore, the By-Laws provide that they may be
altered, amended or repealed or new provisions may be adopted by a majority
of the Board of Directors or with the approval of at least 80% of the voting
power of the Voting Stock of the Company; provided, however, that a
three-quarters vote of the Board of Directors is required for the Board of
Directors to amend, alter, repeal or adopt new By-Laws in conflict with the
provisions of the By-Laws relating to the removal of certain officers and
certain amendments of the By-Laws; and provided further, however, that until
December 31, 2000, a three-quarters vote of the Board of Directors is
required for the Board of Directors to amend, alter, repeal or adopt new
By-Laws in conflict with certain provisions of the By-Laws relating to
committees, committee members and chairmen, certain changes to the number
of directors and certain other amendments of the By-Laws.
Limitation of Directors' Liability. Section 102 of the DGCL
allows a corporation to eliminate the personal liability of directors of a
corporation to the corporation or to any of its stockholders for monetary
damages for a breach of fiduciary duty as a director, except in the case where
the director breached his duty of loyalty, failed to act in good faith,
engaged in intentional misconduct or knowingly violated a law, authorized the
payment of a dividend or approved a stock repurchase in violation of the DGCL
or obtained an improper personal benefit. Under the Company's Certificate of
Incorporation, a director of the Company shall not be liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the DGCL as in effect or as the same may be
amended.
GLOBAL SECURITIES
The registered Debt Securities, Warrants, Purchase Contracts
and Units of any series may be issued in the form of one or more fully
registered global Securities (a "Registered Global Security") that will be
deposited with a depositary (a "Depositary") or with a nominee for a
Depositary identified in the Prospectus Supplement relating to such series and
registered in the name of such Depositary or nominee thereof. In such case,
one or more Registered Global Securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal or
face amount of outstanding registered Securities of the series to be
represented by such Registered Global Securities. Unless and until it is
exchanged in whole for Securities in definitive registered form, a Registered
Global Security may not be transferred except as a whole by the Depositary for
such Registered Global Security to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor of such
Depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect
to any portion of a series of Securities to be represented by a Registered
Global Security will be described in the Prospectus Supplement relating to
such series. The Company anticipates that the following provisions will apply
to all depositary arrangements.
Ownership of beneficial interests in a Registered Global
Security will be limited to persons that have accounts with the Depositary for
such Registered Global Security ("participants") or persons that may hold
interests through participants. Upon the issuance of a Registered Global
Security, the Depositary for such Registered Global Security will credit, on
its book-entry registration and transfer system, the participants' accounts
with the respective principal or face amounts of the Securities represented by
such Registered Global Security beneficially owned by such participants. The
accounts to be credited shall be designated by any dealers, underwriters or
agents participating in the distribution of such Securities. Ownership of
beneficial interests in such Registered Global Security will be shown on, and
the transfer of such ownership interests will be effected only through,
records maintained by the Depositary for such Registered Global Security (with
respect to interests of participants) and on the records of participants (with
respect to interests of persons holding through participants). The laws of
some states may require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to own, transfer or pledge beneficial interests in
Registered Global Securities.
So long as the Depositary for a Registered Global Security, or
its nominee, is the registered owner of such Registered Global Security, such
Depositary or such nominee, as the case may be, will be considered the sole
owner or holder of the Securities represented by such Registered Global
Security for all purposes under the applicable Indenture, Warrant Agreement,
Purchase Contract or Unit Agreement. Except as set forth below, owners of
beneficial interests in a Registered Global Security will not be entitled to
have the Securities represented by such Registered Global Security registered
in their names, will not receive or be entitled to receive physical delivery
of such Securities in definitive form and will not be considered the owners or
holders thereof under the applicable Indenture, Warrant Agreement, Purchase
Contract or Unit Agreement. Accordingly, each person owning a beneficial
interest in a Registered Global Security must rely on the procedures of the
Depositary for such Registered Global Security and, if such person is not a
participant, on the procedures of the participant through which such person
owns its interest, to exercise any rights of a holder under the applicable
Indenture, Warrant Agreement, Purchase Contract or Unit Agreement. The Company
understands that under existing industry practices, if it requests any action
of holders or if an owner of a beneficial interest in a Registered Global
Security desires to give or take any action which a holder is entitled to give
or take under the applicable Indenture, Warrant Agreement, Purchase Contract
or Unit Agreement, the Depositary for such Registered Global Security would
authorize the participants holding the relevant beneficial interests to give
or take such action, and such participants would authorize beneficial owners
owning through such participants to give or take such action or would
otherwise act upon the instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments on Debt
Securities, and any payments to holders with respect to Warrants, Purchase
Contracts or Units, represented by a Registered Global Security registered in
the name of a Depositary or its nominee will be made to such Depositary or its
nominee, as the case may be, as the registered owner of such Registered Global
Security. None of the Company, the Trustees, the Warrant Agents, the Unit
Agents or any other agent of the Company, agent of the Trustees or agent of
the Warrant Agents or Unit Agents will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in such Registered Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
The Company expects that the Depositary for any Securities
represented by a Registered Global Security, upon receipt of any payment of
principal, premium, interest or other distribution of underlying securities or
commodities to holders in respect of such Registered Global Security, will
immediately credit participants' accounts in amounts proportionate to their
respective beneficial interests in such Registered Global Security as shown on
the records of such Depositary. The Company also expects that payments by
participants to owners of beneficial interests in such Registered Global
Security held through such participants will be governed by standing customer
instructions and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered in "street
name", and will be the responsibility of such participants.
If the Depositary for any Securities represented by a
Registered Global Security is at any time unwilling or unable to continue as
Depositary or ceases to be a clearing agency registered under the Exchange
Act, and a successor Depositary registered as a clearing agency under the
Exchange Act is not appointed by the Company within 90 days, the Company will
issue such Securities in definitive form in exchange for such Registered
Global Security. In addition, the Company may at any time and in its sole
discretion determine not to have any of the Securities of a series represented
by one or more Registered Global Securities and, in such event, will issue
Securities of such series in definitive form in exchange for all of the
Registered Global Security or Securities representing such Securities. Any
Securities issued in definitive form in exchange for a Registered Global
Security will be registered in such name or names as the Depositary shall
instruct the relevant Trustee, Warrant Agent or other relevant agent of the
Company, the Trustees or the Warrant Agents. It is expected that such
instructions will be based upon directions received by the Depositary from
participants with respect to ownership of beneficial interests in such
Registered Global Security.
The Securities of a series may also be issued in the form of
one or more bearer global Securities (a "Bearer Global Security") that will be
deposited with a common depositary for Euroclear and Cedel Bank or with a
nominee for such depositary identified in the Prospectus Supplement relating
to such series. The specific terms and procedures, including the specific
terms of the depositary arrangement, with respect to any portion of a series
of Securities to be represented by a Bearer Global Security will be described
in the Prospectus Supplement relating to such series.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby in
three ways: (i) through agents, (ii) through underwriters and (iii) through
dealers. Any such underwriters, dealers or agents in the United States will
include DWR and/or MS & Co., and any such underwriters, dealers or agents
outside the United States will include DWIL, MSIL or other affiliates of the
Company.
Offers to purchase Securities may be solicited by agents
designated by the Company from time to time. Any such agent, who may be deemed
to be an underwriter as that term is defined in the Securities Act, involved
in the offer or sale of the Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company to such
agent set forth, in the Prospectus Supplement. Any such agent will be acting
on a reasonable efforts basis for the period of its appointment or, if
indicated in the applicable Prospectus Supplement, on a firm commitment basis.
Agents may be entitled under agreements which may be entered into with the
Company to indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act, and may be customers of,
engage in transactions with or perform services for the Company in the
ordinary course of business.
If any underwriters are utilized in the sale of the Securities
in respect of which this Prospectus is delivered, the Company will enter into
an underwriting agreement with such underwriters at the time of sale to them
and the names of the underwriters and the terms of the transaction will be set
forth in the Prospectus Supplement, which will be used by the underwriters to
make resales of the Securities in respect of which this Prospectus is
delivered to the public. The underwriters may be entitled, under the relevant
underwriting agreement, to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company
in the ordinary course of business.
If a dealer is utilized in the sale of the Securities in
respect of which the Prospectus is delivered, the Company will sell such
Securities to the dealer, as principal. The dealer may then resell such
Securities to the public at varying prices to be determined by such dealer at
the time of resale. Dealers may be entitled to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act,
and may be customers of, engage in transactions with or perform services for
the Company in the ordinary course of business.
In order to facilitate the offering of the Securities, the
underwriters may engage in transactions that stabilize, maintain or otherwise
affect the price of the Securities or any other securities the prices of which
may be used to determine payments on such Securities. Specifically, the
underwriters may overallot in connection with the offering, creating a short
position in the Securities for their own accounts. In addition, to cover
overallotments or to stabilize the price of the Securities or of any such
other securities, the underwriters may bid for, and purchase, the
Securities or any such other securities in the open market. Finally, in
any offering of the Securities through a syndicate of underwriters, the
underwriting syndicate may reclaim selling concessions allowed to an
underwriter or a dealer for distributing the Securities in the offering if
the syndicate repurchases previously distributed Securities in transactions
to cover syndicate short positions, in stabilization transactions or
otherwise. Any of these activities may stabilize or maintain the market
price of the Securities above independent market levels. The underwriters
are not required to engage in these activities, and may end any of these
activities at any time.
Securities may also be offered and sold, if so indicated in the
Prospectus Supplement, in connection with a remarketing upon their purchase,
in accordance with their terms, by one or more firms, including DWR, MS & Co.,
DWIL and MSIL ("remarketing firms"), acting as principals for their own
accounts or as agents for the Company. Any remarketing firm will be identified
and the terms of its agreement, if any, with the Company and its compensation
will be described in the Prospectus Supplement. Remarketing firms may be
entitled under agreements which may be entered into with the Company to
indemnification by the Company against certain civil liabilities, including
liabilities under the Securities Act, and may be customers of, engage in
transactions with or perform services for the Company in the ordinary course
of business.
If so indicated in the Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by certain
purchasers to purchase Offered Debt Securities or Offered Warrants, Purchase
Contracts or Units, as the case may be, from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in
the future. Such contracts will be subject to only those conditions set forth
in the Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such offers.
Any underwriters, agents or dealers utilized in the initial
offering of Securities will not confirm sales to accounts over which they
exercise discretionary authority.
DWR, MS & Co., DWIL and MSIL are wholly owned subsidiaries of
the Company. Each initial offering of Securities will be conducted in
compliance with the requirements of Rule 2720 of the National Association of
Securities Dealers, Inc. (the "NASD") regarding a NASD member firm's
distributing the securities of an affiliate. Following the initial
distribution of any Securities, DWR, MS & Co., DWIL, MSIL and other affiliates
of the Company may offer and sell such Securities in the course of their
business as broker-dealers (subject, in the case of Preferred Stock and
Depositary Shares, to obtaining any necessary approval of the NYSE for any
such offers and sales by DWR and MS & Co.). DWR, MS & Co., DWIL, MSIL and such
other affiliates may act as principals or agents in such transactions. This
Prospectus may be used by DWR, MS & Co., DWIL, MSIL and such other affiliates
in connection with such transactions. Such sales, if any, will be made at
varying prices related to prevailing market prices at the time of sale or
otherwise. None of DWR, MS & Co., DWIL, MSIL or any such other affiliate is
obligated to make a market in any Securities and may discontinue any
market-making activities at any time without notice.
LEGAL MATTERS
The validity of the Securities will be passed upon for the
Company by Brown & Wood LLP, or other counsel who is satisfactory to DWR,
MS & Co., DWIL or MSIL, as the case may be, and who may be an officer of
the Company. Certain legal matters relating to the Securities will be
passed upon for the Underwriters by Davis Polk & Wardwell. Davis Polk &
Wardwell has in the past represented Morgan Stanley and continues to
represent the Company on a regular basis and in a variety of matters,
including in connection with its merchant banking and leveraged capital
activities.
EXPERTS
The supplemental consolidated financial statements and
supplemental financial statement schedule of the Company and subsidiaries,
except Morgan Stanley, as of fiscal year end 1996 and 1995 and for each of the
three years in the period ended fiscal year end 1996 included in the Company's
Current Report on Form 8-K dated June 2, 1997 have been audited by Deloitte &
Touche LLP, independent auditors, as set forth in their report thereon and
incorporated herein by reference. The financial statements and financial
statement schedule of Morgan Stanley (supplementally consolidated with those
of the Company) have been audited by Ernst & Young LLP, independent auditors,
as stated in their reports incorporated herein by reference. Such
supplemental consolidated financial statements and supplemental financial
statement schedule have been incorporated herein by reference in reliance upon
the respective reports given upon the authority of such firms as experts in
accounting and auditing.
The consolidated financial statements of Dean Witter Discover
incorporated by reference and included in Dean Witter Discover's Annual Report
on Form 10-K for the fiscal year ended December 31, 1996 have been audited by
Deloitte & Touche LLP, independent auditors, as set forth in their reports
thereon and incorporated herein by reference. Such consolidated financial
statements have been incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
The consolidated financial statements of Morgan Stanley
incorporated by reference and included in Morgan Stanley's Annual Report on
Form 10-K for the fiscal year ended November 30, 1996 have been audited by
Ernst & Young LLP, independent auditors, as stated in their report thereon and
incorporated herein by reference. Such consolidated financial statements have
been incorporated herein by reference in reliance upon such report given upon
the authority of such firm as experts in accounting and auditing.
With respect to the unaudited interim financial information of
Dean Witter Discover for the periods ended March 31, 1997 and 1996, which is
incorporated herein by reference, Deloitte & Touche LLP have applied limited
procedures in accordance with professional standards for review of such
information. However, as stated in their report included in Dean Witter
Discover's Quarterly Report on Form 10-Q for the quarter ended March 31, 1997
and incorporated by reference herein, they did not audit and they do not
express an opinion on that interim financial information. Accordingly, the
degree of reliance on their report on such information should be restricted in
light of the limited nature of the review procedures applied. Deloitte &
Touche LLP are not subject to the liability provisions of Section 11 of the
Securities Act for their reports on the unaudited interim financial
information because these reports are not "reports" or a "part" of the
registration prepared or certified by an accountant within the meaning of
Sections 7 and 11 of the Securities Act.
ERISA MATTERS FOR PENSION PLANS AND INSURANCE COMPANIES
The Company and certain affiliates of the Company, including
DWR and MS & Co., may each be considered a "party in interest" within the
meaning of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or a "disqualified person" within the meaning of the Code with
respect to many employee benefit plans. Prohibited transactions within the
meaning of ERISA or the Code may arise, for example, if the Debt Securities,
Warrants or Purchase Contracts (or any Units including Debt Securities,
Warrants or Purchase Contracts) are acquired by or with the assets of a
pension or other employee benefit plan with respect to which DWR, MS & Co. or
any of their affiliates is a service provider, unless such Debt Securities
Warrants or Purchase Contracts (or any Units including Debt Securities,
Warrants or Purchase Contracts) are acquired pursuant to an exemption for
transactions effected on behalf of such plan by a "qualified professional
asset manager" or pursuant to any other available exemption. The assets of a
pension or other employee benefit plan may include assets held in the general
account of an insurance company that are deemed to be "plan assets" under
ERISA. In addition, employee benefit plans subject to ERISA (or insurance
companies deemed to be investing ERISA plan assets) purchasing Universal
Warrants or Purchase Contracts should consider the possible implications of
owning the securities underlying such instruments in the event of settlement
by physical delivery. Any insurance company or pension or employee benefit
plan proposing to invest in the Debt Securities, Warrants or Purchase
Contracts (or any Units including Debt Securities, Warrants or Purchase
Contracts) should consult with its legal counsel.
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following are the expenses of the issuance and distribution
of the securities being registered, all of which will be paid by the
registrant. Other than the registration fee and the NASD filing fee, all of
such expenses are estimated.
Registration fee............................................. $ 304.00
NASD filing fee..............................................
Blue Sky fees and expenses................................... *
Rating agency fees........................................... *
Printing and engraving expenses.............................. *
Legal fees and expenses...................................... *
Accounting fees and expenses................................. *
Unit Agents', Warrant Agents', Trustees' and Preferred
Stock Depositary's fees and
expenses (including counsel fees)...................... *
Miscellaneous................................................ *
- ---------------
* To be filed by amendment.
Item 15. Indemnification of Officers and Directors
Article VIII of the Amended and Restated Certificate of
Incorporation of the Company ("Certificate of Incorporation") and Section 6.07
of the Amended and Restated By-Laws of the Company ("By-Laws"), each as
amended to date, provide for the indemnification of directors and officers.
Under these provisions, any person who is a director or officer of the Company
or a corporation a majority of the capital stock (other than directors'
qualifying shares) of which is owned directly or indirectly by the Company (a
"Subsidiary") shall be indemnified by the Company to the fullest extent
permitted by applicable law. The Company's Certificate of Incorporation and
By-Laws also provide that the Company may, by action of the Board of
Directors, provide indemnification to any person who is or was an employee or
agent (other than a director or officer) of the Company or a Subsidiary and to
any person serving as a director, officer, partner, member, employee or agent
of another corporation, partnership, limited liability company, joint venture,
trust or other enterprise at the request of the Company or a Subsidiary, to
the same scope and effect as the foregoing indemnification of directors and
officers of the Company.
The right to indemnification under the By-Laws includes the
right to be paid the expenses incurred in connection with any proceeding in
advance of its final disposition upon receipt (unless the Company upon
authorization of the Board of Directors waives said requirement to the extent
permitted by applicable law) of an undertaking by or on behalf of such person
to repay such amount if it shall ultimately be determined that such person is
not entitled to be indemnified by the Company.
Under the By-Laws, the Company has the power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
partner, member, employee or agent of the Company or a Subsidiary, or of
another corporation, partnership, limited liability company, joint venture,
trust or other enterprise, against any expense, liability or loss whether or
not the Company or a Subsidiary would have the power to indemnify him against
such expense, liability or loss under the provisions of applicable law.
The Company has in effect insurance policies in the amount of
$75 million for general officers' and directors' liability insurance and $25
million for fiduciary liability insurance covering all of the Company's
directors and officers in certain instances where by law they may not be
indemnified by the Company.
The forms of Underwriting Agreements and Distribution
Agreements filed as Exhibits 1-a, 1-b, 1-c and 1-d hereto, and incorporated
herein by reference, contain certain provisions relating to the
indemnification of the Company's directors, officers and controlling persons.
Item 16. Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<S> <C>
1-a Forms of Underwriting Agreements for Debt Securities, Warrants, Purchase Contracts and Units.
1-b Form of Underwriting Agreement for Preferred Stock and Depositary Shares.
1-c Form of U.S. Distribution Agreement.
1-d Form of Euro Distribution Agreement.
4-a* Amended and Restated Certificate of Incorporation of the Company.
4-b Form of Certificate of Designation of Offered Preferred Stock.
4-c Form of Certificate of Offered Preferred Stock.
4-d Form of Deposit Agreement (including Form of Depositary Receipt).
4-e Senior Indenture dated as of April 15, 1989 between Morgan Stanley and The Chase Manhattan Bank
(formerly known as Chemical Bank), Trustee (previously filed as an exhibit to Morgan Stanley's
Annual Report on Form 10-K for the fiscal year ended January 31, 1993 and incorporated herein
by this reference).
4-f First Supplemental Senior Indenture, dated as of May 15, 1991, to the Senior Indenture dated as of
April 15, 1989, between Morgan Stanley and The Chase Manhattan Bank (formerly known as
Chemical Bank), Trustee (previously filed as an exhibit to Morgan Stanley's Annual Report on
Form 10-K for the fiscal year ended January 31, 1993 and incorporated herein by this reference).
4-g Second Supplemental Senior Indenture, dated as of April 15, 1996, to the Senior Indenture dated as of
April 15, 1989 between Morgan Stanley and The Chase Manhattan Bank (formerly known as
Chemical Bank), Trustee (previously filed as an exhibit to Morgan Stanley's Current Report on
Form 8-K dated May 6, 1996 and incorporated herein by this reference).
4-h* Third Supplemental Senior Indenture, dated as of June 1, 1997, to the Senior Indenture dated as of
April 15, 1989 between the Company and The Chase Manhattan Bank, Trustee.
4-i Subordinated Indenture dated as of April 15, 1989 between Morgan Stanley and The First National
Bank of Chicago, Trustee (previously filed as an exhibit to Morgan Stanley's Annual Report on
Form 10-K for the fiscal year ended January 31, 1993 and incorporated herein by this reference).
4-j First Supplemental Subordinated Indenture, dated as of May 15, 1991, to the Subordinated Indenture
dated as of April 15, 1989 between Morgan Stanley and The First National Bank of Chicago,
Trustee (previously filed as an exhibit to Morgan Stanley's Annual Report on Form 10-K for the
fiscal year ended January 31, 1993 and incorporated herein by this reference).
4-k Second Supplemental Subordinated Indenture, dated as of April 15, 1996, to the Subordinated
Indenture dated as of April 15, 1989 between Morgan Stanley and The First National Bank of
Chicago, Trustee (previously filed as an exhibit to Morgan Stanley's Current Report on Form 8-K
dated May 6, 1996 and incorporated herein by this reference).
4-l* Third Supplemental Subordinated Indenture, dated as of June 1, 1997, to the Subordinated Indenture
dated as of April 15, 1989 between the Company and The First National Bank of Chicago,
Trustee.
4-m Form of Floating Rate Senior Note.
4-n Form of Fixed Rate Senior Note.
4-o Form of Senior Variable Rate Renewable Note.
4-p Form of Floating Rate Subordinated Note.
4-q Form of Fixed Rate Subordinated Note.
4-r Form of Subordinated Variable Rate Renewable Note.
4-s Form of Temporary Global Floating Rate Senior Bearer Note.
4-t Form of Temporary Global Fixed Rate Senior Bearer Note.
4-u Form of Permanent Global Floating Rate Senior Bearer Note.
4-v Form of Permanent Global Fixed Rate Senior Bearer Note.
4-w Form of Euro Fixed Rate Senior Bearer Note.
4-x Form of Euro Fixed Rate Senior Registered Note.
4-y Form of Floating/Fixed Rate Senior Note.
4-z Form of Senior Dollarized Bull Note.
4-aa Form of S&P Indexed (Bull) Note.
4-bb Form of S&P Indexed (Bear) Note.
4-cc Form of Euro Fixed Rate Subordinated Registered Note.
4-dd Form of Principal Exchange Rate Linked Security (PERLS) Note.
4-ee Form of Reverse PERLS Note.
4-ff Form of Multicurrency PERLS Note.
4-gg Form of Fixed Rate Amortizing Senior Note.
4-hh Form of Senior Dollarized Yield Curve Note (Bond Basis).
4-ii Form of Senior Dollarized Yield Curve Note (Money Market Basis).
4-jj Form of Permanent Global Senior Bull Note.
4-kk Form of Definitive Floating Rate Senior Bearer Note.
4-ll Form of Temporary Global Senior ECU Puttable Floating Rate Note.
4-mm Form of Permanent Global Senior ECU Puttable Floating Rate Note.
4-nn Form of Debt Warrant Agreement for Warrants Sold Attached to Debt Securities.
4-oo Form of Debt Warrant Agreement for Warrants Sold Alone.
4-pp Form of Warrant Agreement for Universal Warrants.
4-qq Form of Unit Agreement.
4-rr Form of Put Warrant (included in Exhibit 4-pp).
4-ss Form of Call Warrant (included in Exhibit 4-pp).
4-tt Form of Purchase Contract (Issuer Sale) (included in Exhibit 4-qq).
4-uu Form of Purchase Contract (Issuer Purchase) (included in Exhibit 4-qq).
4-vv Form of Unit Certificate (included in Exhibit 4-qq).
5* Opinion of Brown & Wood LLP.
12-a* Computation of Consolidated Ratio of Earnings to Fixed Charges.
12-b* Computation of Consolidated Ratio of Earnings to Fixed Charges and Preferred Stock Dividends.
15 Letter of Awareness from Deloitte & Touche LLP Concerning Unaudited Financial Information.
23-a Consent of Deloitte & Touche LLP.
23-b Consent of Ernst & Young LLP.
23-c* Consent of Brown & Wood LLP (included in Exhibit 5).
24 Powers of Attorney (included on the signature pages).
25-a Statement of Eligibility of The Chase Manhattan Bank, Trustee under the Senior Debt Indenture.
25-b Statement of Eligibility of The First National Bank of Chicago, Trustee under the Subordinated Debt
Indenture.
</TABLE>
- ----------------
* To be filed by amendment.
Item 17. Undertakings
(1) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in
this registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(2) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by a registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
(3) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
registration statement or any material change to such information in this
registration statement;
provided, however, that paragraphs (3)(a)(i) and (3)(a)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in The City of New York and State of New York, on
the 28th day of May, 1997.
DEAN WITTER, DISCOVER & CO.
(Registrant)
By:/s/ Philip J. Purcell
------------------------------------------------
Name: Philip J. Purcell
Title: Chairman of the Board, Chief Executive
Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose
signature appears below hereby constitutes and appoints Christine A. Edwards,
Mitchell M. Merin, Ronald T. Carman and Michael T. Gregg and each of them
singly, his or her true and lawful attorney-in-fact and agent with full power
of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any and all amendments,
including post-effective amendments, to this Registration Statement (any of
which amendments may make such changes and additions to this Registration
Statement as such attorneys-in-fact may deem necessary or appropriate) and to
file the same, with all exhibits thereto, and any other documents that may be
required in connection therewith, granting unto said attorneys-in-fact and
agents full power and authority to be done in and about the premises, as fully
to all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities indicated on the 28th day of May 1997.
<TABLE>
<CAPTION>
Signature Title
- ----------------------------------------------------- ----------------------------------------------------
<S> <C>
/s/ Philip J. Purcell Chairman of the Board, Chief Executive Officer,
- -----------------------------------------------------
Philip J. Purcell and Director (Principal Executive Officer)
/s/ Thomas C. Schneider Executive Vice President and Chief Financial
- -----------------------------------------------------
Thomas C. Schneider Officer and Director (Principal Financial Officer)
/s/ Robert P. Seass Senior Vice President and Controller
- -----------------------------------------------------
Robert P. Seass (Principal Accounting Officer)
/s/ Edward A. Brennan Director
- -----------------------------------------------------
Edward A. Brennan
/s/ C. Robert Kidder Director
- -----------------------------------------------------
C. Robert Kidder
/s/ Miles L. Marsh Director
- -----------------------------------------------------
Miles L. Marsh
/s/ Michael A. Miles Director
- -----------------------------------------------------
Michael A. Miles
/s/ Clarence B. Rogers, Jr. Director
- -----------------------------------------------------
Clarence B. Rogers, Jr.
</TABLE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<S> <C>
1-a Forms of Underwriting Agreements for Debt Securities, Warrants, Purchase Contracts and Units.
1-b Form of Underwriting Agreement for Preferred Stock and Depositary Shares.
1-c Form of U.S. Distribution Agreement.
1-d Form of Euro Distribution Agreement.
4-a* Amended and Restated Certificate of Incorporation of the Company.
4-b Form of Certificate of Designation of Offered Preferred Stock.
4-c Form of Certificate of Offered Preferred Stock.
4-d Form of Deposit Agreement (including Form of Depositary Receipt).
4-h* Third Supplemental Senior Indenture, dated as of June 1, 1997, to the Senior Indenture dated as of
April 15, 1989 between the Company and The Chase Manhattan Bank, Trustee.
4-l* Third Supplemental Subordinated Indenture, dated as of June 1, 1997, to the Subordinated Indenture
dated as of April 15, 1989 between the Company and The First National Bank of Chicago,
Trustee.
4-m Form of Floating Rate Senior Note.
4-n Form of Fixed Rate Senior Note.
4-o Form of Senior Variable Rate Renewable Note.
4-p Form of Floating Rate Subordinated Note.
4-q Form of Fixed Rate Subordinated Note.
4-r Form of Subordinated Variable Rate Renewable Note.
4-s Form of Temporary Global Floating Rate Senior Bearer Note.
4-t Form of Temporary Global Fixed Rate Senior Bearer Note.
4-u Form of Permanent Global Floating Rate Senior Bearer Note.
4-v Form of Permanent Global Fixed Rate Senior Bearer Note.
4-w Form of Euro Fixed Rate Senior Bearer Note.
4-x Form of Euro Fixed Rate Senior Registered Note.
4-y Form of Floating/Fixed Rate Senior Note.
4-z Form of Senior Dollarized Bull Note.
4-aa Form of S&P Indexed (Bull) Note.
4-bb Form of S&P Indexed (Bear) Note.
4-cc Form of Euro Fixed Rate Subordinated Registered Note.
4-dd Form of Principal Exchange Rate Linked Security (PERLS) Note.
4-ee Form of Reverse PERLS Note.
4-ff Form of Multicurrency PERLS Note.
4-gg Form of Fixed Rate Amortizing Senior Note.
4-hh Form of Senior Dollarized Yield Curve Note (Bond Basis).
4-ii Form of Senior Dollarized Yield Curve Note (Money Market Basis).
4-jj Form of Permanent Global Senior Bull Note.
4-kk Form of Definitive Floating Rate Senior Bearer Note.
4-ll Form of Temporary Global Senior ECU Puttable Floating Rate Note.
4-mm Form of Permanent Global Senior ECU Puttable Floating Rate Note.
4-nn Form of Debt Warrant Agreement for Warrants Sold Attached to Debt Securities.
4-oo Form of Debt Warrant Agreement for Warrants Sold Alone.
4-pp Form of Warrant Agreement for Universal Warrants.
4-qq Form of Unit Agreement.
4-rr Form of Put Warrant (included in Exhibit 4-pp).
4-ss Form of Call Warrant (included in Exhibit 4-pp).
4-tt Form of Purchase Contract (Issuer Sale) (included in Exhibit 4-qq).
4-uu Form of Purchase Contract (Issuer Purchase) (included in Exhibit 4-qq).
4-vv Form of Unit Certificate (included in Exhibit 4-qq).
5* Opinion of Brown & Wood LLP.
12-a* Computation of Consolidated Ratio of Earnings to Fixed Charges.
12-b* Computation of Consolidated Ratio of Earnings to Fixed Charges and Preferred Stock Dividends.
15 Letter of Awareness from Deloitte & Touche LLP Concerning Unaudited Financial Information.
23-a Consent of Deloitte & Touche LLP.
23-b Consent of Ernst & Young LLP.
23-c* Consent of Brown & Wood LLP (included in Exhibit 5).
24 Powers of Attorney (included on the signature pages).
25-a Statement of Eligibility of The Chase Manhattan Bank, Trustee under the Senior Debt Indenture.
25-b Statement of Eligibility of The First National Bank of Chicago, Trustee under the Subordinated Debt
Indenture.
</TABLE>
- ----------------
* To be filed by amendment.
Exhibit 1-a
UNDERWRITING AGREEMENT
(Debt Securities)
_____________, 199_
Morgan Stanley, Dean Witter, Discover & Co.
1585 Broadway
New York, New York 10036
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Morgan Stanley, Dean Witter, Discover & Co., 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 Underwriters
agree to purchase, severally and not jointly, the aggregate principal amount
of the Offered Securities set forth below opposite their names at a purchase
price of , plus accrued interest, if any, from to the
date of payment and delivery (the "Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
[Dean Witter Reynolds Inc.]
[Morgan Stanley & Co. Incorporated]
[Insert syndicate list]
______________
Total...... ==============
The Underwriters 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 June 2, 1997, 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:
Other Terms:
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, Dean Witter, Discover & Co. Underwriting
Agreement Standard Provisions (Debt Securities, Warrants, Purchase Contracts
and Units) dated June 2, 1997 (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 an Offered 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,
[DEAN WITTER REYNOLDS INC.]
[MORGAN STANLEY & CO. INCORPORATED]
[Name of Other Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By MORGAN STANLEY & CO. INCORPORATED
By:__________________________________________
Name:
Title:
______________________________________________________________________________
Accepted:
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:_______________________________
Name:
Title:
UNDERWRITING AGREEMENT
(Warrants)
__________, 199_
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
1585 Broadway
New York, New York 10036
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Morgan Stanley, Dean Witter, Discover & Co., a Delaware corporation (the
"Company"), proposes to issue and sell [number and title of warrants] Warrants
(the "Offered Securities"). The Offered Securities are to be issued pursuant
to the provisions of a Warrant Agreement (the "Warrant Agreement") dated as of
[ ] between the Company and [name of Warrant Agent], as
Warrant Agent.
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the aggregate number of Offered
Securities set forth below opposite their names at a purchase price of
per Offered Security, (the "Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
[Dean Witter Reynolds Inc.]
[Morgan Stanley & Co. Incorporated]
[Insert syndicate list]
______________
Total...... ==============
The Underwriters 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 , 1997, and the Prospectus Supplement dated
, 199_, including the following:
Terms of Offered Securities
Designation of the Series of Warrants: [Call] [Put] Warrants
Warrant Property:
Aggregate Number of Warrants:
Price to Public:
Warrant Exercise Price:
Dates upon which Warrants may be exercised:
Expiration Date:
Form:
Currency in which exercise payments shall be made:
Minimum number of Warrants exercisable by any holder on any day:
Maximum number of Warrants exercisable on any day: [In the
aggregate] [By any beneficial owner]
Formula for determining Cash Settlement Value:
Exchange Rate (or method of calculation):
Exchange on which Warrants are to be listed:
Other Terms:
[Specify procedures for purchase and delivery of bearer
Universal Warrants.]
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, Dean Witter, Discover & Co., Underwriting
Agreement Standard Provisions (Debt Securities, Warrants, Purchase Contracts
and Units) dated June 2, 1997 (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 an Offered 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,
[DEAN WITTER REYNOLDS INC.]
[MORGAN STANLEY & CO. INCORPORATED]
[Name of Other Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By MORGAN STANLEY & CO. INCORPORATED
By:______________________________________
Name:
Title:
______________________________________________________________________________
Accepted:
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
UNDERWRITING AGREEMENT
(Prepaid Purchase Contracts)
__________, 199_
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
1585 Broadway
New York, New York 10036
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Morgan Stanley, Dean Witter, Discover & Co., a Delaware corporation (the
"Company"), proposes to issue and sell [number and title of purchase
contracts] Purchase Contracts (the "Offered Securities"). The Offered
Securities are to be issued pursuant to the provisions of the [Senior Debt
Indenture] [Subordinated Debt Indenture].
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the aggregate number of Offered
Securities set forth below opposite their names at a purchase price of
per Offered Security, (the "Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
[Dean Witter Reynolds Inc.]
[Morgan Stanley & Co. Incorporated]
[Insert syndicate list]
______________
Total...... ==============
The Underwriters 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 , 1997, and the Prospectus Supplement dated
, 199_, including the following:
Terms of Offered Securities
Designation of the Series of Purchase Contracts: [Purchase][Sale]
Purchase Contracts
Purchase Contract Property:
Aggregate Number of Purchase Contracts:
Price to Public:
Settlement Date:
[Purchase/Sale] Price of Purchase Contract Property
Form:
Other Terms:
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, Dean Witter, Discover & Co. Underwriting
Agreement Standard Provisions (Debt Securities, Warrants, Purchase Contracts
and Units) dated June 2, 1997 (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 an Offered 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,
[DEAN WITTER REYNOLDS INC.]
[MORGAN STANLEY & CO. INCORPORATED]
[Name of Other Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By MORGAN STANLEY & CO. INCORPORATED
By:_____________________________________
Name:
Title:
______________________________________________________________________________
Accepted:
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:______________________________
Name:
Title:
UNDERWRITING AGREEMENT
(Units)
__________, 199_
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
1585 Broadway
New York, New York 10036
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Morgan Stanley, Dean Witter, Discover & Co., a Delaware corporation (the
"Company"), proposes to issue and sell [number and title of units] Units (the
"Offered Securities") consisting of [$ aggregate principal amount of
% Notes Due ] [number and title of Warrants] [number and title
of Purchase Contracts]. The Offered Securities are to be issued pursuant to
the provisions of a Unit Agreement (the "Unit Agreement") dated as of [
] among the Company, The Chase Manhattan Bank, as Agent, and the
holders from time to time of the Units. [The Notes included in the Offered
Securities will be issued pursuant to the [specify the indenture].] [The
Warrants included in the Offered Securities will be issued pursuant the
[specify the warrant agreement.]] [The Purchase Contracts included in the
Offered Securities will be issued pursuant to the Unit Agreement.]
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the aggregate number of Offered
Securities set forth below opposite their names at a purchase price of
, plus accrued interest, if any, from to the date of payment and
delivery (the "Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
[Dean Witter Reynolds Inc.]
[Morgan Stanley & Co. Incorporated]
[Insert syndicate list]
______________
Total...... ==============
The Underwriters 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 June 2, 1997, and the Prospectus Supplement dated
, 199_, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: _________________,
commencing ____________ (Interest accrues from ____________)
Form and Denomination:
Ranking:
Other Terms:
Terms of Warrants
Designation of the Series of Warrants: [Call] [Put] Warrants
Warrant Property:
Aggregate Number of Warrants:
Warrant Exercise Price:
Dates upon which Warrants may be exercised:
Expiration Date:
Currency in which exercise payments shall be made:
[Maximum number of Warrants exercisable on any day: [In the
aggregate] [By any beneficial owner]]
Formula for determining Cash Settlement Value:
Exchange Rate (or method of calculation):
Other Terms:
Terms of Purchase Contracts
Designation of the Series of Purchase Contracts:
[Purchase][Sale] Purchase Contracts
Purchase Contract Property:
Aggregate Number of Purchase Contracts:
Price to Public:
Settlement Date:
[Purchase/Sale] Price of Purchase Contract Property
Form:
Other Terms:
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, Dean Witter, Discover & Co. Underwriting
Agreement Standard Provisions (Debt Securities, Warrants, Purchase Contracts
and Units) dated June 2, 1997 (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 an Offered 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,
[DEAN WITTER REYNOLDS INC.]
[MORGAN STANLEY & CO. INCORPORATED]
[Name of Other Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By MORGAN STANLEY & CO. INCORPORATED
By:______________________________________
Name:
Title:
______________________________________________________________________________
Accepted:
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:_________________________________
Name:
Title:
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES, WARRANTS, PURCHASE CONTRACTS AND UNITS)
June 2, 1997
From time to time, Morgan Stanley, Dean Witter, Discover & Co.,
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 proposes to issue from time to time (a) its debt
securities ("Debt Securities"), (b) warrants to purchase Debt Securities
("Debt Warrants") or to purchase or sell (i) securities of an entity
unaffiliated with the Company, a basket of such securities, an index or
indices of such securities or any combination of the above, (ii) currencies or
composite currencies or (iii) commodities ("Universal Warrants", and together
with Debt Warrants, the "Warrants") and (c) purchase contracts ("Purchase
Contracts") requiring the holders thereof to purchase or sell (i) securities
of an entity unaffiliated with the Company, a basket of such securities, an
index or indices of such securities or any combination of the above, (ii)
currencies or composite currencies or (iii) commodities. Debt Securities,
Purchase Contracts and Warrants or any combination thereof may be offered in
the form of Units ("Units"). As used herein, the term "Debt Securities"
includes prepaid Purchase Contracts.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement including a prospectus
relating to the Debt Securities, Warrants, Purchase Contracts and Units
(collectively, the "Securities") 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") pursuant to
Rule 424 under the Securities Act of 1933, as amended (the "Securities Act"),
specifically relating to the Securities offered pursuant to this Agreement
(the "Offered Securities"). 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, 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 as of the date of the Underwriting
Agreement :
(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, a Second Supplemental Senior Indenture dated as of April 15, 1996 and a
Third Supplemental Senior Indenture dated as of June 1, 1997 (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, a Second Supplemental
Subordinated Indenture dated as of April 15, 1996 and a Third Supplemental
Subordinated Indenture dated as of June 1, 1997 (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 or by Morgan Stanley Group Inc. (a predecessor to the Company)
("Morgan Stanley") and assumed 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 Universal 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.
(i) The Unit 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.
(j) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the relevant
Indenture, the Debt Warrant Agreement, the Universal Warrant Agreement and the
Unit 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 the Debt Warrants pursuant to
the Debt Warrant Agreement, in the case of Debt Warrant Securities, will be
entitled to the benefits of the relevant Indenture, the Debt Warrant
Agreement, the Universal Warrant Agreement and the Unit 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.
(k) 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.
(l) 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
Delayed Delivery Contracts, the Debt Warrant Agreement, the Universal Warrant
Agreement and the Unit 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 consolidated subsidiaries, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is required
for the performance by the Company of its obligations under this Agreement,
the Senior Debt Indenture, the Subordinated Debt Indenture, the Offered
Securities, any Delayed Delivery Contract, the Debt Warrant Agreement, the
Universal Warrant Agreement and the Unit 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
Offered Securities constitutes a "prohibited transaction" under Section 406 of
the Employee Retirement Income Security Act of 1974, as amended, or Section
4975 of the Internal Revenue Code of 1986, as amended.
(m) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto effected
subsequent to the date of the Underwriting Agreement).
(n) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its consolidated subsidiaries is a
party or to which any of the properties of the Company or any of its
consolidated subsidiaries is subject 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.
(o) Each of the Company and its consolidated subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license and
use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to obtain
or file would not have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole.
(p) Dean Witter Reynolds Inc. is registered as a broker-dealer and
investment adviser with the Commission, is registered with the Commodity
Futures Trading Commission as a futures commission merchant and is a member of
the New York Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc.
(q) 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.
(r) 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 one full business day 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
(i) that are Debt Securities in bearer form or are Units that contain Debt
Securities in bearer form shall be effected by delivery of a single temporary
global Security without coupons (the "Temporary Global Security") evidencing
the Offered Securities that are or include Debt Securities in bearer form and
(ii) that are Debt Warrants in bearer form or are Units that (a) contain Debt
Warrants in bearer form and (b) contain no other Debt Securities 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
or include 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
Temporary Global 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 Temporary Global
Security or Global Debt Warrant, as the case may be, by the method and in the
form set forth herein. The Company shall cause global and, if applicable,
definitive Debt Securities in bearer form to be prepared and delivered in
exchange for such Temporary Global 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
Temporary Global Security shall be exchangeable for other 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;
(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 consolidated
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; and
(iii) 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.
(b) The Manager shall have received on the Closing Date an opinion of
Brown & Wood LLP, counsel to the Company, or of other counsel satisfactory to
the Manager and who may be 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 Dean Witter Reynolds Inc., Greenwood Trust Company,
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 each of
the Third Supplemental Senior Indenture and the Third Supplemental
Subordinated Indenture has been duly authorized, executed and delivered by the
Company and each of the Senior Debt Indenture and the Subordinated Debt
Indenture has been assumed 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 Universal 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;
(vii) the Unit 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;
(viii) the Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the relevant
Indenture, the Debt Warrant Agreement, the Universal Warrant Agreement and the
Unit 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 the Debt Warrants pursuant to
the Debt Warrant Agreement, in the case of Debt Warrant Securities, will be
entitled to the benefits of the relevant Indenture, the Debt Warrant
Agreement, the Universal Warrant Agreement and the Unit 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 the
enforceability thereof (a) 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 Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(x) 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 the enforceability thereof (a) 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;
(xi) 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 Delayed Delivery Contracts, the Debt Warrant
Agreement, the Universal Warrant Agreement and the Unit 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
consolidated 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 Delayed Delivery Contract, the Debt Warrant Agreement,
the Universal Warrant Agreement and the Unit 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 Offered Securities constitutes a "prohibited transaction"
under Section 406 of the Employee Retirement Income Security Act of 1974, as
amended, or Section 4975 of the Internal Revenue Code of 1986, as amended;
(xii) the statements (1) in the Prospectus under the captions
"Description of Debt Securities", "Description of Warrants", "Description of
Purchase Contracts", "Description of Units" and "Plan of Distribution", (2) in
the Registration Statement under Item 15, (3) in "Item 3 - Legal Proceedings"
of the most recent annual reports on Form 10-K incorporated by reference in
the Prospectus and (4) in "Item 1 - Legal Proceedings" of Part II of the
quarterly reports on Form 10-Q, if any, filed since such annual reports and
incorporated by reference in the Prospectus, in each case insofar as such
statements constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize the matters
referred to therein;
(xiii) 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
(xiv) 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) has no reason to believe that any 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 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 Forms T-1) as of the date such opinion is delivered
contains any untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (3) 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) has no reason to believe
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 contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(c) 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), (ix), (x), (xii) (but only as to statements in the Prospectus
under "Description of Debt Securities", "Description of Warrants",
"Description of Purchase Contracts", "Description of Units" and "Plan of
Distribution"), and (xiv) (2), (3) and (4) of paragraph (b) above.
With respect to subparagraph (xiv) of paragraph (b) above, if such
opinion is given by counsel who is also an officer of the Company, such
counsel may state that his or her opinion and belief are based upon his or her
participation, or the participation of someone under his or her supervision,
in the preparation of the Registration Statement and Prospectus and documents
incorporated therein by reference and review and discussion of the contents
thereof, but are without independent check or verification, except as
specified. With respect to subparagraph (xiv) of paragraph (c) above, Davis
Polk & Wardwell and, if Brown & Wood LLP is giving such opinion, Brown & Wood
LLP 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.
(d) 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, warrants, purchase contracts or units 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:
(i) 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;
(ii) 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;
(iii) 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);
(iv) 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 (a) obtain from such affiliate for the
benefit of the Company the representations and agreements contained in clauses
(i), (ii) and (iii) above or (b) repeat and confirm the representations and
agreements contained in clauses (i), (ii) and (iii) above on such affiliate's
behalf and obtain from such affiliate the authority to so obligate it;
(v) it will obtain for the benefit of the Company the
representations and agreements contained in clauses (i), (ii), (iii) and (iv)
above from any person other than 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
(vi) 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). The term "Debt Securities in bearer form", as used in
the preceding paragraph, includes Units containing Debt Securities in bearer
form. 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:
(i) 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;
(ii) 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;
(iii) 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);
(iv) if it transfers to any affiliate Debt Warrants in bearer
form for the purpose of offering or selling such Debt Warrants, it will either
(a) obtain from such affiliate for the benefit of the Company the
representations and agreements contained in clauses (i), (ii) and (iii) above
or (b) repeat and confirm the representations and agreements contained in
clauses (i), (ii) and (iii) above on such affiliate's behalf and obtain from
such affiliate the authority to so obligate it;
(v) it will obtain for the benefit of the Company the
representations and agreements contained in clauses (i), (ii), (iii) and (iv)
above from any person other than 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
(vi) 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.
As used in the preceding paragraph, the term "Debt Warrants in bearer form"
includes Units containing Debt Warrants in bearer form. 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.
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 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,
Dean Witter, Discover & Co., 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 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:____________________________
Name:
Title:
Address:
_____________________________________________________________________________
Accepted:
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
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.
(including area
Name code) Department
------------------ ----------------- ------------
------------------ ----------------- ------------
------------------ ----------------- ------------
------------------ ----------------- ------------
SCHEDULE A
Securities:
Principal amounts or Numbers to be Purchased:
Purchase Price:
Delivery Dates:
Exhibit 1-b
UNDERWRITING AGREEMENT
(Preferred Stock and Depositary Shares)
_______ __, 199_
Morgan Stanley, Dean Witter,
Discover & Co.
1585 Broadway
New York, New York 10036
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Morgan Stanley, Dean Witter, Discover & Co., a Delaware corporation (the
"Company"), proposes to [issue and sell ____________ shares of its ___%
Cumulative Preferred Stock, par value $.01 per share, stated value $____ per
share (the "Firm Offered Securities")](1) [sell ______ Depositary Shares (the
"Firm Offered Securities"), each representing a [fraction] interest in its __%
Cumulative Preferred Stock, par value $.01 per share, stated value $______ per
share].(2) The Company also proposes to [issue and sell not more than an
additional ___________ shares of its ___% Cumulative Preferred Stock, par
value $.01 per share, stated value $___ per share (the "Additional Offered
Securities"),](1 ) [issue and sell not more than an additional ________
Depositary Shares (the "Additional Offered Securities"), each representing a
[fraction] interest in its __% Cumulative Preferred Stock, par value $.01 per
share, stated value $______ per share,](2) if and to the extent that we shall
have determined to exercise, on behalf of the Underwriters, the right to
purchase such Additional Offered Securities referred to below. The Firm Offered
Securities and the Additional Offered Securities are hereinafter collectively
referred to as the "Offered Securities" or as the ["Preferred
Shares"/"Depositary Shares"].(3) [The Depositary Shares will be issued by
______________ (the "Depositary") pursuant to the terms of a Deposit Agreement
(the "Deposit Agreement") to be entered into among the Company, the
Depositary, and the holders from time to time of Depositary Receipts issued
thereunder. The Depositary Shares will be evidenced by Depositary Receipts
issued pursuant to the Deposit Agreement (the "Depositary Receipts"). The
shares of the Company's ___% Cumulative Preferred Stock, without par value,
stated value $________ per share, relating to the Depositary Shares are
hereinafter referred to as the "Underlying Preferred Shares".](4)
- ------------
(1) Include only for issuances of Preferred Stock.
(2) Include only for issuances of Depositary Shares representing interests in
Preferred Stock.
(3) Delete as appropriate.
(4) Include only for issuances of Depositary Shares representing interests in
Preferred Stock.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the number of Firm Offered Securities
set forth below opposite their names at $____ per share plus accrued
dividends, if any, from ________ __, 199_ to the date of payment and delivery:
Number of Firm
Offered Securities
Underwriter To Be Purchased
[Dean Witter Reynolds Inc.]
[Morgan Stanley & Co. Incorporated]
[Insert syndicate list]
______________
Total...... ==============
The Underwriters will pay for such Firm 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 the Manager. The time and date of such
payment and delivery are hereinafter referred to as the "Closing Date."
Subject to the terms and conditions set forth herein and
incorporated by reference herein, the Company hereby agrees to sell to the
Underwriters the Additional Offered Securities, and the Underwriters shall
have a one-time right to purchase, severally and not jointly, up to __________
Additional Offered Securities at the purchase price set forth above plus
accrued dividends, if any. Additional Offered Securities may be purchased
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Offered Securities.
If any Additional Offered Securities are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Offered Securities (subject to such adjustments to eliminate
fractional shares as we may determine) that bears the same proportion to the
total number of Additional Offered Securities to be purchased as the number of
Firm Offered Securities set forth above opposite the name of such Underwriter
bears to the total number of Firm Offered Securities. The Underwriters will
pay for any Additional 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 such date (which may be the same as the Closing Date
but shall in no event be earlier than the Closing Date nor later than ten
business days after the giving of the notice hereinafter referred to) as shall
be designated in a written notice from us to the Company of our determination,
on behalf of the Underwriters, to purchase a number, specified in such notice,
of Additional Offered Securities. The time and date of such payment are
hereinafter referred to as the "Option Closing Date." The notice of the
determination to exercise the option to purchase Additional Offered Securities
may be given at any time within 30 days after the date of this Agreement. The
several obligations of the Underwriters to purchase Additional Offered
Securities are subject to the delivery to us on the Option Closing Date of
such documents as we may reasonably request with respect to the good standing
of the Company, the due authorization and issuance of the Additional Offered
Securities [, the Underlying Preferred Shares](5) and other matters related to
the issuance of the Additional Offered Securities [and the Underlying
Preferred Shares]*.
(5) Include only for issuances of Depositary Shares representing interests in
Preferred Stock.
The Offered Securities [and the Underlying Preferred Shares]*
shall have the terms set forth in the Prospectus dated June 2, 1997 and the
Prospectus Supplement dated __________ __, 199_, including the following:
Terms of [Underlying]* Preferred Shares
Dividends:
Rate:
Dividend Payment Dates: _______ __, _______ __,_______ __, and
_______ __, commencing _______ __, 199_; Dividends cumulate from _______ __,
199_ Liquidation Preference: $_____ per share
Redemption:
[Other Terms:]
[Terms of Depositary Shares
Dividends:
Rate:
Dividend Payment Dates: _______ __, _______ __, _______ __, and
_______ __, commencing _______ __, 199_; Dividends cumulate from _______ __,
199_
Liquidation Preference: $_____ per share (equivalent to $____
per Underlying Preferred Share)
Redemption:
[Other Terms:]](6)
- ------------
(6) Include only for issuances of Depositary Shares representing interests in
Preferred Stock.
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 the provisions contained in the
document entitled Morgan Stanley, Dean Witter, Discover & Co. Underwriting
Agreement Standard Provisions (Preferred Stock and Depositary Shares) dated
June 2, 1997, (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 [and (ii) all references in such document to Depositary Shares,
Depositary Receipts, Underlying Preferred Shares and the Deposit Agreement
shall not be deemed to be part of this Agreement].(7)
- ------------
(7) Include only for issuances of Preferred Stock.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
[DEAN WITTER REYNOLDS INC.]
[MORGAN STANLEY & CO. INCORPORATED]
[Name of Other Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By MORGAN STANLEY & CO.
INCORPORATED
By:
----------------------------------
Name:
Title:
Accepted:
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:
----------------------------------
Name:
Title:
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(PREFERRED STOCK AND DEPOSITARY SHARES)
June 2, 1997
From time to time, Morgan Stanley, Dean Witter, Discover & Co.
, 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 Offered Securities and the Underlying Preferred Shares 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 Underlying Preferred Shares 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
Underlying Preferred Shares 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").
1. Representations and Warranties. The Company represents and
warrants to each of the Underwriters as of the date of the Underwriting
Agreement 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) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities
Act and the rules and regulations of the Commission thereunder.
(c) 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 paragraph (c) do
not apply 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.
(d) The Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
the State of Delaware, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole.
(e) Each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus and 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.
(f) The authorized capital stock of the Company, the
Offered Securities, any Underlying Preferred Shares, any Depositary
Shares and any Deposit Agreement conform as to legal matters to the
descriptions thereof contained in the Prospectus.
(g) The Preferred Shares or the Underlying Preferred
Shares, as the case may be, have been duly authorized and, when such
shares are issued and delivered as contemplated by the terms of this
Agreement, such shares will be validly issued, fully paid and non-
assessable, and the issuance of such shares is not subject to any
preemptive or similar rights.
(h) The deposit of the Underlying Preferred Shares
by the Company in accordance with any Deposit Agreement has been duly
authorized and, when the Depositary Shares are issued and delivered in
accordance with the terms of this Agreement, the Depositary Shares
will represent legal and valid interests in the Underlying Preferred
Shares.
(i) Assuming due authorization, execution and
delivery of any Deposit Agreement by the Depositary, each Depositary
Share, if any, will represent the interest described in the Prospectus
in a validly issued, outstanding, fully paid and non-assessable
Underlying Preferred Share; assuming due execution and delivery of the
Depositary Receipts, if any, by the Depositary pursuant to such
Deposit Agreement, the Depositary Receipts will entitle the holders
thereof to the benefits provided therein and in the Deposit Agreement.
(j) This Agreement has been duly authorized,
executed and delivered by the Company.
(k) The Deposit Agreement, if any, has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company.
(l) The execution and delivery by the Company of,
and the performance by the Company of its obligations under, this
Agreement, the Certificate of Designation relating to the Preferred
Shares or the Underlying Preferred Shares, as the case may be (the
"Preferred Shares Certificate of Designation"), and the Deposit
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 Preferred Shares Certificate of
Designation and the Deposit 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 Preferred Stock or Depositary Shares constitutes a
"prohibited transaction" under Section 406 of the Employee Retirement
Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended.
(m) There has not occurred any material adverse
change, or any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto effected subsequent to the date of
the Underwriting Agreement).
(n) 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.
(o) 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.
(p) Dean Witter Reynolds Inc. is registered as a
broker-dealer and investment adviser with the Commission, is
registered with the Commodity Futures Trading Commission as a futures
commission merchant and is a member of the New York Stock Exchange,
Inc. and the National Association of Securities Dealers, Inc.
(q) 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.
(r) 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. Public Offering. The Company is advised by the Manager that
the Underwriters propose to make a public offering of their respective portions
of the Offered 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
Offered Securities are set forth in the Prospectus.
3. Purchase and Delivery. Payment for the Firm Offered Securities
and any Additional Offered Securities shall be made to the Company in
immediately available funds at the time and place set forth in the Underwriting
Agreement.
Payment for any Firm Offered Securities and Additional Offered
Securities which are in the form of Depositary Shares shall be made against
delivery to you on the Closing Date or the Option Closing Date, as the case
may be, for the respective accounts of the several Underwriters of Depositary
Receipts evidencing such Firm Offered Securities or Additional Offered
Securities, as the case may be, registered in such names and in such
denominations as the underwriters shall request in writing not later than two
full business days prior to the Closing Date or the Option Closing Date, as the
case may be, with any transfer taxes payable in connection with the transfer of
such Offered Securities to the Underwriters duly paid.
Certificates for any Firm Offered Securities and Additional
Offered Securities shall be in definitive forms and registered in such names
and in such denominations as the underwriters shall request in writing not
later than two full business days prior to the Closing Date or the Option
Closing Date, as the case may be. The certificates evidencing such Firm
Offered Securities and Additional Offered Securities shall be delivered to you
on the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of such Offered Securities to the
Underwriters duly paid, against payment of the purchase price therefor.
4. 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 Brown & Wood LLP, counsel to the Company, or
of other counsel satisfactory to the Manager and who may be 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 Dean Witter Reynolds, Greenwood
Trust Company, 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) the authorized capital stock of the
Company, the Offered Securities, any Underlying Preferred
Shares, any Depositary Shares and any Deposit Agreement
conform as to legal matters to the descriptions thereof
contained in the Prospectus;
(v) the Preferred Shares or the Underlying
Preferred Shares, as the case may be, have been duly
authorized and, when such shares are issued and delivered
as contemplated by the terms of this Agreement, such
shares will be validly issued, fully paid and non-
assessable, and the issuance of such shares is not subject
to any preemptive or similar rights;
(vi) the deposit of the Underlying Preferred
Shares by the Company in accordance with any Deposit
Agreement has been duly authorized and, when the
Depositary Shares are issued and delivered in accordance
with the terms of this Agreement, the Depositary Shares
will represent legal and valid interests in the Underlying
Preferred Shares;
(vii) assuming due authorization, execution and
delivery of any Deposit Agreement by the Depositary, each
Depositary Share, if any, will represent the interest
described in the Prospectus in a validly issued,
outstanding, fully paid and non-assessable Underlying
Preferred Share; assuming due execution and delivery of
the Depositary Receipts, if any, by the Depositary
pursuant to such Deposit Agreement, the Depositary
Receipts will entitle the holders thereof to the benefits
provided therein and in the Deposit Agreement;
(viii) this Agreement has been duly authorized,
executed and delivered by the Company;
(ix) the Deposit Agreement, if any, has been
duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company;
(x) the execution and delivery by the Company
of, and the performance by the Company of its obligations
under, this Agreement, the Preferred Shares Certificate of
Designation and the Deposit 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, 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 Preferred Shares
Certificate of Designation and the Deposit 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 Offered Securities; provided,
however, that such counsel need not express an opinion as
to whether the purchase of the Preferred Stock or
Depositary Shares 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;
(xi) the statements (1) in the Basic Prospectus
under "Description of Capital Stock" and "Plan of
Distribution," (2) in the Prospectus Supplement under
"Description of Cumulative Preferred Stock," "Description
of Depositary Shares" and "Underwriters," (3) in the
Registration Statement under Item 15, (4) in "Item 3 -
Legal Proceedings" of the most recent annual reports on
Form 10-K incorporated by reference in the Prospectus and
(5) in "Item 1 - Legal Proceedings," of Part II of the
quarterly reports on Form 10-Q, if any, filed since such
annual reports and incorporated by reference in the
Prospectus, in each case insofar as such statements
constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(xii) 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
(xiii) such counsel (1) is of the opinion that
each document 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) has no reason to believe that any part of
the Registration Statement (except as to financial
statements and schedules included therein, as to which
such counsel need not express any belief) on the date 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) 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 (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 (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 contains any untrue statement of a material fact
or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading.
(d) The Manager shall have received on the Closing
Date an opinion of Davis Polk & Wardwell, counsel for the
Underwriters, dated the Closing Date, covering the matters
referred to in subparagraphs (iv), (v), (vi), (vii), (viii),
(ix), clauses (1) and (2) of (xi) and clauses (2), (3) and (4)
of (xiii) of paragraph (c) above.
With respect to paragraph (xiii) above, if such opinion is
given by counsel who is also an officer of the Company such counsel may state
that his or her opinion and belief are based upon his or her participation, or
the participation of someone under his or her supervision, in the preparation
of the Registration Statement and Prospectus and any amendments or supplements
thereto and documents incorporated therein by reference and review and
discussion of the contents thereof, but are without independent check or
verification, except as specified. With respect to subparagraph (xiii) of
paragraph (c) above, Davis Polk & Wardwell and, if Brown & Wood LLP is giving
such opinion, Brown & Wood LLP may state that their opinion and belief are
based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto (other than
the documents incorporated by reference) and review and discussion of the
contents thereof (including documents incorporated 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.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish to 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) To use its best efforts to accomplish the
listing of the Offered Securities on the New York Stock
Exchange.
(g) 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 preferred stock of the Company substantially
similar to the Offered Securities (other than the Offered
Securities), without the prior written consent of the Manager.
(h) 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 Depositary and its counsel, (iv) the
qualification of the Offered Securities under securities or
blue sky laws in accordance with the provisions of Section
5(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.
6. 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 or 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 of this Section 6 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 of 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 6 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 6, 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' obligations to contribute pursuant to this Section 6 are several
in proportion to their respective underwriting percentages (as defined in the
Agreement Among Underwriters) and not joint. 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.
7. 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.
8. Defaulting Underwriters. If, on the Closing Date or the Option
Closing Date, as the case may be, any one or more of the Underwriters shall
fail or refuse to purchase Offered Securities that it has or they have agreed
to purchase hereunder on such date, and the aggregate number 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 number of
the Offered Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the number of Firm Offered
Securities set forth opposite their respective names in the Underwriting
Agreement bears to the aggregate number of Firm Offered 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 Offered Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the number of
Offered Securities that any Underwriter has agreed to purchase pursuant to the
Underwriting Agreement be increased pursuant to this Section 8 by an amount
in excess of one-ninth of such number 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 Firm Offered Securities and the
aggregate number of Firm Offered Securities with respect to which such default
occurs is more than one-tenth of the aggregate number of Firm Offered
Securities to be purchased on such date, and arrangements satisfactory to the
Manager and the Company for the purchase of such Firm 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.
If, on the Option Closing Date, any Underwriter or Underwriters shall fail or
refuse to purchase Additional Offered Securities and the aggregate number of
Additional Offered Securities with respect to which such default occurs is
more than one-tenth of the aggregate number of Additional Offered Securities
to be purchased on such date, the non-defaulting Underwriters shall have the
option to (i) terminate their obligation hereunder to purchase Additional
Offered Securities or (ii) purchase not less than the number of Additional
Offered Securities that such non-defaulting Underwriters would have been
obligated to purchase in the absence of such default. 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
the Offered Securities.
9. 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.
10. 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 6, and no
other person will have any right or obligation hereunder.
11. 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.
12. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws 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.
Exhibit 1-c
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
$[ ],000,000,000
Global Medium-Term Notes, Series C
Global Units, Series C
U.S. DISTRIBUTION AGREEMENT
June 2, 1997
Dean Witter Reynolds Inc.
Two World Trade Center
65th Floor
New York, New York 10048
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
Morgan Stanley, Dean Witter, Discover & Co., 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 $[ ],000,000,000
(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 the date of issue (the "Notes")
and its Global Units, Series C (the "Units" and together with the Notes, the
"Program Securities"), in each case subject to reduction as a result of the
sale of the Company's (i) Global Medium-Term Notes, Series D and Series E, to
be sold primarily outside of the United States, (ii) Global Units, Series D
and Series E, to be sold primarily outside of the United States, and (iii)
the sale of certain of the Company's other debt securities, warrants,
preferred stock, purchase contracts and units.
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, either
alone or as part of a Unit, 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, each between Morgan Stanley Group Inc. and The
Chase Manhattan Bank (formerly known as Chemical Bank), as trustee (the
"Senior Debt Trustee"), and a third supplemental senior indenture (the "Third
Supplemental Senior Indenture") dated as of June 1, 1997, between the Company
(as successor to Morgan Stanley) and the Senior Debt Trustee (as so
supplemented and as may be further supplemented or amended from time to time,
the "Senior Debt Indenture"). 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, each between Morgan Stanley and The First National Bank of
Chicago, as trustee (the "Subordinated Debt Trustee"), and a third
supplemental subordinated indenture (the "Third Supplemental Subordinated
Indenture") dated as of June 1, 1997, between the Company (as successor to
Morgan Stanley) and the Subordinated Debt Trustee (as so supplemented and as
may be further supplemented or amended from time to time, the "Subordinated
Debt Indenture"). The Senior Debt Indenture and the Subordinated Debt
Indenture are sometimes hereinafter referred to individually as an
"Indenture" and collectively as the "Indentures," and the Senior Debt
Trustee and the Subordinated Debt Trustee are sometimes hereinafter
referred to individually as a "Trustee" and collectively as the "Trustees."
The Units will be issued pursuant to the Unit Agreement dated
as of June 2, 1997, among the Company, The Chase Manhattan Bank, as Unit
Agent, as Collateral Agent, as Trustee and Paying Agent under the Indenture
referred to therein, and as Warrant Agent under the Warrant Agreement referred
to therein and the holders from time to time of the Units described therein.
Units may include one or more (i) Series C Senior Notes, (ii) warrants
("Universal Warrants") entitling the holders thereof to purchase or sell (a)
securities of an entity unaffiliated with the Company, a basket of such
securities, an index or indices of such securities or any combination of the
above, (b) currencies or composite currencies or (c) commodities, (iii)
purchase contracts ("Purchase Contracts") requiring the holders thereof to
purchase or sell (a) securities of an entity unaffiliated with the Company, a
basket of such securities, an index or indices of such securities or any
combination of the above, (b) currencies or composite currencies or (c)
commodities or (iv) any combination thereof. The applicable prospectus
supplement will specify whether Notes, Universal Warrants and Purchase
Contracts comprised by a Unit may or may not be separated from any series of
Units. Universal Warrants issued as part of a Unit will be issued pursuant to
the Universal Warrant Agreement dated as of June 2, 1997 (the "Universal
Warrant Agreement") between the Company and The Chase Manhattan Bank, as
Warrant Agent. Purchase Contracts entered into by the Company and the holders
thereof will be governed by the Unit Agreement.
The Notes, whether issued alone or as part of a Unit, will have
the maturities, interest rates, redemption provisions, if any, and other terms
as set forth in supplements to the Basic Prospectus referred to below. The
Universal Warrants issued as part of a Unit will have the exercise prices,
exercise dates, expiration dates and other terms as set forth in supplements
to the Basic Prospectus. The Purchase Contracts issued as part of a Unit
will have the closing dates, purchase or sale prices and other terms as set
forth in supplements to the Basic Prospectus.
The Company hereby appoints you as its exclusive agents for
the purpose of soliciting and receiving offers to purchase Program
Securities from the Company by others and, on the basis of the
representations and warranties herein contained, but subject to the terms
and conditions herein set forth, you agree to use reasonable efforts to
solicit and receive offers to purchase Program Securities upon terms
acceptable to the Company at such times and in such amounts as the Company
shall from time to time specify. In addition, you may also purchase
Program Securities as principal pursuant to the terms of a terms agreement
relating to such sale (in the case of Notes, a "Notes Terms Agreement" and,
in the case of Units, a "Units Terms Agreement") in accordance with the
provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a
prospectus, relating to the Program Securities. Such registration statement,
including the exhibits thereto, as amended at the Commencement Date (as
hereinafter defined), is hereinafter referred to as the "Registration
Statement." The Company proposes to file with the Commission from time to
time, pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"), supplements to the prospectus included in the Registration
Statement that will describe certain terms of the Program Securities. 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 Program Securities, as of each date on
which the Company accepts an offer to purchase Program Securities (including
any purchase by you as principal pursuant to a Notes Terms Agreement or a
Units Terms Agreement), as of each date the Company issues and delivers
Program Securities and as of each date the Registration Statement or the Basic
Prospectus is amended or supplemented, as follows (it being understood that
such representations, warranties and agreements shall be deemed to relate to
the Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective,
did not contain and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder and
(iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that (1) the representations and warranties set forth in this
Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
you furnished to the Company in writing by you expressly for use therein or
(B) to those parts of the Registration Statement that constitute the
Statements of Eligibility (Form T-1) under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), of the Trustees and (2) the
representations and warranties set forth in clauses (iii) and (iv) above,
when made as of the Commencement Date or as of any date on which you
solicit offers to purchase Program Securities or on which the Company
accepts an offer to purchase Program Securities, shall be deemed not to
cover information concerning an offering of particular Program Securities
to the extent such information will be set forth in a supplement to the
Basic Prospectus.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Delaware,
has the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company and its 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 Notes
Terms Agreement or Written Units Terms Agreement (each as hereinafter
defined) has been duly authorized, executed and delivered by the Company.
(f) Each Indenture has been duly qualified under the Trust
Indenture Act and each of the Indentures, the Unit Agreement and the
Universal Warrant Agreement has been duly authorized, executed and
delivered by the Company or by Morgan Stanley Group Inc. (a predecessor to
the Company) and assumed by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its terms except
as the enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered at a
proceeding in equity or at law.
(g) The forms of Notes, whether issued alone or as part of a Unit,
have been duly authorized and established in conformity with the provisions of
the relevant Indenture and, when the Notes 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 forms of Units, including the forms of Universal Warrants
and Purchase Contracts which, in addition to the Notes, may comprise such
Units, have been duly authorized and established in conformity with the
provisions of (i) in the case of the Units and Purchase Contracts, the Unit
Agreement and (ii) in the case of Universal Warrants, the Universal Warrant
Agreement. When the Units have been delivered to and duly paid for by the
purchasers thereof and (A) any Purchase Contracts included in such Units have
been executed by the Company and countersigned and executed by the Unit Agent
and (B) any Universal Warrants included in such Units have been executed by
the Company and countersigned by the Warrant Agent, the Units (including any
such Purchase Contracts or Universal Warrants contained therein) will be
entitled to the benefits of the Unit Agreement and, in the case of the
Universal Warrants, the Universal Warrant Agreement and will be valid and
binding obligations of the Company, enforceable in accordance with their
respective terms except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered at a proceeding in equity or at law.
(i) The execution and delivery by the Company of this Agreement,
the Notes (whether issued alone or as part of a Unit), the Units (including
any Purchase Contracts and Universal Warrants included therein) the
Indentures, the Unit Agreement, the Universal Warrant Agreement and any
applicable Written Notes Terms Agreement or Written Units Terms Agreement
and the performance by the Company of its obligations under this Agreement,
the Notes, the Units, the Indentures, the Unit Agreement, the Universal
Warrant Agreement and any applicable Notes Terms Agreement or Units Terms
Agreement will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any agreement or
other instrument binding upon the Company or any of its subsidiaries that
is material to the Company and its 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 Units, the Indentures, the Unit
Agreement, the Universal Warrant Agreement and any applicable Notes Terms
Agreement or Units Terms Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Program Securities; provided, however, that no
representation is made or warranty given as to whether the purchase of the
Program Securities constitutes a "prohibited transaction" under Section 406
of the Employee Retirement Income Security Act of 1974, as amended, or
Section 4975 of the Internal Revenue Code of 1986, as amended.
(j) 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.
(k) 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.
(l) 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.
(m) Dean Witter Reynolds Inc. is registered as a broker-dealer and
investment adviser with the Commission, is registered with the Commodity
Futures Trading Commission as a futures commission merchant and is a member of
the New York Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc.
(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 (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
1(b)(iv), 1(g) (except as to due authorization of the Notes), 1(h) (except as
to due authorization of the Units, Universal Warrants and Purchase Contracts)
and 1(i), when made as of the Commencement Date, or as of any date on which
you solicit offers to purchase Program Securities, with respect to any Program
Securities the payments of principal or interest on which, or any other
payments with respect to which, will be determined by reference to one or more
currency exchange rates, commodity prices, securities of entities unaffiliated
with the Company, baskets of such securities, equity indices or other factors,
shall be deemed not to address the application of the Commodity Exchange Act,
as amended, or the rules, regulations or interpretations of the Commodity
Futures Trading Commission.
2. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. In connection with your actions as
agents hereunder, you agree to use reasonable efforts to solicit offers to
purchase Program Securities upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to
instruct you to suspend at any time, for any period of time or permanently,
the solicitation of offers to purchase Program Securities. Upon receipt of at
least one business day's prior notice from the Company, you will forthwith
suspend solicitations of offers to purchase Program Securities from the
Company until such time as the Company has advised you that such solicitation
may be resumed. While such solicitation is suspended, the Company shall not
be required to deliver any certificates, opinions or letters in accordance
with Sections 5(a), 5(b) and 5(c); provided, however, that if the Registration
Statement or Prospectus is amended or supplemented during the period of
suspension (other than by an amendment or supplement providing solely for (i)
in the case of Notes, issued alone or as part of a Unit, a change in the
interest rates, redemption provisions, amortization schedules or maturities
offered on the Notes, (ii) in the case of Units, a change in the exercise
price, exercise date or period or expiration of an underlying Universal
Warrant or a change in the settlement date or purchase or sale price of an
underlying Purchase Contract or (iii) for a change you deem to be immaterial),
you shall not be required to resume soliciting offers to purchase Program
Securities until the Company has delivered such certificates, opinions and
letters as you may request.
The Company agrees to pay to you, as consideration for the sale
of each Program Security resulting from a solicitation made or an offer to
purchase received by you, a commission in the form of a discount from the
purchase price of such Program Security equal to between .125% and .750%
(depending upon such Note's maturity or, in the case of Units, any underlying
Note's maturity or the terms of the Units and of the securities comprised by
such Units) of the principal amount of such Note or, in the case of Units, the
face amount of such Unit (provided that the commission for Notes having, or
Units including Notes or other securities having, a maturity of 30 years or
greater will be negotiated) or such other discount as may be specified in the
Prospectus Supplement relating to such Note or Unit.
You shall communicate to the Company, orally or in writing,
each offer to purchase Program Securities received by you as agent that in
your judgment should be considered by the Company. The Company shall have the
sole right to accept offers to purchase Program Securities and may reject any
offer in whole or in part. You shall have the right to reject any offer to
purchase Program Securities that you consider to be unacceptable, and any such
rejection shall not be deemed a breach of your agreements contained herein.
The procedural details relating to the issue and delivery of Program
Securities sold by you as agent and the payment therefor shall be as set forth
in the Administrative Procedures (as hereinafter defined).
(b) Purchases as Principals. Each sale of Program Securities to
you as principals shall be made in accordance with the terms of this
Agreement. In connection with each such sale, the Company will enter into a
Notes Terms Agreement or Units Terms Agreement that will provide for the sale
of such Program Securities to and the purchase thereof by you. Each Notes
Terms Agreement or Units Terms Agreement will take the form of either (i) a
written agreement between you and the Company, which may be substantially in
the form of Exhibit A or Exhibit A-1 (as applicable) hereto (in the case of
Notes, a "Written Notes Terms Agreement" and, in the case of Units, a "Written
Units Terms Agreement"), or (ii) an oral agreement between you and the Company
confirmed in writing by you to the Company.
Your commitment to purchase Program Securities as principal
pursuant to a Notes Terms Agreement or Units Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
of the Company herein contained and shall be subject to the terms and
conditions herein set forth. Each (i) Note Terms Agreement shall specify
the principal amount of Notes to be purchased by you pursuant thereto, the
maturity date of such Notes, the price to be paid to the Company for such
Notes, the interest rate and interest rate formula, if any, applicable to
such Notes and any other terms of such Notes and (ii) Unit Terms Agreement
shall specify (a) the information set forth in (i) above with respect to
any Notes issued as part of a Unit, (b) with respect to Universal Warrants
issued as part of a Unit, the exercise price, the exercise date or period,
the expiration date and any other terms of such Universal Warrants, and (c)
with respect to Purchase Contracts issued as part of a Unit, the settlement
date, the purchase or sale price or any other terms of such Purchase
Contracts. Each such Notes Terms Agreement or Units Terms Agreement may
also specify any requirements for officers' certificates, opinions of
counsel and letters from the independent auditors of the Company pursuant
to Section 4 hereof. A Notes Terms Agreement and a Unit Terms Agreement
may also specify certain provisions relating to the reoffering of such
Notes or Units, as the case may be, by you.
Each Notes Terms Agreement and each Units Terms Agreement shall
specify the time and place of delivery of and payment for such Notes or Units,
as the case may be. Unless otherwise specified in a Notes Terms Agreement or
a Units Terms Agreement, the procedural details relating to the issue and
delivery of Notes or Units, as the case may be, purchased by you as principal
and the payment therefor shall be as set forth in the Administrative
Procedures. Each date of delivery of and payment for Program Securities to be
purchased by you as principal pursuant to a Notes Terms Agreement or a Units
Terms Agreement, as the case may be, is referred to herein as a "Settlement
Date."
Unless otherwise specified in a Notes Terms Agreement or a
Units Terms Agreement, if you are purchasing Notes or Units, as principal
you may resell such Notes or Units to other dealers. Any such sales may be
at a discount, which shall not exceed the amount set forth in the
Prospectus Supplement relating to such Notes or Units.
(c) Administrative Procedures. You and the Company agree to
perform the respective duties and obligations specifically provided to be
performed in the Global Medium-Term Notes, Series C and the Global Units,
Series C, Administrative Procedures (attached hereto as Exhibit B) (the
"Administrative Procedures"), as amended from time to time. The
Administrative Procedures may be amended only by written agreement of the
Company and you.
(d) Delivery. The documents required to be delivered by Section
4 of this Agreement as a condition precedent to your obligation to begin
soliciting offers to purchase Program Securities as 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 Program Securities and (ii)
the first date on which the Company accepts any offer by you to purchase
Program Securities as principal. The date of delivery of such documents is
referred to herein as the "Commencement Date."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Program
Securities pursuant to this Agreement or any Notes Terms Agreement or Units
Terms Agreement, the Company will not file any Prospectus Supplement
relating to the Program Securities or any amendment to the Registration
Statement unless the Company has previously furnished to you a copy thereof
for your review and will not file any such proposed supplement or amendment
to which you reasonably object; provided, however, that the foregoing
requirement shall not apply to any of the Company's periodic filings with
the Commission required to be filed pursuant to Section 13(a), 13(c),
13(f), 14 or 15(d) of the Exchange Act, copies of which filings the Company
will cause to be delivered to you promptly after being transmitted for
filing with the Commission. Subject to the foregoing sentence, the Company
will promptly cause each Prospectus Supplement to be filed with or
transmitted for filing to the Commission in accordance with Rule 424(b)
under the Securities Act. The Company will promptly advise you (i) of the
filing of any amendment or supplement to the Basic Prospectus, (ii) of the
filing and effectiveness of any amendment to the Registration Statement,
(iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Basic
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Program
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or notice of suspension of
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof. If the Basic Prospectus is amended or supplemented as a result of
the filing under the Exchange Act of any document incorporated by reference
in the Prospectus, you shall not be obligated to solicit offers to purchase
Program Securities so long as you are not reasonably satisfied with such
document.
(b) If, at any time when a prospectus relating to the Program
Securities is required to be delivered under the Securities Act, any event
occurs or condition exists as a result of which the Prospectus, as then
amended or supplemented, would include an untrue statement of a material fact,
or omit to state any material fact necessary to make the statements therein,
in the light of the circumstances when the Prospectus, as then amended or
supplemented, is delivered to a purchaser, not misleading, or if, in your
opinion or in the opinion of the Company, it is necessary at any time to amend
or supplement the Prospectus, as then amended or supplemented, to comply with
applicable law, the Company will immediately notify you by telephone (with
confirmation in writing) to suspend solicitation of offers to purchase Program
Securities and, if so notified by the Company, you shall forthwith suspend
such solicitation and cease using the Prospectus, as then amended or
supplemented. If the Company shall decide to amend or supplement the
Registration Statement or Prospectus, as then amended or supplemented, it
shall so advise you promptly by telephone (with confirmation in writing) and,
at its expense, shall prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, satisfactory in all respects to
you, that will correct such statement or omission or effect such compliance
and will supply such amended or supplemented Prospectus to you in such
quantities as you may reasonably request. If any documents, certificates,
opinions and letters furnished to you pursuant to paragraph (f) below and
Sections 5(a), 5(b) and 5(c) in connection with the preparation and filing of
such amendment or supplement are satisfactory in all respects to you, upon the
filing with the Commission of such amendment or supplement to the Prospectus
or upon the effectiveness of an amendment to the Registration Statement, you
will resume the solicitation of offers to purchase Program Securities
hereunder. Notwithstanding any other provision of this Section 3(b), until
the distribution of any Program Securities you may own as principal has been
completed, if any event described above in this paragraph (b) occurs, the
Company will, at its own expense, forthwith prepare and cause to be filed
promptly with the Commission an amendment or supplement to the Registration
Statement or Prospectus, as then amended or supplemented, satisfactory in all
respects to you, will supply such amended or supplemented Prospectus to you in
such quantities as you may reasonably request and shall furnish to you
pursuant to paragraph (f) below and Sections 5(a), 5(b) and 5(c) such
documents, certificates, opinions and letters as you may request in connection
with the preparation and filing of such amendment or supplement.
(c) The Company will make generally available to its security
holders and to you as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering twelve month periods
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each sale of
Program Securities. If such fiscal quarter is the 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 Unit Agreement, the Warrant Agreement, the Notes,
the Units, the Universal Warrants, the Purchase Contracts, this Agreement, the
Administrative Procedures, any Notes Terms Agreement or Units Terms Agreement
and the performance by the Company of its obligations hereunder or thereunder
as you may from time to time reasonably request.
(g) The Company shall notify you promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate the
direction of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Program
Securities is consummated, pay all expenses incident to the performance of
its obligations under this Agreement and any Notes Terms Agreement or Units
Terms Agreement, including: (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of the
Program Securities, (iii) the fees and disbursements of the Company's
counsel and accountants, of the Trustees and their counsel, the Unit Agent
and its counsel, and the Warrant Agent and its counsel (iv) the
qualification of the Notes and Units (and of any securities comprised
thereby) under securities or Blue Sky laws in accordance with the
provisions of Section 3(f), including filing fees and the fees and
disbursements of your counsel in connection therewith and in connection
with the preparation of any Blue Sky or Legal Investment Memoranda, (v) the
printing and delivery to you in quantities as hereinabove stated of copies
of the Registration Statement and all amendments thereto and of the
Prospectus and any amendments or supplements thereto, (vi) the printing and
delivery to you of copies of the Indentures, the Unit Agreement, the
Universal Warrant Agreement and any Blue Sky or Legal Investment Memoranda,
(vii) any fees charged by rating agencies for the rating of the Program
Securities, (viii) the fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc., (ix)
the fees and disbursements of your counsel incurred in connection with the
offering and sale of the Program Securities, including any opinions to be
rendered by such counsel hereunder, and (x) any out-of-pocket expenses
incurred by you; provided that any advertising expenses incurred by you
shall have been approved by the Company.
(i) During the period beginning on the date of any Notes Terms
Agreement or Units Terms Agreement relating to either Notes or Units, as the
case may be, and continuing to and including the Settlement Date with respect
to such Notes Terms Agreement or Units Terms Agreement, the Company will not,
without your prior consent, offer, sell, contract to sell or otherwise dispose
of (i) in the case of Notes, any debt securities of the Company substantially
similar to the Notes set forth in such Notes Terms Agreement (other than (A)
the Notes that are to be sold pursuant to such Notes Terms Agreement, (B)
Notes previously agreed to be sold by the Company and (C) commercial paper
issued in the ordinary course of business) or (ii) in the case of Units, any
securities substantially similar to such Units (other than (A) the Units that
are sold pursuant to such Units Terms Agreement or (B) Units previously agreed
to be sold by the Company), in each case, except as may otherwise be provided
in the applicable Notes Terms Agreement or Units Terms Agreement.
4. Conditions of the Obligations of the Agents. Your
obligation to solicit offers to purchase Program Securities as agents of
the Company, your obligation to purchase Program Securities as principals
pursuant to any Notes Terms Agreement or Units Terms Agreement and the
obligation of any other purchaser to purchase Program Securities will be
subject to the accuracy of the representations and warranties on the part
of the Company herein, to the accuracy of the statements of the Company's
officers made in each certificate furnished pursuant to the provisions
hereof and to the performance and observance by the Company of all
covenants and agreements herein contained on its part to be performed and
observed (in the case of your obligation to solicit offers to purchase
Program Securities, at the time of such solicitation, and, in the case of
your or any other purchaser's obligation to purchase Program Securities, at
the time the Company accepts the offer to purchase such Program Securities
and at the time of issuance and delivery) and (in each case) to the
following additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus, as
amended or supplemented at the time of such solicitation or at the time such
offer to purchase was made, that, in your judgment, is material and adverse
and that makes it, in your judgment, impracticable to market the Program
Securities on the terms and in the manner contemplated by the Prospectus, as
so amended or supplemented;
(ii) there shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may be, any of
the New York Stock Exchange, the American Stock Exchange, the 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 Program Securities on the
terms and in the manner contemplated by the Prospectus, as amended or
supplemented at the time of such solicitation or at the time such offer to
purchase was made; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii)
above, as disclosed to you in writing by the Company prior to such
solicitation or, in the case of a purchase of Program Securities,
before the offer to purchase such Program Securities was made or
(B) unless in each case described in (ii) above, the relevant event
shall have occurred and been known to you prior to such
solicitation or, in the case of a purchase of Program Securities,
before the offer to purchase such Program Securities was made.
(b) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, you
shall have received:
(i) The opinion, dated as of such date, of Brown & Wood LLP,
counsel to the Company, or of other counsel satisfactory to you and who may be
an officer of the Company, to the 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 Dean Witter Reynolds Inc., Greenwood
Trust Company, 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
Notes Terms Agreement or Written Units Terms Agreement has been duly
authorized, executed and delivered by the Company;
(E) each Indenture has been duly qualified under the
Trust Indenture Act and each of the Third Supplemental Senior Indenture and
the Third Supplemental Subordinated Indenture, the Unit Agreement and the
Universal Warrant Agreement has been duly authorized, executed and delivered
by the Company and each of the Indentures, is a valid and binding agreement of
the Company, enforceable in accordance with its terms except as the
enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered at a
proceeding in equity or at law;
(F) the forms of Notes, whether issued alone or as part
of a Unit, have been duly authorized and established in conformity with the
provisions of the relevant Indenture and, if the Notes 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 the enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law;
(G) the forms of Units, including the forms of
Universal Warrants and Purchase Contracts which, in addition to the Notes,
may comprise such Units, have been duly authorized and established in
conformity with the provisions of (i) in the case of Units and Purchase
Contracts, the Unit Agreement and (ii) in the case of the Universal
Warrants, the Universal Warrant Agreement, and if the Units (including the
Universal Warrants and the Purchase Contracts) had been delivered to and
duly paid for by the purchasers thereof (and any Universal Warrant included
therein had been executed by the Company and countersigned by the Warrant
Agent and any Purchase Contracts included therein had been executed by the
Company and executed and countersigned by the Unit Agent) on the date of
such opinion, the Units (including the Universal Warrants and Purchase
Contracts contained therein) would be entitled to the benefits of the Unit
Agreement and in the case of the Warrants, the Universal Warrant Agreement,
and would be valid and binding obligations of the Company, enforceable in
accordance with their respective terms except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of whether such
enforceability is considered at proceedings in equity or at law;
(H) the execution and delivery by the Company of the
Notes (whether issued alone or as part of a Unit), the Units (including any
Purchase Contract or Universal Warrant included therein), the Indentures, the
Unit Agreement, the Universal Warrant Agreement and any applicable Written
Notes Terms Agreement or Written Units Terms Agreement and the performance by
the Company of its obligations under this Agreement, the Notes, the Units, the
Indentures, the Unit Agreement, the Universal Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by-laws
of the Company or, to the best of such counsel's knowledge, any agreement or
other instrument binding upon the Company or any of its consolidated
subsidiaries that is material to the Company and its consolidated
subsidiaries, taken as a whole, or, to the best of such counsel's knowledge,
any judgment, order or decree of any U.S. governmental body, agency or court
having jurisdiction over the Company or any of its consolidated subsidiaries,
and no consent, approval, authorization or order of or qualification with any
U.S. governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Notes, the Units, the
Indentures, the Unit Agreement, the Universal Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement, except such as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Program Securities; provided,
however, that no opinion is expressed on whether the purchase of the Program
Securities constitutes a "prohibited transaction" under Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, or Section 4975
of the Internal Revenue Code of 1986, as amended;
(I) the statements (1) in the Prospectus, as then
amended or supplemented, under the captions "Description of Notes" (in the
Prospectus Supplement), "Description of Debt Securities" (in the Basic
Prospectus), "Description of Units" (in the Prospectus Supplement and in the
Basic Prospectus), "Plan of Distribution" (in the Prospectus Supplement and in
the Basic Prospectus), "Description of Purchase Contracts" (in the Basic
Prospectus) and "Description of Warrants" (in the Basic Prospectus), (2) in
the Registration Statement, as then amended or supplemented, under Item 15,
(3) in "Item 3 - Legal Proceedings" of the most recent annual reports on Form
10-K incorporated by reference in the Prospectus and (4) in "Item 1 - Legal
Proceedings" of Part II of the quarterly reports on Form 10-Q, if any, filed
since such annual reports and incorporated by reference in the Prospectus, in
each case insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(J) 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
(K) 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 or Units to the extent such information will be set forth
in a supplement to the Basic Prospectus.
(ii) The opinion, dated as of such date, of Davis Polk &
Wardwell, your special counsel, covering the matters in subparagraphs (D),
(E), (F), (G) and (I) (with respect to statements in the Prospectus, as then
amended or supplemented, under the captions "Description of Notes" (in the
Prospectus Supplement), "Description of Debt Securities" (in the Basic
Prospectus), "Description of Units" (in the Prospectus Supplement and the
Basic Prospectus), "Plan of Distribution" (in the Prospectus Supplement and in
the Basic Prospectus), "Description of Purchase Contracts" (in the Basic
Prospectus) and "Description of Warrants" (in the Basic Prospectus)) and
clauses (2), (3) and (4) of subparagraph (K) in paragraph (b)(i) above.
Notwithstanding the foregoing, the opinions described in
subparagraphs (F) (except as to due authorization of the
Notes), (G) (except as to due authorization of the Units,
Universal Warrants and Purchase Contracts), (H), (I)(1) and
(K)(3) and (4) of paragraph (b)(i) above, when contained in an
opinion delivered on the Commencement Date or pursuant to
Section 5(b), shall be deemed not to address the application of
the Commodity Exchange Act, as amended, or the rules,
regulations or interpretations of the Commodity Futures Trading
Commission to Program Securities the payments of principal or
interest on which, or any other payments with respect to which,
will be determined by reference to one or more currency exchange
rates, commodity prices, securities of entities unaffiliated
with the Company, baskets of such securities, equity indices or
other factors.
With respect to subparagraph (K) of paragraph (b)(i)
above, if such opinion is given by counsel who is also an
officer of the Company, such counsel may state that his or her
opinion and belief are based upon his or her participation, or
the participation of someone under his or her supervision, in
the preparation of the Registration Statement and Prospectus and
any amendments or supplements thereto and documents incorporated
therein by reference and review and discussion of the contents
thereof, but are without independent check or verification,
except as specified. With respect to subparagraph (K) of
paragraph (b)(i) above, Davis Polk & Wardwell and, if Brown &
Wood LLP is giving such opinion, Brown & Wood LLP may state that
their opinion and belief are based upon their participation in
the preparation of the Registration Statement and Prospectus and
any amendments or supplements thereto (but not including
documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents
incorporated therein by reference), but are without independent
check or verification, except as specified.
(iii) The opinion, dated as of such date, of Brown & Wood LLP,
special counsel to the Company, to the effect that the statements set forth
under the caption "United States Federal Taxation" in the Prospectus
Supplement and under the caption "Limitations on Issuance of Bearer Debt
Securities and Bearer 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 Brown & Wood LLP described in paragraph (b)(iii)
above and in paragraph (b)(i) above, if such opinion is given by Brown & Wood
LLP, shall be rendered to you at the request of the Company and shall so state
therein.
(c) On the Commencement Date and, if called for by any Notes
Terms Agreement or Units Terms Agreement, on the corresponding Settlement
Date, you shall have received a certificate, dated the Commencement Date or
such Settlement Date, as the case may be, and signed by an executive
officer of the Company to the effect set forth in subparagraph (a)(iii)
above and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of such date
and that the Company has complied with all of the agreements and satisfied
all of the conditions on its part to be performed or satisfied on or before
such date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Notes
Terms Agreement or Units Terms Agreement, on the corresponding Settlement
Date, the Company's independent auditors shall have furnished to you a letter
or letters, dated as of the Commencement Date or such Settlement Date, as the
case may be, in form and substance satisfactory to you containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Prospectus, as then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to you such appropriate further information,
certificates and documents as you may reasonably request.
5. Additional Agreements of the Company. (a) Each time the
Registration Statement or Prospectus is amended or supplemented (other than
by an amendment or supplement providing solely for (i) in the case of Notes, a
change in the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes issued alone or as part of a Unit, (ii) in the
case of Units, a change in the exercise price, exercise date or period or
expiration of an underlying Universal Warrant or a change in the settlement
date or purchase or sale price of an underlying Purchase Contract or (iii) a
change you deem to be immaterial), the Company will deliver or cause to be
delivered forthwith to you a certificate signed by an executive officer of the
Company, dated the date of such amendment or supplement, as the case may be,
in form reasonably satisfactory to you, of the same tenor as the certificate
referred to in Section 4(c) relating to the Registration Statement or the
Prospectus as amended or supplemented to the time of delivery of such
certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a) (other than any amendment or supplement to the Registration
Statement or Prospectus caused by the filing of a Current Report on Form 8-K
unless you shall reasonably request based on disclosure included or omitted
form such Report), the Company will furnish or cause to be furnished forthwith
to you a written opinion of counsel for the Company. Any such opinion shall
be dated the date of such amendment or supplement, as the case may be, shall
be in a form satisfactory to you and shall be of the same tenor as the
opinions referred to in Section 4(b), but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion. In lieu of such opinion, counsel last
furnishing such an opinion to you may furnish to you a letter to the effect
that you may rely on such last opinion to the same extent as though it were
dated the date of such letter (except that statements in such last opinion
will be deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented to the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Prospectus, the Company shall cause its independent auditors
forthwith to furnish you with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to you, of the same tenor
as the letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or incorporated by reference in
the Registration Statement or the Prospectus as amended or supplemented to the
date of such 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 Program Securities then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and you on the other hand
from the offering of such Program Securities or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company on the one hand
and you on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and you on the other hand in connection with the
offering of such Program Securities shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
Program Securities (before deducting expenses) received by the Company bear to
the total discounts and commissions received by you in respect thereof. The
relative fault of the Company on the one hand and of you on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by you and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company and you agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, you shall not be required
to contribute any amount in excess of the amount by which the total price
at which the Program Securities referred to in paragraph (d) above that
were offered and sold to the public through you exceeds the amount of any
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
Notes Terms Agreement or Units Terms Agreement will remain in full force and
effect regardless of (i) any termination of this Agreement or any such Notes
Terms Agreement or Units Terms Agreement, (ii) any investigation made by or on
behalf of you or any person controlling you or by or on behalf of the Company,
its officers or directors or any person controlling the Company and (iii)
acceptance of and payment for any of the Program Securities.
7. Position of the Agent. In acting under this Agreement and in
connection with the sale of any Program Securities by the Company (other than
Program Securities sold to you pursuant to a Notes Terms Agreement or Units
Terms Agreement, as the case may be), you are acting solely as agent of the
Company and do not assume any obligation towards or relationship of agency or
trust with any purchaser of Program Securities. You shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Program Securities has been solicited by you and accepted by
the Company, but you shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default in its obligations to deliver Program Securities to a purchaser whose
offer it has accepted, the Company shall hold you harmless against any loss,
claim, damage or liability arising from or as a result of such default and
shall, in particular, pay to you the commission you would have received had
such sale been consummated.
8. 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 Notes Terms Agreement or Units Terms Agreement, and the
termination of any such Notes Terms Agreement or Units Terms Agreement shall
not require termination of this Agreement. If this Agreement is terminated,
the provisions of the third paragraph of Section 2(a), the last sentence of
Section 3(b) and Sections 3(c), 3(h), 6, 7, 9, 10 and 12 shall survive;
provided that if at the time of termination an offer to purchase Program
Securities has been accepted by the Company but the time of delivery to the
purchaser or its agent of such Program Securities has not occurred, the
provisions of Sections 1, 2(b), 2(c), 3(a), 3(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- ), 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 Notes Terms Agreement or
Units Terms Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors
and controlling persons referred to in Section 6 and the purchasers of
Notes and Units (to the extent expressly provided in Section 4), and no
other person will have any right or obligation hereunder
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 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, DEAN WITTER,
DISCOVER & CO.
By:
------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
DEAN WITTER REYNOLDS INC.
By:____________________________
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
By:____________________________
Name:
Title:
EXHIBIT A
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES C
NOTES TERMS AGREEMENT
_______________, 19__
Morgan Stanley, Dean Witter,
Discover & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement dated June 2, 1997
(the "U.S. Distribution Agreement")
----------------------------------------------
The undersigned agrees to purchase your Global Medium-Term
Notes, Series C, having the following terms:
<TABLE>
<CAPTION>
All Notes Fixed Rate Notes Floating Rate Notes
- -----------------------------------------------------------------------------------------------------
<S> <C> <C>
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Price to Public: If yes, state issue price: Index Currency:
Settlement Date and Time: Amortization Schedule: Spread (Plus or Minus):
Place of Delivery: Applicability of Annual Spread Multiplier:
Interest Payments:
Specified Currency: Denominated Currency (if Alternate Rate Event
any): Spread:
Original Issue Date: Indexed Currency or Initial Interest Rate:
Currencies (if any):
Interest Accrual Date: Payment Currency (if any): Initial Interest Reset Date:
Maturity Date: Exchange Rate Agent (if Interest Reset Dates:
any):
Initial Accrual Period OID: Reference Dealers: Interest Reset Period:
Total Amount of OID: Face Amount (if any): Maximum Interest Rate:
Original Yield to Maturity: Fixed Amount of each Minimum Interest Rate:
Indexed Currency (if any):
Optional Repayment Aggregate Fixed Amount of Interest Payment Period:
Date(s): each Indexed Currency (if
any):
Optional Redemption Applicability of Issuer's Calculation Agent:
Date(s): Option to Extend Original
Maturity Date:
Initial Redemption Date: If yes, state Final Maturity Reporting Service:
Date:
Initial Redemption Variable Rate Renewable
Percentage: 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:
</TABLE>
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 terminated, the
provisions of Sections 3(h), 6, 9, 10 and 12 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: ________________.
[DEAN WITTER REYNOLDS INC.]
By:_______________________________
Name:
Title:
[MORGAN STANLEY & CO.
INCORPORATED]
By:
------------------------------------
Name:
Title:
Accepted:
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:
------------------------------------------
Name:
Title:
EXHIBIT A-1
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
GLOBAL UNITS, SERIES C
UNITS TERMS AGREEMENT
_______________, 19 __
Morgan Stanley, Dean Witter,
Discover & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement dated June 2,1997 (the
"U.S. Distribution Agreement")
---------------------------------------------------
The undersigned agrees to purchase your Global Units, Series C,
[specified designation] having the following terms:
<TABLE>
<CAPTION>
Universal Warrants Issued Purchase Contracts Issued
All Units: as Part of a Unit: as Part of a Unit:
- ---------- ------------------------- --------------------------
<S> <C> <C>
Settlement Date and Time: Designation of the Series of Designation of the Series of
Warrants: [Call] [Put] Purchase Contracts:
Warrants [Purchase][Sale] Purchase
Contracts
Number (Face Amount): Warrant Property: Aggregate Number of
Purchase Contracts:
Severability: Aggregate Number of Purchase Contract Property:
Warrants:
Other Terms: Date(s) upon which Quantity per Purchase
Warrants may be exercised: Contract:
Currency in which exercise Purchase Price:
payments shall be made:
Exchange Rate (or method Settlement Date:
of calculation:
Form of Settlement: Payment Location:
[Call Price:](1)
[Formula for determining Method of Settlement:
Cash Settlement Value:](2)
[Amount of Warrant Currency of Settlement
Property Salable per Payment:
Warrant:](3)
[Put Price for such Contract Fees, if any:
specified amount of
Warrant Property per
Warrant:]
[Method of delivery of any Corporation Acceleration:
Warrant Property to be
delivered for sale upon
exercise of Warrants:](3)
Other Terms: Holders' Acceleration:
Redemption Provisions:
Other Terms:
</TABLE>
<TABLE>
<CAPTION>
All Notes Issued as Part of Fixed Rate Notes Issued as Floating Rate Notes Issued
a Unit: Part of a Unit: as Part of a Unit:
- ---------- -------------------------- --------------------------
<S> <C> <C>
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Price to Public: If yes, state issue price: Index Currency:
Settlement Date and Time: Amortization Schedule: Spread (Plus or Minus):
Place of Delivery: Applicability of Annual Spread Multiplier:
Interest Payments:
Specified Currency: Denominated Currency (if Alternate Rate Event
any): Spread:
Original Issue Date: Indexed Currency or Initial Interest Rate:
Currencies (if any):
Interest Accrual Date: Payment Currency (if any): Initial Interest Reset Date:
Maturity Date: Exchange Rate Agent (if Interest Reset Dates:
any):
Initial Accrual Period OID: Reference Dealers: Interest Reset Period:
Total Amount of OID: Face Amount (if any): Maximum Interest Rate:
Original Yield to Maturity: Fixed Amount of each Minimum Interest Rate:
Indexed Currency (if any):
Optional Repayment Aggregate Fixed Amount of Interest Payment Date(s):
Date(s): each Indexed Currency (if
any):
Optional Redemption Applicability of Issuer's Interest Payment Period:
Date(s): Option to Extend Original
Maturity Date:
Initial Redemption Date: If yes, state Final Maturity Calculation Agent:
Date:
Initial Redemption Reporting Service:
Percentage:
Annual Redemption Variable Rate Renewable
Percentage Reduction: Notes:
Ranking: Redemption Dates:
Series: Redemption Percentage:
Minimum Denominations: Initial Maturity Date:
Other Terms: Final Matural Date:
Applicability of Issuer's
Option to Reset Spread or
Spread Multiplier:
- ----------------
(1) Applicable to Call Warrants
(2) Applicable to Put Warrants
(3) Applicable to Put Warrants only if such Put Warrants contemplate that the
holder deliver Warrant Property to settle Put Warrants
</TABLE>
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, 10 and 12 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: ___________.
[DEAN WITTER REYNOLDS INC.]
By:____________________________
Name
Title:
[MORGAN STANLEY & CO.
INCORPORATED]
By:
---------------------------------
Name:
Title:
Accepted:
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:
------------------------------------------
Name:
Title:
EXHIBIT B
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES C
GLOBAL UNITS, SERIES C
ADMINISTRATIVE PROCEDURES
Explained below are the administrative procedures and specific
terms of the offering of Global Medium-Term Notes, Series C (the "Notes") and
Global Units, Series C (the "Units"), on a continuous basis by Morgan Stanley,
Dean Witter, Discover & Co. (the "Company") pursuant to the U.S. Distribution
Agreement, dated June 2, 1997 (the "Distribution Agreement") among the
Company, Dean Witter Reynolds Inc. and Morgan Stanley & Co. Incorporated
(collectively or individually the "Agent" as the context requires). The Notes
may be issued, either alone or as part of a Unit, as senior indebtedness (the
"Senior Notes") or subordinated indebtedness (the "Subordinated Notes") of the
Company, and as used herein the term "Notes" includes the Senior Notes and the
Subordinated Notes. The Senior Notes will be issued, either alone or as part
of a Unit, pursuant to the provisions of a senior indenture dated as of April
15, 1989 (as supplemented by a first supplemental senior indenture dated as of
May 15, 1991, a second supplemental senior indenture dated as of April 15,
1996, a third supplemental senior indenture dated as of June 1, 1997 and as it
may be further supplemented or amended from time to time, the "Senior Debt
Indenture"), between the Company and The Chase Manhattan Bank (formerly
known as Chemical Bank) ("Chase"), as 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, a second supplemental subordinated
indenture dated as of April 15, 1996, a third supplemental subordinated
indenture dated as of June 1, 1997 and as it 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 Senior
Debt Indenture and the Subordinated Debt Indenture are sometimes
hereinafter referred to individually as an "Indenture" and collectively as
the "Indentures."
The Units will be issued pursuant the Unit Agreement dated
as of June 2, 1997, among the Company, The Chase Manhattan Bank, as Unit
Agent, as Collateral Agent, as Trustee under the Indenture referred to
therein, and as Warrant Agent Under the Warrant Agreement referred to
therein and the holders from time to time of the Units described therein.
Units may include, in addition to Notes, one or more (i) warrants
("Universal Warrants") entitling the holders thereof to purchase or sell
(a) securities of an entity unaffiliated with the Company, a basket of such
securities, an index or indices of such securities or any combination, of
the above, (b) currencies or composite currencies or (c) commodities, (ii)
purchase contracts ("Purchase Contracts") requiring the holders thereof to
purchase or sell (a) securities of an entity unaffiliated with the Company,
a basket of such securities, an index or indices of such securities or any
combination of the above, (b) currencies or composite currencies or (c)
commodities or (iii) any combination thereof. The applicable Pricing
Supplement will specify whether or not the Notes, Universal Warrants and
Purchase Contracts comprised by a Unit may or may not be separated from the
Unit. Universal Warrants issued as part of a Unit will be issued pursuant
to the Universal Warrant Agreement dated as of June 2, 1997 between the
Company and Chase, as Warrant Agent (the "Universal Warrant Agreement").
Purchase Contracts entered into by the Company and the holders thereof will
be governed by the Unit Agreement.
In the Distribution Agreement, the Agent has agreed to use
reasonable efforts to solicit purchases of the Notes and the Units, and the
administrative procedures explained below will govern the issuance and
settlement of any Notes or Units sold through the Agent, as agent of the
Company. The Agent, as principal, may also purchase Notes and Units for its
own account, and if requested by the Agent, the Company and the Agent will
enter into a terms agreement (in the case of Notes, a " Notes Terms Agreement"
and, in the case of Units, a "Units Terms Agreement"), as contemplated by the
Distribution Agreement. The administrative procedures explained below will
govern the issuance and settlement of any Notes or Units purchased by the
Agent, as principal, unless otherwise specified in the applicable Notes Terms
Agreement or Units Terms Agreement.
Chase will be the Registrar, Calculation Agent, Authenticating
Agent and Paying Agent for both the Senior Notes and the Subordinated Notes,
the Unit Agent for the Units and Purchase Contracts and Warrant Agent for the
Universal Warrants, and in each case, will perform the duties specified
herein. Each Note and each Unit will be represented by either (i) in the case
of the Notes, a Global Note and, in the case of the Units, a Global Unit (each
as defined below) delivered to Chase, as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (in
the case of a Note, a "Book-Entry Note" and , in the case of a Unit, a
"Book-Entry Unit") or (ii) a certificate delivered to the holder thereof or a
person designated by such holder (in the case of a Note, a "Certificated Note"
and, in the case of a Unit, a "Certificated Unit"). Each Universal Warrant or
Purchase Contract which my be included in any Unit will be issued in the
corresponding global or certificated form. Except as set forth in the
Indentures, in the case of Notes, the Unit Agreement, in the case of Units and
Purchase Contracts, or the Universal Warrant Agreement, in the case of the
Universal Warrants, an owner of a Book-Entry Note or Book-Entry Unit (or of
any Universal Warrant or Purchase Contract included in such Book-Entry Unit),
as the case may be, will not be entitled to receive a Certificated Note or a
Certificated Unit (or certificated Universal Warrants or Purchase Contracts,
as applicable).
Book-Entry Notes and Book-Entry Units, which may be payable
in either U.S. dollars or other specified currencies, will be issued in
accordance with the administrative procedures set forth in Part I hereof as
they may subsequently be amended as the result of changes in DTC's
operating procedures. Certificated Notes and Certificated Units will be
issued in accordance with the administrative procedures set forth in Part
II hereof.
Unless otherwise defined herein, terms defined in the
Indentures, the Unit Agreement, the Universal Warrant Agreement, the Notes,
the Units, the Universal Warrants, the Purchase Contracts or any Prospectus
Supplement relating to the Notes and Units shall be used herein as therein
defined.
The Company will advise the Agent in writing of the employees
of the Company with whom the Agent is to communicate regarding offers to
purchase Notes and Units and the related settlement details.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
AND BOOK-ENTRY UNITS
In connection with the qualification of the Book-Entry Notes and
Book-Entry Units for eligibility in the book-entry system maintained by
DTC, Chase will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations
under (i) a Letter of Representations from the Company and Chase to DTC,
dated as of June 2, 1997, for medium-term notes (the "MTN Letter of
Representations"), (ii) a letter of representations from the Company and
Chase to DTC, dated as of June 2, 1997, for optionally exchangeable medium-
term notes (the "Optionally Exchangeable MTN Letter of Representations"),
(iii) a Letter of Representations from the Company and Chase to DTC, dated
as of June 2, 1997 for mandatorily exchangeable medium-term notes (the
"Mandatorily Exchangeable MTN Letter of Representation"), (iv) a Letter of
Representations from the Company and Chase to DTC, dated as of June 2, 1997
for global units consisting of medium-term notes and universal warrants
(the "Optionally Exchangeable Unit Letter of Representation") and (iv) a
Letter of Representations from the Company and Chase to DTC, dated as of
June 2, 1997 for global units consisting of medium-term notes and purchase
contracts (the "Mandatorily Exchangeable Unit Letter of Representation" and
collectively the "Letters of Representations") and a Medium-Term Note
Certificate Agreement between Chase and DTC, dated as of December 2, 1988,
and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry
Notes, or one or more Book-Entry Units, the
Company will issue, in the case of the Notes, a
single global Note in fully registered form
without coupons (a "Global Note") representing
up to U.S. $200,000,000 principal amount of all
such Notes that have the same Original Issue
Date, Maturity Date and other terms and, in the
case of a Unit, a single global unit in fully
registered form (a "Global Unit"), representing
up to U.S. $200,000,000 face amount of all such
Units that have the same Original Issue Date and
that otherwise comprise the same securities and
have the same terms. Each Global Note, whether
issued alone or as part of a Unit, will be dated
and issued as of the date of its authentication
by Chase and each Global Unit will be dated and
issued as of the date of the issuances of the
Global Note or other securities comprised by
such Unit. Each Global Note, whether alone
or as part of a Unit, will bear an "Interest
Accrual Date," which will be (i) with respect
to an original Global Note (or any portion
thereof), its original issuance date and (ii)
with respect to any Global Note (or any
portion thereof) issued subsequently upon
exchange of a Global Note, or in lieu of a
destroyed, lost or stolen Global Note, the
most recent Interest Payment Date to which
interest has been paid or duly provided for
on the predecessor Global Note or Notes (or
if no such payment or provision has been
made, the original issuance date of the
predecessor Global Note), regardless of the
date of authentication of such subsequently
issued Global Note. Book-Entry Notes and
Book-Entry Units may be payable in either
U.S. dollars or other specified currencies.
No Global Note or Global Unit will represent,
any Certificated Note or Certificated Unit,
as the case may be.
Denominations: Book-Entry Notes and Book-Entry Units will be
issued in (i) in the case of Book-Entry Notes,
principal amounts of U.S. $1,000 or any
amount in excess thereof that is an integral
multiple of U.S. $1,000 or, if such Book-
Entry Notes are issued in a currency other
than U.S. dollars, principal amounts of such
currency in denominations of the equivalent
of U.S. $1,000 (rounded to an integral
multiple of 1,000 units of such currency),
unless otherwise indicated in the applicable
Pricing Supplement and (ii) in the case of
Book-Entry Units, denominations of a single
unit and any integral multiple thereof with
face amounts of U.S. $1,000 or any amount in
excess thereof that is an integral multiple
of U.S. $1,000 or, if such Book-Entry Units
are issued in a currency other than U.S.
dollars, face amounts of such currency in
denominations of the equivalent of U.S.
$1,000 (rounded to an integral multiple of
1,000 units of such currency), unless
otherwise indicated in the applicable Pricing
Supplement. Global Notes and Global Units
will be denominated in, in the case of Global
Notes, principal amounts not in excess of
U.S.$200,000,000 and, in the case of Global
Units, face amounts not in excess of U.S.
$200,000,000. If one or more Book-Entry
Notes having an aggregate principal amount in
excess of U.S. $200,000,000, or one or more
Book-Entry Units having an aggregate face
amount, in excess of $200,000,000 would, but
for the preceding sentence, be represented by
a single Global Note or Global Unit, as the
case may be, then one Global Note will be
issued to represent each U.S. $200,000,000
principal amount of such Book-Entry Note or
Notes and one Global Unit will be issued to
represent each U.S.$200,000,000 face amount
of such Book-Entry Unit or Units and an
additional Global Note or Global Unit, will
be issued to represent any remaining
principal amount of such Book-Entry Note or
Notes or face amount of such Book-Entry Unit
or Units. In such a case, each of the Global
Notes or Global Units representing such Book-
Entry Note or Notes or such Book-Entry Unit
or Units, as the case may be, shall be
assigned the same CUSIP number.
Preparation of
Pricing Supplement: If any order to purchase a Book-Entry Note or
Book-Entry Unit is accepted by or on behalf of
the Company, the Company will prepare a pricing
supplement (a "Pricing Supplement") reflecting
the terms of such Note or Unit. The Company (i)
will arrange to file an electronic format
document, in the manner prescribed by the EDGAR
Filer Manual, of such Pricing Supplement with
the Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act, (ii)
will, as soon as possible and in any event not
later than the date on which such Pricing
Supplement is filed with the Commission, deliver
the number of copies of such Pricing Supplement
to the Agent as the Agent shall request and
(iii) will, on the Agent's behalf, promptly file
five copies of such Pricing Supplement with the
National Association of Securities Dealers, Inc.
(the "NASD"). The Agent will cause such Pricing
Supplement to be delivered to the purchaser of
the Note or Unit.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other
than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry Note
or a Book-Entry Unit and, in the case of the
Note, the authentication and issuance of the
Global Note representing such Note or, in the
case of the Unit, the completion and issuance of
the Global Unit representing such Unit (and of
each security comprised by such Unit) shall
constitute "settlement" with respect to such Note
or Unit, as the case may be. All orders accepted
by the Company will be settled on the fifth
Business Day pursuant to the timetable for
settlement set forth below unless the Company
and the purchaser agree to settlement on another
day, which shall be no earlier than the next
Business Day.
Settlement Procedures: Settlement Procedures with regard to each
Book-Entry Note and each Book-Entry Unit sold
by the Company to or through the Agent (unless
otherwise specified pursuant to a Notes Terms
Agreement or a Units Terms Agreement), shall be
as follows:
A. In the case of a Book-Entry Note (whether issued
alone or as part of a Unit), the Agent will
advise the Company by telephone that such Note
is a Book-Entry Note and of the following
settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry
Note, the Interest Rate, whether such Note
will pay interest annually or semiannually
and whether such Note is an Amortizing
Note, and, if so, the amortization
schedule, or, in the case of a Floating
Rate Book-Entry Note, the Initial Interest
Rate (if known at such time), Interest
Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index
Maturity, Index Currency, Interest Reset
Period, Initial Interest Reset Date,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any), Maximum Interest Rate (if any)
and the Alternate Rate Event Spread (if
any).
4. Redemption or repayment provisions, if
any.
5. Ranking.
6. Settlement date and time (Original Issue
Date).
7. Interest Accrual Date.
8. Price.
9. Agent's commission, if any, determined as
provided in the Distribution Agreement.
10. Whether the Note is an Original Issue
Discount Note (an "OID Note"), and if it
is an OID Note, the total amount of OID,
the yield to maturity, the initial accrual
period OID and the applicability of
Modified Payment upon Acceleration (and,
if so, the Issue Price).
11. Whether the Note is a PERLS Note, and if
it is a PERLS Note, the Denominated
Currency, the Indexed Currency or
Currencies, the Payment Currency, the
Exchange Rate Agent, the Reference
Dealers, the Face Amount, the Fixed Amount
of each Indexed Currency, the Aggregate
Fixed Amount of each Indexed Currency, the
Conversion Reference Amount or Amounts and
the Authorized Denominations (if other
than U.S. dollars).
12. Whether the Note is a Renewable Note, and
if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date,
the Election Dates and the Maturity
Extension Dates.
13. Whether the Company has the option to
extend the Original Maturity Date of the
Note, and, if so, the Final Maturity Date
of such Note.
14. Whether the Company has the option to
reset the Spread or Spread Multiplier of
the Note.
15. Whether the Note is an Optionally
Exchangeable Note, a Mandatorily
Exchangeable Note, or any form of
exchangeable Note.
16. Any other applicable provisions.
B. In the case of a Book-Entry Unit, the Agent will
advise the Company by telephone that such Unit
is a Book-Entry Unit, of the information set
forth in Settlement Procedures "A" above with
respect to Book-Entry Notes that constitute a
part of such Book-Entry Unit and of the
following information:
1. Settlement date and time.
2. Face Amount.
3. Agent's commission, if any, determined as
provided in the Distribution Agreement.
4. Designation of the Securities comprised by
such Units:
a. Notes (See Settlement Procedures "A");
b. Universal Warrants, if any; and
c. Purchase Contracts, if any.
5. Whether, and the terms under which, the
Securities comprised by such Unit will be
separately tradeable.
6. Any other provisions applicable to the
Unit (other than those provisions
applicable to the securities
comprised by such Unit).
7. If the Book-Entry Unit comprises
Book-Entry Universal Warrants:
a. Designation of the Series of Universal
Warrants: [Call][Put] Universal
Warrants;
b. Warrant Property;
c. Aggregate Number of Universal
Warrants;
d. Price to Public;
e. Universal Warrant Exercise Price;
f. Dates upon which Universal Warrants
may be exercised;
g. Expiration Date;
h. Form;
i. Currency in which exercise payments
shall be made;
j. Minimum number of Universal Warrants
exercisable by any holder on any day;
k. Maximum number of Universal Warrants
exercisable on any day: [In the
aggregate] [By any beneficial owner];
l. Formula for determining Cash Settlement
Value;
m. Exchange Rate (or method of
calculation); and
n. Any other applicable provisions.
8. If the Book-Entry Unit comprises
Book-Entry Purchase Contracts:
a. Designation of the Series of Purchase
Contracts: [Purchase][Sale] Purchase
Contracts;
b. Purchase Contract Property;
c. Aggregate Number of Purchase Contracts;
d. Price to Public;
e. Settlement Date;
f. [Purchase/Sale] Price of Purchase
Contract Property;
g. Form; and
h. Any other applicable provisions.
C. The Company will advise Chase by telephone or
electronic transmission (confirmed in writing at
any time on the same date) of the information set
forth in "Settlement Procedure" "A" and "B"
above, as applicable. Chase will then assign a
CUSIP number to the Global Note representing a
Note, [whether issued alone or as part of a
Unit,] and will notify the Company and the Agent
of such CUSIP number(s) by telephone as soon as
practicable, except that for Optionally
Exchangeable and Mandatorily Exchangeable Notes
the Agent will obtain a CUSIP number for the
Global Note representing such Note and will
notify the Company and Chase of such CUSIP
number(s) by telephone as soon as practicable.
The Agent will obtain a CUSIP number for (i) the
Global Unit representing a Unit, (ii) the
Universal Warrant, if any, issued as part of a
Unit (if such Universal Warrant is to trade
separately from the Unit) and (iii) the Purchase
Contract, if any, issued as part of a Unit (if
such Purchase Contract is to trade separately
from the Unit) and, in each case will notify the
Company and Chase of such CUSIP number(s) by
telephone as soon as practicable.
D. Chase will enter a pending deposit message
through DTC's Participant Terminal System,
providing the following settlement
information to DTC, the Agent and Standard &
Poor's Corporation:
1. The information set forth in "Settlement
Procedure" "A" and "B" above, as
applicable.
2. The Initial Interest Payment Date for the
Notes, whether issued alone or as part
of a Unit, the number of days by which
such date succeeds the related DTC
Record Date and, if known, amount of
interest payable on such Initial
Interest Payment Date.
3. The CUSIP number of the Global Note
(whether issued alone or as part of a
Unit), Global Unit, Universal Warrant
issued as part of a Unit (if separable
from such Unit) and Purchase Contract
issued as part of a Unit (if separable
from such Unit), as applicable.
4. Whether the Global Note or Global Unit
will represent any other Book-Entry Note
or Book-Entry Unit, as the case may be (to
the extent known at such time).
5. Whether any Note, issued alone or as part
of a Unit, is an Amortizing Note (by an
appropriate notation in the comments field
of DTC's Participant Terminal System).
6. The number of Participant accounts to be
maintained by DTC on behalf of the Agent
and Chase.
E. Chase will, as applicable, authenticate,
complete and deliver the Global Note
representing the Note and will complete the
Global Unit representing the Unit (including,
as applicable, by countersigning and
delivering any Universal Warrants and by
countersigning, executing and delivering any
Purchase Contracts includable in such Unit).
F. DTC will credit such Note or Unit to Chase's
participant account at DTC.
G. Chase will enter an SDFS deliver order through
DTC's Participant Terminal System instructing
DTC to (i) debit the Note or Unit, as the case
may be, to Chase's participant account and
credit such Note or Unit to the Agent's
participant account and (ii) debit the
Agent's settlement account and credit Chase's
settlement account for an amount equal to the
price of such Note or Unit, as the case may
be, less the Agent's commission, if any. The
entry of such a deliver order shall
constitute a representation and warranty by
Chase to DTC that (a) the Global Note
representing a Book-Entry Note has been
issued and authenticated or a Global Unit
representing a Book-Entry Unit has been
completed and issued and (b) Chase is
holding such Global Note or Global Unit
pursuant to the Medium-Term Note Certificate
Agreement between Chase and DTC.
H. Unless the Agent is the end purchaser of a Note
or Unit, the Agent will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC (i) to debit such Note
or Unit to the Agent's participant account
and credit such Note or Unit to the
participant accounts of the Participants with
respect to such Note or Unit and (ii) to
debit the settlement accounts of such
Participants and credit the settlement
account of the Agent for an amount equal to
the price of such Note or Unit.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
J. Chase will credit to the account of the Company
maintained at Chase, New York, New York, in
funds available for immediate use in the amount
transferred to Chase in accordance with
"Settlement Procedure" "G".
K. Unless the Agent is the end purchaser of the
Note or Unit, the Agent will confirm the
purchase of such Note or Unit to the
purchaser either by transmitting to the
Participants with respect to such Note or
Unit a confirmation order or orders through
DTC's institutional delivery system or by
mailing a written confirmation to such
purchaser.
L. Monthly, Chase will send to the Company a
statement setting forth the principal amount of
Notes outstanding as of that date under the
Indentures or, in the case of Units, the
aggregate face amount of Units outstanding as of
that date, under the Unit Agreement, and setting
forth a brief description of any sales of which
the Company has advised Chase that have not yet
been settled.
Settlement
Procedures
Timetable: For sales by the Company of Book-Entry Notes or
Book-Entry Units to or through the Agent (unless
otherwise specified pursuant to a Notes Terms
Agreement or a Units Terms Agreement) for
settlement on the first Business Day after the
sale date, Settlement Procedures "A" through "K"
set forth above shall be completed as soon as
possible but not later than the respective times
in New York City set forth below:
Settlement
Procedure Time
A 11:00 A.M. on the sale date
B 11:00 A.M. on the sale date
C 12:00 Noon on the sale date
D 2:00 P.M. on the sale date
E 9:00 A.M. on the settlement date
F 10:00 A.M. on the settlement date
G-H 2:00 P.M. on the settlement date
I 4:45 P.M. on the settlement date
J-K 5:00 P.M. on the settlement date
If a sale is to be settled more than one
Business Day after the sale date, Settlement
Procedures "A", "B", "C" and "D" shall be
completed as soon as practicable but no later
than 11:00 A.M., 11:00 A.M., 12 Noon and 2:00
P.M., respectively, on the first Business Day
after the sale date. If the Initial Interest
Rate for a Floating Rate Book-Entry Note,
whether issued alone or as part of a Unit,
has not been determined at the time that
"Settlement Procedure" "A" is completed,
"Settlement Procedure" "C" and "D" shall be
completed as soon as such rate has been
determined but no later than 12 Noon and 2:00
P.M., respectively, on the first Business Day
before the settlement date. "Settlement
Procedure" "I" is subject to extension in
accordance with any extension of Fedwire
closing deadlines and in the other events
specified in the SDFS operating procedures in
effect on the settlement date.
If settlement of a Book-Entry Note or a Book-
Entry Unit is rescheduled or canceled, Chase,
after receiving notice from the Company or
the Agent, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation
message to such effect by no later than 2:00
P.M. on the Business Day immediately
preceding the scheduled settlement date.
Failure to Settle: If Chase fails to enter an SDFS deliver order
with respect to a Book-Entry Note or a Book-
Entry Unit pursuant to "Settlement Procedure"
"G", Chase may deliver to DTC, through DTC's
Participant Terminal System, as soon as
practicable a withdrawal message instructing
DTC to debit such Note or Unit to Chase's
participant account, provided that Chase's
participant account contains a principal
amount of the Global Note representing such
Note or a face amount of the Global Unit
representing such Unit that is at least equal
to the principal amount or face amount to be
debited. If a withdrawal message is
processed with respect to all the Book-Entry
Notes represented by a Global Note or all of
the Book-Entry Units represented by the
Global Units, Chase will mark such Global
Note or Global Unit "canceled," make
appropriate entries in Chase's records and
send such canceled Global Note or Global Unit
to the Company. The CUSIP number assigned to
such Global Note, Global Unit, Universal
Warrant included in such Unit, or Purchase
Contract included in such Unit, shall, in
accordance with the procedures of the CUSIP
Service Bureau of Standard & Poor's
Corporation, be canceled and not immediately
reassigned. If a withdrawal message is
processed with respect to one or more, but
not all, of the Book-Entry Notes represented
by a Global Note or with respect to one or
more, but not all, of the Book-Entry Units
represented by a Global Unit, Chase will
exchange such Global Note or Global Unit, as
the case may be, for two Global Notes or for
two Global Units, as the case may be, one of
which shall represent such Book-Entry Note or
Notes or such Book-Entry Unit or Units and
shall be canceled immediately after issuance
and the other of which shall represent the
remaining Book-Entry Notes or Book-Entry
Units previously represented by the
surrendered Global Note or Global Unit and
shall bear the CUSIP number of the
surrendered Global Note, Global Unit,
Universal Warrant included in such Unit, or
Purchase Contract included in such Unit.
If the purchase price for any Book-Entry Note
or Book-Entry Unit is not timely paid to the
Participants with respect to such Note or
Unit by the beneficial purchaser thereof (or
a person, including an indirect participant
in DTC, acting on behalf of such purchaser),
such Participants and, in turn, the Agent may
enter SDFS deliver orders through DTC's
Participant Terminal System reversing the
orders entered pursuant to Settlement
Procedures "G" and "H", respectively.
Thereafter, Chase will deliver the withdrawal
message and take the related actions
described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure
to settle with respect to a Book-Entry Note or
Book-Entry Unit, DTC may take any actions in
accordance with its SDFS operating procedures
then in effect.
In the event of a failure to settle with respect
to one or more, but not all, of the Book-Entry
Notes or Book-Entry Units to have been
represented by a Global Note or a Global Unit,
as the case may be, Chase will provide, in
accordance with Settlement Procedures "E" and
"G", for the authentication and issuance of a
Global Note representing the Book-Entry Notes to
be represented by such Global Note and for the
issuance of a Global Unit representing the
Book-Entry Units to be represented by such
Global Unit and, in each case, will make
appropriate entries in its records.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
AND CERTIFICATED UNITS
Chase will serve as registrar in connection with
the Certificated Notes and the Certificated
Units.
Issuance: Each Certificated Note will be dated and issued
as of the date of its authentication by Chase
and each Certificated Unit will be deemed to be
dated as of the date of the underlying
Certificated Note. Each Certificated Note will
bear an Original Issue Date, which will be (i)
with respect to an original Certificated Note
(or any portion thereof), its original issuance
date (which will be the settlement date) and
(ii) with respect to any Certificated Note (or
portion thereof) issued subsequently upon
transfer or exchange of a Certificated Note or
in lieu of a destroyed, lost or stolen
Certificated Note, the original issuance date
of the predecessor Certificated Note, regardless
of the date of authentication of such
subsequently issued Certificated Note.
Preparation of
Pricing Supplement: If any order to purchase a Certificated Note or
a Certificated Unit is accepted by or on behalf
of the Company, the Company will prepare a
pricing supplement (a "Pricing Supplement")
reflecting the terms of such Note or Unit.
The Company (i) will arrange to file an
electronic format document, in the manner
prescribed by the EDGAR Filer Manual, of such
Pricing Supplement with the Commission in
accordance with the applicable paragraph of
Rule 424(b) under the Act, (ii) will, as soon
as possible and in any event not later than
the date on which such Pricing Supplement is
filed with the Commission, deliver the number
of copies of such Pricing Supplement to the
Agent as the Agent shall request and (iii)
will, on the Agent's behalf, promptly file
five copies of such Pricing Supplement with
the NASD. The Agent will cause such Pricing
Supplement to be delivered to the purchaser
of the Note or the Unit, as the case may be.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other
than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for an authenticated
Certificated Note or a Certificated Unit
delivered to the Agent and the Agent's delivery
of such Note or Unit against receipt of
immediately available funds shall constitute
"settlement" with respect to such Note or Unit.
All offers accepted by the Company will be
settled on or before the fifth Business Day next
succeeding the date of acceptance pursuant to
the timetable for settlement set forth below,
unless the Company and the purchaser agree to
settlement on another date.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note and each Certificated
Unit sold by the Company to or through the
Agent (unless otherwise specified pursuant
to a Notes Terms Agreement or a Units
Terms Agreement) shall be as follows:
A. In the case of Certificated Notes (whether issued
alone or as part of a Unit), the Agent will
advise the Company by telephone that such Note
is a Certificated Note and of the following
settlement information:
1. Name in which such Note is to be
registered ("Registered Note Owner").
2. Address of the Registered Note Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Note Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the Interest Rate, whether such Note
will pay interest annually or semiannually
and whether such Note is an Amortizing
Note and, if so, the amortization
schedule, or, in the case of a Floating
Rate Certificated Note, the Initial
Interest Rate (if known at such time),
Interest Payment Date(s), Interest
Payment Period, Calculation Agent, Base
Rate, Index Maturity, Index Currency,
Interest Reset Period, Initial Interest
Reset Date, Interest Reset Dates,
Spread or Spread Multiplier (if any),
Minimum Interest Rate (if any), Maximum
Interest Rate (if any) and the
Alternate Rate Event Spread (if any).
7. Redemption or repayment provisions, if
any.
8. Ranking.
9. Settlement date and time (Original Issue
Date).
10. Interest Accrual Date.
11. Price.
12. Agent's commission, if any, determined as
provided in the Distribution Agreement.
13. Denominations.
14. Specified Currency.
15. Whether the Note is an OID Note, and if
it is an OID Note, the total amount of
OID, the yield to maturity, the initial
accrual period OID and the
applicability of Modified Payment upon
Acceleration (and if so, the Issue
Price).
16. Whether the Note is a PERLS Note, and if
it is a PERLS Note, the Denominated
Currency, the Indexed Currency or
Currencies, the Payment Currency, the
Exchange Rate Agent, the Reference
Dealers, the Face Amount, the Fixed Amount
of each Indexed Currency, the Aggregate
Fixed Amount of each Indexed Currency, the
Conversion Reference Amount or Amounts and
the Authorized Denominations (if other
than U.S. dollars).
17. Whether the Note is a Renewable Note, and
if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date,
the Election Dates and the Maturity
Extension Dates.
18. Whether the Company has the option to
extend the Original Maturity Date of the
Note, and, if so, the Final Maturity Date
of such Note.
19. Whether the Company has the option to
reset the Spread or Spread Multiplier of
the Note.
20. Any other applicable provisions.
B. In the case of a Certificated Unit, the Agent
will advise the Company by telephone that such
Unit is a Certificated Unit, of the information
set forth in Settlement Procedure "A" above with
respect to Certificated Notes that constitute a
part of such Certificated Unit and of the
following information:
1. Name in which such Unit is to be
registered ("Registered Unit Owner").
2. Address of the Registered Unit Owner.
3. Taxpayer identification number of the
Registered Unit Owner (if available).
4. Denominations.
5. Settlement date and time.
6. Face Amount.
7. Agent's commission, if any, determined as
provided in the Distribution Agreement.
8. Designation of the Securities comprised by
such Units:
a. Notes (See Settlement Procedures "A");
b. Universal Warrants, if any; and
c. Purchase Contracts, if any.
9. Whether, and the terms under which, the
Securities comprised by such Unit will be
separately tradeable.
10. Any other provisions applicable to the
Unit (other than those provisions
applicable to the securities
comprised by such Unit).
11. If the Certificated Unit comprises
Certificated Universal Warrants:
a. Designation of the Series of Universal
Warrants: [Call][Put] Warrants;
b. Warrant Property;
c. Aggregate Number of Universal
Warrants;
d. Price to Public;
e. Universal Warrant Exercise Price;
f. Dates upon which Universal Warrants
may be exercised;
g. Expiration Date;
h. Form;
i. Currency in which exercise payments
shall be made;
j. Minimum number of Universal Warrants
exercisable by any holder on any day;
k. Maximum number of Universal Warrants
exercisable on any day: [In the
aggregate] [By any beneficial owner];
l. Formula for determining Cash
Settlement Value;
m. Exchange Rate (or method of
calculation); and
n. Any other applicable provisions.
12. If the Certificated Unit comprises
Certificated Purchase Contracts:
a. Designation of the Series of Purchase
Contracts: [Purchase][Sale] Purchase
Contracts;
b. Purchase Contract Property;
c. Aggregate Number of Purchase Contracts;
d. Price to Public;
e. Settlement Date;
f. [Purchase/Sale] Price of Purchase
Contract Property;
g. Form; and
h. Any other applicable provisions.
C. The Company will advise Chase by telephone or
electronic transmission (confirmed in writing at
any time on the sale date) of the information
set forth in Settlement Procedure "A" and "B"
above, as applicable.
D. The Company will have delivered to Chase a
pre-printed four-ply packet for each Note and
Unit, which packet will contain the following
documents in forms that have been approved by
the Company, the Agent, the Trustee and the Unit
Agent, as applicable:
1. Note with customer confirmation.
2. Stub One - For Chase.
3. Stub Two - For the Agent.
4. Stub Three - For the Company.
E. Chase will (i) with respect to a Note,
authenticate such Note and deliver it (with the
confirmation) and Stubs One and Two to the Agent
or (ii) with respect to a Unit, complete and
deliver the Unit (including countersigning and
delivering the Universal Warrant and
countersigning, executing and delivering the
Purchase Contract) with the confirmation Stubs
One and Two to the Agent. The Agent will
acknowledge receipt of the Note or the Unit, as
the case may be, by stamping or otherwise
marking Stub One and returning it to Chase.
Such delivery will be made only against such
acknowledgment of receipt and evidence that
instructions have been given by the Agent for
payment to the account of the Company at Chase,
New York, New York, or to such other account as
the Company shall have specified to the Agent
and Chase in funds available for immediate use,
of an amount equal to the price of such Note or
Unit less the Agent's commission, if any. In
the event that the instructions given by the
Agent for payment to the account of the
Company are revoked, the Company will as
promptly as possible wire transfer to the
account of the Agent an amount of immediately
available funds equal to the amount of such
payment made.
F. Unless the Agent is the end purchaser of such
Note or Unit, the Agent will deliver such
Note or Unit (with confirmation) to the
customer against payment in immediately
payable funds. The Agent will obtain the
acknowledgment of receipt of such Note or
Unit by retaining Stub Two.
G. Chase will send Stub Three to the Company by
first-class mail. Periodically, Chase will also
send to the Company a statement setting
forth, in the case of the Notes, the
principal amount of the Notes outstanding as
of that date under each Indenture and, in the
case of the Units, the aggregate face amount
of the Units outstanding under the Unit
Agreement and, in each case, setting forth a
brief description of any sales of which the
Company has advised Chase that have not yet
been settled.
Settlement Procedures
Timetable: For sales by the Company of Certificated Notes
or of Certificated Units to or through the Agent
(unless otherwise specified pursuant to a Notes
Terms Agreement or a Units Terms Agreement),
Settlement Procedures "A" through "G" set forth
above shall be completed on or before the
respective times in New York City set forth
below:
Settlement
Procedure Time
A 2:00 P.M. on day before settlement date
B 2:00 P.M. on day before settlement date
C 3:00 P.M. on day before settlement date
D-E 2:15 P.M. on settlement date
F 3:00 P.M. on settlement date
G 5:00 P.M. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and
make payment for any Certificated Note or any
Certificated Unit, the Agent will notify the
Company and Chase by telephone and return such
Note or Unit to Chase. Upon receipt of such
notice, the Company will immediately wire
transfer to the account of the Agent an amount
equal to the amount previously credited thereto
in respect to such Note or Unit. Such wire
transfer will be made on the settlement date, if
possible, and in any event not later than the
Business Day following the settlement date. If
the failure shall have occurred for any reason
other than a default by the Agent in the
performance of its obligations hereunder and
under the Distribution Agreement, then the
Company will reimburse the Agent or Chase, as
appropriate, on an equitable basis for its loss
of the use of the funds during the period when
they were credited to the account of the
Company. Immediately upon receipt of the
Certificated Note or the Certificated Unit in
respect of which such failure occurred, Chase
will mark such note or Unit "canceled," make
appropriate entries in Chase's records and send
such Note or Unit, as the case may be, to the
Company.
Exhibit 1-d
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
$[ ],000,000,000
Global Medium-Term Notes, Series D and Series E
Global Units, Series D and Series E
EURO DISTRIBUTION AGREEMENT
June , 1997
Dean Witter International Ltd.
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, Dean Witter, Discover & Co., 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 $[ ],000,000,000 (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 and Series E, each
due more than 9 months from the date of issue (the "Notes") and, its Global
Units, Series D and Series E , (the "Units" and together with the Notes,
"Program Securities"), in each case subject to reduction as a result of the
sale of the Company's Global Medium-Term Notes, Series C and Global Units,
Series C, to be sold primarily inside the United States, and the sale of
certain of the Company's other debt securities, warrants, preferred stock,
purchase contracts and units. 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.
Application may, in certain circumstances described in the Prospectus
Supplement (as defined below), be made to list Series D Units on the London
Stock Exchange. The Series E Notes and the Series E Units will not be listed
on any stock exchange.
The Notes may be issued as senior indebtedness (the "Senior
Notes") or as subordinated indebtedness (the "Subordinated Notes") of the
Company. The Senior Notes will be issued, either alone or as part of a Unit,
pursuant to the provisions of 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, each
between Morgan Stanley Group Inc. and The Chase Manhattan Bank (formerly known
as Chemical Bank), as trustee (the "Senior Debt Trustee") and a third
supplemental senior indenture (the "Third Supplemental Senior Indenture")
dated as of June 1, 1997 , between the Company (as successor to Morgan
Stanley) and the Senior Debt Trustee (as so supplemented and as may be further
supplemented or amended from time to time, the "Senior Debt Indenture"). The
Subordinated Notes will be issued pursuant to the provisions of a subordinated
indenture dated as of 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 , each between Morgan
Stanley and The First National Bank of Chicago, as trustee (the "Subordinated
Debt Trustee"), and a third supplemental subordinated indenture (the "Third
Supplemental Subordinated Indenture") dated as of June 1, 1997, between the
Company (as successor to Morgan Stanley) and the Subordinated Debt Trustee (as
so supplemented and as may be further supplemented or amended from time to
time, the "Subordinated Debt Indenture"). The Senior Debt Indenture and the
Subordinated Debt Indenture are sometimes hereinafter referred to individually
as an "Indenture" and collectively as the "Indentures," and the Senior Debt
Trustee and the Subordinated Debt Trustee are sometimes hereinafter referred
to individually as a "Trustee" and collectively as the "Trustees."
The Units will be issued pursuant to the Unit Agreement dated
as of June 2, 1997, among the Company, The Chase Manhattan Bank, as Unit
Agent, as Collateral Agent, as Trustee and Paying Agent under the Indenture
referred to therein, and as Warrant Agent under the Warrant Agreement referred
to therein and the holders from time to time of the Units described therein.
Units may include one or more (i) Senior Notes, (ii) warrants ("Universal
Warrants") entitling the holders thereof to purchase or sell (a) securities of
an entity unaffiliated with the Company, a basket of such securities, an index
or indices of such securities or any combination of the above, (b) currencies
or composite currencies or (c) commodities, (iii) purchase contracts
("Purchase Contracts") requiring the holders thereof to purchase or sell (a)
securities of an entity unaffiliated with the Company, a basket of such
securities, an index or indices of such securities or any combination of the
above, (b) currencies or composite currencies or (c) commodities or (iv) any
combination thereof. The applicable prospectus supplement will specify
whether Notes, Universal Warrants and Purchase Contracts comprised by a Unit
may or may not be separated from any series of Units. Universal Warrants
issued as part of a Unit will be issued pursuant to the Universal Warrant
Agreement dated as of June 2, 1997 (the "Universal Warrant Agreement"),
between the Company and The Chase Manhattan Bank, as Warrant Agent. Purchase
Contracts entered into by the Company and the holders thereof will be governed
by the Unit Agreement.
The Notes whether issued, alone or as part of a Unit, will have
the maturities, interest rates, redemption provisions, if any, and other terms
as set forth in supplements to the Basic Prospectus referred to below. The
Universal Warrants issued as part of a Unit will have the exercise prices,
exercise dates, expiration dates and other terms as set forth in supplements
to the Basic Prospectus. The Purchase Contracts issued as part of a Unit will
have the closing dates, purchase or sale prices and other terms as set
forth in supplements to the Basic Prospectus. The Company has initially
appointed The Chase Manhattan 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 Units will be
issued in bearer form or in definitive registered form (the "Registered
Units") and the securities included in a Unit will be in the form of such
Unit. The Notes and the Units, (the "Program Securities") issued in bearer
form will be represented initially by, in the case of the Notes, a temporary
global Note and, in the case of the Units, a temporary global Unit, each of
which will be delivered to a common depositary outside the United States for
the operator of the Euroclear System (the "Euroclear Operator") and Cedel
Bank, societe anonyme ("Cedel Bank"). Beneficial interests in a temporary
global Note or a temporary global Unit will be exchangeable for beneficial
interests in, in the case of a temporary global Note, a permanent global Note
and, in the case of a temporary global Unit, a permanent global Unit.
Beneficial interests in a permanent global Note will be exchangeable in whole,
but not in part, for definitive Notes in bearer form, with interest coupons
attached upon receipt of the Principal Paying Agent of an initial request to
so exchange by any holder of a beneficial interest in such permanent global
Note (such temporary global Note, permanent global Note and definitive Notes
in bearer form are collectively referred to as the "Bearer Notes"), or, if the
applicable Pricing Supplement so specifies, for Registered Notes. Beneficial
interests in a permanent global Unit (including an interest in the securities
included in such Unit) will be exchangeable in whole, but not in part, for
definitive Units in bearer form upon receipt of the Unit Agent of an initial
request to so exchange by any holder of a beneficial interest in such
permanent global Unit (such temporary global Unit, permanent global Unit and
definitive Units in bearer form are collectively referred to as the "Bearer
Units") or, if the applicable Pricing Supplement so specifies, for Registered
Units. As used in this Agreement, the term "Note" includes any temporary
global Note or permanent global Note issued pursuant to the Indentures and the
term "Unit" includes any temporary global Unit or permanent global Unit issued
pursuant to the Unit Agreement.
The Company hereby appoints you as its exclusive agents for the
purpose of soliciting and receiving offers to purchase Program Securities from
the Company by others and, on the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth,
you agree to use reasonable efforts to solicit and receive offers to purchase
Program Securities upon terms acceptable to the Company at such times and in
such amounts as the Company shall from time to time specify. In addition, you
may also purchase Program Securities as principal pursuant to the terms of a
terms agreement relating to such sale (in the case of Notes, a "Notes Terms
Agreement" and, in the case of Units, a "Units Terms Agreement") in accordance
with the provisions of Section 2(b) hereof. Program Securities 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
Program Securities denominated or payable in Deutsche Marks offered and sold
by Morgan Stanley Bank AG during the month in question. Program Securities
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 Program Securities. Program Securities 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 Program Securities.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a
prospectus, relating to the Program Securities. Such registration statement,
including the exhibits thereto, as amended at the Commencement Date (as
hereinafter defined), is hereinafter referred to as the "Registration
Statement." The Company proposes to file with the Commission from time to
time, pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"), supplements to the prospectus included in the Registration
Statement that will describe certain terms of the Program Securities. 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 Program
Securities, 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 Program Securities, as of each date on
which the Company accepts an offer to purchase Program Securities (including
any purchase by you as principal pursuant to a Notes Terms Agreement or a
Units Terms Agreement), as of each date the Company issues and delivers
Program Securities and as of each date the Registration Statement or the Basic
Prospectus is amended or supplemented, as follows (it being understood that
such representations, warranties and agreements shall be deemed to relate to
the Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and
no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not
contain and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) the Registration Statement and the Prospectus comply and,
as amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that (1) the representations and warranties set
forth in this Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
you furnished to the Company in writing by you expressly for use therein or
(B) to those parts of the Registration Statement that constitute the Statements
of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), of the Trustees and (2) the representations and
warranties set forth in clauses (iii) and (iv) above, when made as of the
Commencement Date or as of any date on which you solicit offers to purchase
Program Securities or on which the Company accepts an offer to purchase
Program Securities, shall be deemed not to cover information concerning an
offering of particular Program Securities to the extent such information will
be set forth in a supplement to the Basic Prospectus.
(c) The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business
as described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on the Company and its 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 Notes Terms
Agreement or Written Units Terms Agreement (each as hereinafter defined) has
been duly authorized, executed and delivered by the Company.
(f) Each Indenture has been duly qualified under the Trust
Indenture Act and each of the Indentures, the Unit Agreement and the Universal
Warrant Agreement has been duly authorized, executed and delivered by the
Company or by Morgan Stanley Group Inc. (a predecessor to the Company) and
assumed by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of whether such
enforceability is considered at proceedings in equity or at law.
(g) The forms of Notes, whether issued alone or as part of a Unit,
have been duly authorized and established in conformity with the provisions of
the relevant Indenture and, when the Notes 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 forms of Units, including the forms of Universal Warrants
and Purchase Contracts which, in addition to the Notes, may comprise such
Units, have been duly authorized and established in conformity with the
provisions of (i) in the case of the Units and Purchase Contracts, the Unit
Agreement and (ii) in the case of Universal Warrants, the Universal Warrant
Agreement. When the Units have been delivered to and duly paid for by the
purchasers thereof and (A) any Purchase Contracts included in such Units have
been executed by the Company and countersigned and executed by the Unit Agent
and (B) any Universal Warrants included in such Units have been executed by
the Company and countersigned by the Warrant Agent, the Units (including any
such Purchase Contracts or Universal Warrants contained therein) will be
entitled to the benefits of the Unit Agreement and, in the case of the
Universal Warrants, the Universal Warrant Agreement and will be valid and
binding obligations of the Company, enforceable in accordance with their
respective terms except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered at a proceeding in equity or at law.
(i) The execution and delivery by the Company of this Agreement,
the Notes (whether issued alone or as part of a Unit), the Units (including any
Purchase Contracts and Universal Warrants included therein) the Indentures,
the Unit Agreement, the Universal Warrant Agreement and any applicable Written
Notes Terms Agreement or Written Units Terms Agreement and the performance by
the Company of its obligations under this Agreement, the Notes, the Units, the
Indentures, the Unit Agreement, the Universal Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by-laws
of the Company or any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company and its
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 Units, the Indentures, the Unit Agreement, the Universal Warrant Agreement
and any applicable Notes Terms Agreement or Units Terms Agreement; provided,
however, that no representation is made or warranty given as to whether the
purchase of the Program Securities constitutes a "prohibited transaction"
under Section 406 of the Employee Retirement Income Security Act of 1974, as
amended, or Section 4975 of the Internal Revenue Code of 1986, as amended.
(j) 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.
(k) 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.
(l) 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.
(m) Dean Witter Reynolds Inc. is registered as a broker-dealer
and investment adviser with the Commission, is registered with the Commodity
Futures Trading Commission as a futures commission merchant and is a member of
the New York Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc.
(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.
Notwithstanding the foregoing, it is understood and agreed that
the representations and warranties set forth in Section 1(b)(iii) and
1(b)(iv), 1(g) (except as to due authorization of the Notes), 1(h) (except as
to due authorization of the Units, Universal Warrants and Purchase Contracts)
and 1(i), when made as of the Commencement Date, or as of any date on which
you solicit offers to purchase Program Securities, with respect to any Program
Securities the payments of principal or interest on which, or any other
payments with respect to which, will be determined by reference to one or more
currency exchange rates, commodity prices, securities of entities unaffiliated
with the Company, baskets of such securities, equity indices or other factors,
shall be deemed not to address the application of the Commodity Exchange Act,
as amended, or the rules, regulations or interpretations of the Commodity
Futures Trading Commission.
2. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. In connection with your actions as
agents hereunder, you agree to use reasonable efforts to solicit offers to
purchase Program Securities upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to
instruct you to suspend at any time, for any period of time or permanently,
the solicitation of offers to purchase Program Securities. Upon receipt of at
least one business day's prior notice from the Company, you will forthwith
suspend solicitations of offers to purchase Program Securities from the
Company until such time as the Company has advised you that such solicitation
may be resumed. While such solicitation is suspended, the Company shall not be
required to deliver any certificates, opinions or letters in accordance with
Sections 5(a), 5(b) and 5(c); provided, however, that if the Registration
Statement or Prospectus is amended or supplemented during the period of
suspension (other than by an amendment or supplement providing solely for (i)
in the case of Notes, issued alone or as part of a Unit, a change in the
interest rates, redemption provisions, amortization schedules or maturities
offered on the Notes, (ii) in the case of Units, a change in the exercise
price, exercise date or period or expiration of an underlying Universal
Warrant or a change in the settlement date or purchase or sale price of an
underlying Purchase Contract or (iii) for a change you deem to be immaterial),
you shall not be required to resume soliciting offers to purchase Program
Securities until the Company has delivered such certificates, opinions and
letters as you may request.
The Company agrees to pay to you, as consideration for the sale
of each Program Security resulting from a solicitation made or an offer to
purchase received by you, a commission in the form of a discount from the
purchase price of such Program Security equal to between .125% and .750%
(depending upon such Note's maturity or, in the case of Units, any underlying
Note's maturity or the terms of the Units and of the securities comprised by
such Units) of the principal amount of such Note or, in the case of Units, the
face amount of such Unit (provided that the commission for Notes having, or
Units including Notes or other securities having, a maturity of 30 years or
greater will be negotiated) or such other discount as may be specified in the
Prospectus Supplement relating to such Note or Unit.
You shall communicate to the Company, orally or in writing, each
offer to purchase Program Securities received by you as agent that in your
judgment should be considered by the Company. The Company shall have the sole
right to accept offers to purchase Program Securities and may reject any offer
in whole or in part. You shall have the right to reject any offer to purchase
Program Securities that you consider to be unacceptable, and any such
rejection shall not be deemed a breach of your agreements contained herein.
The procedural details relating to the issue and delivery of Program
Securities sold by you as agent and the payment therefor shall be as set forth
in the Administrative Procedures (as hereinafter defined).
(b) Purchases as Principals. Each sale of Program Securities to
you as principals shall be made in accordance with the terms of this
Agreement. In connection with each such sale, the Company will enter into a
Notes Terms Agreement or Units Terms Agreement that will provide for the sale
of such Program Securities to and the purchase thereof by you. Each Notes
Terms Agreement or Units Terms Agreement will take the form of either (i) a
written agreement between you and the Company, which may be substantially in
the form of Exhibit A or Exhibit A-1 (as applicable) hereto (in the case of
Notes, a "Written Notes Terms Agreement" and, in the case of Units, a "Written
Units Terms Agreement"), or (ii) an oral agreement between you and the Company
confirmed in writing by you to the Company.
Your commitment to purchase Program Securities as principal
pursuant to a Notes Terms Agreement or Units Terms Agreement shall be deemed to
have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions
herein set forth. Each (i) Note Terms Agreement shall specify the principal
amount of Notes to be purchased by you pursuant thereto, the maturity date of
such Notes, the price to be paid to the Company for such Notes, the interest
rate and interest rate formula, if any, applicable to such Notes and any other
terms of such Notes and (ii) Unit Terms Agreement shall specify (a) the
information set forth in (i) above with respect to any Notes issued as part of
a Unit, (b) with respect to Universal Warrants issued as part of a Unit, the
exercise price, the exercise date or period, the expiration date and any other
terms of such Universal Warrants, and (c) with respect to Purchase Contracts
issued as part of a Unit, the settlement date, the purchase or sale price or
any other terms of such Purchase Contracts. Each such Notes Terms Agreement
or Units Terms Agreement may also specify any requirements for officers'
certificates, opinions of counsel and letters from the independent auditors of
the Company pursuant to Section 4 hereof. A Notes Terms Agreement and a Unit
Terms Agreement may also specify certain provisions relating to the reoffering
of such Notes or Units, as the case may be, by you.
Each Notes Terms Agreement and each Units Terms Agreement shall
specify the time and place of delivery of and payment for such Notes or Units,
as the case may be. Unless otherwise specified in a Notes Terms Agreement or
a Units Terms Agreement, the procedural details relating to the issue and
delivery of Notes or Units, as the case may be, purchased by you as principal
and the payment therefor shall be as set forth in the Administrative
Procedures. Each date of delivery of and payment for Program Securities to
be purchased by you as principal pursuant to a Notes Terms Agreement or a
Units Terms Agreement, as the case may be, is referred to herein as a
"Settlement Date."
Unless otherwise specified in a Notes Terms Agreement or a Units
Terms Agreement, if you are purchasing Program Securities as principal you may
resell such Program Securities to other dealers. Any such sales may be at a
discount, which shall not exceed the amount set forth in the Prospectus
Supplement relating to such Notes or Units.
(c) Administrative Procedures. You and the Company agree to
perform the respective duties and obligations specifically provided to be
performed in the Global Medium-Term Notes, Series D and Series E and the
Global Units, 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 Program Securities 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 Program Securities and (ii) the first date on
which the Company accepts any offer by you to purchase Program Securities as
principal. The date of delivery of such documents is referred to herein as the
"Commencement Date."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Program
Securities pursuant to this Agreement or any Notes Terms Agreement or Units
Terms Agreement, the Company will not file any Prospectus Supplement relating
to the Program Securities or any amendment to the Registration Statement 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
Program Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vi) of the issuance by any
non-United States regulatory authority of any request for information relating
to the Program Securities or suspension of the listing of the Program
Securities on any stock exchange on which the Program Securities 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 Program Securities so
long as you are not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Program
Securities is required to be delivered under the Securities Act or made
available to purchasers of the Program Securities, any event occurs or
condition exists as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact, or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances when the Prospectus, as then amended or supplemented, is
delivered to a purchaser, not misleading, or if, in your opinion or in the
opinion of the Company, it is necessary at any time to amend or supplement the
Prospectus, as then amended or supplemented, to comply with applicable law,
the Company will immediately notify you by telephone (with confirmation in
writing) to suspend solicitation of offers to purchase Program Securities and,
if so notified by the Company, you shall forthwith suspend such solicitation
and cease using the Prospectus, as then amended or supplemented. If the
Company shall decide to amend or supplement the Registration Statement or
Prospectus, as then amended or supplemented, it shall so advise you promptly
by telephone (with confirmation in writing) and, at its expense, shall prepare
and cause to be filed promptly with the Commission an amendment or supplement
to the Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to you, that will correct such statement or
omission or effect such compliance and will supply such amended or
supplemented Prospectus to you in such quantities as you may reasonably
request. If any documents, certificates, opinions and letters furnished to
you pursuant to paragraph (e) below and Sections 5(a), 5(b) and 5(c) in
connection with the preparation and filing of such amendment or supplement are
satisfactory in all respects to you, upon the filing with the Commission of
such amendment or supplement to the Prospectus or upon the effectiveness of an
amendment to the Registration Statement, you will resume the solicitation of
offers to purchase Program Securities hereunder. Notwithstanding any other
provision of this Section 3(b), until the distribution of any Program
Securities you may own as principal has been completed, if any event described
above in this paragraph (b) occurs, the Company will, at its own expense,
forthwith prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus, as then
amended or supplemented, satisfactory in all respects to you, will supply such
amended or supplemented Prospectus to you in such quantities as you may
reasonably request and shall furnish to you pursuant to paragraph (e) below
and Sections 5(a), 5(b) and 5(c) such documents, certificates, opinions and
letters as you may request in connection with the preparation and filing of
such amendment or supplement.
(c) The Company will make generally available to its security
holders and to you as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering twelve month periods
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each sale of
Program Securities. If such fiscal quarter is the 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 Unit Agreement, the Warrant Agreement, the Notes,
the Units, the Universal Warrants, the Purchase Contracts, this Agreement, the
Administrative Procedures, any Notes Terms Agreement or Units Terms Agreement
and the performance by the Company of its obligations hereunder or thereunder
as you may from time to time reasonably request.
(f) The Company shall notify you promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate the
direction of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(g) The Company will, whether or not any sale of Program Securities
is consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Notes Terms Agreement or Units Terms Agreement,
including: (i) the preparation and filing of the Registration Statement and
the Prospectus and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Program Securities, (iii) the fees
and disbursements of the Company's counsel and accountants, of the Trustees
and their counsel, of the Unit Agent and its counsel, of the Warrant Agent and
its counsel and of the Principal Paying Agent and its counsel and any paying
agents for the Notes appointed by the Company, (iv) the fees and expenses
incurred with respect to listing the Series D Notes and, if listed, the Series
D Units 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, the
Unit Agreement or the Universal Warrant Agreement, (vii) any fees charged by
rating agencies for the rating of the Program Securities, (viii) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc., (ix) the fees and disbursements of
your counsel incurred in connection with the offering and sale of the Program
Securities, including any opinions to be rendered by such counsel hereunder,
and (x) any out-of-pocket expenses incurred by you; provided that any
advertising expenses incurred by you shall have been approved by the Company.
(h) During the period beginning on the date of any Notes Terms
Agreement or Units Terms Agreement relating to either Notes or Units, as the
case may be, and continuing to and including the Settlement Date with respect
to such Notes Terms Agreement or Units Terms Agreement, the Company will not,
without your prior consent, offer, sell, contract to sell or otherwise dispose
of (i) in the case of Notes, any debt securities of the Company substantially
similar to the Notes set forth in such Notes Terms Agreement (other than (A)
the Notes that are to be sold pursuant to such Notes Terms Agreement, (B)
Notes previously agreed to be sold by the Company and (C) commercial paper
issued in the ordinary course of business) or (ii) in the case of Units, any
securities substantially similar to such Units (other than (A) the Units that
are sold pursuant to such Units Terms Agreement or (B) Units previously agreed
to be sold by the Company), in each case, except as may otherwise be provided
in the applicable Notes Terms Agreement or Units Terms Agreement.
(i) The Company will indemnify and hold you harmless against any
documentary, stamp or similar transfer or issue tax, including any interest and
penalties, on the issue of the Program Securities in accordance with the terms
of this Agreement, on the execution and delivery of this Agreement, any
Written Notes Terms Agreement or Written Units Terms Agreement and on the
exchange of any temporary global Notes for definitive Notes or permanent
global Notes, of any temporary global Units for definitive Units or permanent
global Units, of any permanent global bearer Notes for definitive bearer Notes
or of any permanent global bearer Units for definitive bearer Units, that are
or may be required to be paid under the laws of the United Kingdom, the United
States or any political subdivision or taxing authority thereof or therein.
(j) In connection with any application to list the Series D Notes
and Series D Units 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, (i) in the case
of the Notes, none of the Series D Notes is outstanding, either as part of a
Unit or otherwise, or until such time as payment of principal, premium, if
any, and interest in respect of all the Series D Notes, whether issued alone
or as part of a Unit, has been duly provided for, whichever is earlier and
(ii) in the case of the Units, none of the Series D Units is outstanding;
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 and Series D Units on such other stock
exchange or exchanges as you shall reasonably request. In addition, for so
long as the Series D Notes and Series D Units 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 and Series D Units are listed (if the Series
D Notes and Series D Units are no longer listed on the London Stock Exchange),
a paying agent in respect of the Series D Notes or Series D Units, as
required.
4. Conditions of the Obligations of the Agents. Your obligation
to solicit offers to purchase Program Securities as agents of the Company, your
obligation to purchase Program Securities as principals pursuant to any Notes
Terms Agreement or Units Terms Agreement and the obligation of any other
purchaser to purchase Program Securities will be subject to the accuracy of
the representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of your obligation to
solicit offers to purchase Program Securities, at the time of such
solicitation, and, in the case of your or any other purchaser's obligation to
purchase Program Securities, at the time the Company accepts the offer to
purchase such Program Securities and at the time of issuance and delivery) and
(in each case) to the following additional conditions precedent when and as
specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus, as amended or supplemented at the time of
such solicitation or at the time such offer to purchase was made,
that, in your judgment, is material and adverse and that makes it, in
your judgment, impracticable to market the Program Securities on the
terms and in the manner contemplated by the Prospectus, as so amended
or supplemented;
(ii) there shall not have occurred such a change in national
or international financial, political or economic conditions or currency
exchange rates or exchange controls as would in your view be likely to
prejudice materially the success of the offering and distribution of the
Program Securities or dealings in the Program Securities in the secondary
market; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or
(iii) above, as disclosed to you in writing by the Company prior to such
solicitation or, in the case of a purchase of Program Securities, before the
offer to purchase such Program Securities was made or (B) unless in each case
described in (ii) above, the relevant event shall have occurred and been known
to you prior to such solicitation or, in the case of a purchase of Program
Securities, before the offer to purchase such Program Securities was made.
(b) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, you
shall have received:
(i) The opinion, dated as of such date, of Brown & Wood LLP,
counsel to the Company, or of other counsel satisfactory to you and
who may be an officer of the Company, to the 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 Dean Witter Reynolds Inc., Greenwood
Trust Company, 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 Notes Terms Agreement or Written Units Terms Agreement
has been duly authorized, executed and delivered by the Company;
(E) each Indenture has been duly qualified under
the Trust Indenture Act and each of the Third Supplemental Senior
Indenture and the Third Supplemental Subordinated Indenture, the
Unit Agreement and the Universal Warrant Agreement has been duly
authorized, executed and delivered by the Company and each of the
Indentures is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the
enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of whether
such enforceability is considered at a proceeding in equity or at
law;
(F) the forms of Notes, whether issued alone or
as part of a Unit, have been duly authorized and established in
conformity with the provisions of the relevant Indenture and, if
the Notes 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 the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium
and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of
whether such enforceability is considered at a proceeding in
equity or at law;
(G) the forms of Units, including the forms of
Universal Warrants and Purchase Contracts which, in addition to
the Notes, may comprise such Units, have been duly authorized and
established in conformity with the provisions of (i) in the case
of Units and Purchase Contracts, the Unit Agreement and (ii) in
the case of the Universal Warrants, the Universal Warrant
Agreement, and if the Units (including the Universal Warrants and
the Purchase Contracts) had been delivered to and duly paid for
by the purchasers thereof (and any Universal Warrant included
therein had been executed by the Company and countersigned by the
Warrant Agent and any Purchase Contracts included therein had
been executed by the Company and executed and countersigned by
the Unit Agent) on the date of such opinion, the Units (including
the Universal Warrants and Purchase Contracts contained therein)
would be entitled to the benefits of the Unit Agreement and, in
the case of the Universal Warrants, the Universal Warrant
Agreement and would be valid and binding obligations of the
Company, enforceable in accordance with their respective terms
except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium
and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of
whether such enforceability is considered at a proceeding in
equity or at law;
(H) the execution and delivery by the Company of
the Notes (whether issued alone or as part of a Unit), the Units
(including any Purchase Contract or Universal Warrant included
therein), the Indentures, the Unit Agreement, the Universal
Warrant Agreement and any applicable Written Notes Terms
Agreement or Written Units Terms Agreement and the performance by
the Company of its obligations under this Agreement, the Notes,
the Units, the Indentures, the Unit Agreement, the Universal
Warrant Agreement and any applicable Notes Terms Agreement or
Units Terms Agreement will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of
the Company or, to the best of such counsel's knowledge, any
agreement or other instrument binding upon the Company or any of
its consolidated subsidiaries that is material to the Company and
its consolidated subsidiaries, taken as a whole, or, to the best
of such counsel's knowledge, any judgment, order or decree of any
U.S. governmental body, agency or court having jurisdiction over
the Company or any of its consolidated subsidiaries, and no
consent, approval, authorization or order of or qualification
with any U.S. governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Notes, the Units, the Indentures, the Unit
Agreement, the Universal Warrant Agreement and any applicable
Notes Terms Agreement or Units Terms Agreement; provided,
however, that no opinion is expressed on whether the purchase of
the Program Securities constitutes a "prohibited transaction"
under Section 406 of the Employee Retirement Income Security Act
of 1974, as amended, or Section 4975 of the Internal Revenue Code
of 1986, as amended;
(I) the statements (1) in the Prospectus, as then
amended or supplemented, under the captions "Description of
Notes" (in the Prospectus Supplement), "Description of Debt
Securities" (in the Basic Prospectus), "Description of Units" (in
the Prospectus Supplement and in the Basic Prospectus), "Plan of
Distribution" (in the Prospectus Supplement and in the Basic
Prospectus), "Description of Purchase Contracts" (in the Basic
Prospectus) and "Description of Warrants" (in the Basic
Prospectus), (2) in the Registration Statement, as then amended
or supplemented, under Item 15, (3) in "Item 3 - Legal
Proceedings" of the most recent annual reports on Form 10-K
incorporated by reference in the Prospectus and (4) in "Item 1 -
Legal Proceedings" of Part II of the quarterly reports on Form
10-Q, if any, filed since such annual reports and incorporated by
reference in the Prospectus, in each case insofar as such
statements constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(J) 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
(K) 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 or Units to the extent such information will be set forth
in a supplement to the Basic Prospectus.
(ii) The opinion, dated as of such date, of Davis Polk &
Wardwell, your special counsel, covering the matters in subparagraphs
(D), (E), (F), (G) and (I) (with respect to statements in the
Prospectus, as then amended or supplemented, under the captions
"Description of Notes" (in the Prospectus Supplement), "Description of
Debt Securities" (in the Basic Prospectus), "Description of Units" (in
the Prospectus Supplement and the Basic Prospectus), "Plan of
Distribution" (in the Prospectus Supplement and in the Basic
Prospectus), "Description of Purchase Contracts" (in the Basic
Prospectus) and "Description of Warrants" (in the Basic Prospectus))
and clauses (2), (3) and (4) of subparagraph (K) in paragraph (b)(i)
above.
Notwithstanding the foregoing, the opinions described in
subparagraphs (F) (except as to due authorization of the Notes), (G) (except
as to due authorization of the Units, Universal Warrants and Purchase
Contracts), (H), (I)(1) and (K)(3) and (4) of paragraph (b)(i) above, when
contained in an opinion delivered on the Commencement Date or pursuant to
Section 5(b), shall be deemed not to address the application of the Commodity
Exchange Act, as amended, or the rules, regulations or interpretations of the
Commodity Futures Trading Commission to Program Securities the payments of
principal or interest on which, or any other payments with respect to which,
will be determined by reference to one or more currency exchange rates,
commodity prices, securities of entities unaffiliated with the Company,
baskets of such securities, equity indices or other factors.
With respect to subparagraph (K) of paragraph (b)(i) above, if
such opinion is given by counsel who is also an officer of the Company, such
counsel may state that his or her opinion and belief are based upon his or her
participation, or the participation of someone under his or her supervision, in
the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but are without
independent check or verification, except as specified. With respect to
subparagraph (K) of paragraph (b)(i) above, Davis Polk & Wardwell and, if
Brown & Wood LLP is giving such opinion, Brown & Wood LLP may state that their
opinion and belief are based upon their participation in the preparation of
the Registration Statement and Prospectus and any amendments or supplements
thereto (but not including documents incorporated therein by reference) and
review and discussion of the contents thereof (including documents
incorporated therein by reference), but are without independent check or
verification, except as specified.
(iii) The opinion, dated as of such date, of Brown & Wood LLP,
special counsel to the Company, to the effect that the statements set forth
under the caption "United States Federal Taxation" in the Prospectus
Supplement and under the caption "Limitations on Issuance of Bearer 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 Brown & Wood LLP described in paragraph (b)(iii)
above and in paragraph (b)(i) above, if such opinion is given by Brown & Wood
LLP, shall be rendered to you at the request of the Company and shall so state
therein.
(c) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, you
shall have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, and signed by an executive officer of the
Company to the effect set forth in subparagraph (a)(iii) above and to the
effect that the representations and warranties of the Company contained in this
Agreement are true and correct as of such date and that the Company has
complied with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, the
Company's independent auditors shall have furnished to you a letter or
letters, dated as of the Commencement Date or such Settlement Date, as the
case may be, in form and substance satisfactory to you containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Prospectus, as then amended or supplemented.
(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 and Series D Units on the London Stock Exchange shall have been made
and, prior to the issuance of the first Series D Note or Series D Unit, 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 (i) in the case of Notes, a
change in the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes issued alone or as part of a Unit, (ii) in the
case of Units, a change in the exercise price, exercise date or period or
expiration of an underlying Universal Warrant or a change in the settlement
date or purchase or sale price of an underlying Purchase Contract or (iii) a
change you deem to be immaterial), the Company will deliver or cause to be
delivered forthwith to you a certificate signed by an executive officer of the
Company, dated the date of such amendment or supplement, as the case may be,
in form reasonably satisfactory to you, of the same tenor as the certificate
referred to in Section 4(c) relating to the Registration Statement or the
Prospectus as amended or supplemented to the time of delivery of such
certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a) (other than any amendment or supplement to the Registration
Statement or Prospectus caused by the filing of a Current Report on Form 8-K
unless you shall reasonably request based on disclosure included or omitted
form such Report), the Company will furnish or cause to be furnished forthwith
to you a written opinion of counsel for the Company. Any such opinion shall
be dated the date of such amendment or supplement, as the case may be, shall
be in a form satisfactory to you and shall be of the same tenor as the
opinions referred to in Section 4(b), but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion. In lieu of such opinion, counsel last
furnishing such an opinion to you may furnish to you a letter to the effect
that you may rely on such last opinion to the same extent as though it were
dated the date of such letter (except that statements in such last opinion
will be deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented to the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Prospectus, the Company shall cause its independent auditors
forthwith to furnish you with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to you, of the same tenor
as the letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or incorporated by reference in
the Registration Statement or the Prospectus as amended or supplemented to the
date of such 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 Program Securities, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and you on the other hand
from the offering of such Program Securities or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company on the one hand
and you on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and you on the other hand in connection with the
offering of such Program Securities shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
Program Securities (before deducting expenses) received by the Company bear to
the total discounts and commissions received by you in respect thereof. The
relative fault of the Company on the one hand and of you on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by you and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company and you agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, you shall not be required to contribute any
amount in excess of the amount by which the total price at which the Program
Securities referred to in paragraph (d) above that were offered and sold to
the public through you exceeds the amount of any 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 Notes
Terms Agreement or Units Terms Agreement will remain in full force and effect
regardless of (i) any termination of this Agreement or any such Notes Terms
Agreement or Units Terms Agreement, (ii) any investigation made by or on
behalf of you or any person controlling you or by or on behalf of the Company,
its officers or directors or any person controlling the Company and (iii)
acceptance of and payment for any of the Program Securities.
7. Offering Restrictions. You hereby represent to the Company
and agree with respect to the Program Securities that:
(a) (i) you have not (A) offered or sold and during the
Restricted Period (as defined below) will not offer or sell Bearer
Notes (whether offered alone or as part of a Unit) (including any
Note that is exchangeable for Bearer Notes) directly or indirectly in
the United States (as defined below) or to or for the account of any
United States person (as defined below), other than to a Qualifying
Foreign Branch (as defined below) or to certain other persons as
provided under United States Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(1)(iii)(B) and (C); and (B) delivered and will not
deliver within the United States definitive Bearer Notes that are sold
during the Restricted Period;
(ii) you have, and throughout the Restricted Period will have,
in effect procedures reasonably designed to ensure that your employees
or agents who are directly engaged in selling Bearer Notes (whether
offered alone or as part of a Unit) are aware that such Bearer Notes
may not be offered or sold during the Restricted Period to a person
who is within the United States or to a United States person, except
as permitted by Section 7(a)(i)(A) above;
(iii) if you are a United States person, you are acquiring the
Bearer Notes (whether offered alone or as part of a Unit) for purposes
of resale in connection with their original issuance and if you retain
Bearer Notes for your own account, you will only do so in accordance
with the requirements of United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(6);
(iv) if you transfer to any affiliate Bearer Notes (whether
offered alone or as part of a Unit) for the purpose of offering or
selling such Bearer Notes during the Restricted Period, you will
either (A) obtain from such affiliate for the benefit of the Company
the representations and agreements contained in clauses (i), (ii) and
(iii) above or (B) repeat and confirm the representations and
agreements contained in clauses (i), (ii) and (iii) above on such
affiliate's behalf and obtain from such affiliate the authority to so
obligate it; and
(v) you will obtain for the benefit of the Company the
representations and agreements contained in clauses (i), (ii), (iii)
and (iv) above from any person other than your affiliate with whom you
enter into a written contract, within the meaning of United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(4), for the offer or
sale during the Restricted Period of Bearer Notes (whether offered
alone or as part of a Unit).
For purposes of this Section 7(a), an offer or sale will be
considered to be made in the United States if the offeror or seller of such
Notes (whether offered alone or as part of a Unit) has an address within the
United States for the offeree or purchaser of such Notes with respect to the
offer or sale. As used in this Section 7(a), "United States person" means a
citizen or resident of the United States, a corporation, 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) (i) In relation to Program Securities 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 Program Securities to
persons in the United Kingdom prior to admission of such Program Securities
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 Public Offers of Securities Regulations 1995 or the
Act; (ii) in relation to Program Securities 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 Program Securities, will not offer or sell any such
Program Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (iii) you have complied with and will
comply with all applicable provisions of the Act with respect to anything done
by you in relation to the Program Securities in, from or otherwise involving
the United Kingdom; and (iv) 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 Program Securities, 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 1996 (as amended) or is a person to whom
such document may otherwise lawfully be issued or passed on.
(c) You will not offer or sell any Program Securities in any
jurisdiction if such offer or sale would not be in compliance with any
applicable law or regulation or if any consent, approval or permission is
needed for such offer or sale by you or for or on behalf of the Company unless
such consent, approval or permission has been previously obtained. Without
prejudice to the provisions of this Section 7 above and subject to the
obligations of the Company set forth in Section 3 of this Agreement, the
Company shall have no responsibility for, and you will obtain, any consent,
approval or permission required by you for the subscription, offer, sale or
delivery by you of Program Securities under the laws and regulations in force
in any jurisdiction to which you are subject or in or from which you make any
subscription, offer, sale or delivery.
(d) You will not offer or sell any Program Securities, directly or
indirectly, in Japan or to, or for the benefit of, any resident of Japan (which
term as used herein means any person resident in Japan including any
corporation or other entity organized under the laws of Japan) or to others for
the re-offering or re-sale, directly or indirectly, in Japan or to a resident
of Japan except pursuant to an exemption from the registration requirements of,
and otherwise in compliance with, the Securities and Exchange Law of Japan and
other relevant laws and regulations of Japan.
(e) You will not offer and sell any Program Securities 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 Program Securities 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 or Units denominated or
payable in or indexed to French Francs (in the case of Notes, "French Franc
Notes" and, in the case of Units, "French Franc Units") 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 and French Franc Units 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 or
French Franc Units 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
or French Franc Units.
8. Position of the Agent. In acting under this Agreement and in
connection with the sale of any Program Securities by the Company (other than
Program Securities sold to you pursuant to a Notes Terms Agreement or Units
Terms Agreement, as the case may be), you are acting solely as agent of the
Company and do not assume any obligation towards or relationship of agency or
trust with any purchaser of Program Securities. You shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Program Securities has been solicited by you and accepted by
the Company, but you shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default in its obligations to deliver Program Securities to a purchaser whose
offer it has accepted, the Company shall hold you harmless against any loss,
claim, damage or liability arising from or as a result of such default and
shall, in particular, pay to you the commission you would have received had
such sale been consummated.
9. Termination. This Agreement may be terminated at any time
either by the Company or by you upon the giving of written notice of such
termination to the other parties hereto, but without prejudice to any rights,
obligations or liabilities of the other parties hereto accrued or incurred
prior to such termination. The termination of this Agreement shall not require
termination of any Notes Terms Agreement or Units Terms Agreement, and the
termination of any such Notes Terms Agreement or Units Terms Agreement shall
not require termination of this Agreement. If this Agreement is terminated,
the provisions of the third paragraph of Section 2(a), the last sentence of
Section 3(b) and Sections 3(c), 3(g), 6, 7, 8, 11 and 13 shall survive;
provided that if at the time of termination an offer to purchase Program
Securities has been accepted by the Company but the time of delivery to the
purchaser or its agent of such Program Securities has not occurred, the
provisions of Sections 1, 2(b), 2(c), 3(a), 3(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), (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 (e) Dean Witter
International Ltd. [address to come], to the attention of [ ]
(Telephone No. [ ]; Telecopy [ ]) 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 Notes Terms Agreement or
Units Terms Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors and
controlling persons referred to in Section 6 and the purchasers of Notes and
Units (to the extent expressly provided in Section 4), and no other person will
have any right or obligation hereunder.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
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, DISCOVER &
CO., DEAN WITTER
By:________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
DEAN WITTER INTERNATIONAL LTD.
By:________________________________
Name:
Title:
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
By:________________________________
Name:
Title:
MORGAN STANLEY BANK AG
By:________________________________
Name:
Title:
MORGAN STANLEY S.A.
By:________________________________
Name:
Title:
BANK MORGAN STANLEY AG
By:________________________________
Name:
Title:
EXHIBIT A
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES D AND SERIES E
NOTES TERMS AGREEMENT
_______________, 19__
Morgan Stanley, Dean Witter,
Discover & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated June 2, 1997
(the "Euro Distribution Agreement")
----------------------------------------------
The undersigned agrees to purchase your Global Medium-Term
Notes, Series [D/E], having the following terms:
<TABLE>
<CAPTION>
All Notes Fixed Rate Notes Floating Rate Notes
- --------------------------- ------------------------------ --------------------
<S> <C> <C>
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset Date:
Currencies (if any):
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Maturity Date: Reference Dealers: Maximum Interest Rate:
Initial Accrual Period OID: Face Amount (if any): Minimum Interest Rate:
Total Amount of OID: Fixed Amount of each Interest Payment Period:
Indexed Currency (if any):
Original Yield to Maturity: Aggregate Fixed Amount of Calculation Agent:
each Indexed Currency (if
any):
Optional Repayment Reporting Service:
Date(s):
Optional Redemption Index Currency:
Date(s):
Initial Redemption Date:
Initial Redemption
Percentage:
Annual Redemption
Percentage Reduction:
Ranking:
Series:
Minimum Denominations:
Other Terms:
</TABLE>
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, 11 and 13 of the Euro Distribution
Agreement shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Euro Distribution Agreement will be
required: ________________.
[DEAN WITTER INTERNATIONAL LTD.]
By:_______________________________
Name:
Title:
[MORGAN STANLEY & CO. INTERNATIONAL
LIMITED]
By:_______________________________
Name:
Title:
[MORGAN STANLEY BANK AG]
By:_______________________________
Name:
Title:
[MORGAN STANLEY S.A.]
By:_______________________________
Name:
Title:
[BANK MORGAN STANLEY AG]
By:_______________________________
Name:
Title:
Accepted:
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:_______________________________
Name:
Title:
EXHIBIT A-1
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
GLOBAL UNITS, SERIES D AND SERIES E
UNITS TERMS AGREEMENT
_______________, 19 __
Morgan Stanley, Dean Witter,
Discover & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated June 2, 1997 (the
"Euro Distribution Agreement")
---------------------------------------------------
The undersigned agrees to purchase your Global Units, Series
[D/E], [specified designation] having the following terms:
<TABLE>
<CAPTION>
Universal Warrants Issued Purchase Contracts Issued
All Units: as Part of a Unit: as Part of a Unit:
- ------------------------------- ------------------------------ ----------------------------
<S> <C> <C>
Settlement Date and Time: Designation of the Series of Designation of the Series of
Warrants: [Call] [Put] Purchase Contracts:
Warrants [Purchase][Sale] Purchase
Contracts
Number (Face Amount): Warrant Property: Purchase Contract Property:
Severability: Aggregate Number of Aggregate Number of
Warrants: Purchase Contracts:
Other Terms: Date(s) upon which Quantity per Purchase
Warrants may be exercised: Contract:
Currency in which exercise Purchase Price:
payments shall be made:
Exchange Rate (or method Settlement Date:
of calculation:
Form of Settlement: Payment Location:
[Call Price:](1)
[Formula for determining Method of Settlement:
Cash Settlement Value:](2)
[Amount of Warrant Currency of Settlement
Property Salable per Payment:
Warrant:](3)
[Put Price for such Contract Fees, if any:
specified amount of
Warrant Property per
Warrant:]
[Method of delivery of any Corporation Acceleration:
Warrant Property to be
delivered for sale upon
exercise of Warrants:](3)
Other Terms: Holders' Acceleration:
Redemption Provisions:
Other Terms:
</TABLE>
- ---------
(1) Applicable to Call Warrants
(2) Applicable to Put Warrants
(3) Applicable to Put Warrants only if such Put Warrants contemplate that the
holder deliver Warrant Property to settle Put Warrants
<TABLE>
<CAPTION>
All Notes Issued as Part of Fixed Rate Notes Issued as Floating Rate Notes Issued
a Unit: Part of a Unit: as Part of a Unit:
- ------------------------------- ------------------------------ ----------------------------
<S> <C> <C>
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset Date:
Currencies (if any):
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Maturity Date: Reference Dealers: Maximum Interest Rate:
Initial Accrual Period OID: Face Amount (if any): Minimum Interest Rate:
Total Amount of OID: Fixed Amount of each Interest Payment Period:
Indexed Currency (if any):
Original Yield to Maturity: Aggregate Fixed Amount of Calculation Agent:
each Indexed Currency (if
any):
Optional Repayment Reporting Service:
Date(s):
Optional Redemption Index Currency:
Date(s):
Initial Redemption Date:
Initial Redemption
Percentage:
Annual Redemption
Percentage Reduction:
Ranking:
Series:
Minimum Denominations:
Other Terms:
</TABLE>
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, 11 and 13 of the Euro Distribution
Agreement shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Euro Distribution Agreement will be
required: ___________.
[DEAN WITTER INTERNATIONAL
LTD.]
By:_______________________________
Name:
Title:
[MORGAN STANLEY & CO. INTERNATIONAL
LIMITED]
By:_______________________________
Name:
Title:
[MORGAN STANLEY BANK AG]
By:_______________________________
Name:
Title:
[MORGAN STANLEY S.A.]
By:_______________________________
Name:
Title:
[BANK MORGAN STANLEY AG]
By:_______________________________
Name:
Title:
Accepted:
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:_______________________________
Name:
Title:
EXHIBIT B
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES D AND SERIES E
GLOBAL UNITS, SERIES D AND SERIES E
ADMINISTRATIVE PROCEDURES
_________________________________
Explained below are the administrative procedures and specific
terms of the offering of (i) Global Medium-Term Notes, Series D (the "Series D
Notes"), (ii) Global Medium-Term Notes, Series E (the "Series E Notes" and
together with the Series D Notes, the "Notes"), (iii) Global Units, Series D
(the "Series D Units") and (iv) Global Units, Series E (the "Series E Units"
and together with the Series D Units, the "Units", and the Units together with
the Notes, the "Program Securities"), on a continuous basis by Morgan Stanley,
Dean Witter, Discover & Co. (the "Company") pursuant to the Euro Distribution
Agreement dated June ___, 1997 (the "Distribution Agreement") among the
Company, Dean Witter International Ltd., Morgan Stanley & Co. International
Limited, Morgan Stanley Bank AG, Morgan Stanley S.A. and Bank Morgan Stanley AG
(collectively or individually the "Agent" as the context requires). The Notes
may be issued, either alone or as part of a Unit, in registered form without
coupons ("Registered Notes"), in bearer form with or without coupons ("Bearer
Notes") or in any combination of Registered Notes and Bearer Notes. The Units
may be issued in registered form ("Registered Units"), in bearer form ("Bearer
Units") or in any combination of Registered Units and Bearer Units. The
securities comprised by a Unit will be issued in the same form as such Unit.
Bearer Notes and Bearer Units initially will be represented by, in the case of
Bearer Notes, a Temporary Global Note and, in the case of Bearer Units, a
Temporary Global Unit. Such Temporary Global Note and Temporary Global Unit
will subsequently be represented by, in the case of the Temporary Global Note,
a Permanent Global Note and, in the case of the Temporary Global Unit, a
Permanent Global Unit. Interests in a Permanent Global Note may be exchanged,
in whole, for individual definitive Bearer Notes. Definitive Bearer Notes may
be exchanged, if the applicable Pricing Supplement so specifies, in whole or
in part, for Registered Notes. Interests in a Permanent Global Unit may be
exchanged, in whole, for individual definitive Bearer Units. Definitive
Bearer Units may be exchanged, if the applicable Pricing Supplement so
specifies, in whole or in part, for Registered Units.
The Notes may be issued as senior indebtedness (the "Senior
Notes") or subordinated indebtedness (the "Subordinated Notes") of the
Company, and as used herein the term "Notes" includes the Senior Notes and the
Subordinated Notes. The Senior Notes will be issued 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, a second
supplemental senior indenture dated as of April 15, 1996, a third supplemental
senior indenture dated as of June 1, 1997 and as it may be further
supplemented or amended from time to time, the "Senior Debt Indenture"),
between the Company and The Chase Manhattan Bank (formerly known as Chemical
Bank) ("Chase"), as 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, a second supplemental subordinated indenture dated as of April 15,
1996, a third supplemental subordinated indenture dated as of June 1, 1997 and
as it 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 Senior Debt Indenture and the Subordinated
Debt Indenture are sometimes hereinafter referred to individually as an
"Indenture" and collectively as the "Indentures."
The Units will be issued pursuant to the Unit Agreement dated as
of June 2, 1997 (the "Unit Agreement") among the Company, Chase, as Unit
Agent, as Collateral Agent, as Trustee and Paying Agent under the Senior Debt
Indenture, and as Warrant Agent under the Universal Warrant Agreement dated as
of June 2, 1997 between the Company and Chase, as Warrant Agent (the "Universal
Warrant Agreement"), and the holders from time to time of the Units. Units may
include, one or more (i) Senior Notes, (ii) warrants ("Universal Warrants")
entitling the holders thereof to purchase or sell (a) securities of an entity
unaffiliated with the Company, a basket of such securities, an index or
indices of such securities or any combination of the above, (b) currencies or
composite currencies or (c) commodities, (iii) purchase contracts ("Purchase
Contracts") requiring the holders thereof to purchase or sell (a) securities
of an entity unaffiliated with the Company, a basket of such securities, an
index or indices of such securities or any combination of the above, (b)
currencies or composite currencies or (c) commodities or (iv) any combination
thereof. The applicable Pricing Supplement will specify whether or not the
Notes, Universal Warrants and Purchase Contracts comprised by a Unit may or
may not be separated from the Unit. Universal Warrants issued as part of a
Unit will be issued pursuant to the Universal Warrant Agreement. Purchase
Contracts entered into by the Company and the holders thereof will be governed
by the Unit Agreement.
In the Distribution Agreement, the Agent has agreed to use
reasonable efforts to solicit purchases of the Program Securities, and the
administrative procedures explained below will govern the issuance and
settlement of any Program Securities sold through the Agent, as agent of the
Company. The Agent, as principal, may also purchase Program Securities for
its own account, and if requested by the Agent, the Company and the Agent will
enter into a terms agreement (in the case of Notes, a "Notes Terms Agreement"
and, in the case of Units, a "Units Terms Agreement"), as contemplated by the
Distribution Agreement. The administrative procedures explained below will
govern the issuance and settlement of any Program Securities purchased by the
Agent, as principal, unless otherwise specified in the applicable Notes Terms
Agreement or Units Terms Agreement.
Chase has initially been appointed the (i) Calculation Agent,
Authenticating Agent and Principal Paying Agent for the Notes, (ii) the Unit
Agent for the Units, (iii) the Warrant Agent for the Universal Warrants and
(iv) the Registrar for the Registered Notes, and will perform the duties
specified herein. As used herein, the term "Principal Paying Agent" shall
mean Chase acting through its London office in connection with the
authentication and delivery of the Notes, whether issued alone or as part of a
Unit, pursuant to the terms of the Indentures and the term "Unit Agent" shall
mean Chase acting through its London office in connection with the completion
and delivery of the Units (including, as applicable, countersigning and
delivering any Universal Warrants, as Warrant Agent, and countersigning,
executing and delivering any Purchase Contracts, as Unit Agent, includable in
such Unit), pursuant to the terms of the Unit Agreement. "Warrant Agent"
shall mean Chase acting through its London office. The Series D Notes and the
Series D Units are intended to be listed on The London Stock Exchange Limited
(the "London Stock Exchange"). Application may, in certain circumstances
described in the Prospectus Supplement relating to the Notes and the Units
(the "Prospectus Supplement"), be made to list Series D Notes and Series D
Units on the Bourse de Paris (the "Paris Bourse"). The Series E Notes and the
Series E Units will not be listed on any stock exchange. The Company has
appointed Morgan Stanley & Co. International Limited as the listing agent for
purposes of listing the Series D Notes and the Series D Units on the London
Stock Exchange and has appointed Morgan Stanley S.A. as the listing agent for
purposes of listing the Series D Notes and the Series D Units on the Paris
Bourse.
Each Bearer Note and each Bearer Unit (including each security
comprised by such Bearer Unit) initially will be represented by, in the case
of a Bearer Note, a Temporary Global Note and, in the case of a Bearer Unit, a
Temporary Global Unit, each of which will be delivered to a common depositary
located outside the United States (the "Depositary") for Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear System (the
"Euroclear Operator"), Cedel Bank, societe anonyme ("Cedel Bank") and/or any
other relevant clearing system (including Societe Interprofessionalle pour la
Compensation des Valeures Mobilieres ("SICOVAM")). Such Temporary Global Note
and Temporary Global Unit will subsequently be represented by, in the case of
the Temporary Global Note, a Permanent Global Note and, in the case of the
Temporary Global Unit, a Permanent Global Unit. The first request by any
beneficial owner to exchange any interest in a Permanent Global Note to a
definitive Bearer Note shall result in the exchange of all (and not less than
all) interests in such Permanent Global Note for definitive Bearer Notes;
provided that, if the applicable Pricing Supplement so specifies, nothing
herein shall prevent the further exchange of definitive Bearer Notes for
Registered Notes. The first request by any beneficial owner to exchange any
interest in a Permanent Global Unit to a definitive Bearer Unit shall result
in the exchange of all (and not less than all) interests in such Permanent
Global Unit for definitive Bearer Units; provided that, if the applicable
Pricing Supplement so specifies, nothing herein shall prevent the further
exchange of definitive Bearer Units for Registered Units.
Unless otherwise defined herein, terms defined in the Indentures,
the Unit Agreement, the Universal Warrant Agreement, the Notes, the Units, the
Universal Warrants, the Purchase Contracts or any Prospectus Supplement
relating to the Program Securities shall be used herein as therein defined.
The Company will advise the Agent in writing of the employees of the
Company with whom the Agent is to communicate regarding offers to purchase
Program Securities, and the related settlement details.
ADMINISTRATIVE PROCEDURES FOR
BEARER NOTES, REGISTERED NOTES,
BEARER UNITS AND REGISTERED UNITS
Issuance: Bearer Notes. Each Bearer Note, whether issued
alone or as part of a Unit, will be dated as of
its Original Issue Date. Each Bearer Note will
bear an Original Issue Date, which will be (i)
with respect to a Temporary Global Note (or any
portion thereof), the date of its original
issue as specified in such Temporary Global
Note or (ii) with respect to any Permanent
Global Note or any definitive Bearer Note (or
any portion thereof) issued subsequently upon
transfer or exchange of a Bearer Note or in
lieu of a destroyed, lost or stolen Bearer Note
(a "Replacement Bearer Note"), the Original
Issue Date of the predecessor Bearer Note,
regardless of the date of authentication of
such subsequently issued Bearer Note.
Registered Notes. Each Registered Note,
whether issued alone or as part of a Unit, will
be dated as of the date of its authentication
by Chase. Each Registered Note will also bear
an Original Issue Date, which will be (i) with
respect to an original Registered Note (an
"Original Registered Note") (or any portion
thereof), its original issuance date (which
will be the settlement date) and (ii) with
respect to any Registered Note (or portion
thereof) issued subsequently upon transfer or
exchange of a Registered Note or in lieu of a
destroyed, lost or stolen Registered Note (a
"Replacement Registered Note"), the original
issuance date of the predecessor Registered
Note, regardless of the date of authentication
of such subsequently issued Registered Note.
Bearer Units. Each Bearer Unit (whether in
temporary, permanent or definitive form) will
be [deemed to be] dated as of the Original
Issue Date of the Bearer Note comprised by such
Unit in accordance with the procedures
described above.
Registered Units. Each Registered Unit will be
[deemed to be] dated as of the Original Issue
Date of the Registered Note comprised by such
Unit in accordance with the procedures
described above.
Denominations: Bearer Notes. Unless otherwise specified in the
applicable Pricing Supplement, Bearer Notes,
whether issued alone or as part of a Unit, will
be issued only in denominations of $1,000 (or,
in the case of Bearer Notes not denominated in
U.S. dollars, the equivalent thereof in the
Specified Currency, rounded to the nearest
1,000 units of the Specified Currency) or any
amount in excess thereof which is an integral
multiple of $1,000 (or, in the case of Bearer
Notes not denominated in U.S. dollars, 1,000
units of the Specified Currency).
Registered Notes. Unless otherwise specified
in the applicable Pricing Supplement,
Registered Notes will be issued, either alone
or as part of a Unit, only in denominations of
$1,000 (or, in the case of Registered Notes not
denominated in U.S. dollars, the equivalent
thereof in the Specified Currency, rounded to
the nearest 1,000 units of the Specified
Currency) or any amount in excess thereof which
is an integral multiple of $1,000 (or, in the
case of Registered Notes not denominated in
U.S. dollars, 1,000 units of the Specified
Currency).
Bearer Units. Unless otherwise specified in
the applicable Pricing Supplement, Bearer Units
will be issued only in denominations of a
single Unit and any integral multiple thereof,
with face amounts in denominations as indicated
in the applicable Pricing Supplement, generally
corresponding to the denominations of the Notes
comprised by such Units.
Registered Units. Unless otherwise specified
in the applicable Pricing Supplement,
Registered Units will be issued only in
denominations of a single Unit and any integral
multiple thereof, with face amounts in
denominations as indicated in the applicable
Pricing Supplement, generally corresponding to
the denominations of the Notes comprised by
such Units.
Global Notes and
Definitive Bearer
and Registered Notes: Until Final Certification (as defined below) with
respect to an issuance of Bearer Notes has
occurred, such Notes, together with all other
Bearer Notes that have the same terms (other
than their respective principal amounts) (all
such Notes herein referred to collectively as a
"Note Tranche"), will be represented by a
single Temporary Global Note in bearer form
without interest coupons. The Company shall
execute, and upon Company instructions the
Principal Paying Agent shall complete and
authenticate, such Temporary Global Note upon
the same conditions and in substantially the
same manner, and with the same effect, as an
individual definitive Bearer Note. On or prior
to the settlement date (which will normally be
the Original Issue Date) with respect to such
Notes, the Principal Paying Agent shall deposit
the Temporary Global Note with the Depositary
in the manner specified below under "Settlement
Procedures; Bearer Notes and Bearer Units".
The interest of each beneficial owner of Notes
represented by such Temporary Global Note will
be credited to the appropriate account with
Cedel Bank, the Euroclear Operator or any other
relevant clearing system.
On or after the date (the "Exchange Date") that
is the 40th day following the date on which the
Company receives the proceeds of the sale of a
Temporary Global Note (the "Closing Date"), or
if such Note is held by the Agent as part of an
unsold allotment or subscription more than 40
days after the Closing Date for such Note, on
or after the day after the date such Note is
sold by the Agent, all as notified by the Agent
in writing to Chase, the interest of the
beneficial owners of the Notes represented by
the Temporary Global Note shall be canceled and
such interests shall thereafter be represented
by a Permanent Global Note in bearer form
without interest coupons held in London by the
Depositary; provided that Final Certification
(as described below) has occurred. The
interest of each beneficial owner of Notes
represented by such Permanent Global Note will
be credited to the appropriate account with
Cedel Bank, the Euroclear Operator or any other
relevant clearing system.
The beneficial owner of an interest in a
Permanent Global Note may, at any time, upon 30
days' written notice to the Principal Paying
Agent given by such beneficial owner through
either Cedel Bank, the Euroclear Operator or
any other relevant clearing system, as the case
may be, exchange its beneficial interest in
such Permanent Global Note for one or more
definitive Bearer Notes with coupons attached,
if appropriate, or, if the applicable Pricing
Supplement so specifies, one or more Registered
Notes in authorized denominations equal in
aggregate principal amount to such beneficial
interest; provided that a request by any
beneficial owner to exchange any interest in a
Permanent Global Note for a definitive Bearer
Note shall result in the exchange of all (and
not less than all) interests in such Permanent
Global Note for definitive Bearer Notes;
provided further, that, if the applicable
Pricing Supplement so specifies, nothing herein
shall prevent the further exchange of
definitive Bearer Notes for Registered Notes.
To effect such exchange, the interest of such
beneficial owner in such Permanent Global Note
shall be canceled and one or more definitive
Bearer Notes or Registered Notes, as the case
may be, shall be issued to such beneficial
owner, through the Euroclear Operator or Cedel
Bank or any other relevant clearing system, as
the case may be.
In all events, Bearer Notes and coupons will be
delivered by the Principal Paying Agent only
outside the United States.
Global Units and
Definitive Bearer
and Registered Units: Until Final Certification (as defined below) has
occurred with respect to an issuance of Bearer
Notes included in an issuance of Bearer Units,
such Units, together with all other Bearer
Units that include securities that have the
same terms (other than their respective number
and face amounts) (all such Units herein
referred to collectively as a "Unit Tranche"),
will be represented by a single Temporary
Global Unit in bearer form (which form shall
include the corresponding temporary global
forms of each security comprised by such Unit).
The Company shall execute, and upon Company
instructions, Chase, as Unit Agent, shall
complete such Temporary Global Unit (including,
as applicable, authenticating any Temporary
Global Note, as Principal Paying Agent,
countersigning and delivering any Universal
Warrants, as Warrant Agent, and countersigning,
executing and delivering any Purchase
Contracts, as Unit Agent, includable in such
Unit) upon the same conditions and in
substantially the same manner, and with the
same effect, as an individual definitive Bearer
Unit. On or prior to the settlement date
(which will normally be the Original Issue Date
of the Notes comprised by a Unit) with respect
to such Units, the Unit Agent shall deposit the
Temporary Global Unit (with the corresponding
temporary global forms of each security
comprised by such Unit) with the Depositary in
the manner specified below under "Settlement
Procedures; Bearer Notes and Bearer Units".
The interest of each beneficial owner of Units
represented by such Temporary Global Unit will
be credited to the appropriate account with
Cedel Bank, the Euroclear Operator or any other
relevant clearing system.
On or after the Exchange Date of the Temporary
Global Note comprised by a Temporary Global
Unit, the interest of the beneficial owners of
the Units represented by the Temporary Global
Unit shall be canceled and such interests shall
thereafter be represented by a Permanent Global
Unit in bearer form (with the corresponding
temporary global forms of each security
comprised by such Unit) held in London by the
Depositary; provided that Final Certification
(as described below) of the Notes comprised by
such Unit has occurred. The interest of each
beneficial owner of Units represented by such
Permanent Global Unit will be credited to the
appropriate account with Cedel Bank, the
Euroclear Operator or any other relevant
clearing system.
The beneficial owner of an interest in a
Permanent Global Unit may, at any time, upon 30
days' written notice to the Unit Agent given by
such beneficial owner through either Cedel
Bank, the Euroclear Operator or any other
relevant clearing system, as the case may be,
exchange its beneficial interest in such
Permanent Global Unit for one or more
definitive Bearer Units or, if the applicable
Pricing Supplement so specifies, one or more
Registered Units in authorized denominations
equal in aggregate number and aggregate face
amount to such beneficial interest; provided
that a request by any beneficial owner to
exchange any interest in a Permanent Global
Unit for a definitive Bearer Unit shall result
in the exchange of all (and not less than all)
interests in such Permanent Global Unit for
definitive Bearer Units; provided further,
that, if the applicable Pricing Supplement so
specifies, nothing herein shall prevent the
further exchange of definitive Bearer Units for
Registered Units. To effect such exchange, the
interest of such beneficial owner in such
Permanent Global Unit shall be canceled and one
or more definitive Bearer Units or Registered
Units, as the case may be, shall be issued to
such beneficial owner, through the Euroclear
Operator or Cedel Bank or any other relevant
clearing system, as the case may be.
In all events, Bearer Units will be delivered
by the Unit Agent only outside the United
States.
Notes or Units Purchased
by U.S. Persons: All Notes (whether issued alone or as part
of a Unit) purchased in connection with
their original issuance by or on behalf of
a U.S. Person (as defined in the
Distribution Agreement) (other than a
branch of a United States financial
institution (as defined in United States
Treasury Regulation Section
1.165-12(c)(1)(v)) located outside the
United States purchasing for its own
account or for resale (a "Qualifying
Foreign Branch") or other permitted U.S.
purchasers as provided in the Prospectus
Supplement that satisfies the conditions
for receiving Bearer Notes as described
under "Final Certification" below) will be
issued only as Registered Notes and any
Units comprising such Notes will be issued
only as Registered Units.
Final Certification: Final Certification with respect to a
Temporary Global Note (whether issued
alone or as part of a Unit) shall mean the
delivery by the Euroclear Operator, Cedel
Bank or any other relevant clearing
system, as the case may be, to the
Principal Paying Agent of a signed
certificate (each a "Clearance System
Certificate") in the form set forth in
Appendix 1 hereto with respect to the
Notes being exchanged, dated no earlier
than the Exchange Date for such Notes, to
the effect that the Euroclear Operator,
Cedel Bank or any other relevant clearing
system, as the case may be, has received
certificates in writing, by tested telex
or by electronic transmission from the
account holders appearing on its records
as entitled to such Notes ("Ownership
Certificates") in the form set forth in
Appendix 2 hereto with respect to each of
such Notes, which Ownership Certificates
shall be dated no earlier than ten days
before the Exchange Date.
Preparation of
Pricing Supplement: If any offer to purchase a Program Security is
accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of
such Program Security, will arrange to file an
electronic format document, in the manner
prescribed by the EDGAR Filer Manual, of such
Pricing Supplement with the Commission in
accordance with the applicable paragraph of
Rule 424(b) under the Act and will, as soon as
possible and in any event not later than the
date on which such Pricing Supplement is filed
with the Commission, deliver the number of
copies of such Pricing Supplement to the Agent
as the Agent shall request. The Agent will
cause such Pricing Supplement to be delivered
to the purchaser of the Program Security.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other
than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for (i) the
delivery of an authenticated Temporary Global
Note or a Temporary Global Unit (including each
security comprised by such Unit) to the
Depositary in the manner described in
"Settlement Procedures; Bearer Notes and
Bearer Units" below or (ii) the delivery of an
authenticated Registered Note or a Registered
Unit (including each security comprised by such
Unit) to the Agent shall constitute
"settlement" with respect to such Note or Unit.
All offers accepted by the Company will be
settled on the fifth Business Day next
succeeding the date of acceptance pursuant to
the timetable for settlement set forth below,
unless the Company and the purchaser agree to
settlement on another day, which shall be no
earlier than the next Business Day.
Settlement
Procedures;
Bearer Notes
and Bearer Units: Procedures with regard to each Bearer Note or
Bearer Unit sold by the Company to or through
the Agent (unless otherwise specified pursuant
to a Notes Terms Agreement or a Units Terms
Agreement) shall be as follows:
A. In the case of a Bearer Note
(whether issued alone or as part of
a Unit), the Agent will advise the
Company by telephone that such Note,
is initially a Bearer Note and of
the following settlement information:
1. Principal amount.
2. Maturity Date.
3. Interest Payment Date(s).
4. In the case of a Fixed Rate Bearer
Note, whether such Note is an
Amortizing Note, and, if so, the
amortization schedule, or, in the
case of a Floating Rate Bearer Note,
the Initial Interest Rate (if known
at such time), Interest Payment
Period, Calculation Agent, Base Rate,
Index Maturity, Index Currency,
Interest Reset Period, Initial
Interest Reset Date, Interest Reset
Dates, Spread or Spread Multiplier
(if any), Minimum Interest Rate (if
any), Maximum Interest Rate (if any)
and the Alternate Rate Event Spread
(if any).
5. Redemption or repayment provisions
(if any).
6. Ranking.
7. Settlement date and time (Original
Issue Date).
8. Interest Accrual Date.
9. Price.
10. Agent's commission (if any) determined
as provided in the Distribution
Agreement.
11. Specified Currency.
12. Whether the Note is an Original Issue
Discount Note (an "OID Note"), and
if it is an OID Note, the total
amount of OID, the yield to
maturity, the initial accrual period
OID and the applicability of
Modified Payment upon Acceleration
(and, if so, the Issue Price).
13. Agent's account number at Cedel Bank,
the Euroclear Operator or any other
relevant clearing system.
14. Whether such Note is a Series D Note
or a Series E Note.
15. Any other applicable provisions.
B. In the case of a Bearer Unit, the
Agent will advise the Company by
telephone that such Unit is initially
a Bearer Unit, of the information
set forth in "Settlement Procedures;
Bearer Notes and Bearer Units" "A"
above with respect to Bearer Notes
that constitute a part of such
Bearer Unit and of the following
information:
1. Settlement date and time.
2. Number of Units (and Face Amount).
3. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
4. Designation of the Securities
comprised by such Units:
a. Notes (See "Settlement
Procedures; Bearer Notes
and Bearer Units" "A" );
b. Universal Warrants, if
any; and
c. Purchase Contracts, if any.
5. Any other provisions applicable to
the Unit (other than those provisions
applicable to the securities comprised
by such Unit).
6. If the Bearer Unit comprises Bearer
Universal Warrants:
a. Designation of the Series of
Universal Warrants: [Call]
[Put] Universal Warrants;
b. Warrant Property;
c. Aggregate Number of
Universal Warrants;
d. Price to Public;
e. Universal Warrant Exercise
Price;
f. Dates upon which Universal
Warrants may be exercised;
g. Expiration Date;
h. Currency in which exercise
payments shall be made;
i. Minimum number of Universal
Warrants exercisable by any
holder on any day;
j. Maximum number of Universal
Warrants exercisable on any
day: [In the aggregate] [By
any beneficial owner];
k. Formula for determining Cash
Settlement Value;
l. Exchange Rate (or method of
calculation); and
m. Any other applicable provisions.
7. If the Bearer Unit comprises Bearer
Purchase Contracts:
a. Purchase Contract
b. Purchase Price;
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
f. Method of Computing Settlement
Amount;
g. Currency of Settlement Payment;
h. Authorized Number of Purchase
Contracts;
i. Aggregate Purchase Price;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions; and
j. Any other applicable provisions.
C. The Company will advise Chase as the
Principal Paying Agent for the Notes or
as the Unit Agent for the Units by
telephone or electronic transmission
(confirmed in writing at any time on the
same date) of the information set forth
in "Settlement Procedures; Bearer Notes
and Bearer Units" "A" or "B", above, as
applicable, and shall give the Principal
Paying Agent or the Unit Agent, as the
case may be, written instructions
(substantially in the form set out in
Appendix 3 and Appendix 4, as applicable)
to prepare a Temporary Global Note for
each Note Tranche or a Temporary Global
Unit (with the corresponding temporary
global forms of each security comprised
by such Unit) for each Unit Tranche, as
the case may be, which the Company has
agreed to sell. The Company will send a
copy of such instructions to the Agent
and the relevant Trustee.
The Principal Paying Agent or the Unit Agent
shall telephone each of the Euroclear
Operator, Cedel Bank or any other
relevant clearing system with a request
for a security code for each Note Tranche
or Unit Tranche (and, if applicable, a
security code for each security comprised
by the Units of such Unit Tranche) agreed
to be issued and shall notify the Company
and the Agent of such security code or
codes as soon as practicable.
D. In accordance with instructions received
from the Company, (i) the Principal
Paying Agent shall authenticate and
deliver a Temporary Global Note for each
Note Tranche or Unit Tranche, as
applicable, which the Company has agreed
to sell and (ii) the Unit Agent shall
prepare a Temporary Global Unit for each
Unit Tranche for which the Company has
agreed to sell (including, as applicable,
by countersigning and delivering any
Universal Warrants includable in such
Unit, by countersigning, executing and
delivering and Purchase Contracts
includable in such Unit and by obtaining
from the Principal Paying Agent the Notes
to be included in such Units,
authenticated in accordance with clause
(i) above). The settlement of each of
the Note Tranche and the Unit Tranche is
to occur on the relevant settlement date.
All such Temporary Global Notes and all
such Temporary Global Units (including
all of the securities included in such
Units) will then be delivered to the
Depositary. The Principal Paying Agent
or the Unit Agent, as the case may be,
will also give instructions to the
Euroclear Operator, Cedel Bank or any
other relevant clearing system to credit
the Notes or Units represented by such
Temporary Global Note or Temporary Global
Unit delivered to such Depositary to, in
the case of the Notes, the Principal
Paying Agent's distribution account and,
in the case of the Units, the Unit
Agent's distribution account, at the
Euroclear Operator, Cedel Bank or any
other relevant clearing system. At
settlement of any Note Tranche, the
Principal Paying Agent will instruct the
Euroclear Operator, Cedel Bank or any
other relevant clearing system to debit,
on the settlement date, from the
distribution account of the Principal
Paying Agent the principal amount of
Notes of each Note Tranche, with respect
to which the Agent has solicited an offer
to purchase and to credit, on the
settlement date, such principal amount to
the account of the Agent with the
Euroclear Operator, Cedel Bank or any
other relevant clearing system against
payment of the purchase payment price of
such Notes. At settlement of any Unit
Tranche, the Unit Agent will instruct the
Euroclear Operator, Cedel Bank or any
other relevant clearing system to debit,
on the settlement date, from the
distribution account of the Unit Agent
the number and face amount of Units of
each Unit Tranche, with respect to which
the Agent has solicited an offer to
purchase and to credit, on the settlement
date, such number and face amount to the
account of the Agent with the Euroclear
Operator, Cedel Bank or any other
relevant clearing system against payment
of the purchase payment price of such
Units. In the case of the Notes and the
Units, the Agent shall give corresponding
instructions to the Euroclear Operator,
Cedel Bank or any other relevant clearing
system.
E. The Euroclear Operator, Cedel Bank and any
other relevant clearing system shall
debit and credit accounts in accordance
with instructions received from the
Principal Paying Agent and the Agent, in
the case of Notes and the Unit Agent and
the Agent, in the case of Units.
Each of the Principal Paying Agent and
the Unit Agent shall pay the Company the
aggregate net proceeds received by it in
immediately available funds via a
transfer of funds to the U.S. dollar
account of the Company with a bank in New
York City (or, with respect to Notes and
Units payable in a Specified Currency
other than U.S. dollars, to an account
maintained at a bank selected by the
Company, which bank shall be located
outside the United Kingdom in the case of
Notes and Units payable in a Specified
Currency other than pounds sterling that
mature not later than five years from and
including the date of issue thereof)
designated by the Company in writing.
Settlement Procedures
Timetable; Bearer Notes
and Bearer Units: For sales by the Company of Bearer Notes
or of Bearer Units to or through the
Agent, "Settlement Procedures; Bearer
Notes and Bearer Units" "A" through "E"
above shall be completed on or before the
respective times set forth below:
Settlement
Procedure;
Bearer Notes
and Bearer
Units Time
------------ ----
A 12:00 P.M. (NYC time) three days
before settlement date
B 12:00 P.M. (NYC time) three days
be fore settlement date
C 9:00 A.M. (London time) two days
before settlement date
D 3:45 P.M. (London time) one day
before settlement date
E 5:00 P.M. (NYC time) on
settlement date
Settlement Procedures;
Registered Notes and
Registered Units: Settlement Procedures with regard to
each Registered Note and Registered
Unit sold by the Company to or through
the Agent (unless otherwise specified
pursuant to a Notes Terms Agreement or
a Units Terms Agreement) shall be as
follows:
AA. In the case of a Registered Note
(whether issued alone or as part of a
Unit), the Agent will advise the
Company by telephone that such Note is
a Registered Note and of the following
settlement information:
1. Name in which such Note is to be
registered ("Registered Note
Owner").
2. Address of the Registered Note
Owner and address for payment of
principal and interest.
3. Taxpayer identification number
of the Registered Note Owner (if
available).
4. Principal amount.
5. Maturity Date.
6. Interest Payment Date(s)
7. In the case of a Fixed Rate
Registered Note, the Interest
Rate, whether such Note is an
Amortizing Note and, if so, the
amortization schedule, or, in
the case of a Floating Rate
Registered Note, the Initial
Interest Rate (if known at
such time), Interest Payment
Period, Calculation Agent,
Base Rate, Index Maturity,
Index Currency, Interest
Reset Period, Initial
Interest Reset Date, Interest
Reset Dates, Spread or Spread
Multiplier (if any), Minimum
Interest Rate (if any),
Maximum Interest Rate (if
any) and the Alternate Rate
Event Spread (if any).
8. Redemption or repayment
provisions (if any).
9. Ranking.
10. Settlement date and time
(Original Issue Date).
11. Interest Accrual Date.
12. Price.
13. Agent's commission (if any)
determined as provided in the
Distribution Agreement.
14. Denominations.
15. Specified Currency.
16. Whether the Note is an OID Note,
and if it is an OID Note, the
total amount of OID, the yield
to maturity, the initial accrual
period OID and the applicability
of Modified Payment upon
Acceleration (and if so, the
Issue Price).
17. Whether such Note is a Series D
Note or a Series E Note.
18. Any other applicable provisions.
BB. In the case of a Registered Unit, the
Agent will advise the Company by
telephone that such Unit is a
Registered Unit, of the information set
forth in "Settlement Procedures;
Registered Notes and Registered Units"
"A" above with respect to Registered
Notes that constitute a part of such
Registered Unit and of the following
information:
1. Name in which such Unit is to be
registered ("Registered Unit
Owner").
2. Address of the Registered Unit
Owner.
3. Taxpayer identification number of
the Registered Unit Owner (if
available).
4. Denominations.
5. Settlement date and time.
6. Number of Units (and Face Amount).
7. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
8. Designation of the Securities
comprised by such Units:
a. Notes (See "Settlement
Procedures; Registered
Notes and Registered Units"
"A");
b. Universal Warrants, if any;
and
c. Purchase Contracts, if any.
9. Any other provisions applicable to
the Unit (other than those
provisions applicable to the
securities comprised by such
Unit).
10. If the Registered Unit comprises
Registered Universal Warrants:
a. Designation of the Series of
Universal Warrants:
[Call][Put] Warrants;
b. Warrant Property;
c. Aggregate Number of
Universal Warrants;
d. Price to Public;
e. Universal Warrant Exercise
Price;
f. Dates upon which Universal
Warrants may be exercised;
g. Expiration Date;
h. Currency in which exercise
payments shall be made;
i. Minimum number of Universal
Warrants exercisable by
any holder on any day;
j. Maximum number of Universal
Warrants exercisable on any
day: [In the aggregate]
[By any beneficial owner];
k. Formula for determining
Cash Settlement Value;
l. Exchange Rate (or method
of calculation); and
m. Any other applicable
provisions.
11. If the Registered Unit comprises
Registered Purchase Contracts:
a. Purchase Contract Property:
Quantity;
b. Purchase Price;
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
f. Method of Computing
Settlement Amount;
g. Currency of Settlement
Payment;
h. Authorized Number of
Purchase Contracts;
i. Aggregate Purchase Price;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions; and
j. Any other applicable
provisions.
CC. The Company will advise Chase as
Principal Paying Agent for the Notes or
as Unit Agent for the Units, by
telephone or electronic transmission
(confirmed in writing at any time on
the same date) of the information set
forth in "Settlement Procedures;
Registered Notes and Registered Units"
"AA" and "BB" above, as applicable.
DD. The Company will have delivered to Chase
as Principal Paying Agent for the Notes,
or as Unit Agent for the Units, a
pre-printed four-ply packet for such
Note or such Unit, as the case may be,
which packet will contain the following
documents in forms that have been
approved by the Company, the Agent and
Chase, as Principal Paying Agent for the
Notes, or as Unit Agent for the Units:
1. Note or Unit, as the case may be,
with customer confirmation.
2. Stub One - For Chase.
3. Stub Two - For the Agent.
4. Stub Three - For the Company.
EE. Chase will (i) authenticate and deliver
any Note (whether issued alone or as
part of a Unit) through the Principal
Paying Agent if necessary, with the
confirmation and Stubs One and Two to
the Agent, and (ii) complete and
deliver the Unit (including by
countersigning and delivering any
Universal Warrant includable in such
Unit, by countersigning, executing and
delivering any Purchase Contract
includable in such Unit and by obtaining
from the Principal Paying Agent the
Notes to be included in such Units,
authenticated in accordance with clause
(i) above) with the confirmation and
Stubs One and Two to the Agent. The
Agent will acknowledge receipt of the
Note or the Unit, as the case may be,
by stamping or otherwise marking Stub
One and returning it to Chase, through
the Principal Paying Agent, in the case
of the Notes, if necessary. Such
delivery will be made only against such
acknowledgment of receipt and evidence
that instructions have been given by the
Agent, with respect to Program
Securities denominated in U.S. dollars,
for payment to the account of the
Company at Chase, New York, New York
(or, with respect to Program Securities
payable in a Specified Currency other
than U.S. dollars, to an account
maintained at a bank selected by the
Company, which bank shall be located
outside the United Kingdom in the case
of Program Securities payable in a
Specified Currency other than pounds
sterling that mature not later than
five years from and including the date
of issue thereof), in immediately
available funds, of an amount equal to
the purchase price of such Program
Securities less the Agent's commission
(if any). In the event that the
instructions given by the Agent for
payment to the account of the Company
are revoked, the Company will as
promptly as possible wire transfer to
the account of the Agent an amount of
immediately available funds equal to the
amount of such payment made.
The Principal Paying Agent and the Unit
Agent shall pay the Company the
aggregate net proceeds received by it in
immediately available funds via a
transfer of funds to the U.S. dollar
account of the Company with Chase in
New York City (or, with respect to
Program Securities payable in a
Specified Currency other than U.S.
dollars, to an account maintained at a
bank selected by the Company which bank
shall be located outside the United
Kingdom in the case of Program
Securities payable in a Specified
Currency other than pounds sterling
that mature not later than five years
including the date of issue thereof).
FF. Unless the Agent purchased such Program
Securities as principal, the Agent will
deliver (with confirmation) such Program
Securities to the customer against
payment in immediately available funds.
The Agent will obtain the
acknowledgment of receipt of such
Program Securities by retaining Stub
Two.
GG. In the case of all Program Securities,
Chase will send Stub Three to the
Company by first-class mail.
Settlement Procedures
Timetable; Registered Notes
and Registered Units: For sales by the Company of Registered Notes
or Registered Units to or through the Agent,
"Settlement Procedures; Registered Notes and
Registered Units" "AA" through "GG" set forth
above shall be completed on or before the
respective times (London time) set forth
below:
Settlement
Procedure;
Registered
Notes
and
Registered
Units Time
---------- ----
AA 2:00 P.M. on second day before
settlement date
BB 2:00 P.M. on second day before
settlement date
CC 3:00 P.M. on second day before
settlement date
DD-EE 2:15 P.M. on settlement date
FF 3:00 P.M. on settlement date
GG 5:00 P.M. on settlement date
Failure to Settle: Bearer Notes and Bearer Units. If the Agent
shall have advanced its own funds for payment
against subsequent receipt of funds from the
purchaser and if a purchaser shall fail to
make payment for a Note or a Unit, the Agent
will promptly notify, in the case of a Note,
the Company, the Principal Paying Agent, the
Depositary and the Euroclear Operator, Cedel
Bank and any other relevant clearing system,
and, in the case of the Unit, the Company,
the Unit Agent, the Depositary, and the
Euroclear Operator, Cedel Bank and any other
relevant clearing system, in each case by
telephone, promptly confirmed in writing (but
no later than the next Business Day). In
such event, the Company shall promptly
instruct the Principal Paying Agent, in the
case of the Note, and the Unit Agent, in the
case of the Unit, to cancel the purchaser's
interest in the appropriate Temporary Global
Note representing such Note or the
appropriate Temporary Global Unit representing
such Unit. Upon (i) confirmation from the
Principal Paying Agent or the Unit Agent in
writing (which may be given by telex or
telecopy) that the Principal Paying Agent or
the Unit Agent has canceled such purchaser's
interest in such Temporary Global Note or
Temporary Global Unit, as the case may be,
and (ii) confirmation from the Agent in
writing (which may be given by telex or
telecopy) that the Agent has not received
payment from the purchaser for the Note or
the Unit, the Company will promptly pay to
the Agent an amount in immediately available
funds equal to the amount previously paid by
the Agent in respect of such Bearer Note or
Bearer Unit. Such payment will be made on the
settlement date, if possible, and in any
event not later than 12 noon (New York City
time) on the Business Day following the
settlement date. The Principal Paying Agent
or the Unit Agent, as the case may be, and
the Depositary will make or cause to be made
such revisions to such Temporary Global Note
or Temporary Global Unit as are necessary to
reflect the cancellation of such portion of
such Temporary Global Note or Temporary
Global Unit.
If a purchaser shall fail to make payment for
the Note or Unit for any reason other than a
default by the Agent in the performance of
its obligations hereunder and under the
Distribution Agreement, then the Company will
reimburse the Agent on an equitable basis for
the Agent's loss of the use of funds during
the period when they were credited to the
account of the Company, the Principal Paying
Agent or the Unit Agent, as applicable.
Immediately upon such cancellation, the
Principal Paying Agent or the Unit Agent, as
the case may be, will make appropriate
entries in its records to reflect the fact
that a settlement did not occur with respect
to such Note or Unit.
Registered Notes and Registered Units. If a
purchaser fails to accept delivery of and make
payment for any Registered Note or Registered
Unit, the Agent will notify the Company and
Chase, as Registrar of the Registered Notes
or as Unit Agent, by telephone and return
such Note or Unit to Chase through the
Principal Paying Agent, in the case of the
Notes or the Unit Agent, in the case of the
Units, if necessary. Upon receipt of such
notice, the Company will immediately wire
transfer to the account of the Agent an
amount equal to the amount previously
credited to the Company's account in respect
of such Note or Unit. Such wire transfer
will be made on the settlement date, if
possible, and in any event not later than the
Business Day following the settlement date.
If the failure shall have occurred for any
reason other than a default by the Agent in
the performance of its obligations hereunder
and under the Distribution Agreement, then
the Company will reimburse the Agent on an
equitable basis for its loss of the use of
the funds during the period when they were
credited to the account of the Company or
Chase. Immediately upon receipt of the
Registered Note or Registered Unit in respect
of which such failure occurred, Chase will
mark such Note or Unit "canceled," make
appropriate entries in Chase's records and
send such Note or Unit to the Company.
Notice of Issuance
London Stock Exchange: The Sponsoring Member Firm will provide
information with respect to the
issuance of each Series D Note and
Series D Unit to the London Stock
Exchange or the Paris Bourse, as the
case may be, and will advise the
Company in writing as to the
effectiveness of the listing of such
Series D Note and Series D Unit by the
close of business on the related
settlement date.
Listing: The Sponsoring Member Firm will, on a regular
basis, provide the London Stock Exchange or
the Paris Bourse, as the case may be with such
information regarding Series D Notes and
Series D Units issued and outstanding as such
exchange may require.
APPENDIX 1
[FORM OF CERTIFICATE TO BE GIVEN BY
THE EUROCLEAR OPERATOR, CEDEL BANK AND/OR
ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
_________________________________________
Morgan Stanley, Dean Witter, Discover & Co.
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, [U.S.$]
__________ 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 of the date hereof.
We understand that this certification is required in connection
with certain tax laws and, if applicable, certain securities laws of the
United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Dated: _______________, 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:__________________________________
APPENDIX 2
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF THE EUROCLEAR OPERATOR AND CEDEL BANK
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
_________________________________________
Morgan Stanley, Dean Witter, Discover & Co.
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 [U.S.$]
__________ of such interest in the above 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:
APPENDIX 3
FORM OF COMPANY'S NOTICE TO PRINCIPAL PAYING AGENT
--------------------------------------------------
To: The Chase Manhattan Bank,
London Office
Attention: __________________________________
__________________________________
and with a copy to:
[The Chase Manhattan Bank, as Senior Debt Trustee]
[The First National Bank of Chicago, as
Subordinated Debt Trustee]
Re: Euro Distribution Agreement
dated June __, 1997
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete, authenticate
and issue a Temporary Global Note in accordance with the terms of the [Notes
Terms Agreement dated _______,] Administrative Procedures and Euro
Distribution Agreement and to give instructions to the Euroclear Operator,
Cedel Bank and/or any other relevant clearing system in order for you to:
(4) Credit account of [Name of Agent] with [Euroclear/Cedel
Bank/Other](5) with the following Bearer Notes:
- ----------
(4) Separate instructions are to be sent in respect of each offer accepted
by the Company. Repeat this information (numbering consecutively) if
Bearer Notes of more than one Note Tranche are to be issued to an
Agent.
(5) Delete as appropriate.
<TABLE>
<CAPTION>
Floating
Fixed Rate Rate
All Notes: Notes: Notes:
- ----------------------------------------- ---------------------------- --------------------------
<S> <C> <C>
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon
Acceleration:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset
Currencies (if any): Date:
Interest Accrual Date: Payment Currency (if Interest Reset Dates:
any):
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Maturity Date: Reference Dealers: Maximum Interest Rate:
Initial Accrual Period OID: Face Amount: Minimum Interest Rate:
Total Amount of OID: Fixed Amount of each Interest Payment Period:
Indexed Currency (if
any):
Original Yield to Aggregate Fixed Amount Calculation Agent:
Maturity: of each Indexed Currency
(if any):
Optional Repayment Date(s): Indexed Currency (if Reporting Service:
any):
Optional Redemption Date(s): Index Currency:
Initial Redemption Date: Designated CMT
Telerate Page:
Initial Redemption Designated CMT
Percentage: Maturity Index:
Annual Redemption
Percentage Reduction:
Ranking:
Series:
Minimum
Denominations:
Other Provisions:
</TABLE>
against payment of [__________________].
Date:
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
By:__________________________________
__________________________________
APPENDIX 4
FORM OF COMPANY'S NOTICE TO UNIT AGENT
--------------------------------------
To: The Chase Manhattan Bank,
Attention:__________________________________
__________________________________
Re: Euro Distribution Agreement
dated June __, 1997
---------------------------
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete and issue a
Temporary Global Unit in accordance with the terms of the [Units Terms
Agreement dated _______,] Administrative Procedures and Euro Distribution
Agreement and to give instructions to the Euroclear Operator, Cedel Bank and/or
any other relevant clearing system in order for you to:
* Credit account of [Name of Agent] with [Euroclear/Cedel
Bank/Other](2) with the following Bearer Units:
- ----------
(1) Separate instructions are to be sent in respect of each offer accepted by
the Company. Repeat this information (numbering consecutively)
if Bearer Units of more than one Unit Tranche are to be issued
to an Agent.
(2) Delete as appropriate.
Universal Warrants Purchase Contracts
Issued as Part of a Issued as Part of a
All Units: Unit: Unit:
- ---------------------- ----------------------- -------------------------
Principal Amount: Price: Price:
Purchase Price: Specified Currency or Settlement Date and
Composite Currency: Time:
Price to Public: Exercise Date: Buy or Sell:
Place of Delivery: Warrant Property: Purchase Contract
Property:
Specified Currency: Permitted Payment: Purchase or Sale Price:
Original Issue Date: Exercise Price:
Expiration Date: Specified Currency or
Composite Currency:
Put or Call: Permitted Payment:
<TABLE>
<CAPTION>
Floating Rate Notes
All Notes Issued Fixed Rate Notes Issued Issued as Part of a
as Part of a Unit: as Part of a Unit: Unit:
- ------------------------ ------------------------- -------------------
<S> <C> <C>
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon
Acceleration:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Amortization Schedule: Spread Multiplier:
Time:
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset
Currencies (if any): Date:
Interest Accrual Date: Payment Currency (if Interest Reset Dates:
any):
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Maturity Date: Reference Dealers: Maximum Interest Rate:
Initial Accrual Period Face Amount: Minimum Interest Rate:
OID:
Total Amount of OID: Fixed Amount of each Interest Payment Period:
Indexed Currency (if
any):
Original Yield to Aggregate Fixed Amount Calculation Agent:
Maturity: of each Indexed Currency
(if any):
Optional Repayment Indexed Currency (if Reporting Service:
Date(s): any):
Optional Redemption Index Currency:
Date(s):
Initial Redemption Date: Designated CMT
Telerate Page:
Initial Redemption Designated CMT
Percentage: Maturity Index:
Annual Redemption
Percentage Reduction:
Ranking:
Series:
Minimum
Denominations:
Other Provisions:
</TABLE>
against payment of [_________________].
Date:
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
By:__________________________________
__________________________________
EXHIBIT 4-b
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE
________% CUMULATIVE PREFERRED STOCK
($200.00 Stated Value)
OF
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
_________________________
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, Dean Witter, Discover & Co., a Delaware corporation
(hereinafter called the "Corporation"), by unanimous written consent in
lieu of a meeting dated as of _______________, 199__, with certain of the
designations, preferences and rights having been fixed by the Pricing
Committee of the Board (the "Committee") [at a meeting] on _______________,
199__ pursuant to authority delegated to it by the Board pursuant to the
provisions of Section 141(c)(1) 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_______________
of the _______________ of Preferred Stock which the Corporation
now has authority to issue, is authorized, and the Board and
the Committee, pursuant to the authority expressly granted to
the Committee by the Board pursuant to the provisions of
Section 141(c)(1) of the General Corporation Law of the State
of Delaware and the Certificate of Incorporation, 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 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 ______________ Cumulative
Preferred Stock, without par value, with a stated value of
$______ per share (the "Cumulative Preferred Stock"). The
stated value per share of the 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 the Cumulative
Preferred Stock shall be __________ . The Cumulative Preferred
Stock is issuable in whole shares only.
2. Dividends. Holders of shares of the 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 at the
rate of __________% per annum. Dividends on the Cumulative
Preferred Stock will be payable quarterly on _________,
__________ ,__________ and __________ of each year (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 the 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. [Description of alternate method
of determining entitlement to and amount of dividends, and any
other terms of the Cumulative Preferred Stock.] 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 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 the
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 $________ per
share (the "Liquidation Preference" of a share of the
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 the 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 the 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 the
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
the 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 the 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 the 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
the 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 the
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 the 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 the 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 the 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 the
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 the
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. [Alternative 1] [The shares of the
Cumulative Preferred Stock may not be redeemed at any time.]
[Alternative 2] [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 _________,
_________, [except as stated below]. Subject to the foregoing,
on or after such date, shares of the Cumulative Preferred Stock
are redeemable at $_________.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 share 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 the 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 the 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.
[Alternative 3] [Describe provisions of any mandatory
redemption or sinking fund arrangements applicable to the Cumulative
Preferred Stock.]
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
the Cumulative Preferred Stock (the term "Parity
Preferred Stock" being used to refer to any stock on a
parity with the shares of the 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, (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, (ix) if issued,
the Corporation's 8.40% Cumulative Preferred Stock, with a liquidation
value of $200.00 per share, (x) if issued, the Corporation's 8.20% Cumulative
Preferred Stock, with a liquidation value of $200.00 per share (xi) the
Corporation's 7-3/4% Cumulative Preferred Stock, with a liquidation value
of $200.00 per share and (xii) the Corporation's Series A Fixed/Adjustable Rate
Cumulative Preferred Stock, with a liquidation value of $200.00 per share
[insert other outstanding series of preferred stock as applicable].
IN WITNESS WHEREOF, Morgan Stanley, Dean Witter, Discover & Co.
caused this Certificate to be made under the seal of the Corporation and
signed by _______________________________, its ________________________,
and attested by_______________________________,
[Assistant Secretary] of the Corporation, this _______________________________
_______________ day of ______________, 199___.
.
MORGAN STANLEY
DEAN WITTER, DISCOVER & CO.
By:_________________________
Name: __________________
Title: __________________
[SEAL]
Attest:
__________________________
[Assistant Secretary]
EXHIBIT 4-c
FORM OF CERTIFICATE
____% CUMULATIVE PREFERRED STOCK
($_______.000 STATED VALUE)
NUMBER SHARES
__________ __________
CUSIP 617446 - 489
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFICATE IS TRANSFERABLE
IN THE CITY OF NEW YORK, NEW YORK
This is to certify that _____________________________________
is the owner of ___________________ fully paid and non-assessable shares
of ____% Cumulative Preferred Stock, without par value, stated value
$ _____ per share, of Morgan Stanley, Dean Witter, Discover & Co.
transferable on the books of the Corporation by the holder hereof in person
or by duly authorized attorney upon surrender of this certificate properly
endorsed.
This certificate is not valid unless countersigned and
registered by the Transfer Agent and Registrar.
Witness the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated ________________________
[SEAL]
______________________________ ______________________________
[Assistant Secretary] [Financing Officer]
Countersigned and Registered,
THE BANK OF NEW YORK,
Transfer Agent and Registrar
By ______________________________
Authorized Signature
[Reverse of Certificate]
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
Morgan Stanley, Dean Witter, Discover & Co. (the "Corporation")
will furnish, without charge to each stockholder who so requests, a copy of
the designations, powers, preferences and relative participating, optional or
other special rights of each class of stock of the Corporation or series
thereof and the qualifications, limitations or restrictions of such
preferences and/or rights applicable to each class of stock of the Corporation
or series thereof. Such information may be obtained by a request in writing to
the Secretary of the Corporation at its principal place of business.
This certificate and the share or shares represented hereby are
issued and shall be held subject to all of the provisions of the Corporation's
Restated Certificate of Incorporation, as amended, and the Certificate of
Designation of Preferences and Rights of the _________% Cumulative Preferred
Stock ($ __________ Stated Value) (copies of which are on file with the Transfer
Agent), to all of which the holder, by acceptance hereof, assents.
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ____ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right under Uniform Gifts to Minors
of survivorship and not as Act ____________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
------------
For value received, __________________________ hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE
______________________________________________________________________________
______________________________________________________________________________
____________________________________________________________________ shares
of the capital stock represented by the within certificate, and do hereby
irrevocably constitute and appoint _________________________________________,
Attorney to transfer the said stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated __________________________ _________________________________
Signature
NOTICE: The signature to this assignment must
correspond with the name as written
upon the face of this certificate in
every particular, without alteration
or enlargement or any change whatever.
EXHIBIT 4-d
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.,
THE BANK OF NEW YORK
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
DEPOSIT AGREEMENT
Dated as of _________________, 199__
TABLE OF CONTENTS
Page
----
ARTICLE 1
Definitions
Section 1.1. Definitions............................................ 1
ARTICLE 2
Form of Receipts, Deposit of Stock, Execution and Delivery,
Transfer, Surrender and Redemption of Receipts
Section 2.1. Form and Transfer of Receipts.......................... 2
Section 2.2. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof........................... 4
Section 2.3. Registration of Transfer of
Receipts.............................................. 4
Section 2.4. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withrawal of
Stock................................................. 5
Section 2.5. Limitations on Execution and Delivery,
Transfers, Surrender and Exchange of
Receipts.............................................. 6
Section 2.6. Lost Receipts, Etc..................................... 6
Section 2.7. Optional Redemption of Stock........................... 6
Section 2.8. Cancellation and Destruction of Surrendered
Receipts.............................................. 8
Section 3.1. Filing Proofs, Certificates and Other
Information........................................... 8
Section 3.2. Payment of Taxes or Other Governmental
Charges................................................ 8
Section 3.3. Warranty as to Stock.................................... 9
ARTICLE 4
The Deposited Securities; Notices
Section 4.1. Cash Distributions...................................... 9
Section 4.2. Distributions Other than Cash, Rights,
Preferences or Privileges.............................. 9
Section 4.3. Subscription Rights, Preferences or
Privileges............................................. 10
Section 4.4. Notice of Dividends, Etc.; Fixing Record
Date for Holders of Receipts........................... 11
Section 4.5. Voting Rights........................................... 11
Section 4.6. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc.............. 12
Section 4.7. Delivery of Reports..................................... 13
Section 4.8. Lists of Receipt Holders................................ 13
ARTICLE 5
The Depositary, the Depositary's Agents, the Registrar and the Company
Section 5.1. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar.............................................. 13
Section 5.2. Prevention of or Delay in Performance by
the Depositary or the Company.......................... 14
Section 5.3. Obligation of the Depositary and the
Company................................................ 14
Section 5.4. Resignation and Removal of the Depositary;
Appointment of Successor Depositary.................... 15
Section 5.5. Corporate Notices and Reports........................... 16
Section 5.6. Indemnification......................................... 16
Section 5.7. Charges and Expenses.................................... 17
ARTICLE 6
Amendment and Termination
Section 6.1. Amendment............................................... 18
Section 6.2. Termination............................................. 18
ARTICLE 7
Miscellaneous
Section 7.1. Counterparts............................................ 19
Section 7.2. Exclusive Benefit of Parties............................ 19
Section 7.3. Invalidity of Provisions................................ 20
Section 7.4. Notices................................................. 20
Section 7.5. Depositary's Agents..................................... 21
Section 7.6. Holders of Receipts Are
Parties................................................ 21
Section 7.7. Governing Law........................................... 21
Section 7.8. Inspection of Deposit
Agreement.............................................. 21
Section 7.9. Headings................................................ 21
EXHIBIT A -- Form of Receipt
DEPOSIT AGREEMENT dated as of__________________________,
199__ , among MORGAN STANLEY, DEAN WITTER, DISCOVER & CO., a Delaware
corporation, THE BANK OF NEW YORK, a New York banking corporation, and the
holders from time to time of the Receipts described herein.
WHEREAS, it is desired to provide as hereinafter set forth
in this Deposit Agreement, for the deposit from time to time of shares of
[specify designation of Series of Preferred Stock], without par value,
stated value $_______ per share, of Morgan Stanley, Dean Witter, Discover &
Co. with the Depositary for the purposes set forth in this Deposit
Agreement and for the issuance hereunder of Receipts evidencing Depositary
Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A annexed hereto, with appropriate insertions, modification and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1. Definitions. The following definitions shall
for all purposes, unless otherwise indicated, apply to the respective terms
used in this Deposit Agreement:
"Certificate" shall mean the Certificate of Designation of
Preferences and Rights filed or to be filed with the Secretary of State of the
State of Delaware establishing the Stock as a series of preferred stock,
without par value, of the Company.
"Company" shall mean Morgan Stanley, Dean Witter, Discover &
Co., a Delaware corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time.
"Depositary" shall mean The Bank of New York, or any successor
as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each
representing [specify fraction] share(s) of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.5.
"Depositary's Office" shall mean the principal corporate trust
office of the Depositary in New York City, at which at any particular time its
depositary receipt business shall be administered.
"Holder" as applied to a Receipt shall mean the person in
whose name a Receipt is registered on the books of the Depositary
maintained for such purpose.
"Receipt" shall mean one of the Depositary Receipts,
substantially in the form set forth as Exhibit A hereto, issued hereunder,
whether in definitive or temporary form and evidencing the number of
Depositary Shares held of record by the holder of such Depositary Shares.
"Registrar" shall mean the Depositary or such other bank or
trust company that shall be appointed to register ownership and transfers of
Receipts as herein provided as well as to effect transfers and the
distribution of dividends with respect to the Stock.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock" shall mean shares of the Company's _______________
Cumulative Preferred Stock, par value $0.01 per share, stated value
$_______________ per share.
ARTICLE 2
Form of Receipts, Deposit of Stock, Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
Section 2.1. Form and Transfer of Receipts. Definitive
Receipts shall be engraved or printed or lithographed on steel-engraved
borders, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered in compliance
with Section 2.2, shall execute and deliver temporary Receipts that are
printed, lithographed, typewritten, mimeographed or otherwise substantially
of the tenor of the definitive Receipts in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and other
variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If temporary Receipts are
issued, the Company and the Depositary will cause definitive Receipts to be
prepared without unreasonable delay. After the preparation of definitive
Receipts, the temporary Receipts shall be exchangeable for definitive
Receipts upon surrender of the temporary Receipts at an office described in
the penultimate paragraph of Section 2.2, without charge to the holder.
Upon surrender for cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor definitive
Receipts representing the same number of Depositary Shares as are
represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company's expense and without any charge
therefor. Until so exchanged, the temporary Receipts shall in all respects
be entitled to the same benefits under this Deposit Agreement, and with
respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual
or facsimile signature of a duly authorized signatory of the Depositary
and, if a Registrar for the Receipts shall have been appointed,
countersigned by the manual signature of a duly authorized signatory of the
Registrar; provided that no Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it
shall have been executed manually by a duly authorized signatory of the
Depositary or, if a Registrar for the Receipts shall have been appointed,
by facsimile signature of a duly authorized signatory of the Depositary and
countersigned manually by a duly authorized signatory of such Registrar.
The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole
Depositary Shares.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or any regulation thereunder or
with the rules and regulations of any securities exchange upon which the
Stock, the Depositary Shares or the Receipts may be listed or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt that is
properly endorsed or accompanied by a properly executed instrument of transfer
shall be transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that until transfer of a Receipt
shall be registered on the books of the Depositary as provided in Section 2.3,
the Depositary may, notwithstanding any notice to the contrary, treat the
holder of record at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
Section 2.2. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Deposit Agreement, the Company may from time to time deposit shares of
Stock under this Deposit Agreement by delivery to the Depositary of a
certificate or certificates for the Stock to be deposited, properly
endorsed or accompanied, if required by the Depositary, by a duly executed
instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company directing the Depositary to
execute and deliver to, or upon the written order of, the person or persons
stated in such order a Receipt or Receipts for the number of Depositary
Shares representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the
Depositary's office or at such other place or places as the Depositary shall
determine.
Upon receipt by the Depositary of a certificate or certificates
for Stock deposited in accordance with the provisions of this Section,
together with the other documents required as above specified, and upon
recordation of the Stock on the books of the Company in the name of the
Depositary or its nominee, the Depositary, subject to the terms and conditions
of this Deposit Agreement, shall execute and deliver, to or upon the order of
the person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section, a Receipt or Receipts for
the number of Depositary Shares representing the Stock so deposited and
registered in such name or names as may be requested by such person or
persons. The Depositary shall execute and deliver such Receipt or Receipts at
the Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more
than shares of Stock.
Section 2.3. Registration of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, including payment of the
fees of the Depositary as provided in Section 5.7, the Depositary shall
register on its books from time to time transfers of Receipts upon any
surrender thereof by the holder in person or by duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of
transfer. Thereupon the Depositary shall execute a new Receipt or Receipts
evidencing the same aggregate number of Depositary Shares as those evidenced
by the Receipt or Receipts surrendered and deliver such new Receipt or
Receipts to or upon the order of the person entitled thereto.
Section 2.4. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of Stock. Upon surrender of a Receipt
or Receipts at the Depositary's Office or at such other offices as it may
designate for the purpose of effecting a split-up or combination of such
Receipt or Receipts, and subject to the terms and conditions of this
Deposit Agreement, the Depositary shall execute and deliver a new Receipt
or Receipts in the authorized denomination or denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number
of whole shares of Stock may withdraw the Stock and all money and other
property, if any, represented thereby by surrendering such Receipt or
Receipts at the Depositary's Office or at such other offices as the
Depositary may designate for such withdrawals. Upon payment of the fees of
the Depositary for the withdrawal of Stock as provided in Section 5.7 and
payment of all taxes and without unreasonable delay, the Depositary shall
deliver to such holder or to the person or persons designated by such
holder as hereinafter provided, the number of whole shares of Stock and all
money and other property, if any, represented by the Depositary Shares
evidenced by the Receipt or Receipts so surrendered for withdrawal, but
holders of such whole shares of Stock will not thereafter be entitled to
deposit such Stock hereunder or to receive Depositary Shares therefor. If
a Receipt delivered by the holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares in excess of the
number of Depositary Shares representing the number of whole shares of
Stock to be so withdrawn, the Depositary shall at the same time, in
addition to such number of whole shares of Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or pursuant
to his order, upon payment of the fees of the Depositary for the withdrawal
of Stock as provided in Section 5.7 and payment of all taxes, a new Receipt
evidencing such excess number of Depositary Shares. Delivery of the Stock
and money and other property, if any, being withdrawn may be made by the
delivery of such certificates, documents of title and other instruments as
the Depositary may deem appropriate.
If the Stock and the money and other property, if any, being
withdrawn are to be delivered to a person or persons other than the holder of
the Receipt or Receipts being surrendered for withdrawal of Stock, such holder
shall execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for the withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument
of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the
account of the holder thereof, such delivery may be made at such other place
as may be designated by such holder.
Section 2.5. Limitations on Execution and Delivery, Transfers,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.7, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or
the Company may establish consistent with the provisions of this Deposit
Agreement.
The deposit of Stock may be refused, the delivery of
Receipts against Stock may be suspended, the registration of transfer of
Receipts may be refused and the registration of transfer, surrender or
exchange of outstanding Receipts may be suspended (i) during any period
when the register of stockholders of the Company is closed or (ii) if any
such action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because
of any requirement of law or of any government or governmental body or
commission or under any provision of this Deposit Agreement.
Section 2.6. Lost Receipts, Etc. In case any receipt shall
be mutilated, destroyed, lost or stolen, the Depositary in its discretion
may execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in
lieu of and in substitution for such destroyed, lost or stolen Receipt.
Before the Depositary shall execute and deliver a new Receipt in
substitution for a destroyed, lost or stolen Receipt, the holder thereof
shall have (i) filed with the Depositary (a) a request for such execution
and delivery before the Depositary has received notice that the Receipt has
been acquired by a bona fide purchaser and (b) a sufficient indemnity bond
(if so requested by the Depositary) and (ii) satisfied any other reasonable
requirements imposed by the Depositary.
Section 2.7. Optional Redemption of Stock. If the Company
shall elect to redeem shares of Stock pursuant to the Certificate, it shall
(unless otherwise agreed in writing with the Depositary) give the
Depositary not less than 45 days' notice of the date of such proposed
redemption of Stock and of the number of shares of Stock held by the
Depositary to be redeemed. On the date of such redemption, provided that
the Company shall then have paid in full to the Depositary the redemption
price (determined pursuant to the Certificate) of the Stock deposited with
the Depositary to be redeemed, the Depositary shall redeem (using the
proceeds of such redemption) the Depositary Shares relating to such Stock.
The Depositary shall mail, first class postage prepaid, notice of the
redemption of Stock and the proposed simultaneous redemption of the
Depositary Shares relating to the Stock to be redeemed, not less than 30
days and not more than 60 days prior to the date fixed for redemption of
such Stock and Depositary Shares (the "Redemption Date"), to the holders on
the record date fixed for such redemption pursuant to Section 4.4 of the
Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such holders as the same appear on the records of the
Depositary; but neither failure to mail any such notice to one or more such
holders nor any defect in any notice shall affect the sufficiency of the
proceedings for redemption as to the other holders. The Company shall
provide the Depositary with such notice, and each such notice shall state:
(i) the record date for purposes of such redemption; (ii) the Redemption
Date; (iii) the number of Depositary Shares to be redeemed and, if fewer
than all the Depositary Shares held by any holder are to be redeemed, the
number of Depositary Shares held by such holder to be so redeemed; (iv)
the redemption price; (v) the place or places where Receipts evidencing
Depositary Shares to be redeemed are to be surrendered for payment of the
redemption price; and (vi) that dividends in respect of the Stock
represented by the Depositary Shares to be redeemed will cease to accrue at
the close of business on such Redemption Date. In case fewer than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to
be redeemed shall be selected by lot or by any other substantially
equivalent method determined by the Depositary.
Notice having been mailed by the Depositary as aforesaid,
from and after the Redemption Date (unless the Company shall have failed to
redeem the shares of Stock to be redeemed by it as set forth in the
Company's notice provided for in the preceding paragraph) all dividends in
respect of the shares of Stock called for redemption shall cease to accrue,
the Depositary Shares called for redemption shall be deemed no longer to be
outstanding and all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption price) shall,
to the extent of such Depositary Shares, cease and terminate. Upon
surrender in accordance with said notice of the Receipts evidencing such
Depositary Shares (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Depositary Shares shall be redeemed at a
redemption price per Depositary Share equal to five (5) times the
redemption price per share paid in respect of shares of Stock pursuant to
the Certificate plus all money and other property, if any, represented by
such Depositary Shares, including all amounts paid by the Company in
respect of dividends that on the Redemption Date have accrued on the shares
of Stock to be so redeemed and that have not theretofore been paid. The
foregoing shall be subject further to the terms and conditions of the
Certificate.
If fewer than all of the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver to the
holder of such Receipt upon its surrender to the Depositary, together with
payment of the redemption price for the Depositary Shares called for
redemption, a new Receipt evidencing the Depositary Shares evidenced by
such prior Receipt and not called for redemption.
Except as provided in the preceding paragraph of this
Section 2.7, the Depositary shall not be required to transfer or exchange
for another Receipt any Receipt evidencing Depositary Shares called or
being called for redemption in whole or in part.
The Depositary shall remit to the Company any funds
deposited by or for the account of the Company for the purpose of redeeming
any Depositary Shares that the holders thereof have failed to redeem after
two years from the date of such deposit, without further action necessary
on the part of the Company.
Section 2.8. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's
Agent shall be cancelled by the Depositary. Except as prohibited by
applicable law or regulation, the Depositary is authorized to destroy all
Receipts so cancelled.
ARTICLE 3
Certain Obligations of Holders of Receipts and the Company
Section 3.1. Filing Proofs, Certificates and Other
Information. Any holder of a Receipt may be required from time to time to
file such proof of residence, or other matters or other information, to
execute such certificates and to make such representations and warranties
as the Depositary or the Company may reasonably deem necessary or proper.
The Depositary or the Company may withhold the delivery, or delay the
registration of transfer, redemption or exchange, of any Receipt or the
withdrawal of the Stock represented by the Depositary Shares evidenced by
any Receipt or the distribution of any dividend or other distribution or
the sale of any property or rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or
such representations and warranties are made.
Section 3.2. Payment of Taxes or Other Governmental
Charges. Holders of Receipts shall be obligated to make payments to the
Depositary of certain charges and expenses, as provided in Section 5.7.
Registration of transfer of any Receipt or any withdrawal of Stock and all
money or other property, if any, represented by the Depositary Shares
evidenced by such Receipt may be refused until any such payment due is
made, and any dividends, interest payments or other distributions may be
withheld or any part of or all the Stock or other property represented by
the Depositary Shares evidenced by such Receipt and not theretofore sold
may be sold for the account of the holder thereof (after attempting by
reasonable means to notify such holder prior to such sale), and such
dividends, interest payments or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the
holder of such Receipt remaining liable for any deficiency.
Section 3.3. Warranty as to Stock. The Company hereby
represents and warrants that the Stock, when issued, will be duly
authorized, validly issued, fully paid and nonassessable. Such
representation and warranty shall survive the deposit of the Stock and the
issuance of Receipts.
ARTICLE 4
The Deposited Securities; Notices
Section 4.1. Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on Stock, the
Depositary shall, subject to Sections 3.1 and 3.2, distribute to holders of
Receipts on the record date fixed pursuant to Section 4.4 (net of the fees
of the Depositary as provided in Section 5.7 hereof) such amounts of such
dividend or distribution as are, as nearly as practicable, in proportion to
the respective numbers of Depositary Shares evidenced by the Receipts held
by such holders; provided, however, that in case the Company or the
Depositary shall be required to withhold and shall withhold from any cash
dividend or other cash distribution in respect of the Stock an amount on
account of taxes, the amount made available for distribution or distributed
in respect of Depositary Shares shall be reduced accordingly. The
Depositary shall distribute or make available for distribution, as the case
may be, only such amount, however, as can be distributed without
attributing to any holder of Depositary Shares a fraction of one cent, and
any balance not so distributable shall be held by the Depositary (without
liability for interest thereon) and shall be added to and be treated as
part of the next sum received by the Depositary for distribution to holders
of Receipts then outstanding.
Section 4.2. Distributions Other than Cash, Rights,
Preferences or Privileges. Whenever the Depositary shall receive any
distribution other than cash, rights, preferences or privileges upon Stock,
the Depositary shall, subject to Sections 3.1 and 3.2, distribute to
holders of Receipts on the record date fixed pursuant to Section 4.4 such
amounts of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot
be made proportionately among such holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an
amount on account of taxes or governmental charges) the Depositary deems,
after consultation with the Company, such distribution not to be feasible,
the Depositary may, with the approval of the Company, adopt such method as
it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the
securities or property thus received, or any part thereof, at such place or
places and upon such terms as it may deem proper. The net proceeds of any
such sale shall, subject to Sections 3.1 and 3.2, be distributed or made
available for distribution, as the case may be, by the Depositary to such
holders of Receipts as provided by Section 4.1 in the case of a
distribution received in cash. The Company shall not make any distribution
of such securities unless the Company shall have provided an opinion of
counsel stating that such securities have been registered under the
Securities Act or do not need to be so registered.
Section 4.3. Subscription Rights, Preferences or
Privileges. If the Company shall at any time offer or cause to be offered
to the persons in whose names Stock is recorded on the books of the Company
any rights, preferences or privileges to subscribe for or to purchase any
securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the holders of Receipts in such manner as
the Depositary may determine, either by the issue to such holders of
warrants representing such rights, preferences or privileges or by such
other method as may be determined by the Depositary with the approval of
the Company; provided, however, that (i) if at the time of issue or offer
of any such rights, preferences or privileges the Depositary determines
that it is not lawful or (after consultation with the Company) not feasible
to make such rights, preferences or privileges available to holders of
Receipts by the issue of warrants or otherwise, or (ii) if and to the
extent so instructed by holders of Receipts who do not desire to exercise
such rights, preferences or privileges, then the Depositary may (with
approval of the Company in any case where the Depositary has determined
that it is not feasible to make such rights, preferences or privileges
available), if applicable laws or the terms of such rights, preferences or
privileges permit such transfer, sell such rights, preferences or
privileges at public or private sale, at such place or places and upon such
terms as it may deem proper. The net proceeds of any such sale shall,
subject to Sections 3.1 and 3.2, be distributed by the Depositary to the
holders of Receipts entitled thereto as provided by Section 4.1 in the case
of a distribution received in cash.
If registration under the Securities Act of the securities
to which any rights, preferences or privileges relate is required in order
for holders of Receipts to be offered or sold the securities to which such
rights, preferences or privileges relate, the Company agrees with the
Depositary that it will file promptly a registration statement pursuant to
such Act with respect to such rights, preferences or privileges and
securities and use its best efforts and take all steps available to it to
cause such registration statement to become effective sufficiently in
advance of the expiration of such rights, preferences or privileges to
enable such holders to exercise such rights, preferences or privileges. In
no event shall the Depositary make available to the holders of Receipts any
right, preference or privilege to subscribe for or to purchase any
securities unless and until such registration statement shall have become
effective, or unless the offering and sale of such securities to such
holders are exempt from registration under the provisions of the Securities
Act and the Company shall have provided to the Depositary an opinion of
counsel to such effect.
If any other action under the laws of any jurisdiction or
any governmental or administrative authorization, consent or permit is
required in order for such rights, preferences or privileges to be made
available to holders of Receipts, the Company agrees with the Depositary
that the Company will use its best efforts to take such action or obtain
such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders
to exercise such rights, preferences or privileges.
Section 4.4. Notice of Dividends, Etc.; Fixing Record Date
for Holders of Receipts. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall
be made, or if rights, preferences or privileges shall at any time be
offered with respect to Stock, or whenever the Depositary shall receive
notice of (i) any meeting at which holders of Stock are entitled to vote or
of which holders of Stock are entitled to notice or (ii) any election on
the part of the Company to redeem any shares of Stock, or whenever the
Depositary and the Company shall decide it is appropriate, the Depositary
shall in each such instance fix a record date (which shall be the same date
as the record date fixed by the Company with respect to or otherwise in
accordance with the terms of the Stock) for the determination of the
holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the
sale thereof, or to give instructions for the exercise of voting rights at
any such meeting, or who shall be entitled to notice of such meeting, or
whose Depositary Shares are to be redeemed or for any other appropriate
reasons.
Section 4.5. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the holders of Receipts
entitled thereto a notice that shall contain (i) such information as is
contained in such notice of meeting and (ii) a statement that such holders
may, subject to any applicable restrictions, instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of Stock
represented by their respective Depositary Shares (including an express
indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company) and a brief
statement as to the manner in which such instructions may be given. Upon
the written request of the holders of Receipts on the relevant record date,
the Depositary shall endeavor insofar as practicable to vote or cause to be
voted, in accordance with the instructions set forth in such requests, the
maximum number of whole shares of Stock represented by the Depositary
Shares evidenced by all Receipts as to which any particular voting
instructions are received, provided that the Depositary receives such
instructions sufficiently in advance of such voting to enable it to so vote
or cause to be voted. The Company hereby agrees to take all reasonable
action that may be deemed necessary by the Depositary in order to enable
the Depositary to vote such Stock or cause such Stock to be voted. In the
absence of specific instructions from the holder of a Receipt, the
Depositary will abstain from voting (but, in its discretion, not from
appearing at any meeting with respect to such Stock unless directed to the
contrary by the holders of all the Receipts) to the extent of the Stock
represented by the Depositary Shares evidenced by such Receipt.
Section 4.6. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or
stated value, split-up, combination or any other reclassification of the
Stock, or upon any recapitalization, reorganization, merger, amalgamation
or consolidation affecting the Company or to which it is a party, the
Depositary may in its discretion with the approval of, and shall upon the
instructions of, the Company, and (in either case) in such manner as the
Depositary may deem equitable, (i) make such adjustments as are certified
by the Company in the fraction of an interest represented by one Depositary
Share in one share of Stock as may be necessary fully to reflect the
effects of such change in par or stated value, split-up, combination or
other reclassification of Stock, or of such recapitalization,
reorganization, merger, amalgamation or consolidation and (ii) treat any
securities that shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited securities so
received in exchange for or upon conversion or in respect of such Stock.
In any such case the Depositary may in its discretion, with the approval of
the Company, execute and deliver additional Receipts or may call for the
surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities. Anything to the
contrary herein notwithstanding, holders of Receipts shall have the right
from and after the effective date of any such change in par or stated
value, split-up, combination or other reclassification of the Stock or any
such recapitalization, reorganization, merger, amalgamation or
consolidation to surrender such Receipts to the Depositary with
instructions to convert, exchange or surrender the Stock represented
thereby only into or for, as the case may be, the kind and amount of shares
of stock and other securities and property and cash into which the Stock
represented by such Receipts might have been converted or for which such
Stock might have been exchanged or surrendered immediately prior to the
effective date of such transaction.
Section 4.7. Delivery of Reports. The Depositary shall
furnish to holders of Receipts any reports and communications received from
the Company that are received by the Depositary as the holder of Stock.
Section 4.8. Lists of Receipt Holders. Promptly upon
request from time to time by the Company, the Depositary shall furnish to
it a list, as of a recent date, of the names, addresses and holdings of all
holders of Receipts.
ARTICLE 5
The Depositary, the Depositary's Agents,
the Registrar and the Company
Section 5.1. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar. Upon execution of this Deposit
Agreement, the Depositary shall maintain at the Depositary's Office,
facilities for the execution and delivery, registration and registration of
transfer, surrender and exchange, split-up, combination and redemption of
Receipts and deposit and withdrawal of Stock, and at the offices of the
Depositary's Agents, if any, facilities for the delivery, registration of
transfer, surrender and exchange, split-up, combination and redemption of
Receipts and deposit and withdrawal of Stock, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office
for the registration and registration of transfer of Receipts, which books
at all reasonable times shall be open for inspection by the holders of
Receipts; provided that any such holder requesting to exercise such right
shall certify to the Depositary that such inspection shall be for a proper
purpose reasonably related to such person's interest as an owner of
Depositary Shares evidenced by the Receipts.
The Depositary may close such books, at any time or from
time to time, when deemed expedient by it in connection with the
performance of its duties hereunder.
The Depositary may, with the approval of the Company,
appoint a Registrar for registration of the Receipts or the Depositary
Shares evidenced thereby. If the Receipts or the Depositary Shares
evidenced thereby or the Stock represented by such Depositary Shares shall
be listed on the New York Stock Exchange, the Depositary will appoint a
Registrar (acceptable to the Company) for registration of such Receipts or
Depositary Shares in accordance with any requirements of such Exchange.
Such Registrar (which may be the Depositary if so permitted by the
requirements of such Exchange) may be removed and a substitute registrar
appointed by the Depositary upon the request or with the approval of the
Company. If the Receipts, such Depositary Shares or such Stock are listed
on one or more other stock exchanges, the Depositary will, at the request
of the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange of such Receipts, such
Depositary Shares or such Stock as may be required by law or applicable
stock exchange regulation.
Section 5.2. Prevention of or Delay in Performance by the
Depositary or the Company. Neither the Depositary nor the Company shall
incur any liability to any holder of any Receipt if by reason of any
provision of any present or future law, or regulation thereunder, of the
United States of America or of any other governmental authority or by
reason of any provision, present or future, of the Company's Restated
Certificate of Incorporation, as amended (including the Certificate) or of
the Depositary Shares or by reason of any act of God or war or other
circumstance beyond the control of the relevant party, the Depositary or
the Company shall be prevented or forbidden from, delayed in, or subjected
to any penalty on account of, doing or performing any act or thing which
the terms of this Deposit Agreement provide shall be done or performed; nor
shall the Depositary or the Company incur liability to any holder of a
Receipt (i) by reason of any nonperformance or delay, caused as aforesaid,
in the performance of any act or thing which the terms of this Deposit
Agreement shall provide shall or may be done or performed, or (ii) by
reason of any exercise of, or failure to exercise, any discretion provided
for in this Deposit Agreement except, in the case of any such exercise or
failure to exercise discretion not caused as aforesaid, if caused by the
negligence or willful misconduct of the party charged with such exercise or
failure to exercise.
Where, by the terms of a distribution pursuant to Sections
4.1 or 4.2 of this Deposit Agreement, or an offering or distribution
pursuant to Section 4.3 of this Deposit Agreement, or for any other reason,
such distribution or offering may not be made available to holders of
Receipts, and the Depositary may not dispose of such distribution or
offering on behalf of such holders and make the net proceeds available to
such holders, then the Depositary shall not make such distribution or
offering, and shall allow any rights, if applicable, to lapse.
Section 5.3. Obligation of the Depositary and the Company.
Neither the Depositary nor the Company assumes any obligation or shall be
subject to any liability under this Deposit Agreement to holders of
Receipts except that each of them agrees (i) to use its best judgment and
good faith in the performance of such duties as are specifically set forth
in this Deposit Agreement and (ii) that it shall be liable for negligence
or willful misconduct in the performance of such duties as are specifically
set forth in this Deposit Agreement.
Neither the Depositary nor the Company shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of the Stock, the Depositary Shares or the Receipts
that in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability shall be
furnished as often as may be required.
Neither the Depositary nor the Company shall be liable for
any action or any failure to act by it in reliance upon the advice of legal
counsel or accountants, or information from any person presenting Stock for
deposit, any holder of a Receipt or any other person believed by it in good
faith to be competent to give such advice or information. The Depositary
and the Company may each rely and shall each be protected in acting upon
any written notice, request, direction or other document believed by it to
be genuine and to have been signed or presented by the proper party or
parties.
The Depositary shall not be responsible for any failure to
carry out any instruction to vote any of the shares of Stock or for the
manner or effect of any such vote made, as long as any such action or non-
action is in good faith. The Depositary undertakes to perform such duties
and only such duties as are specifically set forth in this Deposit
Agreement, and no implied covenants or obligations shall be read into this
Deposit Agreement against the Depositary. The Depositary may also act as
transfer agent or registrar of any of the securities of the Company and its
affiliates.
The Depositary undertakes not to issue any Receipt other
than to evidence the Depositary Shares then on deposit with the Depositary.
The Depositary also undertakes not to sell (except as provided herein),
pledge or lend Depositary Shares held by it as Depositary.
No disclaimer of liability under the Securities Act is
intended by any provision of this Deposit Agreement.
Section 5.4. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign
as Depositary hereunder by delivering written notice of its election to do
so to the Company, such resignation to take effect upon the appointment of
a successor Depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take
effect upon the appointment of a successor Depositary and its acceptance of
such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall, within 60 days after the delivery
of the notice of resignation or removal, as the case may be, appoint a
successor Depositary, which shall be a bank or trust company having its
principal office in the United States of America and having a combined
capital and surplus of at least $50,000,000. If no successor Depositary
shall have been so appointed and have accepted appointment within 60 days
after delivery of such notice, the resigning or removed Depositary may
petition any court of competent jurisdiction for the appointment of a
successor Depositary. Every successor Depositary shall execute and deliver
to its predecessor and to the Company an instrument in writing accepting
its appointment hereunder, and thereupon such successor Depositary, without
any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes
shall be the Depositary under this Deposit Agreement, and such predecessor,
upon payment of all sums due it and upon the written request of the
Company, shall execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Stock and
any moneys or property held hereunder to such successor, and shall deliver
to such successor a list of the holders of all outstanding Receipts and
such records, books and other information in its possession relating
thereto. Any successor Depositary shall promptly mail notice of its
appointment to the holders of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such Depositary
without the execution or filing of any document or any further act, and
notice thereof shall not be required hereunder.
Section 5.5. Corporate Notices and Reports. The Company
agrees that it will transmit to the holders of Receipts, in each case at
the addresses furnished to it pursuant to Section 4.8, all notices and
reports (including without limitation financial statements) required by law
or by the rules of any national securities exchange upon which the Stock,
the Depositary Shares or the Receipts are listed, to be furnished to the
holders of Receipts. Such transmission will be at the Company's expense.
Section 5.6. Indemnification. The Company agrees to
indemnify the Depositary, its directors, employees, agents and affiliates
and any Depositary's Agent against, and hold each of them harmless from,
any liability or expense (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or
omitted in accordance with the provisions of this Deposit Agreement and of
the Receipts, as the same may be amended, modified or supplemented from
time to time, (i) by either the Depositary or a Depositary's Agent or their
respective directors, employees, agents and affiliates, except for any
liability or expense arising out of the negligence or bad faith of any of
them, or (ii) by the Company or any of its directors, employees, agents and
affiliates.
The Depositary agrees to indemnify the Company, its
directors, employees, agents and affiliates and hold them harmless from any
liability or expense (including, but not limited to, the reasonable fees
and expenses of counsel) which may arise out of acts performed or omitted
by the Depositary or a Depositary's Agent or their respective directors,
employees, agents and affiliates due to their negligence or bad faith. The
obligations set forth in this Section 5.6 shall survive the termination of
this Deposit Agreement and any succession or substitution of any
Depositary.
Any person seeking indemnification hereunder (an
"indemnified person") shall notify the person from whom it is seeking
indemnification in writing (the "indemnifying person") of the commencement
of any action or claim in respect of which indemnification may be sought
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights under this Section 5.6) and shall consult in
good faith with the indemnifying person as to the conduct of the defense of
such action or claim, which shall be reasonable in the circumstances. No
indemnified person shall compromise or settle any such action or claim
without the consent of the indemnifying person.
Section 5.7. Charges and Expenses. The Company shall pay
all transfer and other taxes and governmental charges arising solely from
the existence of the depositary arrangements. The Company shall pay all
charges of the Depositary in connection with the initial deposit of the
Stock and the initial issuance of the Depositary Shares, all withdrawals of
shares of the Stock by owners of Depositary Shares and the registration of
transfer of title to any Depositary Shares. All other transfer and other
taxes and governmental charges shall be at the expense of holders of
Depositary Shares. If, at the request of a holder of Receipts, the
Depositary incurs charges or expenses for which it or the Company is not
otherwise liable hereunder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar (including, in each case,
fees and expenses of counsel) incident to the performance of their
respective obligations hereunder will be paid by the Company upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses. The Depositary shall
present its statement for charges and expenses to the Company once every
three months or at such other intervals as the Company and the Depositary
may agree.
ARTICLE 6
Amendment and Termination
Section 6.1. Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time
be amended by agreement between the Company and the Depositary in any
respect which they may deem necessary or desirable; provided, however, that
no such amendment which shall materially and adversely alter the rights of
the holders of Receipts shall be effective unless such amendment shall have
been approved by the holders of at least a majority of the Depositary
Shares then outstanding. Notwithstanding the foregoing, in no event may
any amendment impair the right of any holder of any Receipts, upon
surrender of such Receipts and subject to any conditions specified in this
Deposit Agreement, to receive shares of Stock and any money or other
property represented thereby, except in order to comply with mandatory
provisions of applicable law. Every holder of an outstanding Receipt at
the time any such amendment becomes effective in accordance with its terms
shall be deemed, by continuing to hold such Receipt, to consent and agree
to such amendment and to be bound by the Deposit Agreement as amended
thereby.
Section 6.2. Termination. This Deposit Agreement may be
terminated by the Company at any time upon not less than 60 days' prior
written notice to the Depositary, in which case, upon a date that is not
later than 30 days after the date of such notice, the Depositary shall
deliver or make available for delivery to holders of Receipts, upon
surrender of the Receipt or Receipts held by such holder, and upon payment
of any applicable taxes or governmental charges, such number of whole
shares of Stock represented by such Receipt or Receipts. The Depositary
may likewise terminate this Deposit Agreement by mailing notice of such
termination to the Company and the holders of all Receipts then outstanding
if at any time 60 days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4. If the holder of any Receipt or
Receipts shall not have surrendered such Receipt or Receipts in exchange
for whole shares of Stock on or prior to the effective date of termination
of this Deposit Agreement, such holder shall for all purposes, including
the payment of dividends, be deemed to be a holder of the appropriate
number of whole shares of Stock previously represented by such Receipt or
Receipts and shall thereafter surrender to the Company such Receipt or
Receipts in exchange for whole shares of Stock.
If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration
of transfers of Receipts, shall suspend the distribution of dividends to
the holders thereof, and shall not give any further notices or perform any
further acts under this Deposit Agreement, except that the Depositary shall
continue to collect dividends and other distributions pertaining to the
Stock, shall sell rights as provided in this Deposit Agreement, and shall
continue to deliver such Stock, together with any dividends or other
distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered
to the Depositary (after deducting, in each case, the fee of the Depositary
for the surrender of a Receipt, any expenses for the account of the holder
of such Receipt in accordance with the terms and conditions of this Deposit
Agreement, and any applicable taxes or governmental charges). At any time
after the expiration of one year from the date of termination, the
Depositary may sell such Stock then held hereunder and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash
then held by it hereunder, without liability for interest, for the pro rata
benefit of the holders which have not theretofore surrendered their
Receipts. After making such sale, the Depositary shall be discharged from
all obligations under this Deposit Agreement, except to account for such
net proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of
the holder of such Receipt in accordance with the terms and conditions of
this Deposit Agreement, and any applicable taxes or governmental charges).
This Deposit Agreement shall automatically terminate after
there shall have been made a final distribution in respect of the Stock in
connection with any liquidation, dissolution or winding up of the Company
and such distribution shall have been distributed to the holders of
Receipts pursuant to Section 4.1 or 4.2, as applicable.
Upon the termination of this Deposit Agreement, the Company
shall be discharged from all obligations under this Deposit Agreement
except for its obligations to the Depositary and any Depositary's Agent and
any Registrar under Sections 5.6 and 5.7.
ARTICLE 7
Miscellaneous
Section 7.1. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto
on separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument.
Section 7.2. Exclusive Benefit of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal
or equitable right, remedy or claim to any other person whatsoever.
Section 7.3. Invalidity of Provisions. In case any one or
more of the provisions contained in this Deposit Agreement or in the
Receipts should be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
Section 7.4. Notices. Any and all notices to be given to
the Company hereunder or under the Receipts shall be in writing and shall
be deemed to have been duly given if personally delivered or sent by mail,
or by telegram or facsimile transmission confirmed by letter, addressed to
the Company at
1585 Broadway
New York, New York 10036
Attention: Telephone
No.: (212) 761-4000
or at any other address of which the Company shall have notified the
Depositary in writing.
Any and all notices to be given to the Depositary hereunder
or under the Receipts shall be in writing and shall be deemed to have been
duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to the Depositary at
the Depositary's Office at 101 Barclay Street, New York, New York 10286, or
at any other address of which the Depositary shall have notified the
Company in writing.
Any and all notices to be given to any holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail, or by
telegram or facsimile transmission confirmed by letter, addressed to such
holder at the address of such holder as it appears on the books of the
Depositary, or if such holder shall have filed with the Depositary a
written request that notices intended for such holder be mailed to some
other address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram or
facsimile transmission shall be deemed to be effected at the time when a
duly addressed letter containing the same (or a confirmation thereof in the
case of a telegram or facsimile transmission) is deposited, first class
postage prepaid, in a post office letter box. The Depositary or the
Company may, however, without liability, act upon any telegram or facsimile
transmission received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
Section 7.5. Depositary's Agents. The Depositary may from
time to time appoint Depositary's Agents to act in any respect for the
Depositary for the purposes of this Deposit Agreement and may at any time
appoint additional Depositary's Agents and vary or terminate the
appointment of such Depositary's Agents. The Depositary will notify the
Company of any such action and shall remain responsible for the performance
of its obligations hereunder as if no Depositary Agent were appointed.
The Company hereby also appoints the Depositary as Registrar
and Transfer Agent in respect of the Receipts and the Depositary hereby
accepts such appointments.
Section 7.6. Holders of Receipts Are Parties. The holders
of Receipts from time to time shall be parties to this Deposit Agreement
and shall be bound by all of the terms and conditions hereof and of the
Receipts by acceptance of delivery thereof.
Section 7.7. Governing Law. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the laws of
the State of New York.
Section 7.8. Inspection of Deposit Agreement. Copies of
this Deposit Agreement shall be filed with the Depositary and the
Depositary's Agents and shall be open to inspection during business hours
at the Depositary's Office and the respective offices of the Depositary's
Agents, if any, by any holder of a Receipt.
Section 7.9. Headings. The headings of articles and
sections in this Deposit Agreement and in the form of the Receipt set forth
in Exhibit A hereto have been inserted for convenience only and are not to
be regarded as a part of this Deposit Agreement or the Receipts or to have
any bearing upon the meaning or interpretation of any provision contained
herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Agreement as of the day and year first above set forth, and
all holders of Receipts shall become parties hereto by and upon acceptance
by them of delivery of Receipts issued in accordance with the terms hereof.
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By ___________________________________
Name:
Title:
THE BANK OF NEW YORK
By ___________________________________
Name:
Title:
EXHIBIT A
[FORM OF FACE OF RECEIPT]
NUMBER
DEPOSITARY SHARES
DRB
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING ___________% CUMULATIVE PREFERRED STOCK OF
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
CUSIP _________
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE. SEE REVERSE FOR CERTAIN
DEFINITIONS
THE BANK OF NEW YORK, as Depositary (the "Depositary"), hereby certifies that
is the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [specify fraction]
Cumulative Preferred Stock, without par value, stated value $______________
per share (the "Stock"), of Morgan Stanley, Dean Witter, Discover & Co., a
Delaware corporation (the "Corporation"), on deposit with the Depositary,
subject to the terms and entitled to the benefits of the Deposit Agreement
dated as of ________________, 199__ (the "Deposit Agreement"), among the
Corporation, the Depositary and the holders from time to time of the
Depositary Receipts issued thereunder. By accepting this Depositary Receipt
the holder hereof becomes a party to and agrees to be bound by all the terms
and conditions of the Deposit Agreement. This Depositary Receipt shall not be
valid or obligatory for any purpose or entitled to any benefits under the
Deposit Agreement unless it shall have been executed by the Depositary by the
manual signature of a duly authorized signatory or, if executed in facsimile
by the Depositary, countersigned by a Registrar in respect of the Depositary
Receipts by the manual signature of a duly authorized signatory thereof.
Dated:
Countersigned and Registered:
THE BANK OF NEW YORK THE BANK OF NEW YORK
Registrar Depositary
By By
[FORM OF REVERSE OF RECEIPT]
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH RECEIPTHOLDER WHO SO
REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY OF THE
CERTIFICATE OF THE DESIGNATIONS, POWERS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER RIGHTS, AND OF THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, OF THE STOCK OF THE CORPORATION. ANY
SUCH REQUEST IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS
RECEIPT.
The following abbreviations, when used in the instructions on the face of this
receipt, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT - _____ Custodian _______
(Minor) (Cust)
TEN ENT - as tenants by the Under Uniform Gifts to Minors Act
entireties
JT TEN - as joint tenants __________________________
with right of (State)
survivorship
and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
For value received, _______ hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
___________________________________________________________________________
___________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE
___________________________________________________________________________
_________________________________ Depositary Shares represented by the
within Receipt, hereby irrevocably constituting and appointing
_________________________ Attorney to transfer the said Depositary Shares on
the books of the within named Depositary with full power of substitution in
the premises.
Dated: ______________
______________________________________________
NOTICE: The signature to the assignment must
correspond with the name as written upon the
face of this Receipt in every particular,
without alteration or enlargement or any change
whatever
EXHIBIT 4-m
[FORM OF FACE OF SECURITY]
Floating Rate Senior Note
REGISTERED [PRINCIPAL AMOUNT]
No. FLR CUSIP:(1)
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.(1)
- --------------
(1) Applies only if this Note is a Registered Global Security.
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, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Floating Rate)
<TABLE>
<CAPTION>
<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 INTEREST RESET PERIOD:
SPREAD: DATE:
SPREAD MULTIPLIER: MAXIMUM INTEREST RATE: INTEREST RESET DATE(S):
REPORTING SERVICE: MINIMUM INTEREST RATE: CALCULATION AGENT:
INDEX CURRENCY: INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
EXCHANGE RATE AGENT: INITIAL REDEMPTION TOTAL AMOUNT OF OID:
PERCENTAGE:
OTHER PROVISIONS: ANNUAL REDEMPTION ORIGINAL YIELD TO
PERCENTAGE REDUCTION: MATURITY:
OPTIONAL REPAYMENT INITIAL ACCRUAL PERIOD OID:
DATE(S):
DESIGNATED CMT TELERATE
PAGE:
DESIGNATED CMT MATURITY
INDEX:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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 ](2)
[amount specified in Schedule A hereto](3) 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.
- --------------
(2) Applies if this Note is not issued as part of, or in relation to, a Unit.
(3) Applies if this Note is issued as part of, or in relation to, a Unit.
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.
If so indicated on the face hereof, 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 an
affiliate of the Issuer), 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, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:_____________________________
Authorized Officer
[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 Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan
Bank (formerly known as Chemical Bank), as Trustee (the "Trustee," which
term includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1,
1997 between the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan
Bank (formerly known as 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 Dates. The Interest Reset Dates will be
the Interest Reset Dates specified on the face hereof; provided, however,
that (a) 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 (b) unless otherwise specified on the face hereof, the
interest rate in effect for the ten calendar days immediately prior to
maturity, redemption or repayment will be that in effect on the tenth
calendar day preceding such maturity, redemption or repayment 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; 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
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 (as defined below) under the caption ". . .
Treasury Constant Maturities . . . 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 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.
Unless otherwise indicated on the face hereof, interest
payments on this Note shall be the amount of interest accrued from and
including the Interest Accrual Date or from and including the last date to
which interest has been paid or duly provided for 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 this Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and this 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 this Note, but, if this Note is destroyed, lost or
stolen, only upon receipt of evidence satisfactory to the Trustee and the
Issuer that this 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.
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 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]
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
[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.
[SCHEDULE A](4)
- --------------
(4) Schedule A needed only if this Note is issued as part of, or in relation
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________.
[In accordance with the Unit Agreement dated June 2, 1997 among the Issuer,
[The Chase Manhattan Bank], as Unit Agent, as Collateral Agent and as
Trustee under the Indentures referred to therein and the Holders from time
to time of the Units described therein, the following (A) reductions of the
principal amount of this Note by cancellation upon the application of such
amount to the settlement of Purchase Contracts or the exercise of Universal
Warrants or for any other reason or (B) exchanges of portions of this Note
for an interest in a Note that has been separated from a Unit (a "Separated
Note") have been made:](5) [The following (A) reductions of the principal
amount of this Note by cancellation upon the application of such amount to
the settlement of Purchase Contracts or the exercise of Universal Warrants
or for any other reason or (B) exchanges of an interest in a
Note that is part of a Unit (an "Attached Unit Note") for an interest in
this Note have been made:](6)
- --------------
(5) Applies only if this Note is part of a Unit.
(6) Applies only if this Note has been separated from a Unit.
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
Reduced
Principal Principal Increased
Principal Amount Amount of Principal
Amount Outstanding Attached Unit Amount of this
Principal Exchanged for Following Such Note Exchanged Note Outstanding Notation Made
Date of Exchange Amount Separated Exchange or for Interest in Following Such by or on Behalf
or Cancellation Cancelled Note(5) Cancellation this Note(6) Exchange(6) of Paying Agent
- ---------------- --------- ------------- -------------- --------------- ---------------- ---------------
- ---------------- --------- ------------- -------------- --------------- ---------------- ---------------
- ---------------- --------- ------------- -------------- --------------- ---------------- ---------------
- ---------------- --------- ------------- -------------- --------------- ---------------- ---------------
- ---------------- --------- ------------- -------------- --------------- ---------------- ---------------
- ---------------- --------- ------------- -------------- --------------- ---------------- ---------------
- ---------------- --------- ------------- -------------- --------------- ---------------- ---------------
- ---------------- --------- ------------- -------------- --------------- ---------------- ---------------
- ---------------- --------- ------------- -------------- --------------- ---------------- ---------------
- ---------------- --------- ------------- -------------- --------------- ---------------- ---------------
- ---------------- --------- ------------- -------------- --------------- ---------------- ---------------
</TABLE>
EXHIBIT 4-n
[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, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C> <C> <C>
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: ORIGINAL MATURITY
DATE: DATE:
INTEREST ACCRUAL INITIAL REDEMPTION APPLICABILITY OF OPTIONAL
DATE: PERCENTAGE: MODIFIED PAYMENT REPAYMENT
UPON DATE(S):
ACCELERATION:
TOTAL AMOUNT OF ANNUAL REDEMPTION If yes, state Issue Price: EXCHANGE RATE
OID: PERCENTAGE AGENT:
REDUCTION:
ORIGINAL YIELD TO SPECIFIED CURRENCY:
MATURITY:
INITIAL ACCRUAL INTEREST PAYMENT
PERIOD: DATE(S):
APPLICABILITY OF INTEREST PAYMENT
ISSUER'S OPTION TO PERIOD:
EXTEND ORIGINAL
MATURITY DATE:
If yes, state Final Maturity APPLICABILITY OF
Date: ANNUAL INTEREST
PAYMENTS:
OTHER PROVISIONS:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., a Delaware
corporation (together with its successors and assigns, the "Issuer"), for
value received, hereby promises to pay to , or registered (1)Applies if
this Note is not issued as part of, or in relation to, a Unit. assignees,
the principal [sum of ](1) [ amount specified in Schedule A hereto](2), 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. Except as provided above and
unless otherwise indicated on the face of this Note, the Interest Payment
Dates for this Note shall be March 1 and September 1.
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, redemption or repayment 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 (2)Applies if this Note is issued as part of, or
in relation to, a Unit. 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.
If so indicated on the face hereof, 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 an
affiliate of the Issuer), 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, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:_____________________________
Authorized Officer
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 Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan
Bank (formerly known as Chemical Bank), as Trustee (the "Trustee," which
term includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1,
1997 between the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan
Bank (formerly known as 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. Unless the Issuer exercises its option to extend
the Original Maturity Date hereof for one or more periods as specified on
the face hereof (and as described in the fourth succeeding paragraph below)
or unless otherwise indicated on the face of this Note, 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.
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.
[SCHEDULE A](3)
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. [In
accordance with the Unit Agreement dated June 2, 1997 among the Issuer, The
Chase Manhattan Bank, as Unit Agent, as Collateral Agent and as Trustee under
the Indentures referred to therein and the Holders from time to time of the
Units described therein, the following (A) reductions of the principal amount
of this Note by cancellation upon the application of such amount to the
settlement of Purchase Contracts or the exercise of Universal Warrants or for
any other reason or (B) exchanges of portions of this Note for an interest in
a Note that has been separated from a Unit (a "Separated Note") have been
made:](4) [The following (A) reductions of the principal amount of this Note
by cancellation upon the application of such amount to the settlement of
Purchase Contracts or the exercise of Universal Warrants or for any other
reason or (B) exchanges of an interest in a Note that is part of a Unit (an
"Attached Unit Note") for an interest in this Note have been made:](5)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Principal Reduced Principal Principal Amount Increased Principal
Amount Amount Outstanding of Attached Unit Amount of this Note
Date of Principal Exchanged for Following Such Note Exchanged Outstanding Notation Made by
Exchange or Amount Separated Exchange or for Interest in this Following Such or on Behalf of
Cancellation Cancelled Note(1) Cancellation Note(2) Exchange(2) Paying Agent
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------
(3) Schedule A needed only if this Note is issued as part of, or in relation
to, a Unit.
(4) Applies only if this Note is part of a Unit.
(5) Applies only if this Note has been separated from a Unit.
</TABLE>
EXHIBIT 4-o
[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, DEAN WITTER, DISCOVER & CO.
SENIOR VARIABLE RATE RENEWABLE
MEDIUM-TERM NOTE, SERIES C
<TABLE>
<CAPTION>
<S> <C> <C>
BASE RATE: ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE:
REPORTING SERVICE: INITIAL INTEREST RATE: INITIAL MATURITY DATE:
INDEX MATURITY: INITIAL INTEREST RESET FINAL MATURITY DATE:
DATE:
SPREAD (PLUS OR MINUS): ALTERNATE RATE EVENT MAXIMUM INTEREST RATE:
SPREAD:
INTEREST PAYMENT PERIOD: SPREAD MULTIPLIER: MINIMUM INTEREST RATE:
INTEREST PAYMENT DATES: TOTAL AMOUNT OF OID: INTEREST RESET DATES:
INTEREST RESET PERIOD: ORIGINAL YIELD TO MATURITY EXTENSION DATES:
MATURITY:
INCREMENTAL SPREAD INITIAL ACCRUAL PERIOD OID: CALCULATION AGENT:
COMMENCEMENT DATE:
ELECTION DATES: INDEX CURRENCY:
INCREMENTAL SPREAD (PLUS
OR MINUS):
REDEMPTION DATES:
REDEMPTION PERCENTAGE:
DESIGNATED CMT TELERATE
PAGE:
SPECIFIED CURRENCY:
EXCHANGE RATE AGENT:
DESIGNATED CMT MATURITY
INDEX:
OTHER PROVISIONS:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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 canceled 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 canceled 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 canceled 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 an
affiliate of the Issuer), 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, DEAN WITTER,
DISCOVER & CO.
By:
--------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
--------------------------
Authorized Officer
[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 Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Senior Indenture dated as of April 15, 1996, between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1, 1997
between the Issuer and the Trustee (as so supplemented 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 (a) 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 and
(b) unless otherwise specified on the face hereof, the interest rate in effect
for the ten calendar days immediately prior to maturity, redemption or
repayment will be that in effect on the tenth calendar day preceding such
maturity, redemption or repayment. 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
USPRIME1 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 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
that may replace the USPRIME1 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 (as defined below) under the caption ". . . Treasury Constant
Maturities . . .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 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.
Unless otherwise indicated on the face hereof, interest
payments on this Note shall be the amount of interest accrued from and
including the Interest Accrual Date or from and including the last date to
which interest has been paid or duly provided for 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 this Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and this 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 this Note, but, if this Note is destroyed, lost or
stolen, only upon receipt of evidence satisfactory to the Trustee and the
Issuer that this 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.
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 The Chase Manhattan Bank (formerly known as 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>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Reduced Principal Principal Amount Increased Principal
Principal Amount Amount Outstanding of Short-Term Note Amount Outstanding Notation Made by
Exchanged for Following Such Exchanged for Following Such or on Behalf of
Date of Exchange Short-Term Note Exchange Interest in this Note Exchange Trustee
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
- ---------------- ---------------- ------------------ ---------------------- ------------------- ----------------
</TABLE>
EXHIBIT A TO SENIOR VARIABLE RATE RENEWABLE NOTE
[FORM OF FACE OF SECURITY]
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, DEAN WITTER, DISCOVER & CO.
SENIOR VARIABLE RATE RENEWABLE
MEDIUM-TERM NOTE, SERIES C
<TABLE>
<CAPTION>
<S> <C> <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 OID: CALCULATION AGENT:
COMMENCEMENT DATE:
OTHER PROVISIONS: NO SPECIFIED CURRENCY: INDEX CURRENCY:
EXCHANGE FOR
RENEWABLE NOTE: The DESIGNATED CMT TELERATE
holder of this Note may not elect PAGE:
to exchange such Note for an
interest in the predecessor DESIGNATED CMT MATURITY
Renewable Note (as defined INDEX:
below). Consequently, Schedule
I, and any provision related to DESIGNATED CMT MATURITY
such Schedule I, is inapplicable INDEX:
to this Note
EXCHANGE RATE AGENT:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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.
If so indicated on the face hereof, 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 an
affiliate of the Issuer), 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, DEAN WITTER,
DISCOVER & CO.
By:
--------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN 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 Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1, 1997
between the Issuer and the Trustee (as so supplemented, 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 (a) 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 and
(b) unless otherwise specified on the face hereof, the interest rate in effect
for the ten calendar days immediately prior to maturity, redemption or
repayment will be that in effect on the tenth calendar day preceding such
maturity, redemption or repayment 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, 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
USPRIME1 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 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 Rate Service (or such other page
that may replace the USPRIME1 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 (as defined below) under the caption ". . . Treasury Constant
Maturities . . . /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 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.
Unless otherwise indicated on the face hereof, interest
payments on this Note shall be the amount of interest accrued from and
including the Interest Accrual Date or from and including the last date to
which interest has been paid or duly provided for 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 this Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and this 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 this Note, but, if this Note is destroyed, lost or
stolen, only upon receipt of evidence satisfactory to the Trustee and the
Issuer that this 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.
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.
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 The Chase
Manhattan Bank (formerly known as 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:
Principal Amount Reduced Principal
Date of Exchanged for Amount Outstanding Notation Made by or
Exchange Renewable Note Following Such Exchange on Behalf of Trustee
- -------- ---------------- ----------------------- --------------------
[N/A] [N/A] [N/A] [N/A]
- -------- ---------------- ----------------------- --------------------
- -------- ---------------- ----------------------- --------------------
- -------- ---------------- ----------------------- --------------------
- -------- ---------------- ----------------------- --------------------
- -------- ---------------- ----------------------- --------------------
- -------- ---------------- ----------------------- --------------------
- -------- ---------------- ----------------------- --------------------
- -------- ---------------- ----------------------- --------------------
- -------- ---------------- ----------------------- --------------------
- -------- ---------------- ----------------------- --------------------
- -------- ---------------- ----------------------- --------------------
- -------- ---------------- ----------------------- --------------------
- -------- ---------------- ----------------------- --------------------
- -------- ---------------- ----------------------- --------------------
- -------- ---------------- ----------------------- --------------------
- -------- ---------------- ----------------------- --------------------
- -------- ---------------- ----------------------- --------------------
- -------- ---------------- ----------------------- --------------------
EXHIBIT 4-p
[FORM OF FACE OF SECURITY]
Floating Rate Subordinated Note
REGISTERED REGISTERED
No. FLR [PRINCIPAL AMOUNT]
CUSIP:(1)
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.(1)
- ------------
(1) Applies only if this Note is a Registered Global Security.
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, DEAN WITTER, DISCOVER & CO.
SUBORDINATED GLOBAL MEDIUM-TERM NOTE, SERIES C
(Floating Rate)
<TABLE>
<CAPTION>
<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 INTEREST RESET PERIOD:
SPREAD: DATE:
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
PERCENTAGE REDUCTION: MATURITY:
OTHER PROVISIONS: OPTIONAL REPAYMENT INITIAL ACCRUAL PERIOD OID:
DATE(S):
DESIGNATED CMT TELERATE DESIGNATED CMT MATURITY
PAGE: INDEX:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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.
If so indicated on the face hereof, 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 an affiliate of the Issuer), 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, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Subordinated Indenture.
THE CHASE MANHATTAN BANK,
as Authentication 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 Subordinated Indenture dated as of May 15, 1991 and
a Second Supplemental Subordinated Indenture dated as of April 15, 1996
between Morgan Stanley Group Inc. (as predecessor of the Issuer) and The
First National Bank of Chicago, as Trustee (the "Trustee," which term
includes any successor trustee under the Subordinated Indenture) as further
supplemented by a Third Supplemental Subordinated Indenture dated as of
June 1, 1997 between the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan Bank (formerly known as 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 The Chase Manhattan Bank (formerly
known as 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 (a) 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 (b) unless otherwise specified on the face hereof, the
interest rate in effect for the ten calendar days immediately prior to
maturity, redemption or repayment will be that in effect on the tenth
calendar day preceding such maturity, redemption or repayment 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; 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 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 (as defined below) under the Caption ". . .
Treasury Constant Maturities . . . 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 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.
Unless otherwise indicated on the face hereof, interest
payments on this Note shall be the amount of interest accrued from and
including the Interest Accrual Date or from and including the last date to
which interest has been paid or duly provided for 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.
The Chase Manhattan Bank (formerly known as 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 this Note shall at any time become mutilated,
defaced or be destroyed, lost or stolen and this 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 this Note, but, if this Note
is destroyed, lost or stolen, only upon receipt of evidence satisfactory to
the Registrar and the Issuer that this 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; 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.
EXHIBIT 4-q
[FORM OF FACE OF SECURITY]
Fixed Rate Subordinated Note
REGISTERED REGISTERED
No. FXR [PRINCIPAL AMOUNT]
CUSIP: (1)
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.(1)
- ------------
(1) Applies only if this Note is a Registered Global Security.
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, DEAN WITTER, DISCOVER & CO.
SUBORDINATED GLOBAL MEDIUM-TERM NOTE, SERIES C
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C> <C> <C>
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: ORIGINAL MATURITY
DATE: DATE:
INTEREST ACCRUAL INITIAL REDEMPTION APPLICABILITY OF OPTIONAL
DATE: PERCENTAGE: MODIFIED PAYMENT REPAYMENT
UPON DATE(S):
ACCELERATION:
TOTAL AMOUNT OF ANNUAL REDEMPTION If yes, state Issue Price: APPLICABILITY OF
OID: PERCENTAGE ANNUAL INTEREST
REDUCTION: PAYMENTS:
ORIGINAL YIELD TO INTEREST PAYMENT SPECIFIED CURRENCY: EXCHANGE RATE
MATURITY: DATES: 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:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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. Except as provided above
and unless otherwise indicated on the face of this Note, the Interest Payment
Dates for this Note shall be March 1 and September 1.
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,
redemption or repayment 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 an
affiliate of the Issuer), 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, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Subordinated Indenture.
THE CHASE MANHATTAN BANK,
as Authentication 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 Subordinated Indenture dated as of May 15, 1991 and a
Second Supplemental Subordinated Indenture dated as of April 15, 1996 between
the Morgan Stanley Group Inc. (as predecessor of the Issuer) and The First
National Bank of Chicago, as Trustee (the "Trustee," which term includes any
successor trustee under the Subordinated Indenture) as further supplemented by
a Third Supplemental Subordinated Indenture dated as of June 1, 1997 between
the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan Bank (formerly known
as 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 The Chase Manhattan
Bank (formerly known as 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. Unless the Issuer has the option to extend the Original
Maturity Date hereof for one or more periods as specified on the face hereof
(and as described in the fourth succeeding paragraph below) or unless
otherwise indicated on the face of this Note, 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.
The Chase Manhattan Bank (formerly known as 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 this Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and this 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 this Note, but, if this Note has been destroyed, lost
or stolen, 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; 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-r
[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, DEAN WITTER, DISCOVER & CO.
SUBORDINATED VARIABLE RATE RENEWABLE
GLOBAL MEDIUM-TERM NOTE, SERIES C
<TABLE>
<CAPTION>
<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:
SPREAD MULTIPLIER: MINIMUM INTEREST RATE: INTEREST PAYMENT DATES:
REDEMPTION DATES: TOTAL AMOUNT OF OID: CALCULATION AGENT:
REDEMPTION PERCENTAGE: INTEREST RESET DATES: INITIAL ACCRUAL PERIOD OID:
APPLICABILITY OF ISSUER'S ORIGINAL YIELD TO EXCHANGE RATE AGENT:
OPTION TO RESET SPREAD MATURITY:
OR SPREAD MULTIPLIER:
DESIGNATED CMT TELERATE SPECIFIED CURRENCY: INDEX CURRENCY:
PAGE:
DESIGNATED CMT MATURITY
INDEX:
OTHER PROVISIONS:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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.
If so indicated on the face hereof, 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 an affiliate of the Issuer), 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, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Subordinated Indenture.
THE CHASE MANHATTAN BANK,
as Authentication Agent
By:_____________________________
Authorized Officer
[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 Subordinated Indenture dated as of May 15, 1991 and a
Second Supplemental Subordinated Indenture dated as of April 15, 1996 between
Morgan Stanley Group Inc. (as predecessor of the Issuer) and The First
National Bank of Chicago, as Trustee (the "Trustee," which term includes any
successor trustee under the Subordinated Indenture as further supplemented by
a Third Supplemental Subordinated Indenture dated as of June 1, 1997 between
the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan Bank (formerly known as 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 The Chase Manhattan Bank (formerly
known as 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 (a) 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 and (b) unless
otherwise specified on the face hereof, the interest rate in effect for the
ten calendar days immediately prior to maturity, redemption or repayment will
be that in effect on the tenth calendar day preceding such maturity,
redemption or repayment 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, 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:
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 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 Telerate Page (as defined below) under the caption ". . .
Treasury Constant Maturities and . . . 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 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.
Unless otherwise indicated on the face hereof, interest
payments on this Note shall be the amount of interest accrued from and
including the Interest Accrual Date or from and including the last date to
which interest has been paid 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.
The Chase Manhattan Bank (formerly known as 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 this Note shall at any time become mutilated,
defaced or be destroyed, lost or stolen and this 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 this Note, but, if this Note
is destroyed, lost or stolen, only upon receipt of evidence satisfactory to
the Registrar and the Issuer that this 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; 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 The Chase Manhattan
Bank (formerly known as 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>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Reduced Principal Principal Amount of Increased Principal
Principal Amount Amount Outstanding Short-Term Note Amount of this Note Notation Made by
Date of Exchanged for Following Such Exchanged for Outstanding Following or on Behalf of
Exchange Short-Term Note Exchange Interest in this Note Such Exchange Paying Agent
- -------- --------------- ------------------ --------------------- --------------------- ----------------
- -------- --------------- ------------------ --------------------- --------------------- ----------------
- -------- --------------- ------------------ --------------------- --------------------- ----------------
- -------- --------------- ------------------ --------------------- --------------------- ----------------
- -------- --------------- ------------------ --------------------- --------------------- ----------------
- -------- --------------- ------------------ --------------------- --------------------- ----------------
- -------- --------------- ------------------ --------------------- --------------------- ----------------
- -------- --------------- ------------------ --------------------- --------------------- ----------------
- -------- --------------- ------------------ --------------------- --------------------- ----------------
- -------- --------------- ------------------ --------------------- --------------------- ----------------
- -------- --------------- ------------------ --------------------- --------------------- ----------------
</TABLE>
EXHIBIT A TO SUBORDINATED VARIABLE RATE RENEWABLE NOTE
[FORM OF FACE OF SECURITY]
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, DEAN WITTER, DISCOVER & CO.
SUBORDINATED VARIABLE RATE RENEWABLE
GLOBAL MEDIUM-TERM NOTE, SERIES C
<TABLE>
<CAPTION>
<S> <C> <C>
BASE RATE: ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE:
INDEX MATURITY: INITIAL INTEREST RESET MATURITY DATE:
DATE:
SPREAD (PLUS OR MINUS): MAXIMUM INTEREST RATE: INTEREST PAYMENT DATES:
ALTERNATE RATE EVENT MINIMUM INTEREST RATE: INTEREST RESET PERIOD:
SPREAD:
SPREAD MULTIPLIER: TOTAL AMOUNT OF OID: INTEREST RESET DATES:
APPLICABILITY OF ISSUER'S REPORTING SERVICE: ORIGINAL YIELD TO
OPTION TO RESET SPREAD MATURITY:
OR SPREAD MULTIPLIER:
OTHER PROVISIONS: NO SPECIFIED CURRENCY: CALCULATION AGENT:
EXCHANGE FOR
RENEWABLE NOTE: The
holder of this note may not elect
to exchange such note for an INITIAL ACCRUAL PERIOD OID: INDEX CURRENCY:
interest in the predecessor DESIGNATED CMT TELERATE EXCHANGE RATE AGENT:
Renewable Note (as defined PAGE:
below). Consequently, Schedule I, DESIGNATED CMT MATURITY
and any provision related to such INDEX:
Schedule I, is inapplicable to this
note.
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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.
If so indicated on the face hereof, 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 an affiliate of the Issuer), 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, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Subordinated Indenture.
THE CHASE MANHATTAN BANK,
as Authentication 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 Subordinated Indenture dated as of May 15, 1991 and a
Second Supplemental Subordinated Indenture dated as of April 15, 1996 between
Morgan Stanley Group Inc. (as predecessor of the Issuer) and The First
National Bank of Chicago, as Trustee (the "Trustee," which term includes any
successor trustee under the Subordinated Indenture) as further supplemented
by a Third Supplemental Subordinated Indenture dated as of June 1, 1997
between the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan
Bank (formerly known as 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 The Chase Manhattan Bank (formerly known as 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 (a) 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 and (b) unless otherwise specified on the face
hereof, the interest rate in effect for the ten calendar days immediately
prior to maturity, redemption or repayment will be that in effect on the
tenth calendar day preceding such maturity, redemption or repayment 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, 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 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 (as defined below) under the caption ". . .
Treasury Constant Maturities and . . . 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 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.
Unless otherwise indicated on the face hereof, interest
payments on this Note shall be the amount of interest accrued from and
including the Interest Accrual Date or from and including the last date to
which interest has been paid 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.
The Chase Manhattan Bank (formerly known as 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 this Note shall at any time become mutilated,
defaced or be destroyed, lost or stolen and this 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 this Note, but, if this Note
is destroyed, lost or stolen, only upon receipt of evidence satisfactory to
the Registrar and the Issuer that this 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; 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 The Chase
Manhattan Bank (formerly known as 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:
<TABLE>
<S> <C> <C> <C>
Principal Amount Reduced Principal
Date of Exchanged for Amount Outstanding Notation Made by or
Exchange Renewable Note Following Such Exchange on Behalf of Paying Agent
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
---------------- ---------------- ----------------------- -------------------------
</TABLE>
EXHIBIT 4-s
[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 SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.](1)
- ------------
(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.
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN
ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM
BANKING ACT 1987.](2)
- ------------
(2) Applies only if this Note is denominated in pounds sterling and
matures more than one year from and including the Original Issue Date.
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.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Floating Rate)
<TABLE>
<CAPTION>
<S> <C> <C>
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 MINUS): MINIMUM INTEREST RATE: CALCULATION AGENT:
ALTERNATE RATE SPREAD INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
EVENT:
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 TELERATE MINIMUM DENOMINATIONS:
PAGE:
REPORTING SERVICE: DESIGNATED CMT MATURITY
INDEX:
OTHER PROVISIONS:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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 Principal Paying
Agent 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 Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan
Bank (formerly known as Chemical Bank), as Trustee (the "Trustee," which
term includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1,
1997 between the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan
Bank (formerly known as 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).
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 Principal Paying Agent 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 an interest represented by
this Note is held by Morgan Stanley & Co. International Limited or Dean
Witter International Limited, 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 such interest is sold by Morgan Stanley & Co. International Limited
or Dean Witter International Limited or such other manager, all as
determined and notified to the Trustee by Morgan Stanley & Co.
International Limited or Dean Witter International Limited, or if Morgan
Stanley & Co. International Limited or Dean Witter International Limited
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, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN 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>
<CAPTION>
<S> <C> <C> <C> <C>
Principal Amount Remaining Principal
Exchanged for Amount Outstanding Notation Made
Date of Exchange Permanent Following by or on Behalf of
or Interest Payment Payment of Interest Global Bearer Note Such Exchange Principal 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, Dean Witter, Discover & Co.
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
such United States or foreign financial institutions described in clause
(iii) above (whether or not also described in clause (i) or (ii)) have
certified that they have not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
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 SOCIETE ANONYME]
[OTHER]
By:_____________________________
Name:
Title:
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, Dean Witter, Discover & Co.
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-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)
- ------------
(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.
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN
ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM
BANKING ACT 1987.](2)
- ------------
(2) Applies only if this Note is denominated in pounds sterling and matures
more than one year from and including the Original Issue Date.
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.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C> <C> <C>
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: MATURITY DATE:
DATE:
INTEREST ACCRUAL INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL REPAY
DATE: PERCENTAGE: DATE: MENT DATE:
TOTAL AMOUNT OF ANNUAL REDEMPTION APPLICABILITY OF MINIMUM DENOMINA-
OID: PERCENTAGE MODIFIED PAYMENT TIONS:
REDUCTION: UPON ACCELERA
TION OR REDEMP
TION:
ORIGINAL YIELD TO INITIAL ACCRUAL If yes, state Issue Price: CEDEL NO.:
MATURITY: PERIOD OID:
EUROCLEAR NO.: EXCHANGE RATE SPECIFIED CURRENCY: OTHER PROVISIONS:
AGENT:
COMMON CODE:
ISIN:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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 Principal Paying
Agent 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
Senior Indenture dated as of May 15, 1991 and a Second Supplemental Senior
Indenture dated as of April 15, 1996 between Morgan Stanley Group Inc. (as
predecessor of the Issuer) and The Chase Manhattan Bank (formerly known as
Chemical Bank), as Trustee (the "Trustee," which term includes any successor
trustee under the Senior Indenture) as further supplemented by a Third
Supplemental Senior Indenture dated as of June 1, 1997 between the Issuer and
the Trustee (as so supplemented, 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 The Chase Manhattan Bank (formerly known as 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).
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 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 Principal Paying Agent 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 an interest is
represented by this Note is held by Morgan Stanley & Co. International
Limited or Dean Witter International Limited, 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 such interest is sold by Morgan Stanley
& Co. International Limited or Dean Witter International Limited or
such other manager, all as determined and notified to the Trustee by
Morgan Stanley & Co. International Limited or Dean Witter International
Limited or if Morgan Stanley & Co. International Limited or Dean Witter
International Limited 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, DEAN WITTER,
DISCOVER & CO.
By:___________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN 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>
<CAPTION>
Principal Amount Remaining Principal
Exchanged for Amount Outstanding Notation Made
Date of Exchange Permanent Following by or on Behalf of
or Interest Payment Payment of Interest Global Bearer Note Such Exchange Principal Paying Agent
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
EXHIBIT A
[FORM OF CERTIFICATE TO BE GIVEN BY
THE EUROCLEAR OPERATOR, CEDEL
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
Morgan Stanley, Dean Witter, Discover & Co.
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 such United
States or foreign financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
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 SOCIETE ANONYME]
[OTHER]
By:__________________________
Name:
Title:
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, Dean Witter, Discover & Co.
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 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)
- ------------
(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.
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN
ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM
BANKING ACT 1987.](2)
- ------------
(2) Applies only if this Note is denominated in pounds sterling and matures
more than one year from and including the Original Issue Date.
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.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Floating Rate)
<TABLE>
<CAPTION>
<S> <C> <C>
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 MINUS): MINIMUM INTEREST RATE: CALCULATION AGENT:
ALTERNATE RATE SPREAD INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
EVENT:
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:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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](3) [Schedule A-1
hereto](4), 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.
- ------------
(3) Applies if this Note is not issued as part of, or in relation to, a
Unit.
(4) Applies if this Note is issued as part of, or in relation to, a Unit.
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, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:_____________________________
Authorized Officer
[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 Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan
Bank (formerly known as Chemical Bank), as Trustee (the "Trustee," which
term includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1,
1997 between the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan
Bank (formerly known as 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) nor a European authorized institution as
defined by Regulation 3 of the Banking Co-ordination (Second Council
Directive) Regulations 1992 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 London
Stock Exchange 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, this Note with the form entitled "Option to
Elect Repayment" below duly completed. 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:
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 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 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 ". .
.Treasury Constant Maturities. . . 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
through the relevant clearing system, 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, if so
indicated on the face of this Note, at the beneficial owner's option, 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. Interests in this Note shall also be exchanged
by the Issuer in whole, but not in part, for Definitive Bearer Notes, which
shall be serially numbered, with coupons, if any, attached or, if indicated
on the face of this Note, at the beneficial owner's option, for Registered
Notes, of any authorized denominations if (i) this Note is accelerated
following an Event of Default or (ii) either Euroclear or Cedel Bank or any
other relevant clearing system is closed for business for a continuous
period of fourteen days (other than by reason of public holidays) or
announces an intention to cease business permanently or in fact does so.
The Issuer shall give notice to the Principal Paying Agent promptly
following any such acceleration or upon learning of any such closure. Any
exchanges referred to above shall be made 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 The Chase Manhattan Bank (formerly known as 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 such 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 (i) the
first beneficial owner of an interest in this Note exchanges its interest
for a Definitive Bearer Note or (ii) the Issuer gives notice to the
Principal Paying Agent of an acceleration of the Note or the closure of a
relevant clearing system as described above; provided that a common
depositary located outside the United States (the "common depositary")
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 relevant clearing system 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 this Note shall at any time become mutilated,
defaced or be destroyed, lost or stolen and this 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 this Note, but, in the case of any
destroyed, lost or stolen Note, only upon receipt of evidence satisfactory
to the Trustee and the Issuer that this Note was destroyed, 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 certification,
identification or other information reporting 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
pursuant to the provisions of this paragraph 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.
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 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; provided that if U.S. dollars is the Chose Currency payments
shall be made in accordance with the provisions for payments in U.S. dollars
on the face hereof.
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 London Stock Exchange 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(5)]
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
Principal Principal Amount Amount Amount Outstanding
Amount Amount Exchanged Redeemed Repaid Following
Date of Exchanged Exchanged for For at the at the Such Notation Made
Exchange, From Definitive Definitive Option Option Exchange, by or on
Redemption Temporary Bearer Registered of the of the Redemption or Behalf of
or Payment Global Notes Notes Notes Issuer Holder Repayment Paying Agent
___________ _____________ _____________ __________ ________ ________ _____________ _____________
<S> <C> <C> <C> <C> <C> <C> <C>
___________ _____________ _____________ __________ ________ ________ _____________ _____________
___________ _____________ _____________ __________ ________ ________ _____________ _____________
___________ _____________ _____________ __________ ________ ________ _____________ _____________
___________ _____________ _____________ __________ ________ ________ _____________ _____________
___________ _____________ _____________ __________ ________ ________ _____________ _____________
___________ _____________ _____________ __________ ________ ________ _____________ _____________
___________ _____________ _____________ __________ ________ ________ _____________ _____________
___________ _____________ _____________ __________ ________ ________ _____________ _____________
- ------------
(5) Applies if this Note is not issued as part of, or in relation to, a
Unit.
</TABLE>
[SCHEDULE A-1](6)
PERMANENT GLOBAL BEARER NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. The
following (A) exchanges of the principal amount of Notes indicated below for
the same principal amount of Notes to be represented by (i) Definitive Bearer
Notes or (ii) Definitive Registered Notes or [(iii) a Global Bearer Note that
has been separated from a Unit (a "Separated Note")](7), (B) exchanges of the
principal amount of Notes that had been represented by (i) a Temporary Global
Bearer Note [or (ii) a Global Bearer Note that is part of a Unit (an "Attached
Unit Note")](8) for an interest in this Note and (C) reductions of the
principal amount of this Note as a result of (i) cancellation upon the
application of such amount to the settlement of Purchase Contracts or the
exercise of Universal Warrants (ii) redemption at the option of the Issuer or
(iii) repayments at the option of the Holder have been made:
<TABLE>
<CAPTION>
Principal [Principal
Amount Amount [Principal Principal
Date of Exchange, Exchanged Exchanged Amount Amount
Cancellation From from an Exchanged Exchanged
Redemption, or Temporary Attached for Separated For Definitive
Repayment Global Notes Unit Note](8) Note](7) Bearer Notes
- ---------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Remaining
Principal
Amount
Principal Outstanding
Amount Principal Principal Following such
Exchanged Amount Amount Exchange, Notation
For Definitive Redeemed at Repaid at the Principal Cancellation Made by or
Registered the option of option of the Amount Redemption or on behalf of
Notes the Issuer Holder Cancelled Repayment Paying Agent
- --------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- ------------
(6) This Schedule A needed only if this Note is issued as part of, or in
relation to, a Unit.
(7) Applies only if this Note is attached to a Unit.
(8) Applies only if this Note has been separated from a Unit.
</TABLE>
EXHIBIT 4-v
[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)
- ------------
(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.
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE
WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT
1987.](2)
- ------------
(2) Applies only if this Note is denominated in pounds sterling and
matures more than one year from and including the Original Issue Date.
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.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C> <C> <C>
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: MATURITY DATE:
DATE:
INTEREST ACCRUAL INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL REPAY
DATE: PERCENTAGE: DATE: MENT DATE:
TOTAL AMOUNT OF ANNUAL REDEMPTION APPLICABILITY OF MINIMUM DENOMINATIONS
OID: PERCENTAGE MODIFIED PAYMENT
REDUCTION: UPON ACCELERATION
OR REDEMPTION:
ORIGINAL YIELD TO INITIAL ACCRUAL If yes, state Issue Price: EXCHANGE FOR
MATURITY: PERIOD OID: REGISTERED NOTES:
EUROCLEAR NO.: CEDEL NO.: SPECIFIED CURRENCY: OTHER PROVISIONS:
COMMON CODE: EXCHANGE RATE
AGENT:
ISIN:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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](3) [Schedule A-1 hereto](4),
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.
- ------------
(3) Applies if this Note is not issued as part of, or in relation to, a Unit.
(4) Applies if this Note is issued as part of, or in relation to, a Unit.
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, DEAN WITTER,
DISCOVER & CO.
By:
-----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN 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 between Morgan Stanley Group Inc. (as
predecessor of the Issuer) and The Chase Manhattan Bank (formerly known as
Chemical Bank), as Trustee (the "Trustee," which term includes any successor
trustee under the Senior Indenture) as further supplemented by a Third
Supplemental Indenture dated as of June 1, 1997 between the Issuer and the
Trustee (as so supplemented, 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 The Chase Manhattan Bank (formerly known as 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) nor a European authorized institution as
defined by Regulation 3 of the Banking Co-ordination (Second Council
Directive) Regulations 1992 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 London Stock
Exchange 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,
this Note with the form entitled "Option to Elect Repayment" below duly
completed. 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 through the
relevant clearing system, 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, if so indicated on the face
of this Note, at the beneficial owner's option, 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. Interests in
this Note shall also be exchanged by the Issuer in whole, but not in part, for
Definitive Bearer Notes, which shall be serially numbered, with coupons, if
any, attached or, if indicated on the face of this Note, at the beneficial
owner's option, for Registered Notes, of any authorized denominations if (i)
this Note is accelerated following an Event of Default or (ii) either
Euroclear or Cedel Bank or any other relevant clearing system is closed for
business for a continuous period of fourteen days (other than by reason of
public holidays) or announces an intention to cease business permanently or in
fact does so. The Issuer shall give notice to the Principal Paying Agent
promptly following any such acceleration or upon learning of any such closure.
Any exchanges referred to above shall be made 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 The Chase Manhattan Bank (formerly known as 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 such 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 (i) the
first beneficial owner of an interest in this Note exchanges its interest for
a Definitive Bearer Note or (ii) the Issuer gives notice to the Principal
Paying Agent of an acceleration of the Note or the closure of a relevant
clearing system as described above; provided that a common depositary located
outside the United States (the "common depositary") 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 relevant clearing
system 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 this Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and this 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 this Note, 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 this 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 certification, identification or other information
reporting 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 pursuant to the provisions of this paragraph 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.
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 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; provided that if U.S. dollars is the Chosen Currency,
payments shall be made in accordance with the provisions for payments in U.S.
dollars on the face hereof.
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 London Stock Exchange 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(5)]
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>
<S> <C> <C> <C> <C>
Principal Amount Principal Amount Principal Amount Principal Amount
Date of Exchange, Exchanged Exchanged For Exchanged for Redeemed at the
Redemption or From Temporary Definitive Definitive Option of the
Payment Global Notes Bearer Notes Registered Notes Issuer
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
</TABLE>
Remaining Principal
Amount Outstanding
Principal Amount Following Such
Repaid at the Exchange, Notation Made by or
Option of the Redemption or on Behalf of
Holder Repayment Paying Agent
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ----------
(5) Applies if this Note is not issued as part of, or in relation to, a Unit.
[SCHEDULE A-1](6)
PERMANENT GLOBAL BEARER NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. The
following (A) exchanges of the principal amount of Notes indicated below for
the same principal amount of Notes to be represented by (i) Definitive Bearer
Notes or (ii) Definitive Registered Notes or [(iii) a Global Bearer Note that
has been separated from a Unit (a "Separated Note")](7), (B) exchanges of the
principal amount of Notes that had been represented by (i) a Temporary Global
Bearer Note [or (ii) a Global Bearer Note that is part of a Unit (an "Attached
Unit Note")](8) for an interest in this Note and (C) reductions of the
principal amount of this Note as a result of (i) cancellation upon the
application of such amount to the settlement of Purchase Contracts or the
exercise of Universal Warrants (ii) redemption at the option of the Issuer or
(iii) repayments at the option of the Holder have been made:
(6) This Schedule A needed only if this Note is issued as part of, or in
relation to, a Unit.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Principal Principal Principal
Date of Amount [Principal [Principal Amount Amount Principal
Exchange, Exchanged Amount Amount Exchanged Exchanged Amount
Cancellation From Exchanged Exchanged For For Redeemed
Redemption, Temporary from an for Definitive Definitive at the
or Global Attached Separated Bearer Registered option of
Repayment Notes Unit Note](8) Note](7) Notes Notes the Issuer
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
</TABLE>
Remaining
Principal
Amount
Principal Outstanding Notation
Amount Following such Made by
Repaid Exchange, or on
at the Principal Cancellation behalf of
option of Amount Redemption or Paying
the Holder Cancelled Repayment Agent
- ---------------------------------------------------
- ---------------------------------------------------
- ---------------------------------------------------
- ---------------------------------------------------
- ---------------------------------------------------
- ---------------------------------------------------
- ---------------------------------------------------
- ---------------------------------------------------
- ---------------------------------------------------
- ---------------------------------------------------
- ----------
(7) Applies only if this Note is attached to a Unit.
(8) Applies only if this Note has been separated from a Unit.
EXHIBIT 4-w
[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.](1)
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY 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.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SENIOR MEDIUM-TERM NOTE, SERIES [D/E] (Fixed Rate)
<TABLE>
<CAPTION>
<S> <C> <C> <C>
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: MATURITY DATE:
DATE:
INTEREST ACCRUAL INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL
DATE: PERCENTAGE: DATE: REPAYMENT
DATE(S):
TOTAL AMOUNT OF ANNUAL REDEMPTION APPLICABILITY OF MINIMUM
OID: PERCENTAGE MODIFIED PAYMENT DENOMINATIONS:
REDUCTION: UPON ACCELERATION OR
REDEMPTION:
ORIGINAL YIELD TO INITIAL ACCRUAL If yes, state Issue Price: SPECIFIED CURRENCY:
MATURITY: PERIOD OID:
COMMON CODE: EXCHANGE RATE OTHER PROVISIONS:
AGENT:
ISIN:
</TABLE>
- ----------
(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 from and including the Original Issue Date.
Morgan Stanley, Dean Witter, Discover & Co., 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, DEAN WITTER,
DISCOVER & CO.
By: _____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: _____________________________
Authorized Officer
[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 Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan
Bank (formerly known as Chemical Bank), as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1, 1997
between the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan Bank
(formerly known as 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) nor a European authorized institution as
defined by Regulation 3 of the Banking Co-ordination (Second Council
Directive) Regulations 1992 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 London Stock
Exchange 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.
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 this Note or any Coupon shall at any time become
mutilated, defaced or be destroyed, lost or stolen and this 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 this Note, but, in the case of any
destroyed, lost or stolen Note or Coupon, only upon receipt of evidence
satisfactory to the Trustee and the Issuer that this Note or Coupon was
destroyed, 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 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 certfication, identification or other information
reporting 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 pursuant to the provisions of this paragraph 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.
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 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 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 London Stock
Exchange 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 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, DEAN WITTER, DISCOVER & CO.
SENIOR MEDIUM-TERM NOTE, SERIES [D/E]
Coupon Number ______(3)
[Interest Amount due in Specified Currency]
Due _____________________
Unless the Note to which this coupon appertains shall have been
previously redeemed or repaid, MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
(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, DEAN WITTER,
DISCOVER & CO.
By: ___________________________
Title:
- ----------
(3) 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.
[REVERSE OF COUPON]
PRINCIPAL PAYING AGENT AND TRANSFER AGENT
The Chase Manhattan Bank (formerly known as Chemical Bank)
The Chase Manhattan Bank House
180 Strand
London WC2R 1EX
England
EXHIBIT 4-x
[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)
- ------------
(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.
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN
ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM
BANKING ACT 1987.](2)
- ------------
(2) Applies only if this Note is denominated in pounds sterling and
matures more than one year from and including the Original Issue Date.
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.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C> <C> <C>
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: MATURITY DATE:
DATE:
INTEREST ACCRUAL INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL
DATE: PERCENTAGE: DATE(S): REPAYMENT
DATE(S):
TOTAL AMOUNT OF ANNUAL REDEMPTION APPLICABILITY OF MINIMUM
OID: PERCENTAGE MODIFIED PAYMENT DENOMINATIONS:
REDUCTION: UPON
ACCELERATION OR
REDEMPTION:
ORIGINAL YIELD TO INITIAL ACCRUAL If yes, state Issue Price: SPECIFIED CURRENCY:
MATURITY: PERIOD OID:
COMMON CODE: EXCHANGE RATE OTHER PROVISIONS:
AGENT:
ISIN:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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. Except as provided above and unless otherwise indicated on the face of
this Note, the Interest Payment Dates for this Note shall be March 1 and
September 1.
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, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:_____________________________
Authorized Officer
[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 Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan
Bank (formerly known as Chemical Bank), as Trustee (the "Trustee," which
term includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1,
1997 between the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan
Bank (formerly known as 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 The Chase
Manhattan Bank (formerly known as 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) nor a European authorized institution as
defined by Regulation 3 of the Banking Co-ordination (Second Council
Directive) Regulations 1992 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 London
Stock Exchange 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. Unless otherwise indicated on the face
of this Note, 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.
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 London Stock Exchange 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-y
[FORM OF FACE OF SECURITY]
Floating/Fixed Rate Senior Note
REGISTERED REGISTERED
No. FLR/FX [PRINCIPAL AMOUNT]
CUSIP: (1)
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.(1)
- ------------
(1) Applies only if this Note is a Registered Global Security.
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, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Floating/Fixed Rate)
<TABLE>
<CAPTION>
<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 INTEREST RESET PERIOD:
SPREAD: DATE:
SPREAD MULTIPLIER: MAXIMUM INTEREST RATE: INTEREST RESET DATES:
FIXED RATE COMMENCEMENT INITIAL REDEMPTION DATE: OPTIONAL REPAYMENT
DATE: DATE(S):
FIXED INTEREST RATE: INITIAL REDEMPTION CALCULATION AGENT:
PERCENTAGE:
EXCHANGE RATE AGENT: ANNUAL REDEMPTION SPECIFIED CURRENCY:
PERCENTAGE REDUCTION:
DESIGNATED CMT TELERATE INDEX CURRENCY: TOTAL AMOUNT OF OID:
PAGE:
DESIGNATED CMT MATURITY ORIGINAL YIELD TO
INDEX: MATURITY:
REPORTING SERVICE: INITIAL ACCRUAL PERIOD OID:
OTHER PROVISIONS:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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 ](2) [ amount
specified in Schedule A hereto](3) 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.
- ------------
(2) Applies if this Note is not issued as part of, or in relation to, a Unit.
(3) Applies if this Note is issued as part of, or in relation to, a Unit.
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.
If so indicated on the face hereof, 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 an
affiliate of the Issuer), 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.
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, DEAN WITTER,
DISCOVER & CO.
By:
------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
--------------------------
Authorized Officer
[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 Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan
Bank (formerly known as Chemical Bank), as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1, 1997
between the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan Bank (formerly known
as 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 (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 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:
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 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
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 (as defined below) under the caption ". . . Treasury Constant
Maturities . . . . 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 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.
Unless otherwise indicated on the face hereof, interest
payments on this Note shall be the amount of interest accrued from and
including the Interest Accrual Date or from and including the last date to
which interest has been paid or duly provided for 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 this Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and this 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 this Note, but, if this Note is destroyed, lost or
stolen, only upon receipt of evidence satisfactory to the Trustee and the
Issuer that this 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.
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 _________________
(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.
[SCHEDULE A](4)
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. [In
accordance with the Unit Agreement dated June 2, 1997 among the Issuer, The
Chase Manhattan Bank, as Unit Agent, as Collateral Agent and as Trustee under
the Indentures referred to therein and the Holders from time to time of the
Units described therein, the following (A) reductions of the principal amount
of this Note by cancellation upon the application of such amount to the
settlement of Purchase Contracts or the exercise of Universal Warrants or for
any other reason or (B) exchanges of portions of this Note for an interest in
a Note that has been separated from a Unit (a "Separated Note") have been
made:](5) [The following (A) reductions of the principal amount of this Note
by cancellation upon the application of such amount to the settlement of
Purchase Contracts or the exercise of Universal Warrants or for any other
reason or (B) exchanges of an interest in a Note that is part of a Unit (an
"Attached Unit Note") for an interest in this Note have been made:](6)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Reduced Increased
Principal Amount Principal Amount Principal Amount
Principal Amount Outstanding of Attached Unit of this Note
Exchanged for Following Such Note Exchanged Outstanding Notation Made by
Date of Exchange Principal Amount Separated Exchange or for Interest in Following Such or on Behalf of
or Cancellation Cancelled Note(5) Cancellation this Note(6) Exchange(6) Paying Agent
- ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- ----------------
- ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- ----------------
- ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- ----------------
- ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- ----------------
- ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- ----------------
- ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- ----------------
- ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- ----------------
- ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- ----------------
- ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- ----------------
- ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- ----------------
- ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- ----------------
- ------------
(4) Applies only if this Note is a Registered Global Security.
(5) Applies only if this Note is part of a Unit.
(6) Applies only if this Note has been separated from a Unit.
</TABLE>
EXHIBIT 4-z
[FORM OF FACE OF SECURITY]
Senior Dollarized Bull Note
REGISTERED REGISTERED
No. DYC(B) [PRINCIPAL AMOUNT]
CUSIP:(1)
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.(1)
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.
- ------------
(1) Applies only if this Note is a Registered Global Security.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Dollarized Bull Note)
<TABLE>
<CAPTION>
<S> <C> <C>
SET RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
REFERENCE RATE INTEREST ACCRUAL DATE: INTEREST PAYMENT PERIOD:
CURRENCIES:
INDEX MATURITY: INTEREST PAYMENT DATE(S): INTEREST RESET DATE:
REFERENCE RATE INITIAL INTEREST RATE: CALCULATION AGENT AND
MULTIPLIER: TRUSTEE:
REFERENCE RATE LOCATION: MAXIMUM INTEREST RATE: SPECIFIED CURRENCY:
ANNUAL REDEMPTION MINIMUM INTEREST RATE: TOTAL AMOUNT OF OID:
PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT INITIAL REDEMPTION DATE: ORIGINAL YIELD TO
DATE(S): MATURITY:
OTHER PROVISIONS: INITIAL REDEMPTION INITIAL ACCRUAL PERIOD OID:
PERCENTAGE:
EXCHANGE RATE AGENT:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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 ](2) [ amount specified in
Schedule A hereto](3) 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 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.
- ------------
(2) Applies if this Note is not issued as part of, or in relation to, a Unit.
(3) Applies if this Note is issued as part of, or in relation to, a Unit.
Interest on this Note will accrue from 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 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)
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. 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
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 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; provided that, 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;
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.
If so indicated on the face hereof, 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 an
affiliate of the Issuer), 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, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN 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 Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan
Bank (formerly known as Chemical Bank), as Trustee (the "Trustee," which
term includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1,
1997 between the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan
Bank (formerly known as 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.
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 & Co. International Limited 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 & Co.
International Limited 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 & Co.
International Limited will request the principal London offices of each of
five major swap dealers, as selected by Morgan Stanley & Co. International
Limited, 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 & Co. International Limited 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. 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 & Co. International Limited. 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 & Co. International Limited 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.
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
ABBREVIATIONS
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.
[SCHEDULE A](4)
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________.
[In accordance with the Unit Agreement dated June 2, 1997 among the Issuer,
The Chase Manhattan Bank, as Unit Agent, as Collateral Agent and as Trustee
under the Indentures referred to therein and the Holders from time to time
of the Units described therein, the following (A) reductions of the
principal amount of this Note by cancellation upon the application of such
amount to the settlement of Purchase Contracts or the exercise of Universal
Warrants or for any other reason or (B) exchanges of portions of this Note
for an interest in a Note that has been separated from a Unit (a "Separated
Note") have been made:](5) [The following (A) reductions of the principal
amount of this Note by cancellation upon the application of such amount to
the settlement of Purchase Contracts or the exercise of Universal Warrants
or for any other reason or (B) exchanges of an interest in a Note that is
part of a Unit (an "Attached Unit Note") for an interest in this Note have
been made:](6)
- ------------
(4) Schedule A needed only if this Note is issued as part of, or in
relation to, a Unit.
(5) Applies only if this Note is part of a Unit.
(6) Applies only if this Note has been separated from a Unit.
<TABLE>
<CAPTION>
Principal Reduced Principal Principal
Amount Amount Amount of Increased Principal
Exchanged Outstanding Attached Unit Amount of this Note
Date of Principal for Following Such Note Exchanged Outstanding Notation Made by
Exchange or Amount Separated Exchange or for Interest in Following Such or on Behalf of
Cancellation Cancelled Note(5) Cancellation this Note(6) Exchange(6) Paying Agent
- ------------ --------- --------- ---------------- ---------------- ------------------- -----------------
<S> <C> <C> <C> <C> <C> <C>
- ------------ --------- --------- ---------------- ---------------- ------------------- -----------------
- ------------ --------- --------- ---------------- ---------------- ------------------- -----------------
- ------------ --------- --------- ---------------- ---------------- ------------------- -----------------
- ------------ --------- --------- ---------------- ---------------- ------------------- -----------------
- ------------ --------- --------- ---------------- ---------------- ------------------- -----------------
- ------------ --------- --------- ---------------- ---------------- ------------------- -----------------
- ------------ --------- --------- ---------------- ---------------- ------------------- -----------------
- ------------ --------- --------- ---------------- ---------------- ------------------- -----------------
- ------------ --------- --------- ---------------- ---------------- ------------------- -----------------
- ------------ --------- --------- ---------------- ---------------- ------------------- -----------------
</TABLE>
EXHIBIT 4-aa
[FORM OF FACE OF SECURITY]
Senior S&P Indexed (Bull) Note
CUSIP NO. ________
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.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(S&P Indexed (Bull) Note)
<TABLE>
<CAPTION>
<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: REPAYMENT AMOUNT: Principal Amount plus interest
equal to the greater of (i) zero and (ii)
Principal x Leverage x (Initial Value - Final Value)
Amount Factor -----------------------------
Initial Value
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.
DETERMINATION DATE: or CALCULATION AGENT: [Morgan Stanley & Co.
the next preceding Business Day if Incorporated]
such date is not a Business Day.
TOTAL AMOUNT OF OID: $ DEPOSITORY: The Depository Trust Company or its
successors
ORIGINAL YIELD TO MATURITY: %
INITIAL ACCRUAL PERIOD OID:
REGISTRATION STATEMENT NUMBER:
PRICING SUPPLEMENT NUMBER:
OTHER PROVISIONS:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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, DEAN WITTER,
DISCOVER & CO.
By:
------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
-------------------------------
Authorized Officer
REVERSE OF SECURITY
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 Senior Indenture dated as of May 15,
1991, and a Second Supplemental Senior Indenture dated as of April 15, 1996
between Morgan Stanley Group Inc. (as predecessor of the Issuer) and The
Chase Manhattan Bank (formerly known as Chemical Bank), as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture) as further supplemented by a Third Supplemental Senior Indenture
dated as of June 1, 1997 between the Issuer and the Trustee (as so
supplemented, 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 The Chase Manhattan Bank (formerly
known as 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 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.
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 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-bb
[FORM OF FACE OF SECURITY]
Senior S&P Indexed (Bear) Note
CUSIP NO.
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.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(S&P Indexed (Bear) Note)
<TABLE>
<CAPTION>
<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: REPAYMENT AMOUNT REPAYABLE AT
MATURITY: Principal Amount plus interest equal
to the greater of (i) zero and (ii)
Principal x Leverage x (Initial Value - Final Value)
Amount Factor ----------------------------
Initial Value
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.
DETERMINATION DATE: or the next CALCULATION AGENT: [Morgan Stanley & Co.
preceding Business Day if such date is not a Incorporated]
Business Day.
TOTAL AMOUNT OF OID: $ DEPOSITORY: The Depository Trust Company or its
successors
ORIGINAL YIELD TO MATURITY: %
INITIAL ACCRUAL PERIOD OID:
REGISTRATION STATEMENT NUMBER:
PRICING SUPPLEMENT NUMBER:
OTHER PROVISIONS:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:_____________________________
Authorized Officer
REVERSE OF SECURITY
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 Senior Indenture dated as of May 15,
1991, and a Second Supplemental Senior Indenture dated as of April 15, 1996
between Morgan Stanley Group Inc. (as predecessor of the Issuer) and The
Chase Manhattan Bank (formerly known as Chemical Bank), as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture) as further supplemented by a Third Supplemental Senior Indenture
dated as of June 1, 1997 between the Issuer and the Trustee (as so
supplemented, 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 The Chase Manhattan Bank (formerly
known as 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 Leverage Factor (Initial Value Final Value)
X X ___________________________
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.
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 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-cc
[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)
- ------------
(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.
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN
ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM
BANKING ACT 1987.](2)
- ------------
(2) Applies only if this Note is denominated in pounds
sterling and matures more than one year from and including the
Original Issue Date.
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.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SUBORDINATED GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C> <C> <C>
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: MATURITY DATE:
DATE:
INTEREST ACCRUAL INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL REPAY
DATE: PERCENTAGE: DATE(S): MENT DATE(S):
TOTAL AMOUNT OF ANNUAL REDEMPTION APPLICABILITY OF MINIMUM DENOMINA
OID: PERCENTAGE MODIFIED PAYMENT TIONS:
REDUCTION: UPON ACCELERA
TION OR REDEMP
TION:
ORIGINAL YIELD TO INITIAL ACCRUAL If yes, state Issue Price: SPECIFIED CURRENCY:
MATURITY: PERIOD OID:
OTHER PROVISIONS: COMMON CODE: EXCHANGE RATE
AGENT:
ISIN:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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. Except as provided above and
unless otherwise indicated on the face of this Note, the Interest Payment
Dates on this Note shall be March 1 and September 1.
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,
redemption or repayment 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, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
AUTHENTICATING AGENT'S
CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Subordinated Indenture.
THE CHASE MANHATTAN 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 [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 Subordinated Indenture dated as of May
15, 1991 and a Second Supplemental Subordinated Indenture dated as of April
15, 1996 between Morgan Stanley Group Inc. (as predecessor of the Issuer)
and The First National Bank of Chicago, as Trustee (the "Trustee," which
term includes any successor trustee under the Subordinated Indenture) as
further supplemented by a Third Supplemental Subordinated Indenture dated
as of June 1, 1997 between the Issuer and the Trustee (as so supplemented,
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 The Chase Manhattan Bank (formerly known as 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 The Chase Manhattan Bank (formerly
known as 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 The Chase Manhattan Bank (formerly
known as 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) nor a European authorized institution as
defined by Regulation 3 of the Banking Co-ordination (Second Council
Directive) Regulations 1992 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 London
Stock Exchange 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. Unless otherwise indicated on the face
of this Note, 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.
The Chase Manhattan Bank (formerly known as 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 this Note shall at any time become mutilated,
defaced or be destroyed, lost or stolen and this 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 this Note, but, if this Note
has been destroyed, lost or stolen, only upon receipt of evidence
satisfactory to the Registrar and the Issuer that this 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; 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 London Stock
Exchange 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-dd
[FORM OF FACE OF PRINCIPAL EXCHANGE RATE LINKED SECURITY]
PRINCIPAL EXCHANGE RATE LINKED SECURITY (PERLS)
REGISTERED REGISTERED
No. CUSIP:(1)
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.(1)
- ------------
(1) Applies only if this Note is a Registered Global Security.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
PRINCIPAL EXCHANGE RATE LINKED SECURITIES (PERLS)
GLOBAL MEDIUM TERM NOTES, SERIES C
As used herein, the following terms shall have the following
meanings:
<TABLE>
<CAPTION>
<S> <C>
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE:
MATURITY DATE: INTEREST PAYMENT DATES:
INTEREST RATE: per annum EXCHANGE RATE AGENT:
INTEREST PAYMENT PERIODS: FACE AMOUNT: (in Denominated Currency):
DENOMINATED CURRENCY (including Financial CONVERSION REFERENCE AMOUNT (aggregate
Center(s) for Payment Currency, if any): fixed amount of Indexed Currency to be used as
reference amount for currency valuations):
INDEXED CURRENCY (including Financial Center(s) AUTHORIZED DENOMINATIONS (if other than U.S.
for Indexed Currency, if any): $100,000 and integral multiples of U.S. $1,000 in
excess thereof):
PAYMENT CURRENCY (including Financial
Center(s) for Payment Currency, if any):
REFERENCE DEALERS:
OTHER PROVISIONS:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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 an affiliate of the
Issuer), 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, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN 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 Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1, 1997
between the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan Bank (formerly known
as 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.
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-ee
[FORM OF FACE OF REVERSE PRINCIPAL EXCHANGE RATE LINKED SECURITY]
REVERSE PRINCIPAL EXCHANGE RATE LINKED SECURITY
(REVERSE PERLS)
REGISTERED REGISTERED
No. CUSIP:(1)
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.(1)
- ------------
(1) Applies only if this Note is a Registered Global Security.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
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:
<TABLE>
<CAPTION>
<S> <C>
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE:
MATURITY DATE: FACE AMOUNT (in Denominated Currency):
INTEREST RATE: per annum FIXED AMOUNT OF FIRST INDEXED CURRENCY
(for this Note):
DENOMINATED CURRENCY FIXED AMOUNT OF SECOND INDEXED
(including Financial Center(s) CURRENCY (for this Note):
for Denominated Currency, if any):
FIRST INDEXED CURRENCY FIRST CONVERSION REFERENCE AMOUNT
(including Financial Center(s) (aggregate fixed amount of First Indexed Currency to
for First Indexed Currency, if any): be used as reference amount for currency valuations):
SECOND INDEXED CURRENCY (including SECOND CONVERSION REFERENCE AMOUNT
Financial Center(s) for (aggregate fixed amount of Second Indexed Currency
Second Indexed Currency, if to be used as reference amount for currency
any): valuations):
PAYMENT CURRENCY (including Financial AUTHORIZED DENOMINATIONS (if other than U.S.
Center(s) for Payment Currency, if any): $100,000 and integral multiples of U.S. $1,000 in
excess thereof):
INTEREST PAYMENT DATES:
INTEREST PAYMENT PERIODS:
EXCHANGE RATE AGENT:
REFERENCE DEALERS FOR FIRST INDEXED
CURRENCY:
REFERENCE DEALERS FOR SECOND INDEXED
CURRENCY:
OTHER PROVISIONS:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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 an affiliate of the
Issuer), 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, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN 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 Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan
Bank (formerly known as Chemical Bank), as Trustee (the "Trustee," which
term includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1,
1997 between the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan
Bank (formerly known as 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.
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 that is neither a legal holiday nor a day on which
banking institutions in New York City are authorized or required by law or
regulation 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 regulation 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-ff
[FORM OF FACE OF MULTICURRENCY PRINCIPAL
EXCHANGE RATE LINKED SECURITY]
MULTICURRENCY PRINCIPAL EXCHANGE RATE LINKED SECURITY
(MULTICURRENCY PERLS)
REGISTERED REGISTERED
No. CUSIP:(1)
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.(1)
- ------------
(1) Applies only if this Note is a Registered Global Security.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
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:
<TABLE>
<CAPTION>
<S> <C>
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE:
MATURITY DATE: FACE AMOUNT (in Denominated Currency):
INTEREST RATE: per annum FIXED AMOUNT OF FIRST INDEXED CURRENCY
(for this Note):
INTEREST PAYMENT PERIODS: FIXED AMOUNT OF SECOND INDEXED
CURRENCY (for this Note):
DENOMINATED CURRENCY (including Financial FIXED AMOUNT OF THIRD INDEXED CURRENCY
Center(s) for First Indexed Currency, if any): (for this Note):
FIRST INDEXED CURRENCY (including Financial FIRST CONVERSION REFERENCE AMOUNT
Center(s) for First Indexed Currency, if any): (aggregate fixed amount of First Indexed Currency to
be used as reference amount for currency valuations):
SECOND INDEXED CURRENCY (including SECOND CONVERSION REFERENCE AMOUNT
Financial Center(s) for Second Indexed Currency, if (aggregate fixed amount of Second Indexed Currency
any): to be used as reference amount for currency
valuations):
THIRD INDEXED CURRENCY (including Financial THIRD CONVERSION REFERENCE AMOUNT
Center(s) for Third Indexed Currency, if any): (aggregate fixed amount of Third Indexed Currency
to be used as reference amount for currency
valuations):
PAYMENT CURRENCY (including Financial AUTHORIZED DENOMINATIONS (if other than U.S.
Center(s) for Payment Currency, if any): $100,000 and integral multiples of U.S. $1,000 in
excess thereof):
INTEREST PAYMENT DATES:
EXCHANGE RATE AGENT:
REFERENCE DEALERS FOR FIRST INDEXED
CURRENCY:
REFERENCE DEALERS FOR SECOND INDEXED
CURRENCY:
REFERENCE DEALERS FOR THIRD INDEXED
CURRENCY:
OTHER PROVISIONS:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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 an affiliate of the
Issuer), 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, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN 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 Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan
Bank (formerly known as Chemical Bank), as Trustee (the "Trustee," which
term includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1,
1997 between the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan
Bank (formerly known as 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.
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-gg
[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.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Fixed Rate Amortizing)
<TABLE>
<CAPTION>
<S> <C> <C> <C>
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: MATURITY DATE:
DATE:
INTEREST ACCRUAL INITIAL REDEMPTION SPECIFIED CURRENCY: OPTIONAL
DATE: PERCENTAGE: REPAYMENT
DATE(S):
TOTAL AMOUNT OF ANNUAL REDEMPTION INSTALLMENT NUMBER OF
OID: PERCENTAGE PAYMENT DATES: INSTALLMENTS:
REDUCTION:
ORIGINAL YIELD TO EXCHANGE RATE
MATURITY: AGENT:
INITIAL ACCRUAL
PERIOD OID:
OTHER PROVISIONS:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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 ](1) [ amount specified in
Schedule A hereto](2), 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.
- ----------
(1) Applies if this Note is not issued as part of, or in relation to, a Unit.
(2) Applies if this Note is issued as part of, or in relation to, a Unit.
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, redemption or optional
repayment 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 an
affiliate of the Issuer), 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, DEAN WITTER,
DISCOVER & CO.
By:
------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
-------------------------------
Authorized Officer
[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 Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1, 1997
between the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan Bank
(formerly known as 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. Unless otherwise indicated on the face of this Note,
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.
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.
[SCHEDULE A](3)
- ----------
(3) Schedule A needed only if this Note is issued as part of, or in relation
to, a Unit.
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. [In
accordance with the Unit Agreement dated June 2, 1997 among the Issuer, The
Chase Manhattan Bank, as Unit Agent, as Collateral Agent and as Trustee under
the Indentures referred to therein and the Holders from time to time of the
Units described therein, the following (A) reductions of the principal amount
of this Note by cancellation upon the application of such amount to the
settlement of Purchase Contracts or the exercise of Universal Warrants or for
any other reason or (B) exchanges of portions of this Note for an interest in
a Note that has been separated from a Unit (a "Separated Note") have been
made:](4) [The following (A) reductions of the principal amount of this Note
by cancellation upon the application of such amount to the settlement of
Purchase Contracts or the exercise of Universal Warrants or for any other
reason or (B) exchanges of an interest in a Note that is part of a Unit (an
"Attached Unit Note") for an interest in this Note have been made:](5)
- ----------
(4) Applies only if this Note is part of a Unit.
(5) Applies only if this Note has been separated from a Unit.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Principal Reduced Principal Principal Amount Increased Principal
Amount Amount Outstanding of Attached Unit Amount of this Note
Date of Principal Exchanged for Following Such Note Exchanged Outstanding Notation Made by
Exchange or Amount Separated Exchange or for Interest in this Following Such or on Behalf of
Cancellation Cancelled Note(4) Cancellation Note(5) Exchange(5) Paying Agent
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
</TABLE>
EXHIBIT 4-hh
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, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Dollarized Yield Curve (Bond Basis))
<TABLE>
<CAPTION>
<S> <C> <C>
SET RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
REFERENCE RATE CURRENCY: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
INDEX MATURITY: INITIAL INTEREST RATE: INTEREST RESET DATES:
REFERENCE RATE INITIAL INTEREST RESET CALCULATION AGENT:
MULTIPLIER: DATE:
REFERENCE RATE LOCATION: SPECIFIED CURRENCY: TOTAL AMOUNT OF OID:
CONVERSION FACTOR MAXIMUM INTEREST RATE: ORIGINAL YIELD TO
REFERENCE PERIOD: MATURITY:
OTHER PROVISIONS: MINIMUM INTEREST RATE: INITIAL ACCRUAL PERIOD OID:
INITIAL REDEMPTION DATE: EXCHANGE RATE AGENT:
INITIAL REDEMPTION
PERCENTAGE:
ANNUAL REDEMPTION
PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT
DATE(S):
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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 ](1) [ amount specified in
Schedule A hereto](2) 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.
- ------------
(1) Applies if this Note is not issued as part of, or in relation to, a Unit.
(2) Applies if this Note is issued as part of, or in relation to, a Unit.
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 an affiliate of the Issuer), 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, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN 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 Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan
Bank (formerly known as Chemical Bank), as Trustee (the "Trustee," which
term includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1,
1997 between the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan
Bank (formerly known as 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. 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).
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 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.
[SCHEDULE A](3)
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________.
[In accordance with the Unit Agreement dated June 2, 1997 among the Issuer,
The Chase Manhattan Bank, as Unit Agent, as Collateral Agent and as Trustee
under the Indentures referred to therein and the Holders from time to time
of the Units described therein, the following (A) reductions of the
principal amount of this Note by cancellation upon the application of such
amount to the settlement of Purchase Contracts or the exercise of Universal
Warrants or for any other reason or (B) exchanges of portions of this Note
for an interest in a Note that has been separated from a Unit (a "Separated
Note") have been made:](4) [The following (A) reductions of the principal
amount of this Note by cancellation upon the application of such amount to
the settlement of Purchase Contracts or the exercise of Universal Warrants
or for any other reason or (B) exchanges of an interest in a Note that is
part of a Unit (an "Attached Unit Note") for an interest in this Note have
been made:](5)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Principal Reduced Principal Principal Amount Increased Principal
Amount Amount Outstanding of Attached Unit Amount of this Note
Date of Principal Exchanged for Following Such Note Exchanged Outstanding Notation Made by
Exchange or Amount Separated Exchange or for Interest in this Following Such or on Behalf of
Cancellation Cancelled Note(4) Cancellation Note(5) Exchange(5) Paying Agent
- ------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
- ------------
(3) Schedule A needed only if this Note is issued as part of, or in relation
to, a Unit.
(4) Applies only if this Note is part of a Unit.
(5) Applies only if this Note has been separated from a Unit.
</TABLE>
EXHIBIT 4-ii
[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, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Dollarized Yield Curve (Money Market Basis))
<TABLE>
<CAPTION>
<S> <C> <C>
SET RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
REFERENCE RATE DATE(S): INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
CURRENCY: INITIAL INTEREST RATE: INTEREST RESET DATES:
INDEX MATURITY: INITIAL INTEREST RESET CALCULATION AGENT:
DATE:
REFERENCE RATE MAXIMUM INTEREST RATE: CALCULATION AGENT:
MULTIPLIER:
REFERENCE RATE LOCATION: MINIMUM INTEREST RATE: SPECIFIED CURRENCY:
OTHER PROVISIONS: INITIAL REDEMPTION DATE: TOTAL AMOUNT OF OID:
INITIAL REDEMPTION INITIAL ACCRUAL PERIOD OID:
PERCENTAGE:
ANNUAL REDEMPTION EXCHANGE RATE AGENT:
PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT
DATE(S):
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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 ](1) [ amount specified in
Schedule A hereto](2) 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.
- ------------
(1) Applies if this Note is not issued as part of, or in relation to, a Unit.
(2) Applies if this Note is issued as part of, or in relation to, a Unit.
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 an
affiliate of the Issuer), 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, DEAN WITTER,
DISCOVER & CO.
By:
------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN 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 Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1, 1997
between the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan Bank (formerly known
as 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.
Unless otherwise indicated on the face of this Note, 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
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.
[SCHEDULE A](3)
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. [In
accordance with the Unit Agreement dated June 2, 1997 among the Issuer, The
Chase Manhattan Bank, as Unit Agent, as Collateral Agent and as Trustee under
the Indentures referred to therein and the Holders from time to time of the
Units described therein, the following (A) reductions of the principal amount
of this Note by cancellation upon the application of such amount to the
settlement of Purchase Contracts or the exercise of Universal Warrants or for
any other reason or (B) exchanges of portions of this Note for an interest in
a Note that has been separated from a Unit (a "Separated Note") have been
made:](4) [The following (A) reductions of the principal amount of this Note
by cancellation upon the application of such amount to the settlement of
Purchase Contracts or the exercise of Universal Warrants or for any other
reason or (B) exchanges of an interest in a Note that is part of a Unit (an
"Attached Unit Note") for an interest in this Note have been made:](5)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Principal Reduced Principal Principal Amount
Amount Amount Outstanding of Attached Unit Increased Principal
Date of Principal Exchanged for Following Such Note Exchanged Amount of this Note Notation Made by
Exchange or Amount Separated Exchange or for Interest in Outstanding Following or on Behalf of
Cancellation Cancelled Note(5) Cancellation this Note(6) Such Exchange(6) Paying Agent
- ------------ --------- ------------- ------------------ ---------------- --------------------- ----------------
- ------------ --------- ------------- ------------------ ---------------- --------------------- ----------------
- ------------ --------- ------------- ------------------ ---------------- --------------------- ----------------
- ------------ --------- ------------- ------------------ ---------------- --------------------- ----------------
- ------------ --------- ------------- ------------------ ---------------- --------------------- ----------------
- ------------ --------- ------------- ------------------ ---------------- --------------------- ----------------
- ------------ --------- ------------- ------------------ ---------------- --------------------- ----------------
- ------------ --------- ------------- ------------------ ---------------- --------------------- ----------------
- ------------ --------- ------------- ------------------ ---------------- --------------------- ----------------
- ------------ --------- ------------- ------------------ ---------------- --------------------- ----------------
- ------------ --------- ------------- ------------------ ---------------- --------------------- ----------------
- ------------ --------- ------------- ------------------ ---------------- --------------------- ----------------
- ------------ --------- ------------- ------------------ ---------------- --------------------- ----------------
- ------------ --------- ------------- ------------------ ---------------- --------------------- ----------------
- ------------ --------- ------------- ------------------ ---------------- --------------------- ----------------
- ------------
(3) Schedule A needed only if this Note is issued as part of, or in relation
to, a Unit.
(4) Applies only if this Note is part of a Unit.
(5) Applies only if this Note has been separated from a Unit.
</TABLE>
EXHIBIT 4-jj
[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.](1)
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY 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 from and including the Original Issue Date.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Bull Note)
<TABLE>
<CAPTION>
<S> <C> <C>
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
MATURITY DATE: INTEREST RATE: INTEREST PAYMENT PERIOD:
EUROCLEAR NO.: INITIAL REDEMPTION DATE: CALCULATION AGENT:
CEDEL NO.: INITIAL REDEMPTION
PERCENTAGE: SPECIFIED CURRENCY:
COMMON CODE: ANNUAL REDEMPTION
PERCENTAGE REDUCTION: INDEX CURRENCY:
ISIN: OPTIONAL REPAYMENT
DATES(S): EXCHANGE RATE AGENT:
REPORTING SERVICE: REDEMPTION PRICE: TOTAL AMOUNT OF OID:
PRINCIPAL AMOUNT: FINAL REDEMPTION PRICE: ORIGINAL YIELD TO MATURITY:
OTHER PROVISIONS: MINIMUM DENOMINATIONS: INITIAL ACCRUAL PERIOD OID:
INDEX MATURITY:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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 in [Schedule A hereto](3) [Schedule A-1
hereto](4)" 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, 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 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).
- ----------
3 Applies if this Note is not issued as part of, or in relations to, a Unit.
4 Applies if this Notie is issued as par tof, or in relation to, a Unit.
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
(3)Applies if this Note is not issued as part of, or in relation to, a Unit.
(4)Applies if this Note is issued as part of, or in relation to, a Unit.
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, DEAN WITTER,
DISCOVER & CO.
By: _________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: _____________________________
Authorized Officer
[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 Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1, 1997
between the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan Bank (formerly known
as 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) nor a European authorized institution as
defined by Regulation 3 of the Banking Co-ordination (Second Council
Directive) Regulations 1992 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 London Stock
Exchange 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,
this Note with the form entitled "Option to Elect Repayment" below duly
completed. 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 through the
relevant clearing system, 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, if so indicated on the face
of this Note at the beneficial owner's option, 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. Interests in
this Note shall also be exchanged by the Issuer in whole, but not in part, for
Definitive Bearer Notes, which shall be serially numbered, with coupons, if
any, attached or, if indicated on the face of this Note, at the beneficial
owner's option, for Registered Notes, of any authorized denominations if (i)
this Note is accelerated following an Event of Default or (ii) either
Euroclear or Cedel Bank or any other relevant clearing system is closed for
business for a continuous period of fourteen days (other than by reason of
public holidays) or announces an intention to cease business permanently or in
fact does so. The Issuer shall give notice to the Principal Paying Agent
promptly following any such acceleration or upon learning of any such closure.
Any exchanges referred to above shall be made 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 The Chase Manhattan Bank (formerly known as 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 such 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 (i) the
first beneficial owner of an interest in this Note exchanges its interest for
a Definitive Bearer Note or (ii) the Issuer gives notice to the Principal
Paying Agent of an acceleration of the Note or the closure of a relevant
clearing system as described above; provided that a common depositary located
outside the United States (the "common depositary") 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 relevant clearing
system 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 this Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and this 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 this Note, but, in the case of any destroyed or lost or
stolen Note, only upon receipt of evidence satisfactory to the Trustee and the
Issuer this 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 certification, identification or other information
reporting 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 pursuant to the provisions of this paragraph 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.
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 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; provided that if U.S. dollars is the Chosen Currency,
payments shall be made in accordance with the provisions for payments in U.S.
dollars on the face hereof.
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 London Stock Exchange 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(5)]
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>
<S> <C> <C> <C> <C> <C> <C> <C>
Remaining
Principal
Amount
Principal Principal Principal Principal Principal Outstanding
Date of Amount Amount Amount Amount Amount Following
Exchange, Exchange Exchange for Exchange for Redeemed at Repaid at Such Notation
Redemption From Definitive Definitive the Option the Option Exchange, Made by or
or Temporaty Bearer Registered of the of the Redemption or on Behalf of
Payment Global Notes Notes Notes Issuer Holder Repayment Paying Agent
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- -------------
(5) Applies if this Note is not issued as part of, or in relation to, a Unit.
</TABLE>
[SCHEDULE A-1](6)
PERMANENT GLOBAL BEARER NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. The
following (A) exchanges of the principal amount of Notes indicated below for
the same principal amount of Notes to be represented by (i) Definitive Bearer
Notes or (ii) Definitive Registered Notes or [(iii) a Global Bearer Note that
has been separated from a Unit (a "Separated Note")](7), (B) exchanges of the
principal amount of Notes that had been represented by (i) a Temporary Global
Bearer Note [or (ii) a Global Bearer Note that is part of a Unit (an "Attached
Unit Note")](8) for an interest in this Note and (C) reductions of the
principal amount of this Note as a result of (i) cancellation upon the
application of such amount to the settlement of Purchase Contracts or the
exercise of Universal Warrants (ii) redemption at the option of the Issuer or
(iii) repayments at the option of the Holder have been made:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Principal [Principal Principal
Amount Amount [Principal Principal Amount
Date of Exchanged Exchanged Amount Amount Exchanged
Exchange, From from Exchanged Exchanged For
Cancellation Temporary an Attached for For Definitive
Redemption, Global Unit Separated Definitive Registered
or Repayment Notes Note](3) Note](2) Bearer Notes Notes
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
<C> <C> <C> <C> <C>
Remaining
Principal
Amount
Outstanding
Principal Principal Following such
Amount Amount Exchange,
Redeemed Repapid Canecllation Notation
at the at the Principal or Made by or
option of option of Amount Redemption or on behalf of
the Issuer the Holder Cancelled Repayment Paying Agent
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
</TABLE>
- ----------
(6) This Schedule A needed only if this Note is issued as part of, or in
relation to, a Unit.
(7) Applies only if this Note is attached to a Unit.
(8) Applies only if this Note has been separated from a Unit.
EXHIBIT 4-kk
[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)
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY 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 from and including the Original Issue Date.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SENIOR DEFINITIVE MEDIUM-TERM NOTE, SERIES [D/E] (Floating Rate)
Floating Rate Senior Note
<TABLE>
<CAPTION>
<S> <C> <C>
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATES:
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 MINUS): MINIMUM INTEREST RATE: CALCULATION AGENT:
ALTERNATE RATE EVENT INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
SPREAD:
SPREAD MULTIPLIER: INITIAL REDEMPTION INDEX CURRENCY:
PERCENTAGE:
REPORTING SERVICE: ANNUAL REDEMPTION TOTAL AMOUNT OF OID:
PERCENTAGE REDUCTION:
COMMON CODE: OPTIONAL REPAYMENT ORIGINAL YIELD TO
DATE(S): MATURITY:
ISIN: EXCHANGE RATE AGENT: INITIAL ACCRUAL PERIOD OID:
DESIGNATED CMT TELERATE MINIMUM DENOMINATIONS:
PAGE:
DESIGNATED CMT MATURITY
INDEX:
OTHER PROVISIONS:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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, DEAN WITTER,
DISCOVER & CO.
By: _____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN 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 Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1, 1997
between the Issuer and the Trustee (as so supplemented, 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 The
Chase Manhattan Bank (formerly known as 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) nor a European authorized institution as
defined by Regulation 3 of the Banking Co-ordination (Second Council
Directive) Regulations 1992 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 London Stock
Exchange 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:
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 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, 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 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 specified on the face hereof on the Designated CMT
Telerate Page (as defined below) under the caption ". . . Treasury Constant
Maturities . . . 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.
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 this 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 certification, identification or
other information reporting 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 pursuant to the provisions of
this paragraph 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.
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 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; provided that if U.S. dollars is the Chosen Currency payments
shall be made in accordance with the provisions for payments in U.S. dollars
on the face hereof.
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 London Stock Exchange
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-ll
[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, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Senior ECU Puttable Floating Rate Notes)
<TABLE>
<CAPTION>
<S> <C> <C>
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INITIAL INTEREST PAYMENT
DATE:
MATURITY DATE: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
INDEX MATURITY: INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
SPREAD (PLUS OR MINUS): MAXIMUM INTEREST RATE: CALCULATION AGENT:
SPREAD MULTIPLIER: MINIMUM INTEREST RATE: TOTAL AMOUNT OF OID:
EUROCLEAR NO.: INITIAL REDEMPTION DATE: ORIGINAL YIELD TO
MATURITY:
CEDEL NO.: INITIAL REDEMPTION INITIAL ACCRUAL PERIOD OID:
PERCENTAGE:
COMMON CODE: ANNUAL REDEMPTION EXCHANGE RATE AGENT:
PERCENTAGE REDUCTION:
ISIN: REPAYMENT OPTION: [YES/NO] MINIMUM DENOMINATIONS:
OPTIONAL REPAYMENT OTHER PROVISIONS:
PERCENTAGE:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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 Principal Paying
Agent 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 Senior
Indenture dated as of April 15, 1996 between Morgan Stanley Group Inc. (as
predecessor of the Issuer) and The Chase Manhattan Bank (formerly known as
Chemical Bank), as Trustee (the "Trustee," which term includes any successor
trustee under the Senior Indenture) as further supplemented by a Third
Supplemental Senior Indenture dated as of June 1, 1997 between the Issuer and
the Trustee (as so supplemented, 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 The Chase Manhattan Bank (formerly known as 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).
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 Principal Paying Agent 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 an interest represented by
this Note which is held by Morgan Stanley & Co. International Limited
or Dean Witter International Limited, 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 such interest is sold by Morgan Stanley & Co.
International Limited or Dean Witter International Limited or such other
manager, all as determined and notified to the Trustee by Morgan Stanley
& Co. International Limited or Dean Witter International Limited, or if
Morgan Stanley & Co. International Limited or Dean Witter International
Limited 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, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN 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>
<CAPTION>
Principal Amount Remaining Principal
Exchanged for Amount Outstanding Notation Made by or
Date of Exchange or Payment of Permanent Global Following Such on Behalf of Principal
Interest Payment Interest Bearer Note Exchange Paying Agent
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
EXHIBIT A
[FORM OF CERTIFICATE TO BE GIVEN BY THE EUROCLEAR
OPERATOR, CEDEL AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
Morgan Stanley, Dean Witter, Discover & Co.
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 such United
States or foreign financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
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 Societe Anonyme]
[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, Dean Witter, Discover & Co.
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-mm
[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.(1)
- ------------
(1) Remove this legend if exchangeable for Registered Notes.
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, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Senior ECU Puttable Floating Rate Notes)
<TABLE>
<CAPTION>
<S> <C> <C>
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INITIAL INTEREST PAYMENT
DATE:
MATURITY DATE: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
INDEX MATURITY: INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
SPREAD (PLUS OR MINUS): MAXIMUM INTEREST RATE: CALCULATION AGENT:
SPREAD MULTIPLIER: MINIMUM INTEREST RATE: TOTAL AMOUNT OF OID:
EUROCLEAR NO.: INITIAL REDEMPTION DATE: ORIGINAL YIELD TO
MATURITY:
CEDEL NO.: INITIAL REDEMPTION INITIAL ACCRUAL PERIOD OID:
PERCENTAGE:
COMMON CODE: ANNUAL REDEMPTION MINIMUM DENOMINATIONS:
PERCENTAGE REDUCTION:
ISIN: REPAYMENT OPTION: [YES/NO] EXCHANGE RATE AGENT:
EXCHANGE FOR REGISTERED OPTIONAL REPAYMENT OTHER PROVISIONS:
NOTES: PERCENTAGE:
</TABLE>
Morgan Stanley, Dean Witter, Discover & Co., 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](2) [Schedule A-1 hereto](3),
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.
- ------------
(2) Applies if this Note is not issued as part of, or in relation to, a Unit.
(3) Applies if this Note is issued as part of, or in relation to, a Unit.
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, DEAN WITTER,
DISCOVER & CO.
By:______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:____________________________________
Authorized Officer
[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 Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1, 1997
between the Issuer and the Trustee (as so supplemented, 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 The Chase Manhattan Bank (formerly known
as 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 this Note with the form entitled "Option to Elect Repayment" below
duly completed. 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 through the
relevant clearing system, 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") or, if so indicated on the face of this
Note, at the beneficial owner's option, 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 ECU 100,000.
Interests in this Note shall also be exchanged by the Issuer in whole, but not
in part, for Definitive Bearer Notes, which shall be serially numbered, with
coupons, if any, attached or, if indicated on the face of this Note, at the
beneficial owner's option, for Registered Notes, of any authorized
denominations if (i) this Note is accelerated following an Event of Default or
(ii) either Euroclear or Cedel Bank or any other relevant clearing system is
closed for business for a continuous period of fourteen days (other than by
reason of public holidays) or announces an intention to cease business
permanently or in fact does so. The Issuer shall give notice to the Principal
Paying Agent promptly following any such acceleration or upon learning of any
such closure. Any exchanges referred to above shall be made 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 canceled. 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.
Unless otherwise indicated on the face of this note, 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 (i) the
first beneficial owner of an interest in this Note exchanges its interest for
a Definitive Bearer Note or (ii) the Issuer gives notice to the Principal
Paying Agent of an acceleration of the Note or the closure of a relevant
clearing system as described above; provided that a common depositary located
outside the United States (the "common depositary") 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 relevant clearing
system 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 this Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen this 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 this Note, 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 this 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 certification, identification or information reporting 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.
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 London Stock Exchange 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 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(4)
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:
- ------------
(4) Applies if this Note is not issued as part of, or in relation to, a Unit.
<TABLE>
<CAPTION>
Principal Amount Remaining Principal
Date of Principal Amount Principal Amount Repaid at the Amount Outstanding Notation Made
Exchange or Exchanged from Redeemed at the option of the Following Such by or on Behalf
Cancellation Temporary Global Note option of the Issuer Holder Redemption or Repayment of Paying Agent
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
[SCHEDULE A-1](5)
PERMANENT GLOBAL BEARER NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. The
following (A) exchanges of the principal amount of Notes indicated below for
the same principal amount of Notes to be represented by (i) Definitive Bearer
Notes or (ii) Definitive Registered Notes or [(iii) a Global Bearer Note that
has been separated from a Unit (a "Separated Note")](6), (B) exchanges of the
principal amount of Notes that had been represented by (i) a Temporary Global
Bearer Note [or (ii) a Global Bearer Note that is part of a Unit (an "Attached
Unit Note")](7) for an interest in this Note and (C) reductions of the
principal amount of this Note as a result of (i) cancellation upon the
application of such amount to the settlement of Purchase Contracts or the
exercise of Universal Warrants (ii) redemption at the option of the Issuer or
(iii) repayments at the option of the Holder have been made:
_______________
(5) This Schedule A needed only if this Note is issued as part of, or in
relation to, a Unit.
(6) Applies only if this Note is attached to a Unit.
(7) Applies only if this Note has been separated from a Unit.
Principal [Principal Principal
Date of Amount Amount [Principal Amount
Exchange, Exchanged Exchanged Amount Exchanged For
Cancellation From from an Exchanged for Definitive
Redemption, Temporary Attached Separated Bearer
or Repayment Global Notes Unit Note](5) Note](4) Notes
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
<TABLE>
<CAPTION>
Remaining
Principal
Principal Amount
Amount Outstanding
Exchanged Principal Principal Following such
For Amount Amount Exchange, Notation
Definitive Redeemed at Repaid at the Principal Cancellation Made by or on
Registered the option of option of Amount Redemption or behalf of
Notes the Issuer the Holder Canceled Repayment Paying Agent
<C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
</TABLE>
Exhibit 4-nn
FORM OF DEBT WARRANT AGREEMENT
FOR WARRANTS SOLD ATTACHED
TO DEBT SECURITIES
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
and
_____________________,
as Warrant Agent
__________________________
DEBT WARRANT AGREEMENT
Dated as of ________________
____________________________
Warrants to Purchase ________
____________________
TABLE OF CONTENTS(1)
PAGE
----
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . 1
- ---------------
(1) The Table of Contents is not a part of the Agreement.
ARTICLE I
ISSUANCE OF WARRANTS [AND TEMPORARY GLOBAL SECURITY]
AND EXECUTION AND DELIVERY
OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants . . . . . . . . . 2
SECTION 1.02. Execution and Delivery
of Warrant Certificates . . . . . . 2
SECTION 1.03. Issuance of Warrant Certificates . . . 4
[SECTION 1.04. Temporary Global Security . . . . . . 5]
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price . . . . . . . . . . . . . . . 5
SECTION 2.02. Duration of Warrants. . . . . . . . . . . . 6
SECTION 2.03. Exercise of Warrants. . . . . . . . . . . . 6
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder
Conferred by Warrants or Warrant
Certificates . . . . . . . . . . . . 10
SECTION 3.02. Lost, Mutilated, Stolen or
Destroyed Warrant Certificates . . . 11
SECTION 3.03. Enforcement of Rights . . . . . . . . 11
SECTION 3.04. Merger, Consolidation, Conveyance
or Transfer . . . . . . . . . . . . 12
ARTICLE IV
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer . . . . . . . . 13
SECTION 4.02. Treatment of Holders of
Warrant Certificates . . . . . . . . 14
SECTION 4.03. Cancellation of Warrant
Certificates . . . . . . . . . . . . 15
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent . . . . . . . . . . . . 15
SECTION 5.02. Conditions of Warrant Agent's
Obligations . . . . . . . . . . . . 16
SECTION 5.03. Resignation and Appointment
of Successor . . . . . . . . . . . . 18
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment . . . . . . . . . . . . . . 20
SECTION 6.02. Notices and Demands to the Company
and Warrant Agent . . . . . . . . . 20
SECTION 6.03. Addresses . . . . . . . . . . . . . . 20
SECTION 6.04. Applicable Law. . . . . . . . . . . . 20
SECTION 6.05. Delivery of Prospectus. . . . . . . . 20
SECTION 6.06. Obtaining of Governmental
Approval. . . . . . . . . . . . . . 20
SECTION 6.07. Persons Having Rights Under
Warrant Agreement . . . . . . . . . 20
SECTION 6.08. Headings. . . . . . . . . . . . . . . 20
SECTION 6.09. Counterparts. . . . . . . . . . . . . 20
SECTION 6.10. Inspection of Agreement . . . . . . . 22
SECTION 6.11. Notices to Holders of Warrants. . . . 22
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . 22
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . 22
EXHIBIT A - Form of Warrant Certificate
[in Registered Form]
[EXHIBIT B - Form of Global Warrant Certificate in Bearer Form]
[EXHIBIT C - Form of Certificate to be Delivered to
the Warrant Agent by the Euro-clear Operator or
CEDEL]
[EXHIBIT D - Form of Warrant Exercise Notice]
[EXHIBIT E - Form of Confirmation to be Delivered to
Purchasers of Warrant Securities in Bearer Form]
DEBT WARRANT AGREEMENT(2)
THIS AGREEMENT dated as of between MORGAN STANLEY, DEAN
WITTER, DISCOVER & CO., a corporation duly organized and existing under the
laws of the State of Delaware (the "Company"), and , a [bank]
[trust company] duly incorporated and existing under the laws of ,
as Warrant Agent (the "Warrant Agent"),
- --------------
(2) Complete or modify the provisions of this form as appropriate to
reflect the terms of the Warrants and Warrant Securities.
Monetary amounts may be in U.S. dollars in a foreign currency or
in a composite currency, including but not limited to the European
Currency Unit.
Bracketed language here and throughout this Agreement
should be inserted as follows:
1. If Warrants are immediately detachable from the
Offered Securities; and
2. If Warrants are detachable from the Offered
Securities only after the Detachable Date.
W I T N E S S E T H :
WHEREAS, the Company has entered into an Indenture dated as of April
15, 1989 (the "Senior Indenture") between the Company and Chemical Bank, as
Trustee (the "Trustee") and an Indenture dated as of April 15, 1989 (the
"Subordinated Indenture") between the Company and The First National Bank of
Chicago, as Trustee (the "Subordinated Indenture") (collectively, the
"Trustees" or "Trustee" and "Indentures" or "Indenture"), providing for the
issuance from time to time of its unsecured debt securities to be issued in
one or more series as provided in the Indenture; and
WHEREAS, the Company proposes to sell [Title of such debt
securities being offered] (the "Offered Securities") with one or more warrants
(the "Warrants") representing the right to purchase [title of such debt
securities purchasable through exercise of Warrants] (the "Warrant
Securities"), the Warrants to be evidenced by Warrant certificates issued
pursuant to this Agreement (the "Warrant Certificates"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company in connection with the issuance, transfer, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form[s] and provisions of the Warrant
Certificates and the terms and conditions on which they may be issued,
transferred, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS [AND TEMPORARY GLOBAL SECURITY]
AND EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. The Warrants shall be
evidenced by one or more Warrant Certificates. Each Warrant evidenced thereby
shall represent the right, subject to the provisions contained herein and
therein, to purchase a Warrant Security in the principal amount of and
shall be initially issued in connection with the issuance of the Offered
Securities [1: and shall be separately transferable immediately thereafter]
[2: but shall not be separately transferable until on and after , 19
(the "Detachable Date")]. The Warrants shall be initially issued [in units]
with the Offered Securities, and each Warrant [included in such a unit] shall
evidence the right, subject to the provisions contained herein and in the
Warrant Certificates, to purchase [ ] principal amount of Warrant
Securities [included in such a unit].
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant, whenever issued, shall be evidenced by a Warrant Certificate in
registered form [or a global Warrant Certificate in bearer form (the "Global
Warrant Certificate")] [the form to be the same as that of the Warrant
Security in connection with which the Warrant Certificate is issued],
substantially in the form[s] set forth in Exhibit A [and Exhibit B,
respectively,] hereto, shall be dated and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the officers of the
Company executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of
this Agreement, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or regulation of
any stock exchange on which the Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be signed on behalf of the Company
by its chairman or vice chairman of the Board of Directors, the president,
any managing director or the treasurer of the Company, in each case under
its corporate seal, which may but need not be, attested by its Secretary or
one of its Assistant Secretaries [, except that the Global Warrant
Certificate may be executed by any such officer without any necessity that
such signature be under seal as aforesaid]. Such signatures may be manual
or facsimile signatures of such authorized officers and may be imprinted or
otherwise reproduced on the Warrant Certificates. The corporate seal of
the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the Warrant Agent by manual signature. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence, and the only evidence, that the Warrant
Certificate so countersigned has been duly issued hereunder.
[The Global Warrant Certificate shall be and remain subject to the
provisions of this Agreement until such time as all of the Warrants evidenced
thereby shall have been duly exercised or shall have expired or been cancelled
in accordance with the terms thereof.]
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to
be such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent as provided herein, such
Warrant Certificates may be countersigned and delivered notwithstanding that
the person who signed such Warrant Certificates ceased to be such officer of
the Company; and any Warrant Certificate may be signed on behalf of the
Company by such persons as, at the actual date of the execution of such
Warrant Certificate, shall be the proper officers of the Company, although at
the date of the execution of this Agreement any such person was not such
officer.
The term "Holder", when used with respect to any Warrant Certificate
[in registered form], shall mean any person in whose name at the time such
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose [2: or, prior to the Detachable Date, any
person in whose name at the time the Offered Security to which such Warrant
Certificate is attached is registered upon the register of the Offered
Securities. Prior to the Detachable Date, the Company will, or will cause the
registrar of the Offered Securities to, make available at all times to the
Warrant Agent such information as to holders of the Offered Securities with
Warrants as may be necessary to keep the Warrant Agent's records up to date.]
[The term "Holder", when used with respect to the Global Warrant
Certificate, shall mean [2:, prior to the Detachable Date, the bearer of the
Temporary Global Security (as defined in Section 1.04) evidencing the Offered
Securities to which the Warrants evidenced by the Global Warrant Certificate
were initially attached and, after the Detachable Date,] the bearer of the
Global Warrant Certificate.]
SECTION 1.03. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate principal amount
not exceeding aggregate principal amount of Warrant Securities (except
as provided in Sections 2.03, 3.02 and 4.01) may be executed by the Company
and delivered to the Warrant Agent upon the execution of this Warrant
Agreement or from time to time thereafter. The Warrant Agent shall, upon
receipt of Warrant Certificates duly executed on behalf of the Company,
countersign Warrant Certificates evidencing Warrants representing the
right to purchase up to aggregate principal amount of Warrant
Securities and shall[, in the case of Warrant Certificates in registered
form,] deliver such Warrant Certificates to or upon the order of the Company
[and, in the case of the Global Warrant Certificate, upon the order of the
Company, deposit the Global Warrant Certificate with , as common
depositary (the "Common Depositary") for Morgan Guaranty Trust Company of New
York, Brussels office (or any successor), as operator of the Euro-clear System
(the "Euro-clear Operator"), and for Centrale de Livraison de Valeurs
Mobilieres S.A. ("CEDEL") for credit to the accounts of persons appearing from
time to time on the records of the Euro-clear Operator or of CEDEL as being
entitled to any portion thereof. [2: The Temporary Global Security [, as
defined in Section 1.04,] will at the same time be deposited with the Common
Depositary.] [The Global Warrant Certificate shall be held by the Common
Depositary outside the United Kingdom.]] Subsequent to such original issuance
of the Warrant Certificates, the Warrant Agent shall countersign a Warrant
Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant Certificates
or[, with respect to Warrant Certificates in registered form,] in connection
with their transfer as hereinafter provided or as provided in the
antepenultimate paragraph of Section 2.03].
Pending the preparation of definitive Warrant Certificates [in
registered form] evidencing Warrants, the Company may execute and the Warrant
Agent shall countersign and deliver temporary Warrant Certificates [in
registered form] evidencing such Warrants (printed, lithographed, typewritten
or otherwise produced, in each case in form satisfactory to the Warrant
Agent). Such temporary Warrant Certificates shall be issuable substantially
in the form of the definitive Warrant Certificates [in registered form] but
with such omissions, insertions and variations as may be appropriate for
temporary Warrant Certificates, all as may be determined by the Company with
the concurrence of the Warrant Agent. Such temporary Warrant Certificates may
contain such reference to any provisions of this Warrant Agreement as may be
appropriate. Every such temporary Warrant Certificate shall be executed by
the Company and shall be countersigned by the Warrant Agent upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Warrant Certificates [in registered form]. Without unreasonable
delay, the Company shall execute and shall furnish definitive Warrant
Certificates [in registered form] and thereupon such temporary Warrant
Certificates may be surrendered in exchange therefor without charge pursuant
to and subject to the provisions of Section 4.01, and the Warrant Agent shall
countersign and deliver in exchange for such temporary Warrant Certificates
definitive Warrant Certificates [in registered form] of authorized
denominations evidencing a like aggregate number of Warrants evidenced by such
temporary Warrant Certificates. Until so exchanged, such temporary Warrant
Certificates shall be entitled to the same benefits under this Warrant
Agreement as definitive Warrant Certificates [in registered form].
[2: SECTION 1.04. Temporary Global Security. Prior to the
Detachable Date, each Offered Security to be issued with Warrants evidenced by
the Global Warrant Certificate shall, whenever issued, be evidenced by a
single temporary global Offered Security in bearer form without interest
coupons (the "Temporary Global Security") to be issued by the Company as
provided in the Indenture.]
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. On , 19 the exercise price
of each Warrant will be . During the period from , 19 through
and including , 19 , the exercise price of each Warrant will be
plus [accrued amortization of the original issue discount] [accrued
interest] from , 19 . On , 19 the exercise price of each
Warrant will be . During the period from , 19 through and
including , 19 , the exercise price of each Warrant will be
plus [accrued amortization of the original issue discount] [accrued interest]
from , 19 . [In each case, the original issue discount will be
amortized at a % annual rate, computed on an annual basis using the
"interest" method and using a 360-day year consisting of twelve 30-day
months]. Such exercise price of Warrant Securities is referred to in this
Agreement as the "Warrant Price". [The original issue discount for each
principal amount of Warrant Securities is ].
SECTION 2.02. Duration of Warrants. Subject to Section 4.03(b),
each Warrant may be exercised [in whole but not in part] [in whole or in part]
[at any time, as specified herein, on or after [the date thereof] [ ,
19 ] and at or before [time, location] on , 19 (each day
during such period may hereinafter be referred to as an "Exercise Date")] [on
[list of specific dates] (each, an "Exercise Date")], or such later date as
the Company may designate by notice to the Warrant Agent and the Holders of
Warrant Certificates [in registered form and to the beneficial owners of the
Global Warrant Certificate] (the "Expiration Date"). Each Warrant not
exercised at or before [time, location] on the Expiration Date shall become
void, and all rights of the Holder [and any beneficial owners] of the Warrant
Certificate evidencing such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. [During] [With respect to
Warrants evidenced by Warrant Certificates in registered form, during] the
period specified in Section 2.02, any whole number of Warrants may be
exercised by providing certain information as set forth on the reverse side of
the Warrant Certificates evidencing such Warrants and by paying in full [in
lawful money of the United States of America] [in applicable currency] [in
cash] [by certified check or official bank check or by bank wire transfer, in
each case,] [by bank wire transfer] [in immediately available funds,] the
Warrant Price for each Warrant exercised (plus accrued interest, if any, on
the Warrant Securities to be issued upon exercise of such Warrant from and
including the Interest Payment Date (as defined in the Indenture), if any, in
respect of such Warrant Securities immediately preceding the Exercise Date to
and including the Exercise Date (unless the Exercise Date is after the Regular
Record Date (as defined in the Indenture), if any, for such Interest Payment
Date, but on or before the immediately succeeding Interest Payment Date for
such Warrant Securities, in which event no such accrued interest shall be
payable in respect of Warrant Securities to be issued in registered form)) to
the Warrant Agent at its corporate trust office at [address] [or at
], provided that such exercise is subject to receipt within five business days
of such [payment] [wire transfer] by the Warrant Agent of the Warrant
Certificate evidencing each Warrant exercised with the form of election to
purchase Warrant Securities set forth on the reverse side of the Warrant
Certificate properly completed and duly executed.
[With respect to Warrants evidenced by the Global Warrant
Certificate, during the period specified in Section 2.02, any whole number of
Warrants may be exercised by the Holder by presentation to the Warrant Agent
at its office at [address located outside the United States [and the United
Kingdom]], at or prior to [time], on any day on which the Warrants are
exercisable, of (i) the Global Warrant Certificate [2: together with, if
prior to the Detachable Date, the Temporary Global Security] (or written
confirmation reasonably satisfactory to the Warrant Agent that the Global
Warrant Certificate [1: is] [2: and, if prior to the Detachable Date, the
Temporary Global Security are] held by the Euro-c1ear Operator and CEDEL and
will be duly endorsed to reflect the exercise of Warrants [2: and, if prior to
the Detachable Date, the surrender to the Warrant Agent of the Offered
Securities to which the Warrants are attached] by the Euro-clear Operator and
CEDEL), (ii) a duly executed certification from the Euro-clear Operator or
CEDEL, as the case may be, substantially in the form set forth in Exhibit C
hereto and (iii) payment in full [in lawful money of the United States of
America] [in applicable currency] [in cash] [by certified check or official
bank check or by bank wire transfer, in each case,] [by bank wire transfer]
[in immediately available funds,] of the Warrant Price for each Warrant
exercised (plus accrued interest, if any, on the Warrant Securities to be
issued upon exercise of such Warrant from and including the Interest Payment
Date, if any, in respect of such Warrant Securities immediately preceding the
Exercise Date to and including the Exercise Date (unless the Exercise Date is
after the Regular Record Date, if any, for such Interest Payment Date, but on
or before the immediately succeeding Interest Payment Date for such Warrant
Securities, in which event no such accrued interest shall be payable in
respect of Warrant Securities to be issued in registered form)).
Notwithstanding the foregoing, the Holder may exercise Warrants as aforesaid
on the Expiration Date at any time prior to [time] in [city of Warrant Agent's
office]. Any Warrants exercised as set forth in this paragraph shall be
deemed exercised at the [country] office of the Warrant Agent.]
[The Warrant Agent shall retain each certificate received by it from
the Euro-clear Operator or CEDEL through the Expiration Date (or such earlier
date by which all of the Warrants may have been exercised or cancelled) and
thereafter shall dispose of them or deliver them to the Company pursuant to
the instructions of the Company.]
[The delivery to the Warrant Agent by the Euro-clear Operator or
CEDEL of any certification referred to above may be relied upon by the
Company, the Warrant Agent and the Trustee as conclusive evidence that a
corresponding certificate or certificates substantially in the form of Exhibit
D hereto has or have been delivered to the Euro-clear Operator or CEDEL, as the
case may be.]
[The Company will maintain in [location] (or in such other city [in
western Europe] as the Company may deem advisable), until the right to
exercise the Warrants shall expire or be earlier cancelled as hereinafter
provided, an agency where the Global Warrant Certificate [2: and, if prior to
the Detachable Date, the Temporary Global Security] may be presented for
exercise of the Warrants represented thereby [2: and, if prior to the
Detachable Date, for surrender for cancellation of the Offered Securities to
which such Warrants are attached] and notices and demands to or upon the
Company in respect of the Warrants or of this Agreement may be made.]
The date on which payment in full of the Warrant Price (plus any
such accrued interest) is received by the Warrant Agent shall, subject to
receipt of the Warrant Certificate [in registered form or, as the case may be,
the Global Warrant Certificate [2: and, if required, the Temporary Global
Security] and the certification of Euro-clear Operator or CEDEL] as aforesaid,
be deemed to be the date on which the Warrant is exercised. The Warrant Agent
shall deposit all funds received by it in payment for the exercise of Warrants
in an account of the Company maintained with it (or in such other account as
may be designated by the Company) and shall advise the Company, by telephone
or by facsimile transmission or other form of electronic communication
available to both parties, at the end of each day on which a payment for the
exercise of Warrants is received of the amount so deposited to its account.
The Warrant Agent shall promptly confirm such advice to the Company in
writing.
If a day on which Warrants may be exercised in the city in which such
Warrants are to be exercised shall be a Saturday or Sunday or a day on which
banking institutions in such city are authorized or required to be closed,
then, notwithstanding any other provision of this Agreement or the Warrant
Certificate evidencing such Warrants, but subject to the limitation that no
Warrant may be exercised after the Expiration Date, the Warrants shall be
exercisable on the next succeeding day which in such city is not a Saturday or
Sunday or a day on which banking institutions in such city are authorized or
required to be closed.
The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company [and][,] the Trustee [and the Common
Depositary at [both] its London and [location] office[s]] in writing [(which,
in the case of exercised Warrants represented by the Global Warrant
Certificate, shall be tested telex with appropriate answerback received,)] of
(i) the number of Warrants exercised, (ii) the instructions of each Holder of
the Warrant Certificates [in registered form] evidencing such Warrants [or of
the Euro-clear Operator or CEDEL, as the case may be,] with respect to
delivery of the Warrant Securities to be issued upon such exercise, (iii)
delivery of any Warrant Certificates [in registered form] evidencing the
balance, if any, of the Warrants remaining after such exercise, and (iv) such
other information as the Company or the Trustee shall reasonably require. [In
addition, in the case of exercised Warrants evidenced by the Global Warrant
Certificate, the Warrant Agent shall, as promptly as practicable, endorse, or
cause the Common Depositary, [location] office, or one of the Warrant Agent's
agents to endorse, Schedule A annexed to the Global Warrant Certificate to
reflect the exercise of such Warrants [2: and the Temporary Global Security to
reflect the surrender for cancellation of the Offered Securities to which such
Warrants are attached] and, if applicable, return the Global Warrant
Certificate [2: and the Temporary Global Security] to the Common Depositary or
to its order.]
As soon as practicable after the exercise of any Warrant [evidenced
by a Warrant Certificate in registered form], but subject to receipt by the
Warrant Agent of the Warrant Certificate evidencing such Warrant as provided
in this Section, the Company shall issue, pursuant to the Indenture, in
authorized denominations to or upon the order of the Holder of the Warrant
Certificate evidencing each Warrant, the Warrant Securities to which such
Holder is entitled, in fully registered form, registered in such name or names
as may be directed by such Holder. If fewer than all of the Warrants
evidenced by such Warrant Certificate are exercised, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, a new Warrant Certificate [in registered form]
evidencing the number of such Warrants remaining unexercised.
[As soon as practicable after the exercise of any Warrant evidenced
by the Global Warrant Certificate, the Company shall issue, pursuant to the
Indenture, the Warrant Securities issuable upon such exercise, in authorized
denominations (i) in fully registered form, registered in such name or names
as may be directed by the Euro-clear Operator or CEDEL, as the case may be,
to or upon order of the Euro-clear Operator or CEDEL, as the case may be, or
(ii) in bearer form to the Common Depositary to be held for the account of the
Euro-clear Operator or CEDEL, as the case may be, together with a written
confirmation substantially in form of Exhibit E hereto; provided, however,
that no Warrant Security in bearer form shall be mailed or otherwise delivered
to any location in the United States of America, its territories or
possessions or areas subject to its jurisdiction or the Commonwealth of Puerto
Rico.]
The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issuance of the Warrant Securities, and in the event that any
such transfer is involved, the Company shall not be required to issue or
deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the Holder or any beneficial owner thereof to any of the
rights of a holder or beneficial owner of Warrant Securities, including,
without limitation, the right to receive the payment of principal of (premium,
if any) or interest, if any, on Warrant Securities or to enforce any of the
covenants in the Indenture.
SECTION 3.02. Lost, Mutilated, Stolen, or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss,
mutilation, theft or destruction of any Warrant Certificate and of such
security or indemnity as may be required by the Company and the Warrant Agent
to hold each of them and any agent of them harmless and, in the case of
mutilation of a Warrant Certificate, upon surrender thereof to the Warrant
Agent for cancellation, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of
the lost, mutilated, stolen or destroyed Warrant Certificate, a new Warrant
Certificate of the same tenor and evidencing a like number of Warrants[;
provided, however, that any Global Warrant Certificate shall be so delivered
only to the Common Depositary.] Upon the issuance of any new Warrant
Certificate under this Section, the Company may require the payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu
of any lost, mutilated, stolen or destroyed Warrant Certificate shall
represent an additional contractual obligation of the Company, whether or not
the lost, stolen or destroyed Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of this Agreement
equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder. The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement of lost, mutilated, stolen or
destroyed Warrant Certificates.
SECTION 3.03. Enforcement of Rights. Notwithstanding any of the
provisions of this Agreement, any Holder of a Warrant Certificate [in
registered form or the beneficial owner of any Warrant evidenced by the Global
Warrant Certificate], without the consent of [the Common Depositary,] the
Warrant Agent, the Trustee, the holder of any Offered Securities or the Holder
of any other Warrant Certificate, may, in its own behalf and for its own
benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce, or otherwise in respect
of, its right to exercise its Warrants in the manner provided in its Warrant
Certificate [or the Global Warrant Certificate, as the case may be,] and in
this Agreement. [Neither the Company nor the Warrant Agent shall be required
to treat any person as a beneficial owner of any Warrant evidenced by the
Global Warrant Certificate unless such person is so certified as such a
beneficial owner by the Euro-clear Operator or CEDEL.]
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer. (a)
If at any time there shall be a merger or consolidation of the Company or a
conveyance or transfer of its property and assets substantially as an entirety
as permitted under the Indenture, then in any such event the successor or
assuming corporation referred to therein shall succeed to and be substituted
for the Company, with the same effect, subject to the Indenture, as if it had
been named herein and in the Warrant Certificates as the Company; the Company
shall thereupon, except in the case of a transfer by way of lease, be relieved
of any further obligation hereunder and under the Warrants and the Warrant
Certificates, and the Company as the predecessor corporation, except in the
case of a transfer by way of lease, may thereupon or at any time thereafter
be dissolved, wound up or liquidated. Such successor or assuming corporation
may thereupon cause to be signed, and may issue either in its own name or in
the name of the Company, Warrant Certificates evidencing any or all of the
Warrants issuable hereunder which theretofore shall not have been signed by
the Company, and may execute and deliver Warrant Securities in its own name
pursuant to the Indenture, in fulfillment of its obligations to deliver
Warrant Securities upon exercise of the Warrants. All the Warrants so
issued shall in all respects have the same legal rank and benefit under
this Agreement as the Warrants theretofore or thereafter issued in
accordance with the terms of this Agreement as though all of such Warrants
had been issued at the date of the execution hereof. In any case of any
such merger, consolidation, conveyance or transfer, such changes in
phraseology and form (but not in substance) may be made in the Warrant
Certificates representing the Warrants thereafter to be issued as may be
appropriate.
(b) The Warrant Agent may receive a written opinion of legal
counsel (who shall be acceptable to the Warrant Agent) as conclusive evidence
that any such merger, consolidation, conveyance or transfer complies with the
provisions of this Section and the Indenture.
ARTICLE IV
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer. (a) [1: Upon] [2: Prior to the
Detachable Date, a Warrant Certificate [in registered form] may be exchanged
or transferred only together with the Offered Security to which such Warrant
Certificate was initially attached, and only for the purpose of effecting, or
in conjunction with, an exchange or transfer of such Offered Security. Prior
to the Detachable Date, the transfer of the beneficial ownership of any
Warrant evidenced by the Global Warrant Certificate shall effect and shall be
deemed to effect the transfer of the beneficial ownership of any Offered
Securities evidenced by the Temporary Global Security that are attached to
such Warrants. Prior to any Detachable Date, each transfer of the Offered
Security [on the register maintained with respect to the Offered Securities,
in the case of an Offered Security that is in registered form], shall operate
a1so to transfer the related Warrant Certificates. Similarly, prior to the
Detachable Date, the transfer of the beneficial ownership of any Offered
Security evidenced by the Temporary Global Security shall be deemed to be the
transfer of the beneficial ownership of any Warrants evidenced by the Global
Warrant Certificate that are attached to such Offered Securities. The
transfer of the beneficial ownership of Warrants and Warrant Securities
hereunder shall be effected only as provided in Section 4.01. On or after the
Detachable Date, upon] surrender at the corporate trust office of the Warrant
Agent at [address] [or ], Warrant Certificates [in registered form]
evidencing Warrants may be exchanged for Warrant Certificates [in registered
form] in other authorized denominations evidencing such Warrants or the
transfer thereof may be registered in whole or in part; provided, however,
that such other Warrant Certificates shall evidence the same aggregate number
of Warrants as the Warrant Certificates so surrendered.
(b) The Warrant Agent shall keep, at its corporate trust office at
[address] [and at ], books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates [in
registered form] and exchanges and transfers of outstanding Warrant
Certificates [in registered form] upon surrender of such Warrant Certificates
to the Warrant Agent at its corporate trust office at [address] or [ ]
for exchange or registration of transfer, properly endorsed [or accompanied by
appropriate instruments of registration of transfer and written instructions
for transfer, all in form satisfactory to the Company and the Warrant Agent.]
(c) No service charge shall be made for any exchange or
registration of transfer of Warrant Certificates [in registered form], but the
Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any
such exchange or registration of transfer.
(d) Whenever any Warrant Certificates [in registered form], are so
surrendered for exchange or registration of transfer, an authorized officer of
the Warrant Agent shall manually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant Certificates [in
registered form], duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not effect any exchange or registration of
transfer which will result in the issuance of a Warrant Certificate [in
registered form], evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant.
(e) All Warrant Certificates [in registered form], issued upon any
exchange or registration of transfer of Warrant Certificates shall be the
valid obligations of the Company, evidencing the same obligations, and
entitled to the same benefits under this Agreement, as the Warrant
Certificates surrendered for such exchange or registration or transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. [With
respect to the Global Warrant Certificate, the Holder thereof may be treated
by the Company, the Warrant Agent and all other persons dealing with such
Holder as the absolute owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced thereby,
any notice to the contrary notwithstanding.] [Each] [With respect to Warrant
Certificates in registered form, each] Holder of a Warrant Certificate, by
accepting the same, consents and agrees with the Company, the Warrant Agent
and every subsequent Holder of such Warrant Certificate that until the
transfer of such Warrant Certificate is registered on the books of such
Warrant Agent [2: or, prior to the Detachable Date, until the transfer of the
Offered Security to which such Warrant Certificate is attached, is registered
in the register of the Offered Securities], the Company and the Warrant Agent
may treat the registered Holder of such Warrant Certificate as the absolute
owner thereof for any purpose and as the person entitled to exercise the
rights represented by the Warrants evidenced thereby, any notice to the
contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. (a) Any
Warrant Certificate surrendered for exchange or registration of transfer or
exercise of the Warrants evidenced thereby shall, if surrendered to the
Company, be delivered to the Warrant Agent, and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly cancelled
by the Warrant Agent and shall not be reissued and, except as expressly
permitted by this Agreement, no Warrant Certificate shall be issued hereunder
in exchange therefor or in 1ieu thereof. The Warrant Agent shall cause all
cancelled Warrant Certificates to be destroyed and shall deliver a certificate
of such destruction to the Company.
(b) If the Company notifies the Trustee of its election to redeem
[2: prior to the Detachable Date] [, as a whole but not in part,] [2: the
Offered Securities [or] [and]] the Warrant Securities pursuant to the
Indenture or the terms thereof, the Company may elect, and shall give notice
to the Warrant Agent of its election, to cancel the unexercised Warrants, the
Warrant Certificates and the rights evidenced thereby. Promptly after receipt
of such notice by the Warrant Agent, the Company shall, or, at the Company's
request, the Warrant Agent shall in the name of and at the expense of the
Company, give notice of such cancellation to the Holders of the Warrant
Certificates [in registered form and to the beneficial owners of the Global
Warrant Certificate (except that such notice shall be required to be published
only once)], such notice to be so given not less than 30 nor more than 60 days
prior to the date fixed for the redemption of [2: the Offered Securities [or]
[and]] the Warrant Securities pursuant to the Indenture or the terms thereof.
The unexercised Warrants, the Warrant Certificates and the rights evidenced
thereby shall be cancelled and become void on the 15th day prior to such date
fixed for redemption.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints as
Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein and in the
Warrant Certificates set forth; and hereby accepts such appointment.
The Warrant Agent shall have the powers and authority granted to and conferred
upon it in the Warrant Certificates and herein and such further powers and
authority to act on behalf of the Company as the Company may hereafter grant
to or confer upon it. All of the terms and provisions with respect to such
powers and authority contained in the Warrant Certificates are subject to and
governed by the terms and provisions hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the Holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly
to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse
the Warrant Agent for reasonable out-of-pocket expenses (including
reasonable attorneys' fees) incurred by the Warrant Agent without
negligence, bad faith or breach of this Agreement on its part in
connection with the services rendered hereunder by the Warrant Agent.
The Company also agrees to indemnify the Warrant Agent for, and to hold
it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of
or in connection with its acting as Warrant Agent hereunder, as well as
the reasonable costs and expenses of defending against any claim of such
liability.
(b) Agent for the Company. In acting under this Agreement and in
connection with the Warrants and the Warrant Certificates, the Warrant
Agent is acting solely as agent of the Company and does not assume any
obligation or relationship of agency or trust for or with any of the
Holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it in its reasonable judgment, and the advice of such
counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing
suffered by it in reliance upon any Warrant Certificate, notice,
direction, consent, certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and to have been
presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have
if it were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any
financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of holders of
Warrant Securities or other obligations of the Company as freely as if
it were not the Warrant Agent hereunder. Nothing in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as
Trustee under the Indenture.
(f) No Liability for Interest. The Warrant Agent shall have no
liability for interest on any monies at any time received by it pursuant
to any of the provisions of this Agreement or of the Warrant
Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall not be
under any responsibility with respect to the validity or sufficiency of
this Agreement or the execution and delivery hereof (except the due
authorization to execute this Agreement and the due execution and
delivery hereof by the Warrant Agent) or with respect to the validity or
execution of any Warrant Certificates (except its countersignature
thereof).
(h) No Liability for Recitals. The recitals contained herein
shall be taken as the statements of the Company and the Warrant Agent
assumes no liability for the correctness of the same.
(i) No Implied Obligations. The Warrant Agent shall be obligated
to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations
shall be read into this Agreement or the Warrant Certificates against
the Warrant Agent. The Warrant Agent shall not be under any obligation
to take any action hereunder which may tend to involve it in any expense
or liability, the payment of which within a reasonable time is not, in
its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the
Company of any of the Warrant Certificates countersigned by the Warrant
Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant
Certificates. The Warrant Agent shall have no duty or responsibility in
case of any default by the Company in the performance of its covenants
or agreements contained herein or in the Warrant Certificates or in the
case of the receipt of any written demand from a Holder of a Warrant
Certificate with respect to such default, including, without limiting
the generality of the foregoing, any duty or responsibility to initiate
or attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 6.02, to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The
Company agrees, for the benefit of the Holders from time to time of the
Warrant Certificates, that there shall at all times be a Warrant Agent
hereunder until all the Warrants have been exercised or are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such by giving
written notice of its resignation to the Company, specifying the desired date
on which its resignation shall become effective; provided, however, that such
date shall be not less than 90 days after the date on which such notice is
given unless the Company agrees to accept shorter notice. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor Warrant
Agent (which shall be a bank or trust company in good standing, authorized
under the laws of the jurisdiction of its organization to exercise corporate
trust powers) by written instrument in duplicate signed on behalf of the
Company, one copy of which shall be delivered to the resigning Warrant Agent
and one copy to the successor Warrant Agent. The Company may, at any time and
for any reason, remove the Warrant Agent and appoint a successor Warrant Agent
(qualified as aforesaid) by written instrument in duplicate signed on behalf
of the Company and specifying such removal and the date when it is intended to
become effective, one copy of which shall be delivered to the Warrant Agent
being removed and one copy to the successor Warrant Agent. Any resignation or
removal of the Warrant Agent and any appointment of a successor Warrant Agent
shall become effective upon acceptance of appointment by the successor Warrant
Agent as provided in this subsection (b). In the event a successor Warrant
Agent has not been appointed and accepted its duties within 90 days of the
Warrant Agent's notice of resignation, the Warrant Agent may apply to any
court of competent jurisdiction for the designation of a successor Warrant
Agent. Upon its resignation or removal, the Warrant Agent shall be entitled
to the payment by the Company of the compensation and to the reimbursement of
all reasonable out-of-pocket expenses (including reasonable attorneys' fees)
incurred by it hereunder as agreed to in Section 5.02(a).
(c) The Company shall remove the Warrant Agent and appoint a
successor Warrant Agent if the Warrant Agent (i) shall become incapable of
acting, (ii) shall be adjudged bankrupt or insolvent, (iii) shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of
a trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, (iv) shall consent to, or shall have had
entered against it a court order for, any such relief or to the appointment of
or taking possession by any such official in any involuntary case or other
proceedings commenced against it, (v) shall make a general assignment for the
benefit of creditors or (vi) shall fail generally to pay its debts as they
become due. Upon the appointment as aforesaid of a successor Warrant Agent
and acceptance by it of such appointment, the predecessor Warrant Agent shall,
if not previously disqualified by operation of law, cease to be Warrant Agent
hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor shall thereupon become obligated to transfer,
deliver and pay over, and such successor Warrant Agent shall be entitled to
receive, all monies, securities and other property on deposit with or held by
such predecessor as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement and the terms of the
Warrants and the Warrant Certificates may be amended by the parties hereto,
without the consent of the Holder of any Warrant Certificate or the beneficial
owner of any Warrant, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision contained
herein or in the Warrant Certificates, or making any other provisions with
respect to matters or questions arising under this Agreement as the Company
and the Warrant Agent may deem necessary or desirable, provided that such
action shall not affect adversely the interests of the Holders of the Warrant
Certificates or the beneficial owners of Warrants in any material respect.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to the
Company by the Holder of a Warrant Certificate pursuant to the provisions of
the Warrant Certificates, the Warrant Agent shall promptly forward such notice
or demand to the Company.
SECTION 6.03. Addresses. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to ,
Attention: , and any communication from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to Morgan Stanley,
Dean Witter, Discover & Co., 1251 Avenue of the Americas, New York, New York
10020, Attention: (or such Other address as shall be specified in
writing by the Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder
and of the respective terms and provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the Holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued
upon such exercise, a Prospectus. The Warrant Agent shall not, by reason of
any such delivery, assume any responsibility for the accuracy or adequacy of
such Prospectus.
SECTION 6.O6. Obtaining of Governmental Approval. The Company
will from time to time take all action which may be necessary to obtain and
keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
federal and state laws (including without limitation a registration statement
in respect of the Warrants and Warrant Securities under the Securities Act of
1933), which may be or become requisite in connection with the issuance, sale,
transfer and delivery of the Warrant Certificates, the exercise of the
Warrants, the issuance, sale, transfer and delivery of the Warrant Securities
issued upon exercise of the Warrants or upon the expiration of the period
during which the Warrants are exercisable.
SECTION 6.07. Persons Having Rights Under Warrant Agreement.
[Except as otherwise provided in Section 3.03, nothing] [Nothing] in this
Agreement shall give to any person other than the Company, the Warrant Agent
and the Holders of the Warrant Certificates any right, remedy or claim under
or by reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the Holder of any Warrant
Certificate. The Warrant Agent may require such Holder to submit his Warrant
Certificate for inspection by it.
SECTION 6.11. Notices to Holders of Warrants. Any notice to
Holders of Warrants evidenced by Warrant Certificates [in registered form]
which by any provisions of this Warrant Agreement is required or permitted to
be given shall be given by first class mail prepaid at such Holder's address
as it appears on the books of the Warrant Agent. [Any notice to beneficial
owners of Warrants evidenced by the Global Warrant Certificate which by any
provisions of this Warrant Agreement is required or permitted to be given
shall be given in the manner provided with respect to Warrant Securities in
bearer form in Section 1.06 of the Indenture].
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed
and attested, all as of the date first above written.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
By________________________
[SEAL] Name:
Title:
Attest:
_______________________
Name:
Title:
[WARRANT AGENT]
By________________________
[SEAL] Name:
Title:
Attest:
_______________________
Name:
Title:
Exhibit 4-oo
[Form of Debt Warrant Agreement
for Warrants Sold Alone]
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
and
_____________________,
as Warrant Agent
_________________________,
DEBT WARRANT AGREEMENT
Dated as of ___________
________________________
Warrants to Purchase ________
_____________________
TABLE OF CONTENTS(1)
(1)The Table of Contents is not a part of the Agreement.
PAGE
----
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
ISSUANCE OF WARRANTS [AND TEMPORARY GLOBAL SECURITY]
AND EXECUTION AND DELIVERY
OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants . . . . . . . . . 2
SECTION 1.02. Execution and Delivery
of Warrant Certificates . . . . . . 2
SECTION 1.03. Issuance of Warrant Certificates . . . 3
[SECTION 1.04 Temporary Global Security . . . . . . 5]
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price . . . . . . . . . . . . 5
SECTION 2.02. Duration of Warrants . . . . . . . . . 5
SECTION 2.03. Exercise of Warrants . . . . . . . . . 6
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder
Conferred by Warrants or Warrant
Certificates . . . . . . . . . . . . 9
SECTION 3.02. Lost, Mutilated, Stolen or
Destroyed Warrant Certificates . . . 10
SECTION 3.03. Enforcement of Rights . . . . . . . . 10
SECTION 3.04. Merger, Consolidation, Conveyance
Or Transfer . . . . . . . . . . . . 11
ARTICLE IV
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer . . . . . . . . 12
SECTION 4.02. Treatment of Holders of
Warrant Certificates . . . . . . . . 13
SECTION 4.03. Cancellation of Warrant
Certificates . . . . . . . . . . . 13
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent . . . . . . . . . . . . 14
SECTION 5.02. Conditions of Warrant Agent's
Obligations . . . . . . . . . . . . 14
SECTION 5.03. Resignation and Appointment
of Successor . . . . . . . . . . . . 17
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment . . . . . . . . . . . . . . 18
SECTION 6.02. Notices and Demands to the Company
and Warrant Agent . . . . . . . . . 19
SECTION 6.03. Addresses . . . . . . . . . . . . . . 19
SECTION 6.04. Applicable Law . . . . . . . . . . . . 19
SECTION 6.05. Delivery of Prospectus . . . . . . . . 19
SECTION 6.06. Obtaining of Governmental
Approval . . . . . . . . . . . . . . 19
SECTION 6.07. Persons Having Rights Under
Warrant Agreement . . . . . . . . . 20
SECTION 6.08. Headings . . . . . . . . . . . . . . . 20
SECTION 6.09. Counterparts . . . . . . . . . . . . . 20
SECTION 6.10. Inspection of Agreement . . . . . . . 20
SECTION 6.11. Notices to Holders of Warrants . . . . 20
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . 21
SIGNATURES. . . . . . . . . . . . . . . . . . . . . . . . 21
EXHIBIT A - Form of Warrant Certificate
[in Registered Form]
[EXHIBIT B - Form of Global Warrant Certificate in Bearer Form]
[EXHIBIT C - Form of Certificate to be Delivered to
the Warrant Agent by the Euro-clear Operator or
CEDEL]
[EXHIBIT D - Form of Warrant Exercise Notice]
[EXHIBIT E - Form of Confirmation to be Delivered to
Purchasers of Warrant Securities in Bearer Form]
DEBT WARRANT AGREEMENT(2)
THIS AGREEMENT dated as of between MORGAN STANLEY, DEAN
WITTER, DISCOVER & CO., a corporation duly organized and existing under the
laws of the State of Delaware (the "Company"), and , a [bank]
[trust company] duly incorporated and existing under the laws of ,
as Warrant Agent (the "Warrant Agent"),
- ----------------
(2) Complete or modify the provisions of this form as appropriate to
reflect the terms of the Warrants and Warrant Securities.
Monetary amounts may be in U.S. dollars in a foreign currency or
in a composite currency, including but not limited to the European
Currency Unit.
W I T N E S S E T H :
WHEREAS, the Company has entered into an Indenture dated as of April
15, 1989 (the "Senior Indenture") between the Company and Chemical Bank, as
Trustee (the "Senior Trustee"), and an Indenture dated as of April 15, 1989
(the "Subordinated Indenture") between the Company and First National Bank of
Chicago, as Trustee (the "Subordinated Trustee") (collectively the "Trustees"
or "Trustee" and "Indentures" or "Indenture"), providing for the issuance from
time to time of its unsecured debt securities to be issued in one or more
series as provided in the Indenture; and
WHEREAS, the Company proposes to sell [title of such debt securities
being offered] (the "Offered Securities") with one or more warrants (the
"Warrants") representing the right to purchase [title of such debt securities
purchasable through exercise of Warrants] (the "Warrant Securities"), the
Warrants to be evidenced by warrant certificates issued pursuant to this
Agreement (the "Warrant Certificates"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company in connection with the issuance, transfer, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form[s] and provisions of the Warrant
Certificates and the terms and conditions on which they may be issued,
transferred, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY
OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. The Warrants shall be
evidenced by one or more Warrant Certificates. Each Warrant evidenced thereby
shall represent the right, subject to the provisions contained herein and
therein, to purchase a Warrant Security in the principal amount of
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant, whenever issued, shall be evidenced by a Warrant Certificate in
registered form [or a global Warrant Certificate in bearer form (the "Global
Warrant Certificate")] [the form to be the same as that of the Warrant
Security in connection with which the Warrant Certificate is issued],
substantially in the form[s] set forth in Exhibit A [and Exhibit B,
respectively,] hereto, shall be dated and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the officers of the
Company executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of
this Agreement, or as may be required to comply with any law or with any rule
or regulation made pursuant thereto or with any rule or regulation of any
stock exchange on which the Warrants may be listed, or to conform to usage.
The Warrant Certificates shall be signed on behalf of the Company by its
chairman or vice chairman of the Board of Directors, the president, any
managing director, or the treasurer of the Company, in each case under its
corporate seal, which may but need not be attested by its Secretary or one of
its Assistant Secretaries [, except that the Global Warrant Certificate may be
executed by any such officer without any necessity that such signature be
under seal as aforesaid]. Such signatures may be manual or facsimile
signatures of such authorized officers and may be imprinted or otherwise
reproduced on the Warrant Certificates. The corporate seal of the Company may
be in the form of a facsimile thereof and may be impressed, affixed, imprinted
or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has
been countersigned by the Warrant Agent by manual signature. Such signature
by the Warrant Agent upon any Warrant Certificate executed by the Company
shall be conclusive evidence, and the only evidence, that the Warrant
Certificate so countersigned has been duly issued hereunder.
[The Global Warrant Certificate shall be and remain subject to the
provisions of this Agreement until such time as all of the Warrants evidenced
thereby shall have been duly exercised or shall have expired or been cancelled
in accordance with the terms thereof.]
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to
be such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the person who signed
such Warrant Certificates ceased to be such officer of the Company; and any
Warrant Certificate may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Warrant Certificate, shall be the
proper officers of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
The term "Holder", when used with respect to any Warrant Certificate
[in registered form], shall mean any person in whose name at the time such
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose. [The term "Holder", when used with respect to
the Global Warrant Certificate, shall mean the bearer thereof.]
SECTION 1.03. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate principal amount
not exceeding aggregate principal amount of Warrant Securities
(except as provided in Sections 2.03, 3.02 and 4.01) may be executed by the
Company and delivered to the Warrant Agent upon the execution of this Warrant
Agreement or from time to time thereafter. The Warrant Agent shall, upon
receipt of Warrant Certificates duly executed on behalf of the Company,
countersign Warrant Certificates evidencing Warrants representing the
right to purchase up to aggregate principal amount of Warrant
Securities and shall[, in the case of Warrant Certificates in registered
form,] deliver such Warrant Certificates to or upon the order of the Company
[and, in the case of the Global Warrant Certificate, upon the order of the
Company, deposit the Global Warrant Certificate with , as
common depositary (the "Common Depositary") for Morgan Guaranty Trust Company
of New York, Brussels office (or any successor), as operator of the Euro-clear
System (the "Euro-clear Operator"), and for Centrale de Livraison de Valeurs
Mobilieres S.A. ("CEDEL") for credit to the accounts of persons appearing from
time to time on the records of the Euro-clear Operator or of CEDEL as being
entitled to any portion thereof. [The Global Warrant Certificate shall be
held by the Common Depositary outside the United Kingdom.]] Subsequent to
such original issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for one or more previously countersigned Warrant
Certificates or [, with respect to Warrant Certificates in registered form,]
in connection with their transfer as hereinafter provided or as provided in
the antepenultimate paragraph of Section 2.03].
Pending the preparation of definitive Warrant Certificates [in
registered form] evidencing Warrants, the Company may execute and the Warrant
Agent shall countersign and deliver temporary Warrant Certificates [in
registered form] evidencing such Warrants (printed, lithographed, typewritten
or otherwise produced, in each case in form satisfactory to the Warrant
Agent). Such temporary Warrant Certificates shall be issuable substantially
in the form of the definitive Warrant Certificates [in registered form] but
with such omissions, insertions and variations as may be appropriate for
temporary Warrant Certificates, all as may be determined by the Company with
the concurrence of the Warrant Agent. Such temporary Warrant Certificates may
contain such reference to any provisions of this Warrant Agreement as may be
appropriate. Every such temporary Warrant Certificate shall be executed by
the Company and shall be countersigned by the Warrant Agent upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Warrant Certificates [in registered form]. Without unreasonable
delay, the Company shall execute and shall furnish definitive Warrant
Certificates [in registered form] and thereupon such temporary Warrant
Certificates may be surrendered in exchange therefor without charge pursuant
to and subject to the provisions of Section 4.01, and the Warrant Agent shall
countersign and deliver in exchange for such temporary Warrant Certificates
definitive Warrant Certificates [in registered form] of authorized
denominations evidencing a like aggregate number of Warrants evidenced by such
temporary Warrant Certificates. Until so exchanged, such temporary Warrant
Certificates shall be entitled to the same benefits under this Warrant
Agreement as definitive Warrant Certificates [in registered form].
[SECTION 1.04. Temporary Global Security. Prior to the Detachable
Date, each Offered Security to be issued with Warrants evidenced by the Global
Warrant Certificate shall, whenever issued, be evidenced by a single temporary
Global Offered Security in bearer form without interest coupons (the
"Temporary Global Security") to be issued by the Company as provided in the
Indenture.]
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. On 19 the exercise price of each
Warrant will be . During the period from , 19 through and
including , 19 , the exercise price of each Warrant will be
plus [accrued amortization of the original issue discount] [accrued interest]
from , 19 . On , 19 , the exercise price of each
Warrant will be . During the period from , 19
through and including , 19 , the exercise price of each Warrant
will be plus [accrued amortization of the original issue discount]
[accrued interest] from 19 . [In each case, the original issue discount
will be amortized at a % annual rate, computed on an annual basis using the
"interest" method and using a 360-day year consisting of twelve 30-day
months]. Such exercise price of Warrant Securities is referred to in this
Agreement as the "Warrant Price". [The original issue discount for each
principal amount of Warrant Securities is ].
SECTION 2.02. Duration of Warrants. Subject to Section 4.03(b),
each Warrant may be exercised [in whole but not in part] [in whole or in part]
[at any time, as specified herein, on or after [the date thereof] [ ,
19 ] and at or before [time, location] on , 19 (each day during
such period may hereinafter be referred to as an "Exercise Date")] [on [list
of specific dates] (each, an "Exercise Date")], or such later date as the
Company may designate by notice to the Warrant Agent and the Holders of
Warrant Certificates [in registered form and to the beneficial owners of the
Global Warrant Certificate] (the "Expiration Date"). Each Warrant not
exercised at or before [time, location] on the Expiration Date shall become
void, and all rights of the Holder [and any beneficial owners] of the Warrant
Certificate evidencing such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. [With respect to Warrants
evidenced by Warrant Certificates in registered form, during] [During] the
period specified in Section 2.02, any whole number of Warrants may be
exercised by providing certain information as set forth on the reverse side of
the Warrant Certificates evidencing such Warrants and by paying in full [in
lawful money of the United States of America] [in applicable currency] [in
cash] [by certified check or official bank check or by bank wire transfer, in
each case,] [by bank wire transfer] [in immediately available funds,] the
Warrant Price for each Warrant exercised (plus accrued interest, if any, on
the Warrant Securities to be issued upon exercise of such Warrant from and
including the Interest Payment Date (as defined in the Indenture), if any, in
respect of such Warrant Securities immediately preceding the Exercise Date to
and including the Exercise Date (unless the Exercise Date is after the Regular
Record Date (as defined in the Indenture), if any, for such Interest Payment
Date, but on or before the immediately succeeding Interest Payment Date for
such Warrant Securities, in which event no such accrued interest shall be
payable)) to the Warrant Agent at its corporate trust office at [address] [or
at ], provided that such exercise is subject to receipt within five
business days of such [payment] [wire transfer] by the Warrant Agent of the
Warrant Certificate evidencing each Warrant exercised with the form of
election to purchase Warrant Securities set forth on the reverse side of the
Warrant Certificate properly completed and duly executed.
[With respect to Warrants evidenced by the Global Warrant
Certificate, during the period specified in Section 2.02, any whole number of
Warrants may be exercised by the Holder by presentation to the Warrant Agent
at its office at [address located outside the United States [and the United
Kingdom]], at or prior to [time], on any day on which the Warrants are
exercisable, of (i) the Global Warrant Certificate (or written confirmation
reasonably satisfactory to the Warrant Agent that the Global Warrant
Certificate is held by the Euro-clear Operator and CEDEL and will be duly
endorsed to reflect the exercise of Warrants by the Euro-clear Operator and
CEDEL), (ii) a duly executed certification from the Euro-clear Operator or
CEDEL, as the case may be, substantially in the form set forth in Exhibit C
hereto and (iii) payment in full [in lawful money of the United States of
America] [in applicable currency] [in cash] [by certified check or official
bank check or by bank wire transfer, in each case,] [by bank wire transfer]
[in immediately available funds,] of the Warrant Price for each Warrant
exercised (plus accrued interest, if any, on the Warrant Securities to be
issued upon exercise of such Warrant from and including the Interest Payment
Date, if any, in respect of such Warrant Securities immediately preceding the
Exercise Date to and including the Exercise Date (unless the Exercise Date is
after the Regular Record Date, if any, for such Interest Payment Date, but on
or before the immediately succeeding Interest Payment Date for such Warrant
Securities, in which event no such accrued interest shall be payable in
respect of Warrant Securities to be issued in registered form)).
Notwithstanding the foregoing, the Holder may exercise Warrants as aforesaid
on the Expiration Date at any time prior to [time] in [city of Warrant Agent's
office]. Any Warrants exercised as set forth in this paragraph shall be
deemed exercised at the [country] office of the Warrant Agent.]
[The Warrant Agent shall retain each certificate received by it from
the Euro-clear Operator of CEDEL through the Expiration Date (or such earlier
date by which all of the Warrants may have been exercised or cancelled) and
thereafter shall dispose of them or deliver them to the Company pursuant to
the instructions of the Company.]
[The delivery to the Warrant Agent by the Euro-clear Operator or
CEDEL of any certification referred to above may be relied upon by the
Company, the Warrant Agent and the Trustee as conclusive evidence that a
corresponding certificate or certificates substantially in the form of Exhibit
D hereto has or have been delivered to the Euro-clear Operator or CEDEL, as
the case may be.]
[The Company will maintain in [location] (or in such other city [in
western Europe] as the Company may deem advisable), until the right to
exercise the Warrants shall expire or be earlier cancelled as hereinafter
provided, an agency where the Global Warrant Certificate may be presented for
exercise of the Warrants represented thereby and notices and demands to or
upon the Company in respect of the Warrants or of this Agreement may be made.]
The date on which payment in full of the Warrant Price (plus any such
accrued interest) is received by the Warrant Agent shall, subject to receipt
of the Warrant Certificate [in registered form or, as the case may be, the
Global Warrant Certificate and the certification of Euro-clear Operator or
CEDEL] as aforesaid, be deemed to be the date on which the Warrant is
exercised. The Warrant Agent shall deposit all funds received by it in
payment for the exercise of Warrants in an account of the Company maintained
with it (or in such other account as may be designated by the Company) and
shall advise the Company, by telephone or by facsimile transmission or other
form of electronic communication available to both parties, at the end of each
day on which a payment for the exercise of Warrants is received of the amount
so deposited to its account. The Warrant Agent shall promptly confirm such
advice to the Company in writing.
If a day on which Warrants may be exercised in the city in which
such Warrants are to be exercised shall be a Saturday or Sunday or a day on
which banking institutions in such city are authorized or required to be
closed, then, notwithstanding any other provision of this Agreement or the
Warrant Certificate evidencing such Warrants, but subject to the limitation
that no Warrant may be exercised after the Expiration Date, the Warrants shall
be exercisable on the next succeeding day which in such city is not a Saturday
or Sunday or a day on which banking institutions in such city are authorized
or required to be closed.
The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company [and][,] the Trustee [and the Common
Depositary at [both] its London and [location] office[s]] in writing [(which,
in the case of exercised Warrants represented by the Global Warrant
Certificate, shall be tested telex with appropriate answerback received,)] of
(i) the number of Warrants exercised, (ii) the instructions of each Holder of
the Warrant Certificates [in registered form] evidencing such Warrants [or of
the Euro-clear Operator or CEDEL, as the case may be,] with respect to
delivery of the Warrant Securities to be issued upon such exercise, (iii)
delivery of any Warrant Certificates [in registered form] evidencing the
balance, if any, of the Warrants remaining after such exercise, and (iv) such
other information as the Company or the Trustee shall reasonably require. [In
addition, in the case of exercised Warrants evidenced by the Global Warrant
Certificate, the Warrant Agent shall, as promptly as practicable, endorse, or
cause the Common Depositary, [location] office, or one of the Warrant Agent's
agents to endorse, Schedule A annexed to the Global Warrant Certificate to
reflect the exercise of such Warrants and, if applicable, return the Global
Warrant Certificate to the Common Depositary or to its order.]
As soon as practicable after the exercise of any Warrant [evidenced
by a Warrant Certificate in registered form], but subject to receipt by the
Warrant Agent of the Warrant Certificate evidencing such Warrant as provided
in this Section, the Company shall issue, pursuant to the Indentures, in
authorized denominations to or upon the order of the Holder of the Warrant
Certificate evidencing each Warrant, the Warrant Securities to which such
Holder is entitled, in fully registered form, registered in such name or names
as may be directed by such Holder. If fewer than all of the Warrants
evidenced by such Warrant Certificate are exercised, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, a new Warrant Certificate [in registered form]
evidencing the number of such Warrants remaining unexercised.
[As soon as practicable after the exercise of any Warrant evidenced
by the Global Warrant Certificate, the Company shall issue, pursuant to the
Indenture, the Warrant Securities issuable upon such exercise, in authorized
denominations (i) in fully registered form, registered in such name or names
as may be directed by the Euro-clear Operator or CEDEL, as the case may be, to
or upon order of the Euro-clear Operator or CEDEL, as the case may be, or (ii)
in bearer form to the Common Depositary to be held for the account of the
Euro-clear Operator or CEDEL, as the case may be, together with a written
confirmation substantially in form of Exhibit E hereto; provided, however,
that no Warrant Security in bearer form shall be mailed or otherwise delivered
to any location in the United States of America, its territories or
possessions or areas subject to its jurisdiction or the Commonwealth of Puerto
Rico.]
The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issuance of the Warrant Securities, and in the event that any
such transfer is involved, the Company shall not be required to issue or
deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the Holder of any beneficial owner thereof to any of the
rights of a holder or beneficial owner of Warrant Securities, including,
without limitation, the right to receive the payment of principal of (premium,
if any) or interest, if any, on Warrant Securities or to enforce any of the
covenants in the Indenture.
SECTION 3.02. Lost, Mutilated, Stolen, or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss,
mutilation, theft or destruction of any Warrant Certificate and of such
security or indemnity as may be required by the Company and the Warrant Agent
to hold each of them and any agent of them harmless and, in the case of
mutilation of a Warrant Certificate, upon surrender thereof to the Warrant
Agent for cancellation, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of
the lost, mutilated, stolen or destroyed Warrant Certificate, a new Warrant
Certificate of the same tenor and evidencing a like number of Warrants;
provided, however, that any Global Warrant Certificate shall be so delivered
only to the Common Depositary.] Upon the issuance of any new Warrant
Certificate under this Section, the Company may require the payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, mutilated, stolen or destroyed Warrant Certificate shall represent
an additional contractual obligation of the Company, whether or not the lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement of lost, mutilated, stolen or destroyed Warrant Certificates.
SECTION 3.03. Enforcement of Rights. Notwithstanding any of the
provisions of this Agreement, any Holder of a Warrant Certificate [in
registered form or the beneficial owner of any Warrant evidenced by the Global
Warrant Certificate], without the consent of [the Common Depositary,] the
Warrant Agent, the relevant Trustee, the holder of any Offered Securities of
the Holder of any other Warrant Certificate, may, in its own behalf and for
its own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce, or otherwise in respect
of, its right to exercise its Warrants in the manner provided in its Warrant
Certificate [or the Global Warrant Certificate, as the case may be,] and in
this Agreement. [Neither the Company nor the Warrant Agent shall be required
to treat any person as a beneficial owner of any Warrant evidenced by the
Global Warrant Certificate unless such person is so certified as such a
beneficial owner by the Euro-clear Operator or CEDEL.]
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer. (a)
If at any time there shall be a merger or consolidation of the Company or a
conveyance or transfer of its property and assets substantially as an entirety
as permitted under the Indentures, then in any such event the successor or
assuming corporation referred to therein shall succeed to and be substituted
for the Company, with the same effect, subject to the Indentures, as if it had
been named herein and in the Warrant Certificates as the Company; the Company
shall thereupon, except in the case of a transfer by way of lease, be relieved
of any further obligation hereunder and under the Warrants and the Warrant
Certificates, and the Company as the predecessor corporation, except in the
case of a transfer by way of lease, may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor or assuming corporation
may thereupon cause to be signed, and may issue either in its own name or
in the name of the Company, Warrant Certificates evidencing any or all of
the Warrants issuable hereunder which theretofore shall not have been
signed by the Company, and may execute and deliver Warrant Securities in
its own name pursuant to the Indentures, in fulfillment of its obligations
to deliver Warrant Securities upon exercise of the Warrants. All the
Warrants so issued shall in all respects have the same legal rank and
benefit under this Agreement as the Warrants theretofore or thereafter
issued in accordance with the terms of this Agreement as though all of such
Warrants had been issued at the date of the execution hereof. In any case
of any such merger, consolidation, conveyance or transfer, such changes in
phraseology and form (but not in substance) may be made in the Warrant
Certificates representing the Warrants thereafter to be issued as may be
appropriate.
(b) The Warrant Agent may receive a written opinion of legal counsel
(who shall be acceptable to the Warrant Agent) as conclusive evidence that any
such merger, consolidation, conveyance or transfer complies with the
provisions of this Section and the Indentures.
ARTICLE IV
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer. (a) Upon surrender at the
corporate trust office of the Warrant Agent at [address] [or ], Warrant
Certificates [in registered form] evidencing Warrants may be exchanged for
Warrant Certificates [in registered form] in other authorized denominations
evidencing such Warrants or the transfer thereof may be registered in whole or
in part; provided, however, that such other Warrant Certificates shall
evidence the same aggregate number of Warrants as the Warrant Certificates so
surrendered.
(b) The Warrant Agent shall keep, at its corporate trust office at
[address] [and at ], books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates [in
registered form] and exchanges and transfers of outstanding Warrant
Certificates [in registered form] upon surrender of such Warrant Certificates
to the Warrant Agent at its corporate trust office at [address] or [ ]
for exchange or registration of transfer, properly endorsed [or accompanied by
appropriate instruments of registration of transfer and written instructions
for transfer, all in form satisfactory to the Company and the Warrant Agent.]
(c) No service charge shall be made for any exchange or registration
of transfer of Warrant Certificates [in registered form], but the Company may
require payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange
or registration of transfer.
(d) Whenever any Warrant Certificates [in registered form], are so
surrendered for exchange or registration of transfer, an authorized officer of
the Warrant Agent shall manually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant Certificates [in
registered form], duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not effect any exchange or registration of
transfer which will result in the issuance of a Warrant Certificate [in
registered form], evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant.
(e) All Warrant Certificates [in registered form], issued upon any
exchange or registration of transfer of Warrant Certificates shall be the
valid obligations of the Company, evidencing the same obligations, and
entitled to the same benefits under this Agreement, as the Warrant
Certificates surrendered for such exchange or registration or transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. [With
respect to the Global Warrant Certificate, the Holder thereof may be treated
by the Company, the Warrant Agent and all other persons dealing with such
Holder as the absolute owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced thereby,
any notice to the contrary notwithstanding.] [With respect to Warrant
Certificates in registered form, each] [Each] Holder of a Warrant Certificate,
by accepting the same, consents and agrees with the Company, the Warrant Agent
and every subsequent Holder of such Warrant Certificate that until the
transfer of such Warrant Certificate is registered on the books of such
Warrant Agent, the Company and the Warrant Agent may treat the registered
Holder of such Warrant Certificate as the absolute owner thereof for any
purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. (a) Any Warrant
Certificate surrendered for exchange or registration of transfer or exercise
of the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent, and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant
Agent and shall not be reissued and, except as expressly permitted by this
Agreement, no Warrant Certificate shall be issued hereunder in exchange
therefor or in lieu thereof. The Warrant Agent shall cause all cancelled
Warrant Certificates to be destroyed and shall deliver a certificate of such
destruction to the Company.
(b) If the Company notifies the relevant Trustee of its election to
redeem [, as a whole but not in part,] the Warrant Securities pursuant to the
Indenture or the terms thereof, the Company may elect, and shall give notice
to the Warrant Agent of its election, to cancel the unexercised Warrants, the
Warrant Certificates and the rights evidenced thereby. Promptly after receipt
of such notice by the Warrant Agent, the Company shall, or, at the Company's
request, the Warrant Agent shall in the name of and at the expense of the
Company, give notice of such cancellation to the Holders of the Warrant
Certificates [in registered form and to the beneficial owners of the Global
Warrant Certificate (except that such notice shall be required to be published
only once)], such notice to be so given not less than 30 nor more than 60 days
prior to the date fixed for the redemption of the Warrant Securities pursuant
to Indenture or the terms thereof. The unexercised Warrants, the Warrant
Certificates and the rights evidenced thereby shall be cancelled and become
void on the 15th day prior to such date fixed for redemption.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints
as Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein and in the
Warrant Certificates set forth; and hereby accepts such appointment.
The Warrant Agent shall have the powers and authority granted to and conferred
upon it in the Warrant Certificates and herein and such further powers and
authority to act on behalf of the Company as the Company may hereafter grant
to or confer upon it. All of the terms and provisions with respect to such
powers and authority contained in the Warrant Certificates are subject to and
governed by the terms and provisions hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the Holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly
to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse
the Warrant Agent for reasonable out-of-pocket expenses (including
reasonable attorneys' fees) incurred by the Warrant Agent without
negligence, bad faith or breach of this Agreement on its part in
connection with the services rendered hereunder by the Warrant Agent.
The Company also agrees to indemnify the Warrant Agent for, and to hold
it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of
or in connection with its acting as Warrant Agent hereunder, as well as
the reasonable costs and expenses of defending against any claim of such
liability.
(b) Agent for the Company. In acting under this Agreement and in
connection with the Warrants and the Warrant Certificates, the Warrant
Agent is acting solely as agent of the Company and does not assume any
obligation or relationship of agency or trust for or with any of the
Holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it in its reasonable judgment, and the advice of such
counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing
suffered by it in reliance upon any Warrant Certificate, notice,
direction, consent, certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and to have been
presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have
if it were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any
financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of holders of
Warrant Securities or other obligations of the Company as freely as if
it were not the Warrant Agent hereunder. Nothing in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as
Trustee under the Indenture.
(f) No Liability for Interest. The Warrant Agent shall have no
liability for interest on any monies at any time received by it pursuant
to any of the provisions of this Agreement or of the Warrant
Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall not be
under any responsibility with respect to the validity or sufficiency of
this Agreement or the execution and delivery hereof (except the due
authorization to execute this Agreement and the due execution and
delivery hereof by the Warrant Agent) or with respect to the validity or
execution of any Warrant Certificates (except its countersignature
thereof).
(h) No Liability for Recitals. The recitals contained herein
shall be taken as the statements of the Company and the Warrant Agent
assumes no liability for the correctness of the same.
(i) No Implied Obligations. The Warrant Agent shall be obligated
to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations
shall be read into this Agreement or the Warrant Certificates against
the Warrant Agent. The Warrant Agent shall not be under any obligation
to take any action hereunder which may tend to involve it in any expense
or liability, the payment of which within a reasonable time is not, in
its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the
Company of any of the Warrant Certificates countersigned by the Warrant
Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant
Certificates. The Warrant Agent shall have no duty or responsibility
in case of any default by the Company in the performance of its
covenants or agreements contained herein or in the Warrant
Certificates or in the case of the receipt of any written demand from
a Holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings
at law or otherwise or, except as provided in Section 6.02, to make
any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The
Company agrees, for the benefit of the Holders from time to time of the
Warrant Certificates, that there shall at all times be a Warrant Agent
hereunder until all the Warrants have been exercised or are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such by giving
written notice of its resignation to the Company, specifying the desired date
on which its resignation shall become effective; provided, however, that such
date shall be not less than 90 days after the date on which such notice is
given unless the Company agrees to accept shorter notice. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor Warrant
Agent (which shall be a bank or trust company in good standing, authorized
under the laws of the jurisdiction of its organization to exercise corporate
trust powers) by written instrument in duplicate signed on behalf of the
Company, one copy of which shall be delivered to the resigning Warrant Agent
and one copy to the successor Warrant Agent. The Company may, at any time and
for any reason, remove the Warrant Agent and appoint a successor Warrant Agent
(qualified as aforesaid) by written instrument in duplicate signed on behalf
of the Company and specifying such removal and the date when it is intended to
become effective, one copy of which shall be delivered to the Warrant Agent
being removed and one copy to the successor Warrant Agent. Any resignation or
removal of the Warrant Agent and any appointment of a successor Warrant Agent
shall become effective upon acceptance of appointment by the successor Warrant
Agent as provided in this subsection (b). In the event a successor Warrant
Agent has not been appointed and accepted its duties within 90 days of the
Warrant Agent's notice of resignation, the Warrant Agent may apply to any
court of competent jurisdiction for the designation of a successor Warrant
Agent. Upon its resignation or removal, the Warrant Agent shall be entitled
to the payment by the Company of the compensation and to the reimbursement of
all reasonable out-of-pocket expenses (including reasonable attorneys' fees)
incurred by it hereunder as agreed to in Section 5.02(a).
(c) The Company shall remove the Warrant Agent and appoint a
successor Warrant Agent if the Warrant Agent (i) shall become incapable of
acting, (ii) shall be adjudged bankrupt or insolvent, (iii) shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of
a trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, (iv) shall consent to, or shall have had
entered against it a court order for, any such relief or to the appointment of
or taking possession by any such official in any involuntary case or other
proceedings commenced against it, (v) shall make a general assignment for the
benefit of creditors or (vi) shall fail generally to pay its debts as they
become due. Upon the appointment as aforesaid of a successor Warrant Agent
and acceptance by it of such appointment, the predecessor Warrant Agent shall,
if not previously disqualified by operation of law, cease to be Warrant Agent
hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor shall thereupon become obligated to transfer,
deliver and pay over, and such successor Warrant Agent shall be entitled to
receive, all monies, securities and other property on deposit with or held by
such predecessor as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement and the terms of the
Warrants and the Warrant Certificates may be amended by the parties hereto,
without the consent of the Holder of any Warrant Certificate or the beneficial
owner of any Warrant, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision contained
herein or in the Warrant Certificates, or making any other provisions with
respect to matters or questions arising under this Agreement as the Company
and the Warrant Agent may deem necessary or desirable, provided that such
action shall not affect adversely the interests of the Holders of the Warrant
Certificates or the beneficial owners of Warrants in any material respect.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to the
Company by the Holder of a Warrant Certificate pursuant to the provisions of
the Warrant Certificates, the Warrant Agent shall promptly forward such notice
or demand to the Company.
SECTION 6.03. Addresses. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to
, Attention: , and any communication from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to Morgan Stanley,
Dean Witter, Discover & Co., 1251 Avenue of the Americas, New York, New York
10020, Attention: _______________ (or such other address as shall be
specified in writing by the Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder
and of the respective terms and provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the Holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued
upon such exercise, a Prospectus. The Warrant Agent shall not, by reason of
any such delivery, assume any responsibility for the accuracy or adequacy of
such Prospectus.
SECTION 6.06. Obtaining of Governmental Approval. The Company
will from time to time take all action which may be necessary to obtain and
keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
federal and state laws (including without limitation a registration statement
in respect of the Warrants and Warrant Securities under the Securities Act of
1933), which may be or become requisite in connection with the issuance, sale,
transfer and delivery of the Warrant Certificates, the exercise of the
Warrants, the issuance, sale, transfer and delivery of the Warrant Securities
issued upon exercise of the Warrants or upon the expiration of the period
during which the Warrants are exercisable.
SECTION 6.07. Persons Having Rights Under Warrant Agreement.
[Except as otherwise provided in Section 3.03, nothing] [Nothing] in this
Agreement shall give to any person other than the Company, the Warrant Agent
and the Holders of the Warrant Certificates any right, remedy or claim under
or by reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the Same
instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the Holder of any Warrant
Certificate. The Warrant Agent may require such Holder to submit his Warrant
Certificate for inspection by it.
SECTION 6.11. Notices to Holders of Warrants. Any notice to
Holders of Warrants evidenced by Warrant Certificates [in registered form]
which by any provisions of this Warrant Agreement is required or permitted to
be given shall be given by first class mail prepaid at such Holder's address
as it appears on the books of the Warrant Agent. [Any notice to beneficial
owners of Warrants evidenced by the Global Warrant Certificate which by any
provisions of this Warrant Agreement is required or permitted to be given
shall be given in the manner provided with respect to Warrant Securities in
bearer form in Section 1.06 of the Indenture].
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed
and attested, all as of the date first above written.
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
[SEAL] By__________________________
Name:
Title:
Attest:
_________________________
Name:
Title:
[WARRANT AGENT]
[SEAL] By__________________________
Name:
Title:
Attest:
_________________________
Name:
Title:
Exhibit 4-pp
==============================================================================
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
and
THE CHASE MANHATTAN BANK, Warrant Agent
UNIVERSAL WARRANT AGREEMENT
dated as of June 2, 1997
==============================================================================
TABLE OF CONTENTS
Page
----
ARTICLE 1
Universal Warrants
Section 1.1. Ranking.................................................... 1
Section 1.2. Form, Execution and Delivery of Warrant
Certificates............................................. 1
Section 1.3. Number Unlimited; Issuable in Series....................... 3
Section 1.4. Countersignature and Delivery of Warrant
Certificates............................................. 5
Section 1.5. Place of Exercise; Registration of Transfers
and Exchanges............................................ 9
Section 1.6. Mutilated or Missing Warrant Certificates.................. 13
Section 1.7. Registered Holders......................................... 14
Section 1.8. Cancellation............................................... 15
Section 1.9. Additional Warrant Agents.................................. 15
Section 1.10. Appointment of Calculation Agents.......................... 16
ARTICLE 2
Duration and Exercise of Universal Warrants
Section 2.1. Duration and Exercise of Universal Warrants................. 16
Section 2.2. Return of Money Held Unclaimed for Two Years................ 16
ARTICLE 3
Other Provisions Relating to Rights of Warrantholders
Section 3.1. Warrantholder May Enforce Rights............................ 17
Section 3.2. No Rights as Holder of Warrant Property
Conferred by Universal Warrants or Warrant Certificates.... 17
Section 3.3. Merger, Consolidation, Conveyance or Transfer............... 17
ARTICLE 4
Universal Warrants Acquired by the Company; Payment of Taxes
Section 4.1. Universal Warrants Acquired by the Company.................. 18
Section 4.2. Payment of Taxes............................................ 19
ARTICLE 5
Concerning the Warrant Agent
Section 5.1. Warrant Agent............................................... 19
Section 5.2. Condition of Warrant Agent's Obligations.................... 19
Section 5.3. Resignation and Appointment of Successor.................... 21
ARTICLE 6
Miscellaneous
Section 6.1. Amendment................................................... 23
Section 6.2. Notices and Demands to the Company and the
Warrant Agent............................................. 24
Section 6.3. Addresses for Notices....................................... 25
Section 6.4. Notices to Warrantholders................................... 25
Section 6.5. Obtaining of Approvals...................................... 25
Section 6.6. Persons Having Rights under this Agreement.................. 25
Section 6.7. Inspection of Agreement..................................... 26
Section 6.8. Officer's Certificates and Opinions of Counsel;
Statements to be Contained Therein........................ 26
Section 6.9. Payments Due on Saturdays, Sundays and
Holidays.................................................. 27
Section 6.10. Judgment Currency........................................... 27
Section 6.11. Headings.................................................... 28
Section 6.12. Counterparts................................................ 28
Section 6.13. Applicable Law.............................................. 28
TESTIMONIUM............................................................... 26
SIGNATURES................................................................ 26
Exhibit I --Form of Registered Call Warrant Certificate
Exhibit II --Form of Registered Put Warrant Certificate
WARRANT AGREEMENT
THIS AGREEMENT, dated as of June 2, 1997, between MORGAN
STANLEY, DEAN WITTER, DISCOVER & CO., a corporation organized and existing
under the laws of the State of Delaware (the "Company"), and THE CHASE
MANHATTAN BANK, a New York banking corporation (the "Warrant Agent").
WHEREAS, the Company has duly authorized the issue from time
to time of warrants (the "Universal Warrants") to purchase or sell (i)
securities of an entity unaffiliated with the Company, a basket of such
securities, an index or indices of such securities or any combination of
the above, (ii) currencies or composite securities or (iii) commodities
(the property described in clauses (i), (ii) and (iii), in relation to a
Universal Warrant, being hereinafter referred to as the "Warrant Property"
applicable to such Universal Warrant) to be issued in one or more series
and in such number and with such terms as may from time to time be
authorized in accordance with the terms of this Agreement;
WHEREAS, the Company has duly authorized the execution and
delivery of this Agreement to provide, among other things, for the delivery
and administration of the Universal Warrants; and
WHEREAS, all things necessary to make this Agreement a valid
agreement according to its terms have been done;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Universal Warrants
Section 1.1. Ranking. The Universal Warrants are unsecured contractual
obligations of the Company and will rank pari passu with the Company's other
unsecured contractual obligations and with the Company's unsecured and
unsubordinated debt.
Section 1.2. Form, Execution and Delivery of Warrant
Certificates. (a) Certificates ("Warrant Certificates") evidencing the
Universal Warranties of each series shall be substantially in the form of
Exhibits I and II hereto or in such form (not inconsistent with this
Agreement) as shall be established by or pursuant to one or more Board
Resolutions (as defined below) (as set forth in a Board Resolution or, to the
extent established pursuant to, rather than set forth in, a Board Resolution,
in an Officer's Certificate (as defined below) detailing such establishment)
or in one or more agreements supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Agreement. The Warrant Certificates may have
imprinted or otherwise reproduced thereon such letters, numbers or other marks
of identification or designation and such legends or endorsements as the
officers of the Company executing the same may approve (execution thereof to
be conclusive evidence of such approval) and that are not inconsistent with
the provisions of this Agreement, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto, or with any rule or
regulation of any self-regulatory organization (an "SRO") on which the
Universal Warrants of such series may be listed, or of any securities
depository, or to conform to usage. Warrant Certificates shall be signed on
behalf of the Company by the chief financial officer, the treasurer or any
assistant treasurer or such other person specifically designated by the Board
of Directors to execute Warrant Certificates, which signature may or may not
be attested by the secretary or an assistant secretary of the Company. The
signature of any of such officers may be either manual or facsimile.
Typographical and other minor errors or defects in any such signature shall
not affect the validity or enforceability of any Warrant Certificate that has
been duly countersigned and delivered by the Warrant Agent.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Company to have
been duly adopted or consented to by the Board of Directors and to be in full
force and effect, and delivered to the Warrant Agent.
"Board of Directors" means either the Board of Directors of the
Company or any committee of such Board duly authorized to act on its behalf
for the purposes of this Agreement.
"Officer's Certificate" means a certificate signed by the chief
financial officer, the treasurer or any assistant treasurer or such other
person specifically designated by the Board of Directors to execute any such
certificate and delivered to the Warrant Agent. Without limiting the
generality of the foregoing, if the Universal Warrants of any series are to be
issued as components of a unit ("Unit") with one or more other securities of
the Company, an officer's certificate or similar certificate relating to the
Universal Warrants delivered pursuant to an indenture or unit agreement or
similar agreement governing such Units or one or more other components thereof
may also constitute an Officer's Certificate under this Agreement.
(b) In case any officer of the Company who shall have signed a
Warrant Certificate, either manually or by facsimile signature, shall cease to
be such officer before such Warrant Certificate shall have been countersigned
and delivered by the Warrant Agent to the Company or delivered by the Company,
such Warrant Certificate nevertheless may be countersigned and delivered as
though the person who signed such Warrant Certificate had not ceased to be
such officer of the Company; and a Warrant Certificate may be signed on behalf
of the Company by any person who, at the actual date of the execution of such
Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date of the execution of this Warrant
Agreement any such person was not such officer.
(c) Pending the preparation of final Warrant Certificates
evidencing Universal Warrants of any series, the Company may execute and the
Warrant Agent shall countersign and deliver temporary Warrant Certificates
evidencing such Universal Warrants (printed, lithographed, typewritten or
otherwise produced, in each case in form satisfactory to the Warrant Agent).
Such temporary Warrant Certificates shall be issuable substantially in the
form of the final Warrant Certificates but with such omissions, insertions and
variations as may be appropriate for temporary Warrant Certificates, all as
may be determined by the Company with the concurrence of the Warrant Agent.
Such temporary Warrant Certificates may contain such reference to any
provisions of this Warrant Agreement as may be appropriate. Every such
temporary Warrant Certificate shall be executed by the Company and shall be
countersigned by the Warrant Agent upon the same conditions and in
substantially the same manner, and with like effect, as the final Warrant
Certificates. Without unreasonable delay, the Company shall execute and shall
furnish final Warrant Certificates and thereupon such temporary Warrant
Certificates may be surrendered in exchange therefor without charge, and the
Warrant Agent shall countersign and deliver in exchange for such temporary
Warrant Certificates final Warrant Certificates evidencing a like aggregate
number of Universal Warrants of the same series and of like tenor as those
evidenced by such temporary Warrant Certificates. Until so exchanged, such
temporary Warrant Certificates and the Universal Warrants evidenced thereby
shall be entitled to the same benefits under this Warrant Agreement as final
Warrant Certificates and the Universal Warrants evidenced thereby.
Section 1.3. Number Unlimited; Issuable in Series. (a) The
aggregate number of Universal Warrants that may be delivered under this
Agreement is unlimited.
(b) The Universal Warrants may be issued in one or more series.
There shall be established in or pursuant to one or more Board Resolutions
(and to the extent established pursuant to, rather than set forth in, a
Board Resolution, in an Officer's Certificate detailing such establishment)
or established in one or more agreements supplemental hereto, prior to the
initial issuance of Universal Warrants of any series;
(i) the designation of the Universal Warrants of the series,
which shall distinguish the Universal Warrants of the series from the
Universal Warrants of all other series;
(ii) any limit upon the aggregate number of the Universal
Warrants of the series that may be countersigned and delivered under
this Agreement (except for Universal Warrants countersigned and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Universal Warrants of the series);
(iii) the specific Warrant Property purchasable or salable
upon exercise of the Universal Warrants of the series, and the amount
thereof (or the method for determining the same);
(iv) the price at which the Universal Warrants of the series
will be issued and, if other than U.S. dollars, the coin or currency
or composite currency in which such issue price will be payable;
(v) whether the Universal Warrants of the series are
warrants to purchase ("call warrants") or warrants to sell ("put
warrants") the Warrant Property;
(vi) the price at which and, if other than U.S. Dollars, the
coin or currency or composite currency with which the Warrant Property
may be purchased or sold upon exercise of the Universal Warrants of
the series (or the method for determining the same);
(vii) whether the exercise price for the Universal Warrants of
the series may be paid in cash or by the exchange of any other
security of the Company, or both, or otherwise, and the method of
exercise of the Universal Warrants of the series;
(viii) whether the exercise of the Universal Warrants of the
series is to be settled in cash or by delivery of the Warrant Property
or both, or otherwise;
(ix) the date on which the right to exercise the Universal
Warrants of the series shall commence and the date (the "Expiration
Date") on which such right shall expire or, if the Universal Warrants
of the series are not continuously exercisable throughout such period,
the specific date or dates on which they will be exercisable;
(x) whether the Warrant Certificates representing the
Universal Warrants of the series will be in registered form
("Registered Warrants") or bearer form ("Bearer Warrants") or both;
(xi) whether the Warrant Certificates evidencing any
Registered Warrants or Bearer Warrants of the series will be issued in
global form ("Global Warrant Certificates") or definitive form
("Definitive Warrant Certificates") or both, and whether and on what
terms (if different from those set forth herein) Warrant Certificates
in one form may be converted into or exchanged for Warrant
Certificates in the other form;
(xii) any warrant agents, depositaries, authenticating or
paying agents, transfer agents or registrars or any determination or
calculation agents or other agents with respect to Universal Warrants
of the series;
(xiii) whether the Universal Warrants of the series will be
issued separately or together as a unit (a "Unit") with one or more
other securities of the Company or any other person and, if the
Universal Warrants of the series are to be issued as components of
Units, whether and on what terms the Universal Warrants of the series
may be separated from the other components of such Units prior to the
Expiration Date of such Universal Warrants; and
(xiv) any other terms of the Universal Warrants of the series
(which terms shall not be inconsistent with the provisions of this
Agreement).
(c) All Universal Warrants of any one series shall be
substantially identical, except as may otherwise be provided by or pursuant
to the Board Resolution or Officer's Certificate referred to above or as
set forth in any such agreement supplemental hereto. All Universal
Warrants of any one series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Agreement, if
so provided by or pursuant to such Board Resolution, such Officer's
Certificate or in any such agreement supplemental hereto.
Section 1.4. Countersignature and Delivery of Warrant
Certificates. (a) The Company may deliver Warrant Certificates evidencing
Universal Warrants of any series executed by the Company to the Warrant Agent
for countersignature together with the applicable documents referred to below
in this Section, and the Warrant Agent shall thereupon countersign and deliver
such Warrant Certificates to or upon the order of the Company (contained in
the Issuer Order (as defined below) referred to below in this Section) or
pursuant to such procedures acceptable to the Warrant Agent as may be
specified from time to time by an Issuer Order. Any terms of the Universal
Warrants evidenced by such Warrant Certificates may be determined by or
pursuant to such Issuer Order or such other procedures. If provided for in
such procedures, such Issuer Order may authorize countersignature and delivery
pursuant to oral instructions from the Company or its duly authorized agent,
which instructions shall be promptly confirmed in writing. In countersigning
such Warrant Certificates and accepting the responsibilities under this
Agreement in relation to the Universal Warrants evidenced by such Warrant
Certificates, the Warrant Agent shall be entitled to receive (in the case of
subparagraphs 1.4(a)(ii), 1.4(a)(iii) and 1.4(a)(iv) below only at or before
the time of the first request of the Company to the Warrant Agent to
countersign Warrant Certificates in a particular form evidencing Universal
Warrants) and shall be fully protected in relying upon, unless and until such
documents have been superseded or revoked:
(i) an Issuer Order requesting such countersignature and
setting forth delivery instructions if the Warrant Certificates are
not to be delivered to the Company;
(ii) any Board Resolution, Officer's Certificate and/or
executed supplemental agreement pursuant to which the forms and terms
of the Universal Warrants evidenced by such Warrant Certificates were
established;
(iii) an Officer's Certificate setting forth the forms and
terms of the Universal Warrants evidenced by such Warrant Certificates
stating that the form or forms and terms of the Universal Warrants
evidenced by such Warrant Certificates have been established pursuant
to Sections 1.2 and 1.3 and comply with this Agreement, and covering
such other matters as the Warrant Agent may reasonably request; and
(iv) At the option of the Company, either an Opinion of
Counsel (as defined below) or a letter addressed to the Warrant Agent
permitting it to rely on an Opinion of Counsel, substantially to the
effect that:
(A) the forms of the Warrant Certificates have been
duly authorized and established in conformity with the provisions
of this Agreement;
(B) in the case of an underwritten offering, the terms
of the Universal Warrants have been duly authorized and
established in conformity with the provisions of this Agreement
and, in the case of an offering that is not underwritten, certain
terms of the Universal Warrants have been established pursuant to
a Board Resolution, an Officer's Certificate or a supplemental
agreement in accordance with this Agreement, and when such other
terms as are to be established pursuant to procedures set forth
in an Issuer Order shall have been established, all terms will
have been duly authorized by the Company and will have been
established in conformity with the provisions of this Agreement;
and
(C) when the Warrant Certificates have been executed
by the Company and countersigned by the Warrant Agent in
accordance with the provisions of this Agreement and delivered to
and duly paid for by the purchasers thereof, subject to such
other conditions as may be set forth in such opinion of counsel,
they will have been duly issued under this Agreement and the
Universal Warrants evidenced thereby will be valid and legally
binding obligations of the Company, enforceable in accordance
with their respective terms, and will be entitled to the benefits
of this Agreement.
In rendering such opinions, such counsel may qualify any opinions
as to enforceability by stating that such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting the rights and
remedies of creditors and is subject to general principles of
equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the
State of New York and the federal law of the United States, upon
opinions of other counsel (copies of which shall be delivered to
the Warrant Agent), who shall be counsel reasonably satisfactory
to the Warrant Agent, in which case the opinion shall state that
such counsel believes he and the Warrant Agent are entitled so to
rely. Such counsel may also state that, insofar as such opinion
involves factual matters, such counsel has relied, to the extent
such counsel deems proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public
officials.
"Issuer Order" means a written statement, request or order
of the Company signed in its name by the chief financial officer, the
treasurer or any assistant treasurer or such other person specifically
designated by the Board of Directors to execute any such written
instrument, request or order. Without limiting the generality of the
foregoing, if the Universal Warrants of a series are issued as components
of Units, an issuer order or similar order relating to the Universal
Warrants delivered pursuant to an indenture or unit or similar agreement
governing such Units or one or more other components thereof may also
constitute an Issuer Order under this Agreement if addressed to the Warrant
Agent.
"Opinion of Counsel" means an opinion in writing signed by
Brown & Wood LLP or by such other legal counsel, who may be an employee of or
counsel to the Company, and who shall be satisfactory to the Warrant Agent.
(b) The Warrant Agent shall have the right to decline to
countersign and deliver any Warrant Certificates under this Section if the
Warrant Agent, being advised by counsel, determines that such action may not
lawfully be taken by the Company or if the Warrant Agent in good faith
determines that (i) such action would expose the Warrant Agent to personal
liability to existing registered or beneficial holders of Universal Warrants
(each, a "Warrantholder") or would affect the Warrant Agent's own rights,
duties or immunities under the Warrant Certificates, the Universal Warrants,
this Agreement or otherwise or (ii) the terms of such Universal Warrants are
administratively unacceptable to it.
(c) If the Company shall establish pursuant to Section 1.3 that
the Universal Warrants of a series are to be evidenced in whole or in part
by one or more Global Warrant Certificates, then the Company shall execute
and the Warrant Agent shall, in accordance with this Section and the Issuer
Order with respect to such series, countersign and deliver one or more
Global Warrant Certificates that (i) shall evidence all or part of the
Universal Warrants of such series issued in such form and not yet canceled,
(ii) shall be registered in the name of the Depositary (as defined below)
for such Universal Warrants or the nominee of such Depositary, (iii) shall
be delivered by the Warrant Agent to such Depositary or pursuant to such
Depositary's instructions and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Universal Warrants in definitive registered form, this Warrant Certificate
and the Universal Warrants evidenced hereby may not be transferred except
as a whole by the Depositary to the 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."
"Depositary" means, with respect to the Universal Warrants
of any series that are or may be evidenced by one or more Global Warrant
Certificates, the person or persons designated as Depositary by the Company
pursuant to Section 1.3 hereof until a successor Depositary shall have
become such pursuant to the applicable provisions of this Agreement, and
thereafter "Depositary" shall mean or include each person who is then a
Depositary hereunder, and if at any time there is more than one such
person, "Depositary" as used with respect to the Universal Warrants of any
such series shall mean the Depositary with respect to that series.
(d) If so required by applicable law, each Depositary for a series
of Universal Warrants must, at the time of its designation and at all times
while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or
regulation.
(e) Each Warrant Certificate shall be dated the date of its
countersignature. A Warrant Certificate shall not be valid for any purpose,
and no Universal Warrant evidenced thereby shall be exercisable, unless and
until such Warrant Certificate has been countersigned by the manual signature
of an authorized officer of the Warrant Agent. Such countersignature by an
authorized officer of the Warrant Agent upon any Warrant Certificate executed
by the Company in accordance with this Agreement shall be conclusive evidence
that the Warrant Certificate so countersigned and the Universal Warrants
evidenced thereby have been duly issued hereunder.
Section 1.5. Place of Exercise; Registration of Transfers and
Exchanges. (a) Except as otherwise established pursuant to Section 1.3 with
respect to Universal Warrants of a series, Universal Warrants may be presented
for exercise at the Warrant Agent's Window (as defined below) in accordance
with procedures to be established pursuant to Section 1.3.
(b) Except as otherwise provided herein or as established pursuant
to Section 1.3 with respect to the Universal Warrants of a series, the Warrant
Agent shall from time to time register the transfer of any outstanding
Registered Definitive Warrant Certificates upon the records to be maintained
by it for that purpose (the "Warrant Register") at the Warrant Agent's Office
(as defined below), subject to such reasonable regulations as the Company or
the Warrant Agent may prescribe with respect to the Universal Warrants of such
series, upon surrender thereof at the Warrant Agent's Window (as defined
below), Attention: Transfer Department, duly endorsed by, or accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Warrant Agent and the Company duly executed by, the Registered Holder(s) (as
defined below) thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney, such signature to be guaranteed by a bank or
trust company with a correspondent office in The City of New York or by a
broker or dealer that is a member of the National Association of Securities
Dealers, Inc. (the "NASD") or by a member of a national securities exchange or
in such other manner acceptable to the Warrant Agent and the Company. Upon
any such registration of transfer, one or more new Warrant Certificates of the
same series and like terms evidencing a like number of unexercised Universal
Warrants shall be issued to the transferee(s) and the surrendered Warrant
Certificate shall be cancelled by the Warrant Agent.
(c) Except as otherwise established for a series of Universal
Warrants pursuant to Section 1.3, at the option of a Registered Holder,
Definitive Warrant Certificates may be exchanged for other Definitive Warrant
Certificates evidencing the same aggregate number of unexercised Universal
Warrants of the same series and of like tenor upon surrender to the Warrant
Agent of the Definitive Warrant Certificates to be exchanged at the Warrant
Agent's Window, Attention: Transfer Department. The "Warrant Agent's Window"
shall be the window of the Warrant Agent maintained for purposes of transfer
and tender in the Borough of Manhattan, The City of New York (or at the
address of any additional agency established by the Company pursuant to
Section 1.8 hereof, or at the address of any successor Warrant Agent (as
provided in Section 5.3)), which is, on the date of this Agreement, The Chase
Manhattan Bank, Corporate Trust Securities Window, 55 Water Street, Room 234,
North Building, New York, New York 10041. If the Universal Warrants of any
series are issued in both registered and unregistered form, except as
otherwise established for such series pursuant to Section 1.3, at the option
of the holder thereof, Warrant Certificates evidencing Bearer Warrants of any
series may be exchanged for Definitive Warrant Certificates evidencing an
equal number of unexercised Registered Warrants of the same series and of like
tenor upon surrender of such Warrant Certificates evidencing Bearer Warrants
to be exchanged at the Warrant Agent's Window, Attention: Transfer Department.
Unless otherwise established for such series pursuant to Section 1.3,
Registered Warrants of any series may not be exchanged for Bearer Warrants of
such series. Upon surrender of any unexercised Warrant Certificate for
exchange, the Warrant Agent shall cancel such Warrant Certificate, and the
Company shall execute, and the Warrant Agent shall countersign and deliver,
one or more new Warrant Certificates evidencing a like number of unexercised
Universal Warrants of the same series and of like tenor.
(d) Universal Warrants evidenced by the Warrant Certificates
issued upon transfer or exchange pursuant to paragraph (b) or (c) of this
Section shall be valid obligations of the Company, constituting the same
obligations of the Company as the Universal Warrants evidenced by the
Warrant Certificates surrendered for transfer or exchange, and entitled to
the same benefits under this Agreement as were such Universal Warrants
evidenced by the Warrant Certificates prior to such surrender.
(e) Except as provided in Section 1.6, no service charge shall be
made for any registration of transfer or exchange of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Warrant Certificates, other than exchanges pursuant to
this Section not involving any transfer.
(f) In the event that upon any exercise of Universal Warrants
evidenced by a Warrant Certificate the number of Universal Warrants exercised
shall be less than the total number of Universal Warrants evidenced by such
Warrant Certificate, there shall be issued to the Registered Holder thereof
(or, in the case of Bearer Warrants, the holder thereof) or his assignee a new
Warrant Certificate evidencing the number of Universal Warrants of the same
series and of like tenor not exercised.
(g) Warrant Certificates evidencing Bearer Warrants shall be
transferable by delivery.
(h) Notwithstanding any other provision of this Agreement, unless
and until it is exchanged in whole or in part for Definitive Warrant
Certificates, a Global Warrant Certificate evidencing all or a portion of the
Universal Warrants of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
(i) If at any time the Depositary for any series of Universal
Warrants notifies the Company that it is unwilling or unable to continue as
Depositary for such series or if at any time the Depositary for such series
shall no longer be eligible under this Agreement, the Company shall appoint a
successor Depositary with respect to such series. If a successor Depositary
for such series is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company's election pursuant to Section 1.3 that such series be evidenced by
one or more Global Warrant Certificates shall no longer be effective and the
Company will execute, and the Warrant Agent, upon receipt of an Officer's
Certificate for the countersignature and delivery of Definitive Warrant
Certificates evidencing Universal Warrants of such series, will countersign
and deliver Definitive Warrant Certificates evidencing Universal Warrants of
such series and of like tenor in an aggregate number equal to the number of
the unexercised Universal Warrants represented by such Global Warrant
Certificate or Certificates in exchange for such Global Warrant Certificate or
Certificates.
(j) If established pursuant to Section 1.3 with respect to a
series of Universal Warrants evidenced in whole or in part by one or more
Global Warrant Certificates, the Depositary for such series may surrender such
Global Warrant Certificate or Certificates in exchange in whole or in part for
Definitive Warrant Certificates evidencing Universal Warrants of the same
series and of like tenor on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Warrant Agent
shall countersign and deliver, without service charge,
(i) to the person specified by such Depositary a new
Definitive Warrant Certificate of the same series and of like tenor in
an aggregate number equal to and in exchange for such person's
beneficial interest in the Universal Warrants evidenced by such Global
Warrant Certificate or Certificates; and
(ii) to such Depositary a new Global Warrant Certificate or
Certificates evidencing Universal Warrants of the same series and of
like tenor in number equal to the difference, if any, between the
number of unexercised Universal Warrants evidenced by the surrendered
Global Warrant Certificates and the number of unexercised Universal
Warrants evidenced by such Definitive Warrant Certificate
countersigned and delivered pursuant to clause 1.5(j)(i) above.
Upon the exchange of a Global Warrant Certificate for
Definitive Warrant Certificates, such Global Warrant Certificate shall be
canceled by the Warrant Agent or an agent of the Company or the Warrant Agent.
Registered Definitive Warrant Certificates issued in exchange for a Registered
Global Warrant Certificate pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary for such
series, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Warrant Agent or an agent of the Company or the
Warrant Agent. The Warrant Agent or such agent shall deliver such Warrant
Certificates to or as directed by the persons in whose names such Warrant
Certificates are so registered. Definitive Bearer Warrant Certificates issued
in exchange for a Global Bearer Warrant Certificate pursuant to this Section
shall be issued in such authorized denominations as the Depositary for such
series, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Warrant Agent or an agent of the Company or the
Warrant Agent. The Warrant Agent or such agent shall deliver such Warrant
Certificates to or as directed by the Depositary for such series.
(k) Notwithstanding anything herein or in the terms of any series
of Universal Warrants to the contrary, none of the Company, the Warrant Agent
or any agent of the Company or the Warrant Agent (any of which, other than the
Company, shall rely on an Officer's Certificate and an Opinion of Counsel)
shall be required to exchange any Bearer Warrant for a Registered Warrant if
such exchange would result in adverse Federal income tax consequences to the
Company under then applicable United States Federal income tax laws.
(l) The Company will maintain one or more offices or agencies in a
city or cities located outside the United States (including any city in which
such an agency is required to be maintained under the rules of any stock
exchange on which the Universal Warrants of such series are listed) where the
Bearer Warrants, if any, of each series may be presented for exercise and
payment. No payment on any Bearer Warrants will be made upon presentation of
such Bearer Warrant at an agency of the Company within the United States nor
will any payment be made by transfer to an account in, or by mail to an
address in, the United States unless pursuant to applicable United States laws
and regulations then in effect such payment can be made without adverse tax
consequences to the Company. Notwithstanding the foregoing, payments in
United States dollars with respect to Bearer Warrants of any series which are
payable in United States dollars may be made at an agency of the Company
maintained in the Borough of Manhattan, The City of New York if such payment
in United States dollars at each agency maintained by the Company outside the
United States for payment on such Bearer Warrants is illegal or effectively
precluded by exchange controls or other similar restrictions.
(m) The Company may from time to time designate one or more
additional offices or agencies where the Universal Warrants of a series may be
presented for exercise and payment, where the Universal Warrants of that
series may be presented for exchange as provided in this Agreement and where
the Registered Universal Warrants of that series may be presented for
registration of transfer as in this Agreement provided, and the Company may
from time to time rescind any such designation, as the Company may deem
desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain the agencies provided for in this Section. The Company will give to
the Warrant Agent prompt written notice of any such designation or rescission
thereof.
Section 1.6. Mutilated or Missing Warrant Certificates. (a)
If any Warrant Certificate evidencing Universal Warrants of any series is
mutilated, lost, stolen or destroyed, the Company may in its discretion
execute, and the Warrant Agent may countersign and deliver, in exchange and
substitution for the mutilated Warrant Certificate, or in replacement for the
Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate
representing an equivalent number of unexercised Universal Warrants of the
same series and of like tenor, bearing an identification number, if
applicable, not contemporaneously outstanding, but only (in case of loss,
theft or destruction) upon receipt of evidence satisfactory to the Company and
the Warrant Agent of such loss, theft or destruction of such Warrant
Certificate and security or indemnity, if requested, also satisfactory to
them. Applicants for such substitute Warrant Certificates shall also comply
with such other reasonable regulations and pay such other reasonable charges
as the Company or the Warrant Agent may prescribe.
(b) In case the Universal Warrants evidenced by any such mutilated,
lost, stolen or destroyed Warrant Certificate have been or are about to be
exercised, or deemed to be exercised, the Company in its absolute discretion
may, instead of issuing a new Warrant Certificate, and subject to the
conditions set forth in clause 1.6(a) above, direct the Warrant Agent to treat
the same as if it had received the Warrant Certificate together with an
irrevocable exercise notice in proper form in respect thereof, as established
with respect to the Universal Warrants of such series.
(c) The Universal Warrants evidenced by each new Warrant
Certificate issued pursuant to this Section in lieu of any lost, stolen or
destroyed Warrant Certificate shall be original, additional contractual
obligations of the Company, and shall be entitled to the same benefits under
this Agreement as the Universal Warrants evidenced by the Warrant Certificate
that was lost, stolen or destroyed.
(d) Upon the issuance of any new Warrant Certificate in accordance
with this Section, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Warrant
Agent) connected therewith.
(e) The provisions of this Section are exclusive and shall
preclude (to the extent lawful) any other rights and remedies with respect to
the replacement or payment of mutilated, lost, stolen or destroyed Warrant
Certificates.
Section 1.7. Registered Holders. (a) Prior to due presentment
for registration of transfer, the Company, the Warrant Agent, and any agent of
the Company or the Warrant Agent may deem and treat the person in whose name
a Warrant Certificate shall be registered in the Warrant Register (a
"Registered Holder") as the absolute owner of the Registered Warrants
evidenced thereby (notwithstanding any notation of ownership or other writing
on the Warrant Certificate) for any purpose whatsoever, and as the person
entitled to exercise the rights represented by the Registered Warrants
evidenced thereby, and neither the Company nor the Warrant Agent, nor any
agent of the Company or the Warrant Agent, shall be affected by any notice to
the contrary. All payments on account of any Registered Warrant to the
Registered Holder, or upon his order, shall be valid, and to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability of the
Company for moneys paid upon such Registered Warrant. This Section shall be
without prejudice to the rights of Warrantholders as described elsewhere
herein.
(b) The Company, the Warrant Agent and any agent of the Company
or the Warrant Agent may treat the holder of any Bearer Warrant as the
absolute owner of such Bearer Warrant for the purpose of exercising the rights
represented thereby and for all other purposes and neither the Company, the
Warrant Agent, nor any agent of the Company or the Warrant Agent shall be
affected by any notice to the contrary. All payments on account of such
Bearer Warrant made to any such person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon such Bearer Warrant. This
Section shall be without prejudice to the rights of Warrantholders as described
elsewhere herein.
Section 1.8. Cancellation. All Universal Warrant Certificates
surrendered to the Warrant Agent for redemption or registration of transfer or
exchange shall be promptly cancelled by the Warrant Agent. The Company may at
any time deliver to the Warrant Agent for cancellation any Universal Warrant
Certificates previously countersigned and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Universal
Warrant Certificates so delivered shall, upon receipt by the Warrant Agent
of an Issuer Order, be promptly cancelled by the Warrant Agent. No
Universal Warrant Certificates shall be countersigned in lieu of or in
exchange for any Universal Warrant Certificates cancelled as provided in
this Section, except as permitted by this Agreement. All cancelled
Universal Warrant Certificates held by the Warrant Agent shall be disposed
of in accordance with its customary procedures and a certificate of their
disposition shall be delivered by the Warrant Agent to the Company, unless
by Issuer Order the Company shall direct that cancelled Universal Warrant
Certificates be returned to it.
If the Company or any affiliate of the Company shall acquire
any Universal Warrant Certificate, such acquisition shall not operate as a
cancellation of such Universal Warrant Certificate unless and until such
Universal Warrant Certificate is delivered to the Warrant Agent for the
purpose of cancellation.
Section 1.9. Additional Warrant Agents. Whenever the Company
shall appoint a warrant agent other than the Warrant Agent with respect to the
Universal Warrants of any series, it will cause such warrant agent to execute
and deliver to the Warrant Agent an instrument in which such agent shall agree
with the Warrant Agent, subject to the provisions of this Section,
(a) that it will hold all Warrant Property received by it as such
agent for any payment with respect to the Universal Warrants of such series
in trust for the benefit of the Warrantholders of such series if any, or of
the Warrant Agent, and
(b) that it will give the Warrant Agent notice of any failure by
the Company to make any payment with respect to the Universal Warrants of such
series when the same shall be due and payable.
The Company will, on or prior to each date of any payment of
Universal Warrants of any such series, deposit with the Warrant Agent or any
such additional warrant agent a sum sufficient to make such payment, and the
Company will promptly notify the Warrant Agent of any failure to take such
action with respect to any such additional warrant agent.
Section 1.10. Appointment of Calculation Agents. Pursuant to
Section 1.3 hereof, the Company may, in connection with any series of
Universal Warrants appoint Morgan Stanley & Co. Incorporated, Morgan Stanley &
Co. International Limited or any other person or entity as Calculation Agent
to make any calculations as may be required pursuant to the terms of any such
series of Universal Warrants. Any such Calculation Agent shall act as an
independent expert and, unless otherwise provided by this Agreement, its
calculations and determinations under this Agreement shall, absent manifest
error, be final and binding on the Company, the Warrant Agent and the
Warrantholders. Any such calculations will be made available to a
Warrantholder for inspection at the Warrant Agent's Office.
ARTICLE 2
Duration and Exercise of Universal Warrants
Section 2.1. Duration and Exercise of Universal Warrants.
All terms with respect to duration and exercise of Universal Warrants will
be established pursuant to Section 1.3 for each series of Universal
Warrants.
Section 2.2. Return of Money Held Unclaimed for Two Years.
Except as otherwise provided herein, any money or other assets deposited
with or paid to the Warrant Agent for the payment of any Universal Warrants
and not paid but remaining unclaimed for two years after the date upon
which such money or other assets shall have become due and payable shall be
repaid by the Warrant Agent to the Company, at the Company's request
pursuant to an Officer's Certificate, and the holders of such Universal
Warrants shall thereafter look only to the Company for any payment which
such holders may be entitled to collect and all liability of the Warrant
Agent with respect to such money shall thereupon cease; provided that the
Warrant Agent, before making any such repayment, may (but shall not be
obligated to) at the expense of the Company notify (i) in the case of
Registered Warrants evidenced by Definitive Warrant Certificates, the
Registered Holders, (ii) in the case of Warrants evidenced by one or more
Global Warrant Certificates, the participants of the Depositary, and (iii)
in the case of Bearer Warrants evidenced by Definitive Warrant
Certificates, the holders thereof, in each case as provided in Section 6.4,
that said money has not been so applied and remains unclaimed and that
after a date named in the notification any unclaimed balance of said money
then remaining will be returned to the Company.
ARTICLE 3
Other Provisions Relating to Rights of Warrantholders
Section 3.1. Warrantholder May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any Warrantholder
may, without the consent of the Warrant Agent, the Depositary, any
participant of the Depositary, any other Warrantholder, the holder of any
Warrant Property or, if applicable, the common depositary for Morgan
Guaranty Trust Company of New York, Brussels Office, or its successor, as
operator of the Euroclear System and Cedel Bank, societe anonyme, or its
successor, in and for its own behalf, enforce, and may institute and
maintain, any suit, action or proceeding against the Company suitable to
enforce, or otherwise in respect of, its right to exercise its Universal
Warrants as provided in this Agreement and established with respect to such
Universal Warrants pursuant to Section 1.3.
Section 3.2. No Rights as Holder of Warrant Property Conferred
by Universal Warrants or Warrant Certificates. No Warrant Certificate or
Universal Warrant evidenced thereby shall entitle the holder or any beneficial
owner thereof to any of the rights of a holder or beneficial owner of Warrant
Property, including, without limitation, the right to receive the payment of
principal of (premium, if any) or interest, if any, on Warrant Property or to
vote or to enforce any rights under any documents governing Warrant Property.
Section 3.3. Merger, Consolidation, Conveyance or Transfer.
(a) If at any time there shall be a merger or consolidation of the Company
or a conveyance or transfer of its property and assets substantially as an
entirety, then in any such event the successor, if other than the Company,
shall by an instrument of assumption delivered to the Warrant Agent succeed
to and be substituted for the Company, with the same effect as if it had
been named herein and in the Warrant Certificates as the Company. The
Company shall thereupon, except in the case of a transfer by way of lease,
be relieved of any further obligation hereunder and under the Universal
Warrants and the Warrant Certificates, and the Company, as the predecessor
corporation, except in the case of a transfer by way of lease, may
thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor and assuming corporation may thereupon cause to be signed,
and may issue either in its own name or in the name of the Company, Warrant
Certificates evidencing any or all of the Universal Warrants issuable
hereunder that theretofore shall not have been signed by the Company. All
the Universal Warrants so issued shall in all respects have the same legal
rank and benefit under this Agreement as the Universal Warrants theretofore
or thereafter issued in accordance with the terms of this Agreement as
though all of such Universal Warrants had been issued at the date of the
execution hereof. In any case of any such merger, consolidation,
conveyance or transfer, such changes in phraseology and form (but not in
substance) may be made in the Warrant Certificates representing the
Universal Warrants thereafter to be issued as may be appropriate.
(b) The Warrant Agent may receive an Opinion of Counsel as
conclusive evidence that any such merger, consolidation, conveyance, transfer
or assumption complies with the provisions of this Section.
ARTICLE 4
Universal Warrants Acquired by the Company; Payment of Taxes
Section 4.1. Universal Warrants Acquired by the Company. (a)
In the event the Company shall purchase or otherwise acquire Universal
Warrants, such Universal Warrants may, at the option of the Company, be (i)
in the case of Bearer Warrants or Registered Warrants evidenced by
Definitive Warrant Certificates, delivered to the Warrant Agent, and if so
delivered, the Warrant Agent shall promptly cancel such Universal Warrants
on the records of the Warrant Agent or (ii) in the case of Warrants
evidenced by one or more Global Warrant Certificates, surrendered free
through a participant of the Depositary to the Depositary for credit to the
account of the Warrant Agent maintained at the Depositary, and if so
credited, the Warrant Agent shall promptly note the cancellation of such
Universal Warrants by notation on the records of the Warrant Agent and the
Warrant Agent shall cause its records to be marked to reflect the reduction
in the number of Universal Warrants evidenced by the Global Warrant
Certificate or Certificates by the number of Universal Warrants so canceled
promptly after such account is credited. Universal Warrants acquired by
the Company may also, at the option of the Company, be resold by the
Company directly or to or through any of its affiliates in lieu of being
surrendered to the Warrant Agent or credited to its account. No Warrant
Certificate shall be countersigned in lieu of or in exchange for any
Universal Warrant that is canceled as provided herein, except as otherwise
expressly permitted by this Agreement.
(b) Any canceled Warrant Certificate held by the Warrant Agent
under this Agreement shall be disposed of by the Warrant Agent in accordance
with its customary procedures unless otherwise directed by the Company, and
the Warrant Agent shall deliver a certificate of disposition to the Company
evidencing the same.
Section 4.2. Payment of Taxes. The Company will pay all
stamp, withholding and other duties, if any, attributable to the initial
issuance of each series or tranche of Universal Warrants; provided,
however, that, anything in this Agreement to the contrary notwithstanding,
the Company shall not be required to pay any tax or other governmental
charge that may be payable in respect of any transfer involving any
beneficial or record interest in, or ownership interest of, any Universal
Warrants or Warrant Certificates.
ARTICLE 5
Concerning the Warrant Agent
Section 5.1. Warrant Agent. The Company hereby appoints
The Chase Manhattan Bank as Warrant Agent of the Company in respect of the
Universal Warrants upon the terms and subject to the conditions set forth
herein; and The Chase Manhattan Bank hereby accepts such appointment. The
Warrant Agent shall have the powers and authority granted to and conferred
upon it in this Agreement and such further powers and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon
it with its consent. All of the terms and provisions with respect to such
powers and authority contained in any Warrant Certificate are subject to
and governed by the terms and provisions hereof.
Section 5.2. Condition of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of
the Universal Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the
compensation to be agreed upon with the Company for all services rendered
by the Warrant Agent and to reimburse the Warrant Agent for its reasonable
out-of-pocket expenses (including attorneys' fees and expenses) incurred by
the Warrant Agent without negligence or bad faith on its part in connection
with the services rendered by it hereunder. The Company also agrees to
indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense (including reasonable attorneys' fees and expenses)
incurred without negligence or bad faith on the part of the Warrant Agent,
arising out of or in connection with its acting as such Warrant Agent
hereunder, as well as the reasonable costs and expenses of defending
against any claim of liability in the premises. The obligations of the
Company under this Section shall survive the expiration of all Universal
Warrants issued under this Agreement.
(b) In acting under this Agreement, the Warrant Agent is acting
solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any Warrantholders.
(c) The Warrant Agent may consult with counsel satisfactory to it
(including counsel to the Company), and the opinion of such counsel shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with the
opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any notice, direction, consent, certificate, affidavit, opinion,
statement or other paper or document reasonably believed by it to be genuine
and to have been presented or signed by the proper parties.
(e) The Warrant Agent and its officers, directors and employees may
become the owner of, or acquire any interest in, any Universal Warrants or
other obligations of the Company, with the same rights that it or they would
have if it were not the Warrant Agent hereunder and, to the extent permitted
by applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on behalf of, or as depositary,
trustee or agent for, any committee or body of owners or holders of Universal
Warrants or other obligations of the Company as freely as if it were not the
Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for
interest on any monies at any time received by it pursuant to any of the
provisions of this Agreement nor shall it be obligated to segregate such
monies from other monies held by it, except as required by law. The Warrant
Agent shall not be responsible for advancing funds on behalf of the Company.
(g) The Warrant Agent shall not be under any responsibility with
respect to the validity or sufficiency of this Agreement or the execution and
delivery hereof (except the due authorization, execution and delivery hereof by
the Warrant Agent) or with respect to the validity or execution of the Warrant
Certificates (except its countersignature thereof).
(h) The recitals contained herein and in the Warrant Certificates
(except as to the Warrant Agent's countersignature thereon) shall be taken as
the statements of the Company, and the Warrant Agent assumes no responsibility
for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform such duties as
are specifically set forth in this Agreement and no implied duties or
obligations shall be read into this Agreement against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
likely to involve it in any expense or liability, the payment of which is not,
in its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the application by the
Company of any proceeds of the issuance of any Warrants. The Warrant Agent
shall have no duty or responsibility in case of any default by the Company in
the performance of its covenants or agreements contained in this Agreement
or in any Warrant Certificate or in the case of the receipt of any written
demand from a holder of a Universal Warrant with respect to such default,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.2, to make any demand upon
the Company.
Section 5.3. Resignation and Appointment of Successor. (a)
The Company agrees, for the benefit of the holders from time to time of the
Universal Warrants, that there shall at all times be a Warrant Agent
hereunder with respect to each series of Universal Warrants until all the
Universal Warrants of such series are no longer outstanding or until monies
for the payment of all outstanding Universal Warrants of such series, if
any, shall have been paid to the Warrant Agent and shall have been returned
to the Company as provided in Section 2.2, whichever occurs earlier.
(b) The Warrant Agent may at any time resign as such agent with
respect to any series of Universal Warrants by giving written notice to the
Company of such intention on its part, specifying the date on which its
desired resignation shall become effective, subject to the appointment of a
successor Warrant Agent with respect to such series and acceptance of such
appointment by such successor Warrant Agent as hereinafter provided. The
Warrant Agent hereunder may be removed with respect to any series of
Universal Warrants at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and specifying such removal
and the date when it shall become effective. Such resignation or removal
shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent with respect to such series (which
shall be a banking institution organized under the laws of the United
States of America or one of the states thereof, have a combined capital and
surplus of at least $50,000,000 (as set forth in its most recent reports of
condition published pursuant to law or to the requirements of any United
States federal or state regulatory or supervisory authority) and having an
office in the Borough of Manhattan, The City of New York) and the
acceptance of such appointment by such successor Warrant Agent. In the
event a successor Warrant Agent has not been appointed and accepted its
duties within 90 days of the Warrant Agent's notice of resignation, the
Warrant Agent may apply to any court of competent jurisdiction for the
designation of a successor Warrant Agent with respect to such series. The
obligation of the Company under Section 5.2(a)shall continue to the extent
set forth therein notwithstanding the resignation or removal of the Warrant
Agent with respect to any series of Universal Warrants.
(c) In case at any time the Warrant Agent with respect to any
series of Universal Warrants shall give notice of its intent to resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or make an assignment for the benefit of its creditors,
or consent to the appointment of a receiver or custodian of all or any
substantial part of its property, or shall admit in writing its inability to
pay or meet its debts as they mature, or if a receiver or custodian of it or
of all or any substantial part of its property shall be appointed, or if any
public officer shall have taken charge or control of the Warrant Agent or of
its property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
promptly appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the latter of such appointment, the Warrant
Agent so superseded shall cease to be Warrant Agent hereunder with respect to
such series.
(d) Any successor Warrant Agent appointed hereunder with
respect to any series of Universal Warrants shall execute, acknowledge and
deliver to its predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Warrant Agent, without
any further act, deed or conveyance, shall become vested with all the
authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
with respect to such series hereunder, and such predecessor, upon payment
of its charges and disbursements then unpaid, shall thereupon become
obligated to transfer, deliver and pay over, and such successor Warrant
Agent shall be entitled to receive, all monies, securities and other
property on deposit with or held by such predecessor (including, without
limitation, the Warrant Register), as Warrant Agent with respect to such
series hereunder.
(e) If a successor Warrant Agent is appointed with respect to
the Universal Warrants of one or more (but not all) series, the Company,
the predecessor Warrant Agent and each successor Warrant Agent with respect
to the Universal Warrants of any applicable series shall execute and
deliver an agreement supplemental hereto that shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers and duties of the predecessor Warrant Agent with respect to the
Universal Warrants of any series as to which the predecessor Warrant Agent
is not retiring shall continue to be vested in the predecessor Warrant
Agent, and shall add to or change any of the provisions of this Agreement
as shall be necessary to provide for or facilitate the administration of
the Universal Warrants hereunder by more than one Warrant Agent, it being
understood that nothing herein or in such supplemental agreement shall
constitute such Warrant Agents Co-Warrant Agents of the same Universal
Warrants and that each such Warrant Agent shall be a Warrant Agent with
respect to separate series of Universal Warrants.
(f) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the corporate agency assets and business of the Warrant
Agent, provided that it shall be qualified as aforesaid, shall be the
successor Warrant Agent under this Agreement without the execution or filing
of any paper or any further act on the part of any of the parties hereto.
ARTICLE 6
Miscellaneous
Section 6.1. Amendment. (a) This Agreement and the terms of
the Universal Warrants of any series may be amended (by means of an
agreement supplemental hereto or otherwise) by the Company and the Warrant
Agent, without the consent of the Warrantholders of any series of Universal
Warrants, (i) for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision
contained herein or therein, (ii) to establish the form or terms of Warrant
Certificates or Universal Warrants of any series as permitted by Sections
1.2 and 1.3, (iii) to evidence and provide for the acceptance of
appointment hereunder by a successor Warrant Agent with respect to the
Universal Warrants of any series and to add to or change any of the
provisions of this Agreement as shall be necessary to provide for or
facilitate the administration of the Universal Warrants hereunder by more
than one Warrant Agent pursuant to Section 5.3, or (iv) in any other manner
which the Company may deem necessary or desirable and which will not
materially and adversely affect the interests of the Warrantholders of such
series.
(b) The Company and the Warrant Agent may modify or amend this
Agreement (by means of an agreement supplemental hereto or otherwise) with
the consent of Warrantholders holding not less than a majority in number of
the then outstanding Universal Warrants of all series affected by such
modification or amendment, for any purpose; provided, however, that no such
modification or amendment that changes the exercise price of the Universal
Warrants of any series, shortens the period of time during which the
Universal Warrants of such series may be exercised, or otherwise materially
and adversely affects the exercise rights of the affected Warrantholders or
reduces the percentage of the number of outstanding Universal Warrants of
such series, the consent of whose holders is required for modification or
amendment of this Agreement, may be made without the consent of each
Warrantholder affected thereby. In the case of Universal Warrants
evidenced by one or more Global Warrant Certificates, the Company and the
Warrant Agent shall be entitled to rely upon certification in form
satisfactory to each of them that any requisite consent has been obtained
from holders of beneficial ownership interests in the relevant Global
Warrant Certificate. Such certification may be provided by participants of
the Depositary acting on behalf of such beneficial owners of Universal
Warrants, provided that any such certification is accompanied by a
certification from the Depositary as to the Universal Warrant holdings of
such participants.
(c) An amendment that changes or eliminates any provision of this
Agreement that has expressly been included solely for the benefit of one or
more particular series of Universal Warrants, or that modifies the rights of
Warrantholders of such series with respect to such provision, shall be deemed
not to affect the rights under this Agreement of the Warrantholders of any
other series.
(d) Upon the request of the Company, accompanied by a copy of a
Board Resolution (which Board Resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
authorizing the execution of any such amendment, and upon the filing with the
Warrant Agent of evidence of the consent of Warrantholders as aforesaid, the
Warrant Agent shall join with the Company in the execution of such amendment
unless such amendment affects the Warrant Agent's own rights, duties or
immunities under this Agreement or otherwise, in which case the Warrant Agent
may in its discretion, but shall not be obligated to, enter into such
amendment. In executing, or accepting the additional duties created by,
any amendment permitted by this Article, the Warrant Agent shall be
entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The fact and date of the
execution of any consent of Warrantholders, or the authority of the Person
executing the same, may be proved in any manner which the Warrant Agent
(with the approval of the Company) deems sufficient.
(e) It shall not be necessary for the consent of the
Warrantholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof.
Section 6.2. Notices and Demands to the Company and the
Warrant Agent. If the Warrant Agent shall receive any notice or demand
addressed to the Company by any Warrantholder pursuant to the provisions of
this Agreement or the terms of the Universal Warrants of any series, the
Warrant Agent shall promptly forward such notice or demand to the Company.
Section 6.3. Addresses for Notices. Any communications to the
Warrant Agent with respect to this Agreement shall be in writing addressed to
450 West 33rd Street, New York, New York 10001, Attention: Corporate and
Municipal Agency Department (the "Warrant Agent's Office") and any
communications to the Company with respect to this Agreement shall be
addressed to Morgan Stanley, Dean Witter, Discover & Co., 1585 Broadway, New
York, New York 10036, Attention: Corporate Treasurer (or in each case to such
other address as shall be given in writing to the other party hereto).
Section 6.4. Notices to Warrantholders. The Company may
cause to have notice given to the Warrantholders of any series by providing
the Warrant Agent with a form of notice to be distributed by (i) in the
case of Registered Warrants evidenced by Definitive Warrant Certificates,
the Warrant Agent to Registered Holders by first class mail, (ii) in the
case of Warrants evidenced by one or more Global Warrant Certificates, the
Depositary to be distributed by the Depositary to its participants in
accordance with the custom and practices of the Depositary or (iii) in the
case of Bearer Warrants evidenced by Definitive Warrant Certificates,
publication at least once in an Authorized Newspaper (as defined below) in
The City of New York, and Western Europe.
"Authorized Newspaper" means a newspaper (which, in the case of
The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition) and, in the case of Western Europe, will, if practicable, be
the Financial Times (London Edition)) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York, and Western Europe, as applicable. If it shall be impractical in the
opinion of the Warrant Agent to make any publication of any notice required
hereby in an Authorized Newspaper, any publication or other notice in lieu
thereof that is made or given with the approval of the Warrant Agent shall
constitute a sufficient publication of such notice.
Section 6.5. Obtaining of Approvals. The Company will from
time to time take all action that may be necessary to obtain and keep
effective any and all filings or notices under applicable law, which may be
or become required in connection with the issuance, sale, trading, transfer
or delivery of the Warrant Certificates or the exercise of the Universal
Warrants.
Section 6.6. Persons Having Rights under this Agreement.
Nothing in this Agreement expressed or implied and nothing that may be
inferred from any of the provisions hereof is intended, or shall be construed,
to confer upon, or give to, any person or corporation other than the Company,
the Warrant Agent and the Warrantholders any right, remedy or claim under or
by reason of this Agreement or of any covenant, condition, stipulation,
promise or agreement hereof, and all covenants, conditions, stipulations,
promises and agreements contained in this Agreement shall be for the sole and
exclusive benefit of the Company, the Warrant Agent, their respective
successors and the Warrantholders.
Section 6.7. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the Warrant Agent's
Office for inspection by the Warrantholders, participants of the Depositary
certified as such by the Depositary or any person certified by any such
participant to be an indirect participant of the Depositary or any person
certified by any such participant to be a beneficial owner of a Universal
Warrant, in each case, on behalf of whom such participant holds Universal
Warrants.
Section 6.8. Officer's Certificates and Opinions of Counsel;
Statements to be Contained Therein. (a) Each certificate or opinion provided
for in this Agreement and delivered to the Warrant Agent with respect to
compliance with a condition or covenant provided for in this Agreement shall
include (i) a statement that the person making such certificate or opinion has
read such covenant or condition, (ii) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based, (iii) a statement
that, in the opinion of such person, such person has made such examination or
investigation as is necessary to enable such person to express an informed
opinion as to whether or not such covenant or condition has been complied with
and (iv) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
(b) Any certificate, statement or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which such officer's certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters, information
with respect to which is in the possession of the Company, upon the
certificate, statement or opinion of or representations by an officer or
officers of the Company, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which
such officer's certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
(c) Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the Company, unless such
officer or counsel, as the case may be, knows that the certificate or
opinion or representations with respect to the accounting matters upon
which such officer's or counsel's, as the case may be, certificate,
statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous. Any
certificate or opinion of any independent firm of public accountants filed
with and directed to the Warrant Agent shall contain a statement that such
firm is independent.
Section 6.9. Payments Due on Saturdays, Sundays and
Holidays. If the date fixed for any payment with respect to the Universal
Warrants of any series appertaining thereto shall not be a Business Day (as
defined below), then such payment need not be made on such date, but may be
made on the next succeeding Business Day with same force and effect as if
made on the date fixed, and no interest shall accrue for the period after
such date.
"Business Day" means, with respect to any Universal Warrant, a
Business Day as defined in any debt security included in any unit comprising
such Universal Warrant or as otherwise established pursuant to Section 1.3
hereof or if the term Business Day is not so specified, Business Day means any
day that is not a Saturday or Sunday or a legal holiday in The City of New
York or a day on which banking institutions in The City of New York are
authorized or required by law, regulation or executive order to be closed.
Section 6.10. Judgment Currency. The Company agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the Universal Warrants of any series (the "Required
Currency") into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Warrant Agent could purchase in The City of
New York the Required Currency with the Judgment Currency on the day on which
final unappealable judgment is entered, unless such day is not a New York
Banking Day (as defined below), in which event, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Warrant Agent could purchase in
The City of New York the Required Currency with the Judgment Currency on the
last New York Banking Day preceding the day on which final unappealable
judgment is entered and (b) its obligations under this Agreement and the terms
of the Universal Warrants of such series to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
clause 6.10(a)), in any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to be payable
in respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency so expressed to be payable and (iii) shall not be affected by
judgment being obtained for any other sum due under this Agreement. For
purposes of the foregoing, "New York Banking Day" means any day except a
Saturday, Sunday or a legal holiday in The City of New York or a day on which
banking institutions in The City of New York are authorized or required by law
or executive order to close.
Section 6.11. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
Section 6.12. Counterparts. This Agreement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
Section 6.13. Applicable Law. This Agreement and each
Universal Warrant shall be deemed to be a contract under the laws of the State
of New York, and for all purposes shall be construed in accordance with the
laws of said State, excluding choice of law provisions.
IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto as of the day and year first above written.
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:
------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
------------------------------
Name:
Title:
EXHIBIT I
[FORM OF FACE OF REGISTERED CALL WARRANT CERTIFICATE]
No. _____ CUSIP No. __________
[Unless and until it is exchanged in whole or in part for
Universal Warrants in definitive registered form, this Warrant Certificate
and the Universal Warrants evidenced hereby may not be transferred except
as a whole by the Depositary to the 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.]
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
[Designation of Universal Warrants]
NUMBER OF WARRANTS EVIDENCED BY THIS CERTIFICATE: [UP TO _____](*)
WARRANT PROPERTY:
AMOUNT OF WARRANT PROPERTY
PURCHASABLE PER WARRANT:
CALL PRICE PER WARRANT:
FORM OF PAYMENT OF
CALL PRICE:
FORM OF SETTLEMENT:
DATES OF EXERCISE:
OTHER TERMS:
This Warrant Certificate certifies that __________, or
registered assigns, is the Registered Holder of the number of [Designation of
Universal Warrants] (the "Warrants") [specified above](**)[specified on
Schedule A hereto](***). Upon receipt by the Warrant Agent of this Warrant
Certificate, the exercise notice on the reverse hereof (or an exercise notice
in substantially identical form delivered herewith)(the "Exercise Notice"),
duly completed and executed, and the Call Price per Warrant set forth above,
in the form set forth above, for each Warrant to be exercised (the "Exercise
Property") at the Warrant Agent's Window, Attention: Tender Department, in the
Borough of Manhattan, The City of New York, each Warrant evidenced hereby
entitles the Registered Holder hereof to receive, subject to the terms and
conditions set forth herein and in the Warrant Agreement (as defined
below), from Morgan Stanley, Dean Witter, Discover & Co. (the "Company")
the amount and form of property (the "Warrant Property") specified above.
Warrants will not entitle the Warrantholder to any of the rights of the
holders of any of the Warrant Property.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof, and such further
provisions shall for all purposes have the same effect as though fully set
forth in this place.
This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent.
- ------------
(*) Applies to global warrant certificates.
(**) Applies to definitive warrant certificates
(***) Applies to global warrant certificates
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has caused this
instrument to be duly executed.
Dated: MORGAN STANLEY, DEAN WITTER,
--------------------- DISCOVER & CO.
By:
------------------------------
Name:
Title:
Attest:
By:
------------------------------
Secretary
Countersigned as of the date above
written:
THE CHASE MANHATTAN BANK,
as Warrant Agent
By:
------------------------------
Authorized Office
[FORM OF REVERSE OF REGISTERED CALL WARRANT
CERTIFICATE]
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Universal Warrants issued by the Company pursuant
to a Universal Warrant Agreement, dated as of June 2, 1997 (the "Warrant
Agreement"), between the Company and The Chase Manhattan Bank (the "Warrant
Agent") and are subject to the terms and provisions contained in the Warrant
Agreement, to all of which terms and provisions each Warrantholder consents by
acceptance of this Warrant Certificate or a beneficial interest therein and
which Warrant Agreement is hereby incorporated by reference in and made a part
of this Warrant Certificate. Without limiting the foregoing, all capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in the Warrant Agreement. A copy of the Warrant Agreement is on file at the
Warrant Agent's Office. The Warrants constitute a separate series of
Universal Warrants under the Warrant Agreement.
The Warrants are unsecured contractual obligations of the
Company and rank pari passu with the Company's other unsecured contractual
obligations and with the Company's unsecured and unsubordinated debt.
Subject to the provisions hereof and the Warrant Agreement,
each Warrant may be exercised during the dates of exercise set forth on the
face hereof by delivering or causing to be delivered this Warrant
Certificate, the Exercise Notice, duly completed and executed, and the
Exercise Property for each such Warrant to the Warrant Agent's Window, in
the Borough of Manhattan, The City of New York, which is, on the date
hereof (unless otherwise specified herein), The Chase Manhattan Bank
Corporate Trust Securities Window, 55 Water Street, Room 234, North
Building, New York, New York 10041, Attention: Tender Department, or at
such other address as the Warrant Agent may specify from time to time.
Each Warrant entitles the Warrantholder to receive, upon
exercise, the Warrant Property set forth on the face hereof.
The Warrant Agreement and the terms of the Warrants are subject
to amendment as provided in the Warrant Agreement.
This Warrant Certificate shall be governed by, and interpreted
in accordance with, the laws of the State of New York.
[Designation of Universal Warrants]
Exercise Notice
The Chase Manhattan Bank
Corporate Trust Securities Window
55 Water Street, Room 234
North Building
New York, New York 10041
Attention: Tender Department
The undersigned (the "Registered Holder") hereby irrevocably
exercises __________ Warrants (the "Exercised Warrants") and delivers to you
herewith a Warrant Certificate or Certificates, registered in the Registered
Holder's name, representing a number of Warrants at least equal to the number
of Exercised Warrants, and the Exercise Property with respect thereto.
The Registered Holder hereby directs the Warrant Agent (a) to
deliver the Warrant Property as follows:
and (b) if the number of Exercised Warrants is less than the
number of Warrants represented by the enclosed Warrant Certificate, to deliver
a Warrant Certificate representing the unexercised Warrants to:
Dated:
------------------------ -----------------------
(Registered Holder)
By:
-----------------------
Authorized Signature
Address:
Telephone:
[If Warrant is a Global Warrant, insert this Schedule A.]
SCHEDULE A
[Designation of Universal Warrants]
GLOBAL
UNIVERSAL WARRANT
SCHEDULE OF EXCHANGES
The initial number of Universal Warrants represented by this
Global Universal Warrant is __________. In accordance with the Universal
Warrant Agreement and the Unit Agreement dated as of June 2, 1997 among the
Issuer, The Chase Manhattan Bank, as Unit Agent, as Warrant Agent, as
Collateral Agent, and as Trustee under the Indenture referred to therein and
the Holders from time to time of the Units described therein, the following
(A) exchanges of [the number of Universal Warrants indicated below for a like
number of Universal Warrants to be represented by a Global Universal Warrant
that has been separated from a Unit (a "Separated Universal Warrant")](1) [the
number of Universal Warrants that had been represented by a Global Universal
Warrant that is part of a Unit (an "Attached Unit Universal Warrant") for a
like number of Universal Warrants represented by this Global Universal
Warrant](2) or (B) reductions as a result of the exercise of the number of
Universal Warrants indicated below have been made:
<TABLE>
<CAPTION>
[Number of Attached
Unit Universal [Increased
[Number Warrants Exchanged Number Reduced Notation
Exchanged for [Reduced Number for Universal Outstanding Number of Number Made by or
Date of Separated Outstanding Warrants represented Following Universal Outstanding on Behalf
Exchange Universal Following Such by this Separated Such Warrants Following of Warrant
or Exercise Warrants](*) Exchange](*) Universal Warrant](**) Exchange](**) Exercised Such Exercise Agent
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
- -------------
(1) Applies only if this Global Universal Warrant is part of a Unit.
(2) Applies only if this Global Universal Warrant has been separated from
a Unit.
</TABLE>
EXHIBIT II
[FORM OF FACE OF REGISTERED PUT WARRANT CERTIFICATE]
No. _____ CUSIP No. __________
[Unless and until it is exchanged in whole or in part for
Universal Warrants in definitive registered form, this Warrant Certificate
and the Universal Warrants evidenced hereby may not be transferred except
as a whole by the Depositary to the 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.]
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
[Designation of Universal Warrants]
NUMBER OF WARRANTS EVIDENCED BY THIS CERTIFICATE: [UP TO ____](1)
CASH SETTLEMENT VALUE PER WARRANT (OR METHOD OF DETERMINING SAME):
[WARRANT PROPERTY:](2)
[AMOUNT OF WARRANT PROPERTY
SALABLE PER WARRANT:](**)
[PUT PRICE FOR SUCH SPECIFIED AMOUNT OF WARRANT PROPERTY PER WARRANT:](**)
[METHOD OF DELIVERY OF ANY WARRANT PROPERTY TO BE DELIVERED FOR SALE UPON
EXERCISE OF WARRANTS:](**)
DATES OF EXERCISE:
OTHER TERMS:
- -----------
(1) Applies to global warrant certificates.
(2) Only if the terms of the Warrants contemplate that the holder may deliver
Warrant Property to exercise the Warrants.
This Warrant Certificate certifies that __________, or
registered assigns, is the Registered Holder of the number of [Designation
of Universal Warrants] (the "Warrants") [specified above](1) [specified on
Schedule A hereto](2). Upon receipt by the Warrant Agent of this Warrant
Certificate, the exercise notice on the reverse hereof (or an exercise
notice in substantially identical form delivered herewith)(the "Exercise
Notice"), duly completed and executed, and the Amount of Warrant Property
saleable per Warrant set forth above, adjusted, if applicable, as set forth
above, for each Warrant to be exercised, delivered as set forth above at
the Warrant Agent's Window, Attention: Tender Department, in the Borough
of Manhattan, The City of New York (which is, on the date hereof, Corporate
Trust Securities Window, 55 Water Street, Room 234, North Building, New
York, New York 10041, Attention: Tender Department), each Warrant
evidenced hereby entitles the Registered Holder hereof to receive, subject
to the terms and conditions set forth herein and in the Warrant Agreement
(as defined below), from Morgan Stanley, Dean Witter, Discover & Co. (the
"Company") the [Cash Settlement Value][Put Price](3) per Warrant specified
above.
- -----------
(1) Applies to global warrant certificates.
(2) Applies to global warrant certificates.
(3) Only if the terms of the Warrants contemplate that the holder may deliver
Warrant Property to exercise the Warrants.
Unless otherwise indicated above, a Warrant will not require or
entitle a Warrantholder to sell or deliver to the Company, nor will the
Company be under any obligation to, nor will it, purchase or take delivery
from any Warrantholder of, any Warrant Property, and upon exercise of a
Warrant, the Company will make only a cash payment in the amount of the Cash
Settlement Value or Put Price per Warrant. Warrantholders will not receive
any interest on any Cash Settlement Value.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof and such further
provisions shall for all purposes have the same effect as though fully set
forth in this place.
This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent.
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has caused this
instrument to be duly executed.
Dated: MORGAN STANLEY, DEAN WITTER,
--------------------- DISCOVER & CO.
By:
------------------------------
Name:
Title:
- --------------
(3) Only if the terms of the Warrants contemplate that the holder may
deliver Warrant Property to exercise the Warrants.
Attest:
By:
------------------------------------
Secretary
Countersigned as of the date above
written:
THE CHASE MANHATTAN BANK,
as Warrant Agent
By:
------------------------------------
Authorized Officer
[FORM OF REVERSE OF REGISTERED PUT WARRANT CERTIFICATE]
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Universal Warrants issued by the Company pursuant
to a Universal Warrant Agreement, dated as of June 2, 1997 (the "Universal
Warrant Agreement"), between the Company and The Chase Manhattan Bank (the
"Warrant Agent") and are subject to the terms and provisions contained in the
Universal Warrant Agreement, to all of which terms and provisions each
Warrantholder consents by acceptance of this Warrant Certificate or a
beneficial interest therein and which Universal Warrant Agreement is hereby
incorporated by reference in and made a part of this Warrant Certificate.
Without limiting the foregoing, all capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Universal Warrant
Agreement. A copy of the Universal Warrant Agreement is on file at the
Warrant Agent's Office. The Warrants constitute a separate series of
Universal Warrants under the Universal Warrant Agreement.
The Warrants are unsecured contractual obligations of the
Company and rank pari passu with the Company's other unsecured contractual
obligations and with the Company's unsecured and unsubordinated debt.
The Warrant Agreement and the terms of the Warrants are subject
to amendment as provided in the Universal Warrant Agreement.
This Warrant Certificate shall be governed by, and interpreted
in accordance with, the laws of the State of New York.
[Designation of Universal Warrants]
Exercise Notice
The Chase Manhattan Bank
Corporate Trust Securities Window
55 Water Street, Room 234
North Building
New York, New York 10041
Attention: Tender Department
The undersigned (the "Registered Holder") hereby irrevocably
exercises __________ Warrants (the "Exercised Warrants") and delivers to you
herewith a Warrant Certificate or Certificates, registered in the Registered
Holder's name, representing a number of Warrants at least equal to the number
of Exercised Warrants[, and the Warrant Property with respect thereto].(1)
The Registered Holder hereby directs the Warrant Agent (a) to
deliver the [Cash Settlement Value][Put Price](*) per Warrant as follows:
and (b) if the number of Exercised Warrants is less than the
number of Warrants represented by the enclosed Warrant Certificate, to deliver
a Warrant Certificate representing the unexercised Warrants to:
Dated:
------------------------- -----------------------
(Registered Holder)
By:
-----------------------
Authorized Signature
Address:
Telephone:
- ------------
(1) Only if terms of the Warrants contemplate that the holder may deliver
Warrant Property to exercise the Warrants.
[If Warrant is a Global Warrant, insert this Schedule A.]
[Designation of Universal Warrants]
SCHEDULE A
GLOBAL
UNIVERSAL WARRANT
SCHEDULE OF EXCHANGES
The initial number of Universal Warrants represented by this
Global Universal Warrant is __________. In accordance with the Universal
Warrant Agreement and the Unit Agreement dated as of June 2, 1997 among the
Issuer, The Chase Manhattan Bank, as Unit Agent, as Warrant Agent, as
Collateral Agent, and as Trustee under the Indenture referred to therein and
the Holders from time to time of the Units described therein, the following
(A) exchanges of [the number of Universal Warrants indicated below for a like
number of Universal Warrants to be represented by a Global Universal Warrant
that has been separated from a Unit (a "Separated Universal Warrant")](1) [the
number of Universal Warrants that had been represented by a Global Universal
Warrant that is part of a Unit (an "Attached Unit Universal Warrant") for a
like number of Universal Warrants represented by this Global Universal
Warrant](2) or (B) reductions as a result of the exercise of the number of
Universal Warrants indicated below have been made:
<TABLE>
<CAPTION>
[Number of Attached
Unit Universal Reduced Notation
[Number [Reduced Warrants Exchanged [Increased Number Made by
Exchanged for Number for Universal Number Number of Outstanding or on
Date of Separated Outstanding Warrants represented Outstanding Universal Following Behalf of
Exchange or Universal Following Such by this Separated Following Such Warrants Such Warrant
Exercise Warrants](*) Exchange](*) Universal Warrant](**) Exchange](**) Exercised Exercise Agent
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
- ---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
___________
(1) Applies only if this Global Universal Warrant is part of a Unit.
(2) Applies only if this Global Universal Warrant has been separated from
a Unit.
</TABLE>
Exhibit 4-qq
- ------------------------------------------------------------------------------
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.,
THE CHASE MANHATTAN BANK,
as Unit Agent, as Collateral Agent, as
Trustee and Paying Agent under the
Indenture referred to herein, and as
Warrant Agent under the Warrant
Agreement referred to herein
AND
THE HOLDERS FROM TIME TO
TIME OF THE UNITS DESCRIBED
HEREIN
----------------
UNIT AGREEMENT
----------------
Dated as of June 2, 1997
- ------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.1. Definitions.................................................. 2
ARTICLE 2
Units
Section 2.1. Forms Generally.............................................. 11
Section 2.2. Form of Certificate of Authentication and Countersignature... 12
Section 2.3. Amount Unlimited; Issuable in Series......................... 12
Section 2.4. Denominations................................................ 14
Section 2.5. Rights and Obligations Evidenced by the Units................ 14
Section 2.6. Execution, Authentication, Delivery and Dating............... 14
Section 2.7. Temporary Unit Certificates.................................. 15
Section 2.8. Registration of Transfer and Exchange; Global Units.......... 16
Section 2.9. Mutilated, Destroyed, Lost and Stolen Unit Certificates...... 19
Section 2.10. Persons Deemed Owners....................................... 21
Section 2.11. Cancellation................................................ 21
Section 2.12. Exchange of Global Units and Definitive Units............... 22
ARTICLE 3
The Purchase Contracts; Settlement of Warrants
Section 3.1. Form and Execution of Purchase Contracts; Temporary Purchase
Contracts.................................................... 23
Section 3.2. Number Unlimited Issuable in Series.......................... 24
Section 3.3. Countersignature, Execution on Behalf of Holder and Delivery
of Purchase Contracts........................................ 26
Section 3.4. Further Provisions Relating to Issuance of Purchase
Contracts.................................................... 29
Section 3.5. Purchase of Purchase Contract Property; Optional
Acceleration of Purchase Obligations; Authorization of Agent
by Holder; Transferees Bound................................. 29
Section 3.6. Payment of Purchase Price.................................... 31
Section 3.7. Delivery of Purchase Contract Property or Other Amounts...... 34
Section 3.8. Charges and Taxes............................................ 35
ARTICLE 4
Remedies
Section 4.1. Acceleration of Obligations.................................. 35
Section 4.2. Unconditional Rights under Purchase Contracts; Limitation on
Proceedings by Holders....................................... 36
Section 4.3. Restoration of Rights and Remedies........................... 37
Section 4.4. Rights and Remedies Cumulative............................... 37
Section 4.5. Delay or Omission Not Waiver................................. 37
Section 4.6. Waiver of Past Defaults...................................... 37
Section 4.7. Undertaking for Costs........................................ 38
Section 4.8. Waiver of Stay or Extension Laws............................. 38
Section 4.9. Agent May File Proofs of Claims.............................. 39
Section 4.10. Suits for Enforcement....................................... 39
Section 4.11. Control by Holders.......................................... 40
ARTICLE 5
Security Interests and Collateral Agent
Section 5.1. Granting of Security Interests; Rights and Remedies of
Collateral Agent; Perfection................................. 40
Section 5.2. Distribution of Principal and Interest; Release of
Collateral................................................... 42
Section 5.3. Certain Duties and Responsibilities of the Collateral
Agent.................................................... 42
Section 5.4. Knowledge of the Collateral Agent............................ 43
Section 5.5. Certain Rights of Collateral Agent........................... 44
Section 5.6. Compensation and Reimbursements.............................. 44
Section 5.7. Corporate Collateral Agent Required Eligibility.............. 45
Section 5.8. Resignation and Removal; Appointment of Successor............ 45
Section 5.9. Acceptance of Appointment by Successor....................... 46
Section 5.10. Merger, Conversion, Consolidation or Succession to
Business..................................................... 47
Section 5.11. Money Held in Trust.......................................... 47
ARTICLE 6
The Agent
Section 6.1. Certain Duties and Responsibilities.......................... 48
Section 6.2. Notice of Default............................................ 49
Section 6.3. Certain Rights of Agent...................................... 49
Section 6.4. Not Responsible for Recitals or Issuance of Units............ 50
Section 6.5. May Hold Units............................................... 50
Section 6.6. Money Held in Trust.......................................... 51
Section 6.7. Compensation and Reimbursement............................... 51
Section 6.8. Corporate Agent Required: Eligibility........................ 52
Section 6.9. Resignation and Removal: Appointment of Successor............ 52
Section 6.10. Acceptance of Appointment by Successor...................... 53
Section 6.11. Merger, Conversion, Consolidation or Succession to
Business.................................................... 54
Section 6.12. Appointment of Authenticating Agent......................... 54
Section 6.13. Corporation to Furnish Agent Names and Addresses of
Holders..................................................... 57
Section 6.14. Preservation of Information; Communications to Holders...... 57
Section 6.15. No Obligation of Holder..................................... 58
Section 6.16. Tax Compliance.............................................. 58
ARTICLE 7
Supplemental Agreements
Section 7.1. Supplemental Agreements Without Consent of Holders........... 59
Section 7.2. Supplemental Agreements with Consent of Holders.............. 60
Section 7.3. Execution of Supplemental Agreements......................... 61
Section 7.4. Effect of Supplemental Agreements............................ 62
Section 7.5. Reference to Supplemental Agreements......................... 62
ARTICLE 8
Consolidation, Merger, Sale or Conveyance
Section 8.1. Covenant Not to Merge, Consolidate, Sell or Convey Property
Except Under Certain Conditions.............................. 62
Section 8.2. Rights and Duties of Successor Corporation................... 63
Section 8.3. Opinion of Counsel to Agent.................................. 63
ARTICLE 9
Covenants
Section 9.1. Performance under Purchase Contracts......................... 64
Section 9.2. Maintenance of Office or Agency.............................. 64
Section 9.3. Money for Payments to Be Held in Trust....................... 65
Section 9.4. Statements of Officers of the Corporation as to Default...... 66
Section 9.5. Negative Pledge.............................................. 66
Section 9.6. Luxembourg Publications...................................... 67
ARTICLE 10
Redemptions
Section 10.1. Optional Redemption of Purchase Contracts; Redemption Upon
Redemption of Debt Securities............................... 67
Section 10.2. Notice of Redemption; Partial Redemptions................... 68
Section 10.3. Payment of Purchase Contracts Called for Redemption......... 69
Section 10.4. Exclusion of Certain Purchase Contracts from Eligibility
for Selection for Redemption................................ 70
ARTICLE 11
Miscellaneous Provisions
Section 11.1. Incorporators, Stockholders, Officers and Directors of the
Corporation Immune from Liability........................... 70
Section 11.2. Compliance Certificates and Opinions........................ 70
Section 11.3. Form of Documents Delivered to Agent or Collateral Agent.... 71
Section 11.4. Acts of Holders............................................. 72
Section 11.5. Notices, Etc................................................ 73
Section 11.6. Notices to Holders; Waiver.................................. 73
Section 11.7. Effect of Headings and Table of Contents.................... 74
Section 11.8. Successors and Assigns...................................... 74
Section 11.9. Separability Clause......................................... 74
Section 11.10. Benefits of Agreement....................................... 74
Section 11.11. Governing Law............................................... 74
Section 11.12. Legal Holidays.............................................. 75
Section 11.13. Counterparts................................................ 75
Section 11.14. Appointment of Certain Agents............................... 75
Section 11.15. Inspection of Agreement..................................... 75
UNIT AGREEMENT, dated as of June 2, 1997, by and among MORGAN
STANLEY, DEAN WITTER, DISCOVER & CO., a Delaware corporation (the
"Corporation"), THE CHASE MANHATTAN BANK, a New York banking corporation
("Chase"), acting solely as unit agent and collateral agent under this
Agreement (in its capacity as unit agent, the "Agent", and, in its capacity as
collateral agent, the "Collateral Agent"), except to the extent that this
Agreement specifically states that the Agent is acting in another capacity,
Chase, as trustee and paying agent under the Indenture described below (in its
capacity as trustee under the Indenture, the "Trustee" and, in its capacity as
paying agent under the Indenture, the "Paying Agent"), and Chase, as Warrant
Agent under the Warrant Agreement described below (in its capacity as Warrant
Agent under the Warrant Agreement, the "Warrant Agent"), and the holders from
time to time of the Units described herein.
WHEREAS, Morgan Stanley Group Inc. (as predecessor of the
Corporation) has entered into 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 between
Morgan Stanley Group Inc. and The Chase Manhattan Bank (formerly known as
Chemical Bank), as Trustee as further supplemented by a Third Supplemental
Indenture dated as of May 30, 1997 between the Corporation and the Trustee (as
so supplemented, the "Senior Indenture");
WHEREAS, the Corporation has duly authorized the issuance, from
time to time, pursuant to the Indenture of senior debt securities ("Debt
Securities");
WHEREAS, the Corporation has entered into a Universal Warrant
Agreement (the "Warrant Agreement") dated as of June 2, 1997 between the
Corporation and Chase, as Warrant Agent;
WHEREAS, the Corporation has duly authorized the issuance, from
time to time, pursuant to the Warrant Agreement of Universal Warrants
("Warrants") to purchase or sell (i) securities of an entity unaffiliated with
the Corporation, a basket of such securities, an index or indices of such
securities or any combination of the above, (ii) currencies or composite
currencies or (iii) commodities, in each case on terms to be determined at the
time of sale;
WHEREAS, the Corporation has duly authorized the issuance, from
time to time, of Purchase Contracts ("Purchase Contracts") to purchase or sell
(i) securities of an entity unaffiliated with the Corporation, a basket of
such securities, an index or indices of such securities or any combination of
the above, (ii) currencies or composite currencies or (iii) commodities, in
each case on terms to be determined at the time of sale;
WHEREAS, the Corporation has duly authorized the issuance, from
time to time, pursuant to the Indenture, of Purchase Contracts that require
holders to satisfy their obligations thereunder upon issuance of such Purchase
Contracts ("Prepaid Purchase Contracts");
WHEREAS, the Corporation desires to provide for the issuance of
units ("Units") consisting of one or more Purchase Contracts, Prepaid Purchase
Contracts, Warrants or Debt Securities, or any combination thereof;
WHEREAS, the parties hereto wish to secure the performance by
the holders of Units consisting of Debt Securities and Purchase Contracts of
their obligations under such Purchase Contracts and the observance and
performance of the covenants and agreements contained herein and in such
Purchase Contracts;
NOW, THEREFORE, in consideration of the premises and the
purchases of the Units by the holders thereof, the Corporation, the Agent, the
Warrant Agent, the Collateral Agent and the Trustee and Paying Agent mutually
covenant and agree as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.1. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(i) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(ii) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted accounting
principles in the United States in effect at the time of any computation; and
(iii) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Accelerated Settlement Date" with respect to a Purchase
Contract of any series, means any date to which the Corporation accelerates
the obligations of the Holder of the Units of which such Purchase Contract
constitutes a part, subject to any limitations as may be specified pursuant to
Section 3.2.
"Acceleration Notice", has the meaning specified in Section
3.5(b).
"Act", with respect to any Holder, has the meaning specified in
Section 11.4.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control", with respect to any specified Person, means the power
to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means the Person named as the "Agent" in the first
paragraph of this Agreement until a successor Agent shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter
"Agent" shall mean such successor Person.
"Agreement" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Authenticating Agent" means any Person authorized by the Agent
to act on behalf of the Agent to countersign and execute Purchase Contracts.
"Bankruptcy Event" means any of the following events: (i) a
court having jurisdiction in the premises shall enter a decree or order for
relief with respect to the Corporation in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Corporation or for any substantial
part of its property or ordering the winding up or liquidation of its affairs,
and such decree or order shall remain unstayed and in effect for a period of
60 consecutive days; or (ii) the Corporation shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Corporation or for any substantial
part of its property, or make any general assignment for the benefit of
creditors.
"Board of Directors", means the board of directors of the
Corporation or any other committee duly authorized to act on its behalf with
respect to this Agreement.
"Board Resolution", means one or more resolutions, certified by
the Secretary or an Assistant Secretary of the Corporation to have been duly
adopted or consented to by the Board of Directors and to be in full force and
effect on the date of such certification and delivered to the Agent or the
Collateral Agent, as the case may be.
"Business Day" means any day that is not a Saturday or Sunday
or a legal holiday in The City of New York or a day on which banking
institutions in The City of New York are authorized or required by law,
regulation or executive order to be closed.
"Cash Settlement" has the meaning set forth in Section
3.6(a)(i).
"Closed Purchase Contract" means any Purchase Contract or
Prepaid Purchase Contract with respect to which a purchase or sale of, or other
settlement with respect to, the Purchase Contract Property has occurred
pursuant to Article Four or that has been redeemed or is otherwise not
Outstanding.
"Collateral" has the meaning specified in Section 5.1(a).
"Collateral Agent" means the Person named as the "Collateral
Agent" in the first paragraph of this Agreement until a successor Collateral
Agent shall have become such pursuant to the applicable provisions of this
Agreement, and thereafter "Collateral Agent" shall mean such successor Person.
"Corporate Trust Office" means the office of the Agent or the
Collateral Agent, as appropriate, at which at any particular time its corporate
trust business shall be principally administered, which office at the date
hereof is located at 450 West 33rd Street, 15th Floor, New York, New York
10001.
"Corporation" means the Person named as the "Corporation" in the
first paragraph of this Agreement until a successor Person shall have become
such pursuant to the applicable provisions of this Agreement, and thereafter
the "Corporation" shall mean such successor Person.
"Debt Securities" has the meaning stated in the second recital
in this Agreement and more particularly means any Debt Securities originally
issued as part of a Unit of any series.
"Debt Security Register" with respect to any Debt Securities
constituting a part of the Units of any series means the security register of
the Corporation maintained by the Trustee pursuant to the Indenture.
"Debt Security Settlement" has the meaning set forth in Section
3.6(a)(ii).
"Default" means an Event of Default under the Indenture or a
Purchase Contract Default.
"Definitive Securities" means any Security in definitive form.
"Definitive Unit" means any Unit comprised of Definitive
Securities.
"Depositary" means, with respect to Registered Units, DTC, or
any successor, or, with respect to any Unregistered Units, a common depositary
for Morgan Guaranty Trust Company of New York, Brussels office, as operator of
the Euroclear System, or Cedel Bank, societe anonyme, or any other relevant
depositary named in an Issuer Order, in each case, as the Holder of any Global
Units.
"DTC" means The Depository Trust Company or its nominee.
"Event of Default", with respect to the Debt Securities, has the
meaning set forth in the Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Global Debt Security" means a global Debt Security in bearer or
registered form originally issued as part of a Global Unit of any series.
"Global Prepaid Purchase Contract" means a global Prepaid
Purchase Contract in bearer or registered form originally issued as part of a
Global Unit of any series.
"Global Purchase Contract" means a global Purchase Contract in
bearer or registered form originally issued as part of a Global Unit of any
series.
"Global Security" means any of a Global Debt Security, Global
Warrant, Global Purchase Contract or Global Prepaid Purchase Contract.
"Global Unit" means any Unit that comprises one or more Global
Securities and is represented by a global Unit Certificate in bearer or
registered form.
"Global Warrant" means a global Warrant in bearer or registered
form originally issued as part of a Global Unit of any series.
"Holder" means (i) in the case of any Registered Security or
Registered Unit, the Person in whose name such Registered Security or the
Registered Securities constituting a part of such Registered Unit are
registered on the relevant Security Register and (ii) in the case of any
Unregistered Security or Unregistered Unit, the bearer of such Security or
Unit, provided that, in the case of (i) above, so long as the Registered
Securities constituting part of such Units are not separable, "Holder" shall
mean the Person in whose name a Registered Security constituting a part of
such Unit is registered on the Security Register specified pursuant to Section
2.3.
"Indenture" has the meaning specified in the first recital in
this Agreement.
"Initial Acceleration Date" means, with respect to Purchase
Contracts or Prepaid Purchase Contracts of any series, the initial date, if
any, specified pursuant to Section 3.2 on which such Purchase Contracts or
Prepaid Purchase Contracts may be accelerated pursuant to Section 3.5 hereof.
"Interest Payment Date", with respect to any Debt Security, has
the meaning set forth in the Indenture or in any document executed pursuant to
the terms of the Indenture relating to such Debt Security.
"Issuer Order" or "Issuer Request", means a written order or
request signed in the name of the Corporation by the Chief Financial Officer,
Treasurer or any Assistant Treasurer or any other person authorized by the
Board of Directors and delivered to the Agent or the Collateral Agent, as the
case may be.
"Letter of Representations" means, as of any date, the Letter of
Representations or Letters of Representations to DTC in effect as of such date
from the Agent relating to the Units covered by this Agreement.
"Minimum Acceleration Amount" means the minimum number of
Purchase Contracts of any series as specified pursuant to Section 3.2 that may
be subject to acceleration pursuant to Section 3.5.
"Minimum Remaining Amount" means the minimum number of Purchase
Contracts of any series as specified pursuant to Section 3.2 that must remain
Outstanding immediately following any acceleration pursuant to Section 3.5.
"Officer's Certificate" means a certificate signed by the Chief
Financial Officer, Treasurer or any Assistant Treasurer of the Corporation or
any other person authorized by the Board of Directors and delivered to the
Agent or the Collateral Agent, as the case may be.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Corporation and who shall
otherwise be satisfactory to the Agent or the Collateral Agent, as the case
may be.
"Optional Definitive Unit Request" has the meaning set forth in
Section 2.12.
"Outstanding", with respect to any Unit, Debt Security, Warrant,
Purchase Contract or Prepaid Purchase Contract means, as of the date of
determination, all Units, Debt Securities, Warrants, Purchase Contracts or
Prepaid Purchase Contracts, as the case may be, evidenced by Units theretofore
authenticated, countersigned, executed and delivered under this Agreement,
except:
(A) Units, Debt Securities, Warrants, Purchase Contracts or
Prepaid Purchase Contracts theretofore deemed cancelled, cancelled by the
Agent, Warrant Agent or Trustee, as the case may be, or delivered to the
Agent, Warrant Agent or Trustee, as the case may be, for cancellation,
in each case pursuant to the provisions of this Agreement, the Warrant
Agreement or the Indenture;
(B) Closed Purchase Contracts; and
(C) Units, Debt Securities, Warrants, Purchase Contracts or
Prepaid Purchase Contracts evidenced by Unit Certificates in exchange for
or in lieu of which other Unit Certificates have been authenticated,
countersigned, executed and delivered pursuant to this Agreement,
other than any such Units, Debt Securities, Warrants, Purchase
Contracts or Prepaid Purchase Contracts, as the case may be, evidenced
by a Unit Certificate in respect of which there shall have been
presented to the Agent proof satisfactory to it that such Unit
Certificate is held by a bona fide purchaser in whose hands the Units,
Debt Securities, Warrants, Purchase Contracts or Prepaid Purchase
Contracts, as the case may be, evidenced by such Unit Certificate are
valid obligations of the Corporation;
provided, however, that in determining whether the Holders of the requisite
number of Outstanding Units, Debt Securities, Warrants, Purchase Contracts
and Prepaid Purchase Contracts, as the case may be, have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Units,
Debt Securities, Warrants, Purchase Contracts and Prepaid Purchase
Contracts owned by the Corporation or any Affiliate of the Corporation
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Agent shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Units, Debt Securities, Warrants, Purchase Contracts and Prepaid Purchase
Contracts which the Agent knows to be so owned shall be so disregarded.
Units, Debt Securities, Warrants, Purchase Contracts and Prepaid Purchase
Contracts that are so owned but that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of
the Agent the pledgee's right so to act with respect to such Units, Debt
Securities, Warrants, Purchase Contracts and Prepaid Purchase Contracts and
that the pledgee is not the Corporation or any Affiliate of the
Corporation.
"Paying Agent" means any Person authorized by the Corporation to
pay the Settlement Amount, redemption price or any other sums payable by the
Corporation with respect to any Purchase Contracts; provided that such Person
shall be a bank or trust company organized and in good standing under the laws
of the United States or any state in the United States, having (together with
its parent) capital, surplus and undivided profits aggregating at least
$50,000,000 or any foreign branch or office of such a bank or trust company,
and, subject to the foregoing, may be an Affiliate of the Corporation.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Pledged Items" means, as of any date, any Debt Securities
constituting a part of the Units of any series or any and all other securities,
instruments or other property as may be specified pursuant to Section 3.2.
"Prepaid Purchase Contracts" has the meaning stated in the sixth
recital in this Agreement and more particularly means any Prepaid Purchase
Contracts originally issued as part of a Unit of any series.
"Purchase Contract Default" with respect to Purchase Contracts
of any series means the occurrence of any of the following events: (i) failure
of the Corporation to deliver the Purchase Contract Property or the cash value
thereof for such Purchase Contracts against tender of payment therefor on any
Settlement Date, in the case of Purchase Contracts that obligate the
Corporation to sell the Purchase Contract Property, (ii) failure of the
Corporation to pay the Settlement Amount for such Purchase Contracts when the
same becomes due and payable, in the case of Purchase Contracts that obligate
the Corporation to purchase the Purchase Contract Property, (iii) failure on
the part of the Corporation duly to observe or perform any other of the
covenants or agreements on its part in such Purchase Contracts or in this
Agreement with respect to such Purchase Contracts and continuance of such
failure for a period of 60 days after the date on which written notice of such
failure, requiring the Corporation to remedy the same, shall have been given
to the Corporation and the Agent by Holders of at least 25% of the affected
Purchase Contracts at the time Outstanding, (iv) a Bankruptcy Event or (v) any
other Purchase Contract Default provided in any supplemental agreement under
which such series of Purchase Contracts is issued or in the form of such
Purchase Contracts.
"Purchase Contract Property" with respect to a Purchase
Contract of any series has the meaning specified pursuant to Section 3.2.
"Purchase Contract Register" and "Purchase Contract Registrar"
have the respective meanings specified in Section 2.8.
"Purchase Contracts" has the meaning stated in the fifth
recital in this Agreement and more particularly means any Purchase Contracts
constituting a part of the Units of any series countersigned, executed and
delivered in accordance with this Agreement.
"Purchase Price" of any Purchase Contract that obligates the
Corporation to sell, and the Holder to purchase, the Purchase Contract
Property has the meaning specified pursuant to Section 3.2.
"Registered Debt Security" means any Debt Security or Prepaid
Purchase Contract registered on the Debt Security Register.
"Registered Purchase Contract" means any Purchase Contract
registered on the Purchase Contract Register.
"Registered Security" means any of a Registered Debt Security,
Registered Warrant or Registered Purchase Contract.
"Registered Unit" means any Unit consisting of Registered
Securities.
"Registered Warrant" means any Warrant registered on the Warrant
Register.
"Regular Record Date" has the meaning specified pursuant to
Section 2.3.
"Responsible Officer", with respect to the Agent or Collateral
Agent, means the chairman or vice-chairman of the board of directors, the
chairman or vice-chairman of the executive committee of the board of
directors, the president, any vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any senior trust officer, any trust officer or assistant trust
officer, the controller and any assistant controller or any other officer of
the Agent or Collateral Agent customarily performing functions similar to
those performed by any of the above-designated officers and also means, with
respect to a particular corporate trust or agency matter, any other officer to
whom such matter is referred because of his knowledge and familiarity with the
particular subject.
"Security" means any of a Debt Security, Warrant, Purchase
Contract or Prepaid Purchase Contract.
"Security Register" means any of the Debt Security Register,
Purchase Contract Register or Warrant Register.
"Settlement Amount" of any Purchase Contract that obligates the
Corporation to purchase, and the Holder to sell, the Purchase Contract
Property has the meaning specified pursuant to Section 3.2.
"Settlement Date" means the Stated Settlement Date and any
Accelerated Settlement Date.
"SRO" has the meaning specified in Section 2.1.
"Stated Settlement Date" of any Purchase Contract of any series
has the meaning specified pursuant to Section 3.2.
"Trustee", with respect to any Debt Securities or Prepaid
Purchase Contracts, means the Person acting as Trustee under the Indenture
until a successor Trustee shall have become such pursuant to the applicable
provisions of such Indenture, and thereafter "Trustee" shall mean such
successor Trustee.
"Unit" has the meaning stated in the seventh recital to this
Agreement and more particularly the collective rights and obligations of the
Corporation and a Holder with respect to the Securities comprising such Unit,
as specified pursuant to Section 2.3.
"Unit Certificate" means a certificate evidencing the rights and
obligations of the Corporation and a Holder with respect to the number of
Units specified on such certificate.
"Unregistered Security" means any Security other than a
Registered Security.
"Unregistered Unit" means any Unit other than a Registered Unit.
"Unsettled Purchase Contract" means any Purchase Contract that
has not been redeemed or with respect to which settlement has not occurred
pursuant to Article Four.
"Warrant Agreement" has the meaning stated in the third recital
of this Agreement.
"Warrant Property" has the meaning specified in the Warrant
Agreement.
"Warrant Register" with respect to any Warrants constituting a
part of the Units of any series means the security register of the Corporation
maintained by the Warrant Agent pursuant to the Warrant Agreement.
"Warrants" has the meaning stated in the fourth recital of this
Agreement and more particularly means any Warrants originally issued as part
of a Unit of any series.
ARTICLE 2
Units
Section 2.1. Forms Generally. The Units of each series shall
be substantially in the form of Exhibit A or in such form (not inconsistent
with this Agreement) as shall be established by or pursuant to one or more
Board Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to rather than set forth in a Board Resolution, an
Officer's Certificate detailing such establishment). The Unit Certificates may
have imprinted or otherwise reproduced thereon such letters, numbers or other
marks of identification or designation and such legends or endorsements as the
officers of the Corporation executing the Securities constituting a part
thereof may approve (execution thereof to be conclusive evidence of such
approval) and that are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation
made pursuant thereto, or with any rule or regulation of any self-regulatory
organization (an "SRO") on which the Units of such series may be listed or
quoted or of any securities depository or to conform to general usage.
The Unit Certificates shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Unit Certificates, as evidenced
by their execution of the Securities constituting a part of the Units
evidenced by such Unit Certificates.
Section 2.2. Form of Certificate of Authentication and
Countersignature. The form of the Trustee's certificate of authentication of
any Debt Securities or Prepaid Purchase Contracts, the form of any Warrant
Agent's countersignature of any Warrants and the form of the Agent's execution
on behalf of the Holder and countersignature of any Purchase Contracts, each
constituting a part of the Units of any series, shall be substantially in such
form as set forth in the Indenture, the Warrant Agreement or this Agreement,
as applicable.
Section 2.3. Amount Unlimited; Issuable in Series. (a) The
aggregate number of Units that may be authenticated, countersigned and
delivered under this Agreement is unlimited.
The Units may be issued in one or more series. There shall be
established, upon the order of the Corporation (contained in an Issuer Order)
or pursuant to such procedures acceptable to the Agent as may be specified
from time to time by an Issuer Order, prior to the initial issuance of Units of
any series:
(i) the designation of the Units of the series, which shall
distinguish the Units of the series from the Units of all other series;
(ii) any limit upon the aggregate number of Units of the
series that may be authenticated and delivered under this Agreement
(except for Units authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Units of the
series pursuant to Section 2.7, 2.8, 2.9 or 2.12);
(iii) the designation of the Securities constituting a part of
the Units of the series;
(iv) whether and on what terms any Securities constituting a
part of the Units of the series may be separated from the Units of the
series and the other Securities constituting a part of such Units;
(v) in the case of Units of a series consisting in any part
of Purchase Contracts, the information specified pursuant to Section 3.2;
(vi) whether the Units of the series will be issuable as
Registered Units (and if so, whether such Units will be issuable in
global form) or Unregistered Units (and if so, whether such Units will
be issuable in global form), or any combination of the foregoing, any
restrictions applicable to the offer, sale or delivery of Unregistered
Securities and, if other than as provided in Section 2.8, the terms
upon which Unregistered Units of any series may be exchanged for
Registered Units of such series and vice versa;
(vii) in the case of Units issued as Registered Units
consisting of Registered Securities that may not be separated from the
other Registered Securities constituting a part of such Units, the
designation of the Security Register to be used to determine the
Holder of such Units;
(viii) if the Units of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Unit of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(ix) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with respect
to the Units of such series;
(x) any other events of default or covenants with respect to
the Units of such series; and
(xi) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Agreement).
All Units of any one series shall be substantially identical,
except as may otherwise be provided by or pursuant to the Issuer Order or
procedures referred to above. All Units of any one series need not be issued
at the same time and may be issued from time to time, consistent with the
terms of this Agreement, if so provided by or pursuant to such Board
Resolution or such Issuer Order.
Section 2.4. Denominations. Units of any series shall be
issuable only in denominations of a single Unit and any integral multiple
thereof.
Section 2.5. Rights and Obligations Evidenced by the Units.
Units of any series shall evidence (a) the ownership by the Holder thereof of
the principal amount of Debt Securities, if any, specified on the face of a
Unit Certificate representing Definitive Units or in Schedule A attached to
any Unit Certificate representing Global Units, (b) the number of Warrants, if
any, specified on the face of a Unit Certificate representing Definitive Units
or in Schedule A attached to any Unit Certificate representing Global Units
and (c) the number of Prepaid Purchase Contracts, if any, specified on the
face of a Unit Certificate representing Definitive Units or in Schedule A
attached to any Unit Certificate representing Global Units and the rights and
obligations of the Corporation and the Holder under the number of Purchase
Contracts, if any, specified on the face of a Unit Certificate representing
Definitive Units or in Schedule A attached to any Unit Certificate
representing Global Units.
Section 2.6. Execution, Authentication, Delivery and Dating.
Upon the execution and delivery of this Agreement, and at any time and from
time to time thereafter, the Corporation may deliver, subject to any
limitation on the aggregate principal amount of Debt Securities, if any, or
the number of Warrants, Purchase Contracts or Prepaid Purchase Contracts, if
any, represented thereby, an unlimited number of Unit Certificates (including
the Securities executed by the Corporation constituting the Units evidenced by
such Unit Certificates) to the Trustee, Warrant Agent and/or the Agent for
authentication, countersignature or execution, as the case may be, of the
Securities comprised by such Units, together with its Issuer Orders for
authentication, countersignature or execution of such Securities, and the
Trustee in accordance with the Indenture and the Issuer Order of the
Corporation shall authenticate the Debt Securities and Prepaid Purchase
Contracts, if any, constituting a part of the Units evidenced by such Unit
Certificates, the Warrant Agent in accordance with the Warrant Agreement and
the Issuer Order of the Corporation shall countersign the Warrants, if any,
constituting a part of the Units evidenced by such Unit Certificates and the
Agent in accordance with this Agreement and the Issuer Order of the
Corporation shall countersign and execute on behalf of the Holders thereof the
Purchase Contracts, if any, constituting a part of the Units evidenced by such
Unit Certificates, and each shall deliver such Unit Certificates upon the
order of the Corporation.
Any Debt Securities or Prepaid Purchase Contracts constituting
a part of the Units of any series shall be executed on behalf of the
Corporation in accordance with the terms of the Indenture. Any Warrants
constituting a part of the Units of any series shall be executed on behalf of
the Corporation in accordance with the terms of the Warrant Agreement. Any
Purchase Contracts constituting a part of the Units shall be executed on
behalf of the Corporation in accordance with Section 3.1.
Section 2.7. Temporary Unit Certificates. Pending the
preparation of Unit Certificates for any series, the Corporation may execute
and deliver to the Trustee, the Warrant Agent and/or the Agent, as
appropriate, and the Trustee, the Warrant Agent and/or the Agent, as
appropriate, shall authenticate, countersign, execute on behalf of the Holder
and deliver, as appropriate, in lieu of such Unit Certificates, temporary Unit
Certificates for such series. Temporary Unit Certificates shall be in
substantially the form of the Unit Certificates of such series, but with such
omissions, insertions and variations as may be appropriate for temporary Unit
Certificates, all as may be determined by the Corporation with the concurrence
of the Trustee, Warrant Agent and/or Agent, as appropriate, as evidenced by
the execution and authentication and/or countersignature of the Securities
constituting a part of the Units evidenced thereby, as applicable.
If temporary Unit Certificates for any series are issued, the
Corporation will cause definitive Unit Certificates for such series to be
prepared without unreasonable delay. After the preparation of such definitive
Unit Certificates, the temporary Unit Certificates shall be exchangeable
therefor upon surrender of temporary Registered Units of such series at the
Corporate Trust Office, at the expense of the Corporation and without charge
to any Holder and, in the case of Unregistered Units, at any agency maintained
for such purpose as specified pursuant to Section 2.3. Upon surrender for
cancellation of any one or more temporary Unit Certificates, the Corporation
shall execute and deliver to the Trustee, the Warrant Agent and/or the Agent,
and the Trustee, the Warrant Agent and/or the Agent shall authenticate,
countersign, execute on behalf of the Holder and deliver, as appropriate, in
exchange therefor definitive Unit Certificates of the same series of like
tenor, of authorized denominations and evidencing a like number of Units as
the temporary Unit Certificate or Certificates so surrendered. Until so
exchanged, the temporary Unit Certificates of any series shall in all respects
evidence the same benefits and the same obligations under any Debt Securities,
Prepaid Purchase Contracts, Warrants and Purchase Contracts constituting parts
of such Units, the Indenture, the Warrant Agreement and this Agreement as
definitive Unit Certificates of such series, unless otherwise specified
pursuant to Section 2.3.
Section 2.8. Registration of Transfer and Exchange; Global
Units. The Agent shall keep at its Corporate Trust Office for each series of
Registered Units a register (the register maintained in such office being
herein referred to as the "Purchase Contract Register") in which, subject to
such reasonable regulations as it may prescribe, the Agent shall provide for
the registration of Registered Purchase Contracts, if any, constituting a part
of such series and of transfers of such Purchase Contracts (the Agent, in such
capacity, the "Purchase Contract Registrar").
At the option of the Holder thereof, Registered Units of any
series (other than a global Registered Unit, except as set forth below) may be
transferred or exchanged for a Registered Unit or Registered Units of such
series having authorized denominations evidencing the number of Units
transferred or exchanged, upon surrender of such Registered Units to be so
transferred or exchanged at the Corporate Trust Office of the Agent upon
payment, if the Corporation shall so require, of the charges hereinafter
provided. If the Units of any series are issued in both registered and
unregistered form, except as otherwise specified pursuant to Section 2.3, at
the option of the Holder thereof, Unregistered Units of such series may be
exchanged for Registered Units of such series having authorized denominations
and evidencing the number of Units transferred or exchanged, upon surrender
of such Unregistered Units to be so transferred or exchanged at the Corporate
Trust Office of the Agent and upon payment, if the Corporation shall so
require, of the charges hereinafter provided. At the option of the Holder
thereof, if Unregistered Units of any series are issued in more than one
authorized denomination, except as otherwise specified pursuant to Section
2.3, such Unregistered Units may be exchanged for Unregistered Units of such
series having authorized denominations evidencing the number of Units
exchanged, upon surrender of such Unregistered Units to be so exchanged at the
Corporate Trust Office of the Agent or as specified pursuant to Section 2.3,
and upon payment, if the Corporation shall so require, of the charges
hereinafter provided. Unless otherwise specified pursuant to Section 2.3,
Registered Units of any series may not be exchanged for Unregistered Units of
such series. Whenever any Units are so surrendered for transfer or exchange,
the Corporation shall execute, and the Trustee, Warrant Agent and/or the
Agent, as appropriate, shall authenticate, countersign or execute, as the case
may be, and deliver the Units which the Holder making the transfer or exchange
is entitled to receive. All Units (including the Securities constituting part
of such Units) surrendered upon any exchange or transfer provided for in this
Agreement shall be promptly cancelled and disposed of by the Agent and the
Agent will deliver a certificate of disposition thereof to the Corporation and
to the Trustee and the Warrant Agent, as applicable.
Unregistered Units shall be transferable by delivery.
Subject to Section 2.12, if the Corporation shall establish
pursuant to Section 2.3 that the Units of a series are to be evidenced by one
or more Global Units, then the Corporation shall execute and the Agent, Warrant
Agent and Trustee shall, in accordance with this Section and Section 206,
countersign, authenticate and execute, as appropriate, and deliver one or more
global Unit Certificates that (i) shall evidence all or a portion of the Units
of such series issued in such form and not yet cancelled, (ii) in the case of
Registered Units, shall be registered in the name of the Depositary for such
Units or the nominee of such Depositary, (iii) shall be delivered by the Agent
to the Depositary for such Units or pursuant to such Depositary's instructions
and (iv) in the case of Registered Units, shall bear a legend substantially to
the following effect: "Unless and until it is exchanged in whole or in part for
Units in definitive registered form, this Unit Certificate may not be
transferred except as a whole by the Depositary to the 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." Whenever
Global Units of any series are exchanged for Definitive Units of such series or
whenever Definitive Units of any series are exchanged for Global Units of such
series, the Agent shall cause, as applicable: (i) Schedule A of the Global
Debt Security, if any, to be endorsed to reflect any increase or decrease, as
the case may be, in the principal amount of Debt Securities, if any, that are
comprised by Global Units as a result of such exchange, (ii) Schedule A of the
Global Warrant, if any, to be endorsed to reflect any increase or decrease, as
the case may be, in the number of Warrants, if any, that are comprised by the
Global Units as a result of such exchange, (iii) Schedule A of the Global
Purchase Contract, if any, to be endorsed to reflect any increase or decrease,
as the case may be, in the number of Purchase Contracts, if any, that are
comprised by Global Units as a result of such exchange and (iv) Schedule A of
the Global Prepaid Purchase Contract, if any, to be endorsed to reflect any
increase or decrease, as the case may be, in the number of Prepaid Purchase
Contracts, if any, that are comprised by Global Units as a result of such
exchange, whereupon such number of Global Units shall be decreased or
increased for all purposes by the number so exchanged, as noted.
All Unit Certificates authenticated, countersigned and executed
upon any registration of transfer or exchange of a Unit Certificate shall
evidence the ownership of the principal amount of Debt Securities, if any,
specified on the face thereof, the number of Warrants, if any, specified on
the face thereof and the number of Prepaid Purchase Contracts, if any,
specified on the face thereof and the rights and obligations of the Holder and
the Corporation under the number of Purchase Contracts, if any, specified on
the face thereof and shall be entitled to the same benefits, and be subject to
the same obligations, under the Indenture, the Warrant Agreement and this
Agreement as the Units evidenced by the Unit Certificate surrendered upon such
registration of transfer or exchange.
Every Unit Certificate presented or surrendered for
registration of transfer or for exchange shall (if so required by the
Corporation or the Agent) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Corporation and the Agent,
duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any transfer or exchange of
a Unit, but the Corporation and the Agent may require payment from the Holder
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Units,
other than any exchanges pursuant to Section 2.9 not involving any transfer.
Notwithstanding the foregoing, and subject to Section 2.8 of the
Indenture, the Corporation shall not be obligated to execute and deliver to the
Trustee, the Warrant Agent or the Agent, and none of the Trustee, under the
terms of the Indenture, the Warrant Agent, under the terms of the Warrant
Agreement, or the Agent hereunder shall be obligated to authenticate,
countersign or execute on behalf of the Holder any Unit Certificate presented
or surrendered for registration of transfer or for exchange of any Debt
Securities, Prepaid Purchase Contracts, Warrants or Purchase Contracts
evidenced thereby or any Unit Certificate evidencing a Definitive Unit to be
issued in exchange for interests in Global Units or to reflect any increase or
decrease in a Global Unit, Global Debt Security, Global Warrant, Global
Purchase Contract or Global Prepaid Purchase Contract (i) during the period
beginning any time on or after the opening of business 15 days before the day
of mailing of a notice of redemption or of any other exercise of any right held
by the Corporation with respect to the Unit (or any Security constituting a
part of the Units of such series) and ending at the close of business on the
day of the giving of such notice, (ii) that evidences or would evidence any
such Unit or Security selected or called for redemption or with respect to
which such right has been exercised or (iii) at any given date, if such date
is on or after any date that is after the Settlement Date or the date of
redemption, as applicable, with respect to the Purchase Contracts, if any,
evidenced or to be evidenced by such Unit Certificate (or at any time on or
after the last exercise date with respect to any Warrant constituting a part
of such Unit), except with respect to any Registered Debt Securities or
portions thereof that remain or will remain Outstanding following such
Settlement Date or date of redemption (or such last exercise date) or (iv) at
any other date specified pursuant to Section 2.3.
Section 2.9. Mutilated, Destroyed, Lost and Stolen Unit
Certificates. If any mutilated Unit Certificate is surrendered to the Agent,
the Corporation shall execute and deliver to the Trustee, the Warrant Agent
and/or the Agent, as appropriate, and the Trustee, the Warrant Agent and/or
the Agent shall authenticate, countersign, execute on behalf of the Holder and
deliver, as appropriate, in exchange therefor new Securities comprised by
Units of the same series, of like tenor, and evidenced by a new Unit
Certificate evidencing the same number of Units and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Corporation and the Trustee,
the Warrant Agent and/or the Agent, as appropriate, (i) evidence to their
satisfaction of the destruction, loss or theft of any Unit Certificate and
(ii) such security or indemnity as may be required by them to hold each of
them and any agent of any of them harmless, then, in the absence of notice to
the Corporation and the Trustee, the Warrant Agent and/or the Agent, as
appropriate, that such Unit Certificate has been acquired by a bona fide
purchaser, the Corporation shall execute and deliver to the Trustee, the
Warrant Agent and/or the Agent, as appropriate, and the Trustee (in accordance
with the provisions of the Indenture), the Warrant Agent (in accordance with
the provisions of the Warrant Agreement) and/or the Agent (in accordance with
the provisions hereof) shall authenticate, countersign, execute on behalf of
the Holder and deliver to the Holder, as appropriate, in lieu of any such
destroyed, lost or stolen Unit Certificate, new Securities comprised by Units
of the same series, of like tenor, and evidenced by a new Unit Certificate
evidencing the same number of Units and bearing a number not contemporaneously
outstanding.
Unless otherwise specified pursuant to Section 2.3,
notwithstanding the foregoing, the Corporation shall not be obligated to
execute and deliver to the Trustee, the Warrant Agent or the Agent, and none
of the Trustee (under the Indenture), the Warrant Agent (under the Warrant
Agreement), or the Agent shall be obligated to authenticate, countersign or
execute on behalf of the Holder, or deliver to the Holder, a new Unit
Certificate (or any Security constituting a part of such Unit) (i) during the
period beginning any time on or after the opening of business 15 days before
the day of mailing of a notice of redemption or of any other exercise of any
right held by the Corporation with respect to the Unit (or any Security
constituting a part of such Unit) and ending at the close of business on the
day of the giving of such notice, (ii) that evidences any Unit or Purchase
Contracts selected or called for redemption or with respect to which such
right has been exercised, (iii) at any given date, if such date is on or after
the Settlement Date or date of redemption, as applicable, with respect to any
Purchase Contracts evidenced by such Unit Certificate (or at any time on or
after the last exercise date with respect to any Warrant constituting a part
of such Unit), except with respect to any Registered Debt Security or portion
thereof evidenced by such Unit Certificate that remains or will remain
Outstanding following such Settlement Date or date of redemption (or such last
exercise date) or (iv) at any other date specified pursuant to Section 2.3. In
lieu of delivery of a new Unit Certificate, upon satisfaction of the
applicable conditions specified in clauses (i) and (ii) of the preceding
paragraph, the Agent shall deliver or cause to be delivered on the applicable
Settlement Date, redemption date or exercise date (i) in respect of Purchase
Contracts, Warrants or Debt Securities constituting a part of the Units
evidenced by such Unit Certificate that are selected or called for redemption,
the redemption price of such Purchase Contracts, Warrants or Debt Securities
or (ii) in respect of Purchase Contracts or Warrants constituting a part of
the Units evidenced by such Unit Certificate with respect to which a Cash
Settlement or Debt Security Settlement (or any equivalent manner of
settlement) has taken place, (x) the Purchase Contract Property or Warrant
Property (or cash value thereof), purchase price, cash settlement value,
Settlement Amount or other amount, as the case may be, deliverable with
respect to such Purchase Contracts or Warrants (and, in the case of an
effective Cash Settlement (or any equivalent manner of settlement), the related
Debt Securities) or (y) if a Purchase Contract Default or any default under the
Warrant Agreement or Warrant has occurred by virtue of the Corporation's
having failed to deliver the Purchase Contract Property or Warrant Property
(or cash value thereof), purchase price, cash settlement value, Settlement
Amount or other amount, as the case may be, deliverable against tender by the
Agent of the purchase price, Purchase Contract Property (or the cash value
thereof) or other Settlement Amount, exercise price or other amount, as the
case may be, such purchase price, Purchase Contract Property (or cash value
thereof) or Settlement Amount or other amount, if any, received by the Agent
from the Holder in respect of the Settlement of such Purchase Contracts or
exercise of such Warrants or in respect of principal with respect to the
related Debt Securities received by the Agent.
Upon the issuance of any new Unit Certificate under this
Section, the Corporation and the Agent may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Agent) connected therewith.
Every new Unit Certificate executed pursuant to this Section in
lieu of any destroyed, lost or stolen Unit Certificate shall constitute an
original additional contractual obligation of the Corporation and of the
Holder (with respect to any Purchase Contracts constituting a part of the
Units evidenced thereby), whether or not the destroyed, lost or stolen Unit
Certificate (and the Securities evidenced thereby) shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Unit Certificates
delivered hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Unit
Certificates.
Section 2.10. Persons Deemed Owners. Prior to due presentment
of a Unit Certificate of any series for registration of transfer, the
Corporation, the Trustee, the Warrant Agent, the Collateral Agent and the
Agent, as appropriate, and any agent of the Corporation, the Trustee, the
Warrant Agent, the Collateral Agent or the Agent, as appropriate, may treat
the Person in whose name any Registered Security evidenced by such Unit
Certificate is registered and, with respect to any Unregistered Security
constituting a part of the Units evidenced by such Unit Certificate, the
bearer thereof, as the owner of the Units evidenced thereby for all purposes
whatsoever, whether or not payment with respect to any Security constituting a
part of the Units evidenced thereby shall be overdue and notwithstanding any
notice to the contrary. None of the Corporation, the Trustee, the Warrant
Agent, the Agent, the Collateral Agent or any agent of the Corporation, the
Trustee, the Warrant Agent, the Collateral Agent or the Agent shall be
affected by notice to the contrary.
Section 2.11. Cancellation. Subject to Section 3.7, all Unit
Certificates surrendered for payment, and all Unit Certificates surrendered for
redemption of any Debt Securities, Prepaid Purchase Contracts or Purchase
Contracts evidenced thereby, exercise of any Warrants evidenced thereby,
termination or settlement of any Purchase Contracts evidenced thereby,
delivery of Purchase Contract Property or registration of transfer or exchange
shall, if surrendered to any Person other than the Trustee, the Warrant Agent
or the Agent, as appropriate, be delivered to the Trustee, the Warrant Agent
and/or the Agent, as appropriate, and, if not already cancelled, any Debt
Securities, Prepaid Purchase Contracts, Warrants or Purchase Contracts
evidenced by such Units shall be promptly cancelled by the Trustee, the
Warrant Agent and/or the Agent, as appropriate. The Corporation may at any
time deliver to the Trustee, the Warrant Agent and/or the Agent, as
appropriate, for cancellation any Unit Certificates previously authenticated,
countersigned, executed and delivered hereunder, under the Warrant Agreement
and under the Indenture, which the Corporation may have acquired in any manner
whatsoever, and all Unit Certificates so delivered shall, upon Issuer Order of
the Corporation, be promptly cancelled by the Trustee, Warrant Agent and/or
the Agent, as appropriate. No Unit Certificates shall be authenticated,
countersigned and executed in lieu of or in exchange for any Unit Certificates
cancelled as provided in this Section, except as permitted by this Agreement.
All cancelled Unit Certificates held by the Agent shall be disposed of in
accordance with its customary procedures and a certificate of their
disposition shall be delivered by the Agent to the Corporation, unless by
Issuer Order the Corporation shall direct that cancelled Unit Certificates be
returned to it.
If the Corporation or any Affiliate of the Corporation shall
acquire any Unit Certificate, such acquisition shall not operate as a
cancellation of such Unit Certificate unless and until such Unit Certificate
is delivered to the Trustee, the Warrant Agent and/or the Agent, as
appropriate, for the purpose of cancellation.
Section 2.12. Exchange of Global Units and Definitive Units.
In the case of Registered Units, Holders of Global Units of any series shall
receive Definitive Units of such series in exchange for interests in such
Global Units if DTC notifies the Corporation that it is unwilling or unable to
continue as Depositary with respect to the Global Units of such series or if
at any time it ceases to be a clearing agency under the Exchange Act, and a
successor Depositary registered as a clearing agency under the Exchange Act is
not appointed by the Corporation within 90 days after receipt of such notice or
after it becomes aware that DTC has ceased to be such a clearing agency.
If so provided pursuant to Section 2.3, interests in such
Global Units may also be transferred or exchanged for Definitive Units upon
the request of the Depositary to the Trustee, the Warrant Agent and/or the
Agent, as appropriate, to authenticate, countersign and execute, as the case
may be, Unit Certificates representing Definitive Units (such request being
referred to herein as an "Optional Definitive Unit Request").
Definitive Units exchanged for interests in Global Units
pursuant to this Section 2.12 shall be denominated in the amounts and
registered in the name of such Person or Persons as the Depositary shall
instruct the Agent, the Warrant Agent and the Trustee, as appropriate.
If so specified pursuant to Section 2.3, Holders of Definitive
Units may transfer or exchange such Definitive Units for interests in Global
Units by depositing the Unit Certificates evidencing such Definitive Units
with the Agent and requesting the Agent, the Warrant Agent and the Trustee, as
appropriate, to effect such exchange. The Agent shall notify the Depositary of
any such exchange and, upon delivery to the Agent, the Warrant Agent and the
Trustee, as appropriate, of the Unit Certificates evidencing the Definitive
Units to be so transferred or exchanged, the Agent shall take all actions
required with respect to any Global Securities evidenced by such Global Units
and Unit Certificates evidencing the remaining Definitive Units, if any, will
be issued in accordance with Section 2.8.
ARTICLE 3
The Purchase Contracts; Settlement of Warrants
Section 3.1. Form and Execution of Purchase Contracts;
Temporary Purchase Contracts. (a) Purchase Contracts of each series shall be
substantially in the forms attached as Exhibit A, as appropriate, or in such
form (not inconsistent with this Agreement) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board Resolution
or, to the extent established pursuant to rather than set forth in a Board
Resolution, an Officer's Certificate detailing such establishment, in each
case, which may be included in any Board Resolution or Officer's Certificate
made pursuant to this Agreement) or in one or more agreements supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Agreement. The
Purchase Contracts may have imprinted or otherwise reproduced thereon such
letters, numbers or other marks of identification or designation and such
legends or endorsements as the officers of the Corporation executing the same
may approve (execution thereof to be conclusive evidence of such approval) and
that are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto, or with any rule or regulation of any SRO on which the Purchase
Contracts of such series may be listed or quoted, or of any securities
depository, or to conform to general usage. Purchase Contracts shall be signed
on behalf of the Corporation 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 Corporation or such other person specifically
designated by the Board of Directors or the Executive Committee thereof to
execute Purchase Contracts, which signature may or may not be attested by the
secretary or an assistant secretary of the Corporation. The signature of any of
such officers may be either manual or facsimile. Typographical and other minor
errors or defects in any such signature shall not affect the validity or
enforceability of any Purchase Contract that has been duly countersigned and
delivered by the Agent.
(b) In case any officer of the Corporation who shall have signed a
Purchase Contract, either manually or by facsimile signature, shall cease to be
such officer before such Purchase Contract shall have been countersigned and
delivered by the Agent to the Corporation or delivered by the Corporation,
such Purchase Contract nevertheless may be countersigned and delivered as
though the person who signed such Purchase Contract had not ceased to be such
officer of the Corporation; and a Purchase Contract may be signed on behalf of
the Corporation by any person who, at the actual date of the execution of such
Purchase Contract, shall be a proper officer of the Corporation to sign such
Purchase Contract, although at the date of the execution of this Agreement any
such person was not such officer.
(c) Pending the preparation of final Purchase Contracts of any
series, the Corporation may execute and the Agent shall countersign and deliver
temporary Purchase Contracts (printed, lithographed, typewritten or otherwise
produced, in each case in form satisfactory to the Agent). Such temporary
Purchase Contracts shall be issuable substantially in the form of the final
Purchase Contracts but with such omissions, insertions and variations as may
be appropriate for temporary Purchase Contracts, all as may be determined by
the Corporation with the concurrence of the Agent. Such temporary Purchase
Contracts may contain such reference to any provisions of this Agreement as
may be appropriate. Every such temporary Purchase Contract shall be executed
by the Corporation and shall be countersigned by the Agent upon the same
conditions and in substantially the same manner, and with like effect, as the
final Purchase Contracts. Without unreasonable delay, the Corporation shall
execute and shall furnish final Purchase Contracts and thereupon such
temporary Purchase Contracts may be surrendered in exchange therefor without
charge, and the Agent shall countersign and deliver in exchange for such
temporary Purchase Contracts final Purchase Contracts evidencing a like
aggregate number of Purchase Contracts of the same series and of like tenor as
those evidenced by such temporary Purchase Contracts. Until so exchanged, such
temporary Purchase Contracts shall be entitled to the same benefits under this
Agreement as final Purchase Contracts.
Section 3.2. Number Unlimited Issuable in Series. (a) The
aggregate number of Purchase Contracts that may be delivered under this
Agreement is unlimited.
(b) The Purchase Contracts may be issued in one or more series.
There shall be established in or pursuant to one or more Board Resolutions
(and to the extent established pursuant to rather than set forth in a Board
Resolution, in an Officer's Certificate detailing such establishment) or
established in one or more agreements supplemental hereto, prior to the
initial issuance of Purchase Contracts of any series:
(i) the designation of the Purchase Contracts of the series,
which shall distinguish the Purchase Contracts of the series from the
Purchase Contracts of all other series;
(ii) any limit upon the aggregate number of the Purchase
Contracts of the series that may be countersigned and delivered under
this Agreement (except for Purchase Contracts countersigned and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Purchase Contracts of the series);
(iii) the specific property (the "Purchase Contract Property")
used to determine the amount payable upon settlement of the Purchase
Contracts of the series, and the amount of such property (or the
method for determining the same);
(iv) whether the Purchase Contracts of the series provide for
the purchase by the Corporation and the sale by the Holder or the sale
by the Corporation and the purchase by the Holder of the Purchase
Contract Property;
(v) in the case of Purchase Contracts that obligate the
Corporation to sell, and the Holder to purchase, Purchase Contract
Property, the Purchase Price at which and, if other than U.S.
Dollars, the coin or currency or composite currency with which the
Purchase Contract Property is to be purchased by the Holder upon
settlement of the Purchase Contracts of the series (or the method for
determining the same) and whether the Purchase Price for such Purchase
Contracts may be paid in cash or by the exchange of any other security
of the Corporation, or both, or otherwise;
(vi) in the case of Purchase Contracts that obligate the
Corporation to purchase, and the Holders to sell, Purchase Contract
Property, the Settlement Amount for the Purchase Contracts of the
series (or the method for determining the same) and, if other than
U.S. Dollars, the coin or currency or composite currency in which
such Settlement Amount is to be paid;
(vii) whether the settlement of the Purchase Contracts of the
series is to be in cash or by delivery of the Purchase Contract
Property, or otherwise, and the method of settlement of the Purchase
Contracts of the series;
(viii) the specific date or dates on which the Purchase
Contracts will be settled, whether the settlement may be accelerated
by the Corporation or the Holders thereof and, if so, the initial
accelerated settlement date, the minimum number of Purchase Contracts
that may be accelerated and the minimum number of Purchase Contracts
greater than zero that must remain Outstanding immediately following
such acceleration;
(ix) whether the Purchase Contracts of the series will be in
registered form ("Registered Purchase Contracts") or bearer form
("Bearer Purchase Contracts") or both;
(x) whether any Purchase Contracts of the series will be
issued in global form or definitive form or both, and whether and on
what terms (if different from those set forth herein) Purchase
Contracts in one form may be converted into or exchanged for Purchase
Contracts in the other form;
(xi) any agents, depositaries, authenticating or paying
agents, transfer agents or registrars or any determination or
calculation agents or other agents with respect to Purchase Contracts
of the series;
(xii) whether and on what terms the Purchase Contracts of the
series may be separated from the other components of the Units of
which the Purchase Contracts are a component;
(xiii) whether the Purchase Contracts of such series will be
subject to redemption by the Corporation and, if so, the initial
redemption date, the minimum number of Purchase Contracts that may be
redeemed and the minimum number of Purchase Contracts greater than
zero that must remain Outstanding immediately following such
redemption; and
(xiv) any other terms of the Purchase Contracts of the series
(which terms shall not be inconsistent with the provisions of this
Agreement).
(c) All Purchase Contracts of any one series shall be substantially
identical, except as may otherwise be provided by or pursuant to the Board
Resolution or Officer's Certificate referred to above or as set forth in any
such agreement supplemental hereto. All Purchase Contracts of any one series
need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Agreement, if so provided by or pursuant to
such Board Resolution, such Officer's Certificate or in any such agreement
supplemental hereto.
Section 3.3. Countersignature, Execution on Behalf of Holder
and Delivery of Purchase Contracts. (a) The Corporation may deliver Purchase
Contracts of any series executed by the Corporation to the Agent for
countersignature and execution on behalf of the Holders, together with the
applicable documents referred to below in this Section, and the Agent shall
thereupon countersign, execute on behalf of the Holders and deliver such
Purchase Contracts to or upon the order of the Corporation (contained in the
Issuer Order referred to below in this Section) or pursuant to such procedures
acceptable to the Agent as may be specified from time to time by an Issuer
Order. If provided for in such procedures, such Issuer Order may authorize
countersignature, execution on behalf of the Holders and delivery pursuant to
oral instructions from the Corporation or its duly authorized agent, which
instructions shall be promptly confirmed in writing. In countersigning such
Purchase Contracts, executing such Purchase Contracts on behalf of the Holders
and accepting the responsibilities under this Agreement in relation to the
Purchase Contracts, the Agent shall be entitled to receive (in the case of
subparagraphs (ii), (iii) and (iv) below only at or before the time of the
first request of the Corporation to the Agent to countersign and execute on
behalf of the Holders Purchase Contracts in a particular form) and shall be
fully protected in relying upon, unless and until such documents have been
superseded or revoked:
(i) an Issuer Order requesting such countersignature and
execution and setting forth delivery instructions if the Purchase
Contracts are not to be delivered to the Corporation;
(ii) any Board Resolution, Officer's Certificate and/or
executed supplemental agreement pursuant to which the forms and terms
of the Purchase Contracts were established;
(iii) an Officer's Certificate setting forth the forms and
terms of the Purchase Contracts, stating that the form or forms and
terms of such Purchase Contracts have been established pursuant to
Sections 3.1 and 302 and comply with this Agreement, and covering such
other matters as the Agent may reasonably request; and
(iv) At the option of the Corporation, either an Opinion of
Counsel or a letter addressed to the Agent permitting it to rely on an
Opinion of Counsel, substantially to the effect that:
(A) the forms of the Purchase Contracts have been duly
authorized and established in conformity with the provisions of this
Agreement;
(B) the terms of the Purchase Contracts have been duly
authorized and established in conformity with the provisions of
this Agreement and certain terms of the Purchase Contracts have
been established pursuant to a Board Resolution, an Officer's
Certificate or a supplemental agreement in accordance with this
Agreement, and when such other terms as are to be established
pursuant to procedures set forth in an Issuer Order shall have
been established, all terms will have been duly authorized by the
Corporation and will have been established in conformity with the
provisions of this Agreement; and
(C) when the Purchase Contracts have been executed by
the Corporation and by the Agent on behalf of the Holders and
countersigned by the Agent in accordance with the provisions of
this Agreement and delivered to and duly paid for by the
purchasers thereof, subject to such other conditions as may be
set forth in such opinion of counsel, they will have been duly
issued under this Agreement and will be valid and legally binding
obligations of the Corporation, enforceable in accordance with
their respective terms, and will be entitled to the benefits of
this Agreement.
In rendering such opinions, such counsel may qualify any
opinions as to enforceability by stating that such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting the rights and remedies of creditors and is
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Such
counsel may rely, as to all matters governed by the laws of jurisdictions
other than the State of New York and the federal law of the United States,
upon opinions of other counsel (copies of which shall be delivered to the
Agent), who shall be counsel reasonably satisfactory to the Agent, in which
case the opinion shall state that such counsel believes he and the Agent are
entitled so to rely. Such counsel may also state that, insofar as such opinion
involves factual matters, he has relied, to the extent he deems proper, upon
certificates of officers of the Corporation and its subsidiaries and
certificates of public officials.
(b) The Agent shall have the right to decline to countersign,
execute on behalf of the Holders and deliver any Purchase Contract under this
Section if the Agent, being advised by counsel, determines that such action
may not lawfully be taken by the Corporation or if the Agent in good faith by
its board of directors or board of trustees determines that such action would
expose the Agent to personal liability to existing registered or beneficial
holders of Purchase Contracts or would affect the Agent's own rights, duties or
immunities under the Purchase Contracts, this Agreement or otherwise.
(c) If the Corporation shall establish pursuant to Section 3.2
that the Purchase Contracts of a series are to be evidenced by one or more
Global Purchase Contracts, then unless otherwise agreed between the
Corporation and the Agent the Corporation shall execute and the Agent shall,
in accordance with this Section and the Issuer Order with respect to such
series, countersign, execute on behalf of the Holders and deliver one or more
Global Purchase Contracts that (i) shall evidence all or a portion of the
Purchase Contracts of such series issued in such form and not yet cancelled,
(ii) in the case of Registered Purchase Contracts, shall be registered in the
name of the Depositary for such Purchase Contracts or the nominee of such
Depositary, (iii) shall be delivered by the Agent to such Depositary or
pursuant to such Depositary's instructions and (iv) in the case of Registered
Purchase Contracts, shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for Purchase Contracts
in definitive registered form, this Purchase Contract may not be transferred
except as a whole by the Depositary to the 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.
(d) If so required by applicable law, each Depositary for a series
of Registered Purchase Contracts must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934, as amended, and any other applicable
statute or regulation.
(e) Each Purchase Contract shall be dated the date of its
countersignature. A Purchase Contract shall not be valid for any purpose,
unless and until such Purchase Contract has been executed by the Agent on
behalf of the Holder and countersigned by the manual signature of an
authorized officer of the Agent. Such countersignature by an authorized
officer of the Agent upon any Purchase Contract executed by the Corporation in
accordance with this Agreement shall be conclusive evidence that the Purchase
Contract so countersigned has been duly delivered and issued hereunder.
Section 3.4. Further Provisions Relating to Issuance of
Purchase Contracts. Purchase Contracts may be executed by the Corporation and
delivered to the Agent upon the execution of this Agreement or from time to
time thereafter and in connection with exchanges, substitutions and transfers
of Units of any series. Subsequent to the original issuance of the Purchase
Contracts, the Agent shall, subject to the conditions set forth in this Article
and Article Two, countersign and execute on behalf of the Holder Purchase
Contracts issued in exchange or substitution for or upon transfer of Unit
Certificates evidencing one or more previously countersigned and executed
Unsettled Purchase Contracts evidenced by the Unit Certificates to be
exchanged, substituted for or transferred.
Section 3.5. Purchase of Purchase Contract Property; Optional
Acceleration of Purchase Obligations; Authorization of Agent by Holder;
Transferees Bound. (a) Unless otherwise specified pursuant to Section 3.2, the
Unsettled Purchase Contracts of any series will either (i) obligate the Holders
thereof to purchase, and the Corporation to sell or deliver the cash value of,
Purchase Contract Property or (ii) obligate the Corporation to purchase, and
the Holders thereof to sell or deliver the cash value of, Purchase Contract
Property, in each case specified pursuant to Section 3.2 (or a quantity
calculated by a method specified pursuant to Section 3.2) on the Stated
Settlement Date at the Purchase Price specified pursuant to Section 3.2.
(b) If this Section is specified as applicable pursuant to Section
3.2, the Corporation may, subject to paragraph (c) of this Section, at its
sole option and in its sole discretion at any time or from time to time
(unless otherwise specified pursuant to Section 3.2) on not less than 30 nor
more than 60 days' written notice (an "Acceleration Notice") to the Agent and
the Holders, in the manner provided in Section 11.5 and Section 11.6,
respectively, accelerate the obligations of the Holders of at least the
Minimum Acceleration Amount of Unsettled Purchase Contracts to purchase or
sell, as the case may be, and of the Corporation to sell or purchase, as the
case may be, on any Accelerated Settlement Date (provided that such
Accelerated Settlement Date may not be prior to the Initial Acceleration
Date), the quantity of Purchase Contract Property specified pursuant to
Section 3.2 for each Unsettled Purchase Contract subject to such acceleration;
provided that no such acceleration with respect to fewer than all Unsettled
Purchase Contracts shall (unless otherwise specified pursuant to Section 3.2)
result in fewer than the Minimum Remaining Amount of Unsettled Purchase
Contracts remaining Outstanding after such Accelerated Settlement Date; and
provided further that the Corporation shall have the right, in its sole
discretion, on or before the 10th day prior to such Accelerated Settlement
Date, to rescind any Acceleration Notice by written notice to the Agent and
written notice to the Holders pursuant to Sections 11.5 and 11.6 (whereupon
all rights and obligations of the Corporation and the Holders that would have
arisen as a result of such Acceleration Notice shall be of no force and
effect), without prejudice to the rights of the Corporation, including without
limitation its rights to deliver an Acceleration Notice in the future. If
fewer than all Unsettled Purchase Contracts of such series are to be
accelerated to a particular Accelerated Settlement Date, the Agent shall select
from among the Unsettled Purchase Contracts such number thereof as are being
accelerated on a pro rata basis, by lot or by such other means reasonably
acceptable to the Agent, with appropriate adjustment being made to prevent the
fractional acceleration of the settlement of Purchase Contracts, such that the
settlement of Purchase Contracts are accelerated only in whole and not in
part.
(c) Each Holder of a Unit, by his acceptance thereof, authorizes
and directs the Agent to enter into, deliver and perform any Purchase Contracts
that are part of such Unit on his behalf, agrees to be bound by the terms and
provisions thereof, covenants and agrees to perform its obligations under the
Purchase Contracts evidenced by such Unit, and consents and agrees to the
provisions hereof. If the provisions of Section 3.6 are applicable to the Units
of any series, each Holder of a Unit of such series, by his acceptance thereof,
further covenants and agrees that, to the extent such Holder is deemed to have
elected to satisfy its obligations under any Purchase Contracts that are part
of such Unit or to pay the exercise price of any Warrants that are part of such
Unit, in either case by effecting a Debt Security Settlement as provided in
Section 3.6, and subject to the terms thereof, redemption payments with
respect to principal of any Debt Securities that are part of such Unit shall be
applied by the Agent in satisfaction of such Holder's obligations under such
Purchase Contract on the applicable Settlement Date or in payment of such
exercise price on the applicable exercise date.
(d) Upon registration of transfer of a Purchase Contract of any
series, the transferee shall be bound (without the necessity of any other
action on the part of such transferee, except as may be required by the Agent
pursuant to this Article Three) under the terms of this Agreement and such
Purchase Contract, and the transferor shall be released from the obligations
under the Purchase Contract so transferred.
(e) Each Holder of a Unit of any series, by his acceptance thereof,
authorizes the Agent to execute on his behalf any Purchase Contracts that are
part of such Unit, authorizes and directs the Agent on his behalf to take such
other action (including without limitation any actions required under Article
Five), and covenants and agrees to take such other action as may be necessary
or appropriate, or as may be required by the Agent, to effect the provisions of
this Agreement, the Units and the Purchase Contracts and appoints the Agent
as his attorney-in-fact for any and all such purposes.
Section 3.6. Payment of Purchase Price. (a) Unless otherwise
specified pursuant to Section 3.2 (in the case of a Unit of any series
consisting of a Debt Security and a Purchase Contract that obligates the
Corporation to sell, and the Holder to purchase, Purchase Contract Property)
or Section 1.03 of the Warrant Agreement (in the case of a Unit of any series
consisting of a Debt Security and a Warrant that is a "call warrant" (as
defined in the Warrant Agreement)), the Purchase Price for any Purchase
Contract Property purchased by a Holder pursuant to such Purchase Contract
shall be payable at the Corporate Trust Office of the Agent and the exercise
price for any Warrant Property purchased by a Holder pursuant to such Warrant
shall be payable at the place or places specified in or pursuant to the
Warrant Agreement:
(i) at the option of the Holder of the Unit of which such
Purchase Contract or Warrant is part, after receipt by the Agent, in
the case of the Purchase Contract, of written notice from the Holder
not less than 10 days nor more than 20 days prior to the applicable
Settlement Date or, in the case of the Warrant, after receipt by the
Warrant Agent of the written exercise notice on the exercise date
indicating the Holder's choice of cash settlement, by delivery by such
Holder not later than 11:00 a.m., New York City time, on the Business
Day immediately preceding the Settlement Date, in the case of the
Purchase Contract, or on the exercise date, in the case of the
Warrant, of the Purchase Price or exercise price, as the case may be
(a "Cash Settlement"), to the Agent, in the case of the Purchase
Contract, or the Warrant Agent, in the case of Warrant, in immediately
available funds payable to or upon the order of the Corporation; or
(ii) by application of any payment received by the Agent
(whether in its capacity as Agent, Collateral Agent, Trustee or Paying
Agent) with respect to the principal of any Debt Security included in
the Unit of which such Purchase Contract or Warrant constitutes a
part, as provided in paragraph (f) of this Section (a "Debt Security
Settlement").
A Holder of such Units who fails to provide notice to the Agent
or the Warrant Agent, as the case may be, as provided above that it will make
a Cash Settlement with respect to the settlement of a Purchase Contract or
Warrants, or a Holder of such Units who provides such notice but does not
effect a Cash Settlement in accordance with the terms of this Section 3.6,
will be deemed to have elected to have the Purchase Price for the Purchase
Contract Property, or the exercise price for the Warrant, paid pursuant to
a Debt Security Settlement.
(b) Notwithstanding paragraph (a) of this Section, in the case of
Purchase Contracts of any series that obligate the Corporation to sell, and the
Holders to purchase, Purchase Contract Property or in the case of Warrants
that are "call warrants", the Corporation shall not be entitled to sell any
Purchase Contract Property or Warrant Property, or receive any payment of the
Purchase Price or exercise price therefor, if the Corporation fails to deliver
such Purchase Contract Property or Warrant Property or the cash value thereof
(if specified pursuant to Section 3.2 or the Warrant Agreement or the
applicable Warrants) against tender by the Agent of payment therefor.
(c) Unless otherwise specified pursuant to Section 3.2, to be
effective, payment with respect to a Purchase Contract or Warrant pursuant to
a Cash Settlement must be deposited with the Agent or the Warrant Agent by
11:00 a.m., New York City time, in the case of the Purchase Contract, on the
Business Day immediately preceding the Settlement Date or, in the case of a
Warrant, on the exercise date and must be made with respect to all (and not
fewer than all) of the Purchase Contracts or Warrants to be settled on such
Settlement Date or exercise date (i) included in the Definitive Units that are
registered in the name of the Person effecting Cash Settlement in the Purchase
Contract Register or Warrant Register, as the case may be, (ii) included in the
Global Units that are beneficially owned by the Person effecting Cash
Settlement as specified in the records of the direct and indirect participants
of the Depositary or (iii) in the case of Purchase Contracts or Warrants
included in Unregistered Definitive Units, owned by the Person effecting Cash
Settlement, and, in the case of (ii) and (iii) above, as certified in writing
by such Person, which certification shall be collected, in the case of (ii)
above, on behalf of such Person by the direct and indirect participants in the
Depositary through which such Person holds interests in the Global Units, and
which will be provided to the Agent or the Warrant Agent, in the case of (iii)
above, by such Person or, in the case of (ii) above, by the Depositary or any
direct participant of such Depositary, at the time payment pursuant to a Cash
Settlement is deposited with the Agent or the Warrant Agent. Any attempted
Cash Settlement other than in accordance with this Section 3.6 shall be deemed
to have not been made and any payments made to the Agent or the Warrant Agent
by a Holder not complying with this Section 3.6 shall be returned by the Agent
or the Warrant Agent to such Holder.
(d) The Corporation shall not be obligated to deliver any Purchase
Contract Property (or the cash value thereof) with respect to a Purchase
Contract of any series that obligates the Corporation to sell, and the Holder
to purchase, Purchase Contract Property unless it shall have received payment
in full of the applicable Purchase Price for any Purchase Contract Property to
be purchased thereunder in the manner set forth herein or in any Issuer Order
relating to the issuance of the Purchase Contracts of such series. The
Corporation shall not be obligated to pay the Purchase Price or any other
Settlement Amount for any Purchase Contract Property to be purchased by the
Corporation pursuant to any Purchase Contract that obligates the Corporation
to purchase, and the Holder to sell, Purchase Contract Property unless it shall
have received such Purchase Contract Property (or the cash value thereof) or
any other Settlement Amount in the manner set forth herein or as specified
pursuant to Section 3.2.
(e) In the case of Purchase Contracts that obligate the
Corporation to sell, and the Holders to purchase, Purchase Contract Property
or Warrants that are call warrants evidencing the Holder's right to purchase
Warrant Property, in each case consisting of securities in registered form,
the Agent shall cause such securities deliverable in respect of such Purchase
Contracts or Warrants, as the case may be, to be registered, in the case of
Registered Units, in the name of the Holder of such Units as set forth in the
appropriate Securities Register.
(f) Unless a Holder of a Unit of any series has effected a Cash
Settlement in satisfaction of his obligations under any Purchase Contracts or
Warrants constituting a part of such Unit that obligate the Holder, or
represent the Holder's right, to purchase Purchase Contract Property or Warrant
Property, respectively, any payment with respect to principal of any Debt
Security evidenced by such Unit that is received by the Agent (whether in its
capacity as Agent, Collateral Agent, Trustee or Paying Agent)in connection
with any Debt Security Settlement shall be paid by the Agent to the Collateral
Agent for delivery to the Corporation in satisfaction of the Holder's
obligations under the Global Purchase Contract or Purchase Contracts or Global
Warrant or Warrants constituting a part of such Units. Any payment that is
received by the Agent (whether in its capacity as Agent, Collateral Agent,
Trustee or Paying Agent) with respect to interest on a Debt Security related
to a Purchase Contract or Warrant that has been settled in accordance with
Section 3.6(a)(ii) shall be distributed to the Holders of Units upon surrender
of the appropriate Unit Certificate.
(g) Except as otherwise specified pursuant to Section 3.2, all
payments to be made by the Holders or by the Agent (whether in its capacity
as Agent, Collateral Agent, Trustee or Paying Agent) shall be made in lawful
money of the United States of America, by certified check or wire transfer in
immediately available funds in accordance with such regulations as the Agent
may reasonably establish consistent with the provisions of this Agreement.
(h) Any payment of the applicable Purchase Price or exercise price
deposited by a Holder hereunder with respect to a Purchase Contract or Warrant
shall be held by the Agent or Warrant Agent, as the case may be, in custody
for the benefit of the Holder and applied in satisfaction of such Holder's
obligations under such Purchase Contract or Warrant, or released and delivered
to the Holder upon the failure of the Corporation to satisfy its settlement
obligations against tender by the Agent or Warrant Agent, as the case may be,
of such payment of the applicable Purchase Price or the exercise price.
Section 3.7. Delivery of Purchase Contract Property or Other
Amounts. Unless otherwise specified pursuant to Section 3.2, (i) in the case
of Purchase Contracts obligating the Corporation to sell, and the Holders to
purchase, Purchase Contract Property or Warrants that are call warrants, upon
its receipt of payment in full of the Purchase Price or exercise price for the
Purchase Contract Property or Warrant Property purchased by any Holder
pursuant to the foregoing provisions of this Article or the Warrant Agreement,
the Corporation shall cause such Purchase Contract Property or Warrant
Property to be delivered to the Holders; and (ii) in the case of Purchase
Contracts obligating the Corporation to purchase, and the Holders to sell,
Purchase Contract Property or Warrants that are "put warrants" (as defined in
the Warrant Agreement), upon its receipt of the Purchase Contract Property,
Warrant Property, Settlement Amount or other amount, the Corporation shall
cause the Purchase Price, exercise price, Settlement Amount or other amount,
as applicable, to be delivered to the Holders, provided that in each case such
delivery shall be made only upon delivery to the Agent of the related Unit
Certificate.
Upon receipt of any Unit Certificate, the Agent shall cancel
such Unit Certificate in accordance with Section 2.11 as a result of the
delivery referred to in the preceding paragraph. If any Debt Securities
relating to Closed Purchase Contracts or exercised Warrants constituting a
part of Units evidenced by such Unit Certificate remain Outstanding as a
result of Cash Settlement, the Corporation shall execute and the Trustee shall
authenticate and deliver (i) in the case of Definitive Units, to the Holder
thereof, in accordance with the terms of the Indenture, a new certificate or
certificates representing solely the principal amount of Debt Securities still
Outstanding (ii) in the case of Global Units, if a Global Debt Security not
constituting part of a Global Unit has not previously been issued by the
Corporation, a second Global Debt Security representing Debt Securities still
Outstanding that are not part of Units. If a second Global Debt Security
referred to in clause (ii) of the immediately preceding sentence has already
been issued, the Agent shall note thereon an appropriate increase in the
number of Debt Securities represented by such Global Debt Security.
Section 3.8. Charges and Taxes. The Corporation shall not be
required to pay any tax or taxes that may be payable with respect to any
exchange of or substitution for a Unit Certificate or Security and the
Corporation shall not be required to issue or deliver such Unit Certificate or
such Security unless or until the Person or Persons requesting the transfer or
issuance thereof shall have paid to the Corporation the amount of such tax or
shall have established to the satisfaction of the Corporation that such tax has
been paid. The Agent shall be under no obligation to pay any such tax.
ARTICLE 4
Remedies
Section 4.1. Acceleration of Obligations. If at any time
there shall have occurred an Event of Default with respect to the Debt
Securities constituting a part of any Units that has resulted in the principal
of any Debt Securities being declared due and payable immediately pursuant to
Section 5.1 of the Indenture, then the Holders of not less than 25% of all
Unsettled Purchase Contracts constituting a part of any Units comprising Debt
Securities subject to such declaration may on behalf of all Holders of such
Unsettled Purchase Contracts by notice in writing to the Corporation and Agent
declare the obligations of such Holders to purchase or sell, as the case may
be, and of the Corporation to sell or purchase, as the case may be, the
quantity of Purchase Contract Property specified pursuant to Section 3.2 under
each such Unsettled Purchase Contract to be accelerated to the date of such
declaration and, upon any such declaration, such obligations shall be so
accelerated. The foregoing provision is subject to the condition that if, at
any time prior to settlement of such Purchase Contracts, the declaration with
respect to Debt Securities referred to in the immediately preceding sentence
and its consequences are rescinded and annulled in accordance with Section 5.1
of the Indenture, the acceleration of the obligations with respect to Unsettled
Purchase Contracts referred to in the immediately preceding sentence and its
consequences may be annulled and rescinded by vote of the Holders of not less
than 25% of all affected Unsettled Purchase Contracts Outstanding.
Section 4.2. Unconditional Rights under Purchase Contracts;
Limitation on Proceedings by Holders. (a) The Holder of any Unit shall have
the right, which is absolute and unconditional, to purchase or sell, as the
case may be, Purchase Contract Property pursuant to such Purchase Contract and
to institute suit for the enforcement of such right, and such right shall not
be impaired without the consent of such Holder.
(b) No Holder of any Unit shall have any right by virtue of or by
availing itself of any provision of this Agreement to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Agreement, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given written notice to the
Agent and the Corporation of a Default and of the continuance thereof and, (i)
in the case of an Event of Default under Debt Securities or the Indenture, the
procedures (including notice to the Trustee and the Corporation) described in
Article Five of the Indenture have been complied with and (ii) in the case of a
Purchase Contract Default specified in clause (ii) of the definition thereof,
unless the Holders of not less than 25% of all affected Purchase Contracts
comprised by all Units then Outstanding shall have made written request upon
the Agent to institute such action or proceedings in its own name as Agent
hereunder and shall have offered to the Agent such reasonable indemnity as it
may require pursuant to Article Six, and the Agent for 60 days after its
receipt of such notice, request and offer of indemnity shall have failed to
institute such action or proceedings and no direction inconsistent with such
request shall have been given to the Agent in writing by holders of a majority
of all affected Purchase Contracts constituting parts of Units then
Outstanding. Any Holder of a Unit may then (but only then) seek to enforce the
performance of the covenant or agreement with respect to which such Purchase
Contract Default exists; it being intended and expressly covenanted by the
Holder of each Unit with every other Holder and the Agent that no Holder shall
have any right by virtue of or by availing itself of any provision of this
Agreement to affect, disturb or prejudice the rights of any other Holder, or
to obtain or seek to obtain priority over or preference to any other Holder,
or to enforce any right under this Agreement, except in accordance with this
Section or the Indenture and for the equal, ratable and common benefit of all
Holders. For the protection and enforcement of the provisions of this Section,
each and every Holder of a Unit and the Agent shall be entitled to such relief
as can be given either at law or in equity.
Section 4.3. Restoration of Rights and Remedies. If any
Holder of Units has instituted any proceeding to enforce any right or remedy
under this Agreement and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to such Holder, then and in
every such case, subject to any determination in such proceeding the
Corporation, the Agent, the Trustee and such Holder shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies the Corporation, the Agent, the Trustee and such
Holder shall continue as though no such proceeding had been instituted.
Section 4.4. Rights and Remedies Cumulative. Subject to
Section 4.2, and except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Unit Certificates, no right
or remedy herein conferred upon or reserved to the Holders of Units is intended
to be exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at law or
in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 4.5. Delay or Omission Not Waiver. No delay or
omission of any Holder to exercise any right or remedy accruing upon any
Default shall impair any such right or remedy or constitute a waiver of any
such Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by such Holders.
Section 4.6. Waiver of Past Defaults. The Holders of not less
than a majority of all affected Purchase Contracts evidenced by Units of all
series at the time Outstanding may on behalf of the Holders of all affected
Units waive any past Purchase Contract Default hereunder and its consequences,
except, unless theretofore cured (i) a Purchase Contract Default resulting
from the failure of the Corporation to deliver (A) in the case of Purchase
Contracts obligating the Corporation to sell, and the Holders to purchase,
Purchase Contract Property (or the cash value thereof) Purchase Contract
Property (or the cash value thereof) against tender of payment therefor or (B)
in the case of Purchase Contracts obligating the Corporation to purchase, and
the Holders to sell, Purchase Contract Property (or the cash value thereof)
the applicable Purchase Price or other Settlement Amount specified pursuant to
Section 3.2 against tender of Purchase Contract Property or other amount
specified pursuant to Section 3.2 therefor or (ii) a Purchase Contract Default
with respect to a covenant or provision hereof which under Article Seven
cannot be modified or amended without approval of the Holder of each affected
Purchase Contract that is a part of an Outstanding Unit of any series. In the
case of any such waiver, the Holders, the Agent and the Corporation shall be
restored to their former positions and rights hereunder, respectively.
Upon any such waiver, such Purchase Contract Default shall
cease to exist, for every purpose of this Agreement, but no such waiver shall
extend to any subsequent or other Purchase Contract Default or impair any right
consequent thereon unless so expressly therein provided.
Section 4.7. Undertaking for Costs. All parties to this
Agreement agree, and each Holder of any Unit by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Agreement, or in
any suit against the Agent for any action taken, suffered or omitted by it as
Agent, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; provided that the provisions
of this Section shall not apply to any suit instituted by the Agent, to any
suit instituted by any Holder of Units, or group of Holders, holding in the
aggregate more than 10% of the Outstanding Units, or to any suit instituted by
any Holder for enforcement of the right to purchase or sell Purchase Contract
Property under the Purchase Contracts constituting a part of the Units held by
such Holder or to receive payment of the applicable Purchase Price (or other
Settlement Amount that may be specified pursuant to Section 3.2) with respect
thereto.
Section 4.8. Waiver of Stay or Extension Laws. The Corporation
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance
of this Agreement; and the Corporation (to the extent that it may lawfully do
so) each hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Agent, or the Holders, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 4.9. Agent May File Proofs of Claims. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy or other
judicial proceeding relating to the Corporation or the property of the
Corporation or its creditors, the Agent shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(i) to file and prove a claim and to file such other papers
or documents as may be necessary or advisable in order to have the
claims of the Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Agent, its
agents and counsel) and of the Holders allowed in such judicial
proceeding; and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator or other similar official in
any such proceeding is hereby authorized by each Holder to make such
payments to the Agent, and in the event that the Agent shall consent to the
making of such payments directly to the Holders, to pay to the Agent any
amount due to it hereunder; provided, however, that nothing herein shall be
deemed to authorize the Agent to authorize or consent to or vote for or
accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Units or the rights of
any Holder thereof, or to authorize the Agent to vote in respect of the
claim of any Holder of Units in any such proceeding.
Section 4.10. Suits for Enforcement. In case a Purchase
Contract Default has occurred, has not been waived and is continuing, and
subject to receipt by the Agent of the request referred to in Section 4.2 or
the direction referred to in Section 4.11 and the security or indemnity
referred to in Section 6.3(f), the Agent shall have the right to enforce, on
behalf of the Holders, the Purchase Contracts and the covenants and agreements
of the Corporation contained in the Purchase Contracts and in this Agreement
with respect to the Purchase Contracts and to proceed to protect and enforce
such rights by appropriate judicial proceedings to protect and enforce any of
such rights, either at law or in equity or in bankruptcy or otherwise, whether
for the specific enforcement of any such covenant or agreement contained in
this Agreement or in the Purchase Contracts or in aid of the exercise of any
power granted in this Agreement or to enforce any other legal or equitable
right vested in the Agent by this Agreement or by law.
All rights of action and of asserting claims under this
Agreement, or under the Units or any Securities comprised by the Units, may be
enforced by the Agent without the possession of the Units or any of the
Securities comprised by the Units or the production thereof on any trial or
other proceedings relative thereto, and any such actions or proceedings
instituted by the Agent shall be brought in its own name as agent and any
recovery of judgment, subject to the payment of the expenses, disbursements and
compensation of the Agent, each predecessor Agent and their respective agents
and attorneys, shall be for the ratable benefit of the Holders of the Units or
Securities in respect of which such action was taken.
Section 4.11. Control by Holders. The Holders of a majority of
affected Outstanding Purchase Contracts constituting a part of any Outstanding
Units shall have the right to direct the time, method, and place of conducting
any proceeding for any remedy available to the Agent, or exercising any power
conferred on the Agent with respect to such Purchase Contracts by this
Agreement; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Agreement and provided further
that (subject to the provisions of Section 6.1) the Agent shall have the right
to decline to follow any such direction if the Agent, being advised by counsel,
shall determine that the action or proceeding so directed may not lawfully be
taken or if the Agent in good faith by its board of directors or board of
trustees or a committee of its Responsible Officers, shall determine that the
action or proceedings so directed could involve the Agent in personal
liability or if the Agent in good faith shall so determine that the actions or
forebearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of Units not joining in the giving of
said direction, it being understood that (subject to Section 6.1) the Agent
shall have no duty to ascertain whether or not such actions or forebearances
are unduly prejudicial to such Holders.
Nothing in this Agreement shall impair the right of the Agent
in its discretion (but subject to Section 4.10) to take any action deemed
proper by the Agent and which is not inconsistent with such direction or
directions by Holders.
ARTICLE 5
Security Interests and Collateral Agent
Section 5.1. Granting of Security Interests; Rights and
Remedies of Collateral Agent; Perfection. In order to secure the observance
and performance of the covenants and agreements of the Holders of Purchase
Contracts contained herein and in such Purchase Contracts, unless otherwise
specified pursuant to Section 2.3:
(a) Effective upon issuance of Units of any series consisting of
Debt Securities and Purchase Contracts, the Holders thereof acting through the
Agent, as their attorney-in-fact, shall be deemed to grant, sell, convey,
assign, transfer and pledge unto the Collateral Agent, as agent of and for the
benefit of the Corporation, as collateral security for the performance when
due by such Holders of their respective obligations hereunder and under the
Purchase Contracts constituting a part of such Units, a security interest in
and to, and a lien upon and right of set-off (the "Pledge") against, all of
their right, title and interest in and to (i) the Pledged Items; (ii) all
additions to and substitutions for such Pledged Items as may be permissible,
if so specified pursuant to Section 3.2; (iii) all income, proceeds and
collections received or to be received, or derived or to be derived, now or
any time hereafter from or in connection with (i) and (ii) above, and (iv) all
powers and rights now owned or hereafter acquired under or with respect to the
Pledged Items (such Pledged Items, additions, substitutions, proceeds,
collections, powers and rights being herein collectively called the
"Collateral").
(b) Prior to or concurrently with the issuance of Global Units of
any series of which Debt Securities and Purchase Contracts constitute a part,
the initial Holders and the Agent shall cause the Debt Securities constituting
a part of such Global Units to be delivered to the Collateral Agent, and, if
specified pursuant to Section 3.2, accompanied by an instrument of transfer
executed in , and the Corporation shall notify the Collateral
Agent of the Pledge and receipt of such notification shall constitute
acknowledgment by the Collateral Agent (as third party in possession or
otherwise) of the Pledge and its holding of the Collateral subject to the
Pledge, in each case for purposes of perfecting the Pledge under applicable
law. Subject to the Pledge, the Holders from time to time of the Units of
which the Debt Securities constitute a part shall have full beneficial
ownership of such Debt Securities.
(c) The Collateral Agent shall have all of the rights, remedies and
recourse with respect to the Collateral afforded a secured party by the Uniform
Commercial Code as in effect in the State of New York (whether or not said
Code is in effect in the jurisdiction where the rights and remedies are
asserted), in addition to, and not in limitation of, the other rights, remedies
and recourse afforded to the Collateral Agent by this Agreement.
(d) Each Holder, to the extent permitted by applicable law, by
accepting Units of any series issued hereunder authorizes the Collateral Agent
to execute and file, in the name of such Holder, Uniform Commercial Code
financing or continuation statements (which may be carbon, photographic,
photostatic or other reproductions of this Agreement or of a financing
statement relating to this Agreement) which the Collateral Agent in its sole
discretion (but subject to Section 5.3(f)) may deem necessary or appropriate to
further perfect, or maintain the perfection of the security interests granted
hereby.
Section 5.2. Distribution of Principal and Interest; Release
of Collateral. Unless otherwise specified pursuant to Section 2.3:
(a) All payments of principal of, or interest on, any Pledged Items
received by the Collateral Agent pursuant to Section 3.6(f) shall be paid by
the Collateral Agent in same day funds no later than 2:00 p.m., New York City
time, on the Business Day such payments are received by the Collateral Agent
or, if received on a day that is not a Business Day or after 12:00 noon, New
York City time, on a Business Day, then such payment shall be made no later
than 9:00 am., New York City time, on the next succeeding Business Day to the
Corporation, in full satisfaction of the respective obligations of the Holders
of the Units of which such Pledged Items are a part under the Purchase
Contracts forming a part of such Units. Any such payments in excess of such
obligations of the Holders shall be promptly paid to the Agent to the account
designated by it for such purpose. All such payments received by the Agent as
provided herein shall be applied by the Agent pursuant to the provisions
hereof.
(b) Upon notice to the Collateral Agent by the Agent that one or
more Holders of Units have elected to effect Cash Settlement of their
respective obligations under the Purchase Contracts forming a part of such
Units in accordance with the terms hereof, and that either the Agent has
received from such Holders, and paid to the Corporation, the related amounts
pursuant to the terms of the Purchase Contracts and this Agreement or no such
payment is required, and that all other conditions to such Cash Settlement have
been satisfied, then the Collateral Agent shall release from the Pledge the
Pledged Items relating to such Purchase Contracts.
Section 5.3. Certain Duties and Responsibilities of the
Collateral Agent . The Collateral Agent accepts its duties and
responsibilities hereunder as agent for the Corporation, on and subject to the
following terms and conditions:
(a) The Collateral Agent undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. No provision of
this Agreement shall be construed to relieve the Collateral Agent from
liability for its own negligent action, its own negligent failure to act, or
its own wilful misconduct, except that
(i) the duties and obligations of the Collateral Agent with
respect to the Units shall be determined solely by the express
provisions of this Agreement and the Collateral Agent shall not be
liable except for the performance of such duties and obligations as
are specifically set forth in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against the
Collateral Agent; and
(ii) in the absence of bad faith on its part, the Collateral
Agent may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Collateral Agent and
conforming to the requirements of this Agreement, but in the case of
any such statements, certificates or opinions that by any provision
hereof are specifically required to be furnished to the Collateral
Agent, the Collateral Agent shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Agreement.
(b) The Collateral Agent shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Collateral Agent,
unless it shall be proved that the Collateral Agent was negligent in
ascertaining the pertinent facts.
(c) No provision of this Agreement shall require the Collateral
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision
of this Agreement relating to the conduct or affecting the liability of or
affording protection to the Collateral Agent shall be subject to the
provisions of this Section.
(e) The Collateral Agent is acting solely as agent for the
Corporation hereunder and owes no fiduciary duties to any Person by virtue of
this Agreement.
(f) Except as specifically provided herein, the Collateral Agent
shall not be responsible for the validity, sufficiency, collectibility or
marketability of any Collateral given to or held by it hereunder or for the
validity or sufficiency of the lien on the Collateral purported to be created
hereby and shall have no obligation to file any financing or continuation
statement with respect to the Collateral in any public office at any time or
time.
Section 5.4. Knowledge of the Collateral Agent. The Collateral
Agent shall not be deemed to have knowledge of any default by any person under
any Purchase Contract, unless and until a Responsible Officer of the
Collateral Agent assigned to its Corporate Trustee Administration Department
shall have actual knowledge thereof or shall have received written notice
thereof from the Corporation or any Holder.
Section 5.5. Certain Rights of Collateral Agent. Subject to
the provisions of Section 5.3:
(a) the Collateral Agent may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Corporation
mentioned herein shall be sufficiently evidenced by an Officer's Certificate,
Issuer Order or Issuer Request, and any resolution of the Board of Directors of
the Corporation, as the case may be, may be sufficiently evidenced by a Board
Resolution;
(c) the Collateral Agent may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Collateral Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security or other paper or
document;
(e) the Collateral Agent may execute any of the powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Collateral Agent shall not be responsible for any misconduct
or negligence on the part of any such agent or attorney appointed with due
care by it hereunder; and
(f) the Collateral Agent shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or within
the discretion, rights or powers conferred upon it by this Agreement.
Section 5.6. Compensation and Reimbursements. The Corporation
agrees:
(a) to pay to the Collateral Agent from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law with regard to the compensation
of a trustee of an express trust),
(b) except as otherwise expressly provided herein, to reimburse the
Collateral Agent and any predecessor Collateral Agent upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Collateral Agent in accordance with any provision of this Agreement (including
the reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Collateral Agent and any predecessor
Collateral Agent for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this Agreement and
its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligations of the Corporation under this Section to
compensate and indemnify the Collateral Agent and any predecessor Collateral
Agent and to pay or reimburse the Collateral Agent and any predecessor
Collateral Agent for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the resignation or removal
of such Collateral Agent or predecessor Collateral Agent or the termination
hereof or of any Purchase Contract. Such additional indebtedness shall be a
senior claim to that of the Units upon all property and funds held or
collected by the Collateral Agent as such, except funds held in trust for the
benefit of the Holders of Units, and the Units are hereby subordinated to such
senior claim.
Section 5.7. Corporate Collateral Agent Required Eligibility.
There shall at all times be a Collateral Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, having, together
with its parent, a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal, State or District of
Columbia authority and willing to act on reasonable terms. If such
corporation, or its parent, publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. The Collateral Agent hereunder shall at all times be the Agent
hereunder, the Trustee and a Paying Agent under the Indenture and the Warrant
Agent under the Warrant Agreement, subject to receipt of an Opinion of Counsel
that the same Person is not precluded by law from acting in such capacities.
If at any time the Collateral Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article. The Collateral
Agent may appoint one or more sub-collateral agents with offices or agencies
in a city or cities outside the United States.
Section 5.8. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Collateral Agent and no
appointment of a successor Collateral Agent pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Collateral Agent in accordance with the applicable requirements of Section
5.9.
(b) The Collateral Agent may resign by giving written notice
thereof to the Corporation and the Holders, in accordance with Section 11.5 and
Section 11.6, 60 days prior to the effective date of such resignation. The
Collateral Agent may be removed at any time upon 60 days' notice by the filing
with it of an instrument in writing signed on behalf of the Corporation and
specifying such removal and the date when it is intended to become effective.
If the instrument of acceptance by a successor Collateral Agent required by
Section 5.9 shall not have been delivered to the Collateral Agent within 30
days after the giving of such notice of resignation, the resigning Collateral
Agent may petition any court of competent jurisdiction for the appointment of
a successor Collateral Agent.
(c) If at any time
(i) the Collateral Agent shall cease to be eligible under
Section 5.7, or shall cease to be eligible as Agent hereunder, as
Trustee under the Indenture or as Warrant Agent under the Warrant
Agreement, and shall fail to resign after written request therefor by
the Corporation, or
(ii) the Collateral Agent shall become incapable of acting
with respect to the Collateral or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Collateral Agent or of
its property shall be appointed or any public officer shall take
charge or control of the Collateral Agent or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Corporation, by Board Resolution, may remove the
Collateral Agent and appoint a successor Collateral Agent.
(d) If the Collateral Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Collateral
Agent for any cause, the Corporation, by Board Resolution, shall promptly
appoint a successor Collateral Agent or Collateral Agents (other than the
Corporation) and shall comply with the applicable requirements of Section 5.9.
(e) The Corporation shall give, or shall cause such successor
Collateral Agent to give, notice of each resignation and each removal of the
Collateral Agent and each appointment of a successor Collateral Agent to all
Holders of Units in accordance with Section 11.6. Each notice shall include
the name of the successor Collateral Agent and the address of its Corporate
Trust Office.
Section 5.9. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Collateral Agent, every such
successor Collateral Agent so appointed shall execute, acknowledge and deliver
to the Corporation and to the retiring Collateral Agent an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Collateral Agent shall become effective and such successor Collateral
Agent, without any further act, deed or conveyance, shall become vested with
all the rights, powers, agencies and duties of the retiring Collateral Agent,
with like effect as if originally named as Collateral Agent hereunder; but, on
the request of the Corporation or the successor Collateral Agent, such retiring
Collateral Agent shall, upon payment of all amounts due and payable to it
pursuant to Section 5.6, execute and deliver an instrument transferring to such
successor Collateral Agent all the rights and powers of the retiring Collateral
Agent and shall duly assign, transfer and deliver to such successor Collateral
Agent all property and money held by such retiring Collateral Agent hereunder.
Any retiring Collateral Agent shall, nonetheless, retain a prior claim upon
all property or funds held or collected by such Collateral Agent to secure any
amounts then due it pursuant to Section 5.6.
(b) Upon request of any such successor Collateral Agent, the
Corporation shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Collateral Agent all such rights,
powers and agencies referred to in paragraph (a) of this Section.
(c) No successor Collateral Agent shall accept its appointment
unless at the time of such acceptance such successor Collateral Agent shall be
eligible under this Article.
(d) Upon acceptance of appointment by any successor Collateral
Agent as provided in this Section, the Corporation shall give notice thereof to
the Holders of Units in accordance with Section 11.6. If the acceptance of
appointment is substantially contemporaneous with the resignation of the
Collateral Agent, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 5.8. If the Corporation fails to
give such notice within ten days after acceptance of appointment by the
successor Collateral Agent, the successor Collateral Agent shall cause such
notice to be given at the expense of the Corporation.
Section 5.10. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Collateral Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Collateral Agent
shall be a party, or any corporation succeeding to all or substantially all the
agency business of the Collateral Agent, shall be the successor of the
Collateral Agent hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation shall be otherwise eligible under this Article.
Section 5.11. Money Held in Trust. Money held by the
Collateral Agent in trust hereunder need not be segregated from other funds
held by the Collateral Agent, except to the extent required by law. The
Collateral Agent shall be under no obligation to invest or pay interest on any
money received by it hereunder, except as otherwise agreed with the
Corporation. Any interest accrued on funds deposited with the Collateral Agent
or any Paying Agent under this Agreement shall be paid to the Corporation from
time to time and the Holders of Units (whether or not any Purchase Contracts
are to be redeemed with such funds) shall have no claim to any such interest.
ARTICLE 6
The Agent
Section 6.1. Certain Duties and Responsibilities. (a) The
Agent undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement.
(b) No provision of this Agreement shall be construed to relieve
the Agent from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(i) the duties and obligations of the Agent with respect to
the Units shall be determined solely by the express provisions of this
Agreement and the Agent shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this
Agreement, and no implied covenants or obligations shall be read into
this Agreement against the Agent; and
(ii) in the absence of bad faith on its part, the Agent may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Agent and conforming to the
requirements of this Agreement, but in the case of any such
statements, certificates or opinions that by any provision hereof are
specifically required to be furnished to the Agent, the Agent shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Agreement.
(c) The Agent shall not be liable for any error of judgment made
in good faith by a Responsible Officer of the Agent, unless it shall be proved
that the Agent was negligent in ascertaining the pertinent facts.
(d) The Agent shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the Holders of a majority in number of affected Outstanding Purchase Contracts
relating to the time, method and place of conducting any proceeding for any
remedy available to the Agent, or exercising any power conferred upon the
Agent, under this Agreement.
(e) No provision of this Agreement shall require the Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(f) Whether or not therein expressly so provided, every provision
of this Agreement relating to the conduct or affecting the liability of or
affording protection to the Agent shall be subject to the provisions of this
Section.
(g) The Agent is acting solely as agent for the Corporation
hereunder and owes no fiduciary duties to any person by virtue of this
Agreement.
Section 6.2. Notice of Default. Within 90 days after the
occurrence of any Purchase Contract Default of which a Responsible Officer of
the Agent assigned to its Corporate Trustee Administration Department has
actual knowledge (and except with respect to a Purchase Contract Default under
the Purchase Contracts existing on the Settlement Date, in which event, as
promptly as practicable thereafter) the Agent shall provide to all Holders of
Units, in the manner provided in Section 11.6, notice of such Purchase
Contract Default hereunder, unless such Purchase Contract Default shall have
been cured or waived.
Section 6.3. Certain Rights of Agent. Subject to the
provisions of Section 6.1:
(a) the Agent may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Corporation
mentioned herein shall be sufficiently evidenced by an Officer's Certificate or
Issuer Order or Issuer Request and any resolution of the Board of Directors of
the Corporation, as the case may be, may be sufficiently evidenced by a Board
Resolution;
(c) the Agent may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Agent shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security or other paper or document, but the Agent,
in its discretion, may make reasonable further inquiry or investigation into
such facts or matters related to the issuance of the Debt Securities, Prepaid
Purchase Contracts or Warrants, as the case may be, and the execution,
delivery and performance of the Purchase Contracts as it may see fit, and, if
the Agent shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Corporation, at reasonable times during normal business hours, personally or
by agent or attorney;
(e) the Agent may execute any of the powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Agent shall not be responsible for any misconduct or negligence on the
part of any such agent or attorney appointed with due care by it hereunder;
(f) the Agent shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement at the request, order or
direction of any of the Holders pursuant to this Agreement, unless such
Holders shall have offered to the Agent reasonable security or indemnity
against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction;
(g) the Agent shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement; and
(h) the Agent shall not be charged with notice or knowledge of a
Purchase Contract Default unless a Responsible Officer of the Agent assigned
to its Corporate Trustee Administration Department shall have actual knowledge
thereof.
Section 6.4. Not Responsible for Recitals or Issuance of
Units. The recitals contained herein, in the Indenture, in the Warrant
Agreement and in the Units, except the Trustee's, Warrant Agent's and Agent's
certificates of authentication or countersignature, shall be taken as the
statements of the Corporation, and none of the Trustee, Agent, the Warrant
Agent or any Authenticating Agent assumes any responsibility for their
correctness. The Agent makes no representations as to the validity or
sufficiency of this Agreement or of the Units. None of the Trustee, Agent, the
Warrant Agent or any Authenticating Agent shall be accountable for the use or
application by the Corporation of the proceeds with respect to Units or be
responsible for exercising any remedy hereunder on behalf of the Holders,
except as expressly provided in this Agreement.
Section 6.5. May Hold Units. The Agent, the Collateral Agent,
the Trustee, the Warrant Agent, any Authenticating Agent, any Purchase Contract
Registrar or any other agent of the Corporation, the Trustee, the Warrant
Agent, or the Agent, in its individual or any other capacity, may become the
owner or pledgee of Units and may otherwise deal with the Corporation and
receive, collect, hold and retain collections from the Corporation with the
same rights it would have if it were not Authenticating Agent, Purchase
Contract Registrar or such other agent, the Trustee, the Warrant Agent, the
Collateral Agent or the Agent.
Section 6.6. Money Held in Trust. Money held by the Agent in
trust hereunder need not be segregated from other funds held by the Agent,
except to the extent required by law. The Agent shall be under no obligation
to invest or pay interest on any money received by it hereunder, except as
otherwise agreed with the Corporation. Any interest accrued on funds deposited
with the Agent or any Paying Agent under this Agreement shall be paid to the
Corporation from time to time and the Holders of Units (whether or not any
Purchase Contracts are to be redeemed with such funds) shall have no claim to
any such interest.
Section 6.7. Compensation and Reimbursement. The Corporation
agrees:
(a) to pay to the Agent from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law with regard to the compensation of a trustee of
an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Agent and any predecessor Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Agent in accordance with
any provision of this Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or
bad faith; and
(c) to indemnify the Agent and any predecessor Agent for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Agreement and its duties hereunder,
including the costs and expenses of defending itself against or investigating
any claim of liability in connection with the exercise or performance of any
of its powers or duties hereunder.
The obligations of the Corporation under this Section to
compensate and indemnify the Agent and any predecessor Agent and to pay or
reimburse the Agent and any predecessor Agent for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the resignation or removal of such Agent or predecessor Agent or the
termination hereof or any Purchase Contract. Such additional indebtedness
shall be a senior claim to that of the Units upon all property and funds held
or collected by the Agent as such, except funds held in trust for the benefit
of the Holders of particular Units, and the Units are hereby subordinated to
such senior claim.
Section 6.8. Corporate Agent Required: Eligibility. There
shall at all times be an Agent hereunder which shall be a corporation
organized and doing business under the laws of the United States of America,
any State thereof or the District of Columbia, having, together with its
parent, a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal, State or District of Columbia authority
and willing to act on reasonable terms. If such corporation, or its parent,
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. The Agent hereunder shall at all
times be the Collateral Agent hereunder, the Trustee under the Indenture and
the Warrant Agent under the Warrant Agreement, subject to receipt of an
Opinion of Counsel that the same Person is precluded by law from acting in
such capacities. If at any time the Agent shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article. The
Agent may appoint one or more sub-agents with offices or agencies in a city or
cities outside the United States.
Section 6.9. Resignation and Removal: Appointment of
Successor. (a) No resignation or removal of the Agent and no appointment of a
successor Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Agent in accordance with the
applicable requirements of Section 6.10.
(b) The Agent may resign by giving written notice thereof to the
Corporation and the Holders, in accordance with Section 11.5 and Section 11.6,
60 days prior to the effective date of such resignation. The Agent may be
removed at any time upon 60 days' notice by the filing with it of an
instrument in writing signed on behalf of the Corporation and specifying such
removal and the date when it is intended to become effective. If the instrument
of acceptance by a successor Agent required by Section 6.10 shall not have
been delivered to the Agent within 30 days after the giving of such notice of
resignation, the resigning Agent may petition any court of competent
jurisdiction for the appointment of a successor Agent.
(c) If at any time
(i) the Agent shall cease to be eligible under Section 6.8,
or shall cease to be eligible as Collateral Agent hereunder, Trustee
under the Indenture or as Warrant Agent under the Warrant Agreement,
and shall fail to resign after written request therefor by the
Corporation or by any Holder, or
(ii) the Agent shall become incapable of acting with respect
to the Units or shall be adjudged a bankrupt or insolvent, or a receiver
or liquidator of the Agent or of its property shall be appointed or
any public officer shall take charge or control of the Agent or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Corporation, by Board Resolution, may remove
the Agent and appoint a successor Agent, or (B) any Holder who has been a
bona fide Holder of a Unit for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Agent and the appointment of a
successor Agent or Agents. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, remove the Agent and appoint a
successor Agent.
(d) If the Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Agent for any cause, the
Corporation, by Board Resolution, shall promptly appoint a successor Agent or
Agents (other than the Corporation) and shall comply with the applicable
requirements of Section 6.10. If no successor Agent shall have been so
appointed by the Corporation and accepted appointment in the manner required
by Section 6.10, any Holder who has been a bona fide Holder of a Unit for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Agent.
(e) The Corporation shall give, or shall cause such successor
Agent to give, notice of each resignation and each removal of the Agent and
each appointment of a successor Agent to all Holders of Units in accordance
with Section 11.6. Each notice shall include the name of the successor Agent
and the address of its Corporate Trust Office.
Section 6.10. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Agent, every such successor
Agent so appointed shall execute, acknowledge and deliver to the Corporation
and to the retiring Agent an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Agent shall become
effective and such successor Agent, without any further act, deed or
conveyance, shall become vested with all the rights, powers, agencies and
duties of the retiring Agent, with like effect as if originally named as Agent
hereunder; but, on the request of the Corporation or the successor Agent, such
retiring Agent shall, upon payment of all amounts due and payable to it
pursuant to Section 6.7, execute and deliver an instrument transferring to
such successor Agent all the rights and powers of the retiring Agent and shall
duly assign, transfer and deliver to such successor Agent all property and
money held by such retiring Agent hereunder. Any retiring Agent shall,
nonetheless, retain a prior claim upon all property or funds held or collected
by such Agent to secure any amounts then due it pursuant to Section 6.7.
(b) Upon request of any such successor Agent, the Corporation shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the
time of such acceptance such successor Agent shall be eligible under this
Article.
(d) Upon acceptance of appointment by any successor Agent as
provided in this Section, the Corporation shall give notice thereof to the
Holders of Units in accordance with Section 11.6. If the acceptance of
appointment is substantially contemporaneous with the resignation of the
Agent, then the notice called for by the preceding sentence may be combined
with the notice called for by Section 6.9. If the Corporation fails to give
such notice within ten days after acceptance of appointment by the successor
Agent, the successor Agent shall cause such notice to be given at the expense
of the Corporation.
Section 6.11. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Agent shall be a party, or
any corporation succeeding to all or substantially all the agency business of
the Agent, shall be the successor of the Agent hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that such corporation shall be otherwise eligible
under this Article. In case any Purchase Contracts shall have been
countersigned and executed, but not delivered, by the Agent then in office,
any successor by merger, conversion or consolidation to such Agent may adopt
such countersignature and execution and deliver the Purchase Contracts so
countersigned and executed with the same effect as if such successor Agent had
itself countersigned and executed such Purchase Contracts.
Section 6.12. Appointment of Authenticating Agent. At any time
when any of the Units remain Outstanding the Agent may, by an instrument in
writing, appoint an Authenticating Agent or Agents with respect to the
Purchase Contracts to be authorized to act on behalf of the Agent to
countersign, execute and deliver the Purchase Contracts issued upon exchange,
registration of transfer or pursuant to Section 2.9 and Purchase Contracts so
countersigned, executed and delivered shall be entitled to the benefits of
this Agreement and shall be valid and obligatory for all purposes as if
countersigned by the Agent hereunder. Wherever reference is made in this
Agreement to the countersignature, execution and delivery of Purchase
Contracts by the Agent or the Agent's countersignature or execution, such
references shall be deemed to include countersignature, execution and delivery
on behalf of the Agent by an Authenticating Agent and a countersignature and
execution executed on behalf of the Agent by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Corporation and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, subject to
supervision or examination by Federal or State or District of Columbia
authority and having, together with its parent, a combined capital and surplus
of not less than $50,000,000. If such Authenticating Agent, or its parent,
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section. The Agent may
also appoint one or more Authenticating Agents with offices or agencies in
a city or cities outside the United States.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all the agency business of an Authenticating Agent, shall
continue to be an Authenticating Agent, without the execution or filing of any
paper or any further act on the part of the Agent or the Authenticating Agent,
provided that such corporation shall be otherwise eligible under this Section.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Agent and to the Corporation. The Agent may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Corporation. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Agent may appoint a successor Authenticating
Agent which shall be acceptable to the Corporation and shall provide written
notice of such appointment to all Holders of Units in the manner and to the
extent provided in Section 11.6. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section. No
Authenticating Agent shall have any responsibility or liability for any action
taken by it as such at the direction of the Agent.
The provisions of Sections 2.10, 6.4 and 6.5 shall be
applicable to each Authenticating Agent.
Pursuant to each appointment made under this Section, the
Purchase Contracts covered by such appointment may have endorsed thereon, in
addition to the form of Agent's countersignature and execution of the Purchase
Contracts evidenced thereby, an alternative countersignature and execution of
the Purchase Contracts contained therein in the following forms:
THE CHASE MANHATTAN BANK, as
Agent, as attorney-in-fact of the Holder
hereof
By [NAME OF AUTHENTICATING
AGENT], as Authenticating Agent
By:______________________________________
[Authorized Officer]
Title:
Countersigned:
THE CHASE MANHATTAN BANK, as
Agent
By [NAME OF AUTHENTICATING
AGENT], as Authenticating Agent
By:______________________________________
[Authorized Officer]
Title:
Section 6.13. Corporation to Furnish Agent Names and Addresses
of Holders. The Corporation will furnish or cause to be furnished to the Agent
(a) not later than 15 days after each Regular Record Date in each
year, a list, in such form as the Agent may reasonably require, of the names
and addresses of the Holders of Registered Units as of such Regular Record
Date, and
(b) at such other times as the Agent may request in writing,
within 30 days after the receipt by the Corporation of any such request, a
list of similar form and content as of a date not more than 15 days prior to
the time such list is furnished;
provided that no such list need be furnished if the Agent shall be the
Purchase Contract Registrar, the registrar under the Warrant Agreement and the
registrar under the Indenture.
Section 6.14. Preservation of Information; Communications to
Holders. (a) The Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Units contained
in the most recent list furnished to the Agent as provided in Section 6.13 and
the names and addresses of Holders of Registered Units received by the Agent
in its capacity as Purchase Contract Registrar, the registrar under the
Warrant Agreement and the registrar under the Indenture. The Agent may
destroy any list furnished to it as provided in Section 6.13 upon receipt
of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Agent, and furnish to the Agent reasonable proof that
each such applicant has owned a Unit for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their
rights under this Agreement or under the Units and is accompanied by a copy
of the form of proxy or other communication that such applicants propose to
transmit, then the Agent shall, within five Business Days after the receipt of
such application, at its election either (i) afford such applicants access to
the information preserved at the time by the Agent in accordance with Section
6.14(a) or (ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time by
the Agent, and as to the approximate cost of mailing to such Holders the form
of proxy or other communication, if any, specified in such application.
If the Agent shall elect not to afford such applicants access
to such information, the Agent shall, upon the written request of such
applicants, mail to each Holder whose name and address appears in the
information preserved at the time by the Agent, a copy of the form of proxy or
other communication that is specified in such application, with reasonable
promptness after a tender to the Agent of the material to be mailed and of
payment, or provision for payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Agent shall mail to such
applicants a written statement to the effect that in the opinion of the Agent,
such mailing would be contrary to the best interests of the Holders or would
be in violation of applicable law. Thereafter, the Agent shall be relieved of
any obligation or duty to such applicants with respect to their application.
(c) Every Holder of Units, by his acceptance thereof, agrees with
the Corporation and the Agent that neither the Corporation nor the Agent nor
any agent of any of them shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Holders in
accordance with Section 6.14(b), regardless of the source from which such
information was derived, and that the Agent shall not be held accountable by
reason of mailing any material pursuant to a request made under Section
6.14(b).
Section 6.15. No Obligation of Holder. Except to the extent
otherwise provided in this Agreement, the Agent assumes no obligations and
shall not be subject to any liability under this Agreement or any Purchase
Contract with respect to the obligations of the Holder of a Unit thereunder.
The Corporation agrees, and each Holder of a Unit Certificate, by his
acceptance thereof, shall be deemed to have agreed, that the Agent's execution
of the Purchase Contracts evidenced by the Unit Certificates shall be solely as
agent and attorney-in-fact for the Holders, and that the Agent shall have no
obligation to perform such Purchase Contracts on behalf of the Holders, except
to the extent provided in this Article.
Section 6.16. Tax Compliance. (a) The Agent, on its own
behalf and on behalf of the Corporation, will comply with all applicable
certification, information reporting and withholding (including "backup"
withholding) requirements imposed by applicable United States, federal and New
York State tax laws, regulations or administrative practice (i) with respect
to payments on, or transfer or redemption of the Debt Securities, the Prepaid
Purchase Contracts, the Warrants or the Purchase Contracts or (ii) if
specifically instructed by the Company, with respect to the issuance,
delivery, holding, or exercise of rights (other than by payment, transfer or
redemption) under the Debt Securities, the Prepaid Purchase Contracts, the
Warrants or the Purchase Contracts. Such compliance shall include, without
limitation, the preparation and timely filing of required returns with respect
to, and the timely payment of, all amounts required to be withheld to the
appropriate taxing authority or its designated agent. The Corporation will
provide to the Agent such information as it may reasonably request in order to
comply with this Section.
(b) The Agent shall comply with any direction received from the
Corporation with respect to the application of such requirements to particular
payments or holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 6.1(b)(ii) hereof.
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request at reasonable times during normal business hours to the Corporation or
to their authorized representatives duly authorized in writing.
(d) Unless otherwise specified pursuant to Section 2.3, the
portion of the issue price of any Units of any series consisting of Debt
Securities and Purchase Contracts allocable to such Debt Securities shall
equal the principal amount payable at maturity of such Debt Securities. Unless
otherwise specified pursuant to Section 2.3, the portion of the issue price of
any Units of any series consisting of Debt Securities and Warrants allocable
to such Debt Securities shall equal the portion of the issue price that is in
the same proportion to such issue price as the fair market value of such Debt
Securities bears to the aggregate fair market value of such Debt Securities
and Warrants, taken as a whole. The Corporation and the Holders agree not to
file any tax returns, or take a position with any tax authority, that is
inconsistent with the characterization of the Debt Securities as debt.
(e) Unless otherwise specified pursuant to Section 2.3, the
Corporation by the issuance and sale of any Unit and any Holder of a Unit by
his acceptance thereof agree to (in the absence of any applicable
administrative ruling or judicial determination to the contrary) treat the
Securities that constitute any Unit as separate securities and to file all
United States federal, state and local tax returns consistent with the
treatment of such Unit as constituted by separate securities.
ARTICLE 7
Supplemental Agreements
Section 7.1. Supplemental Agreements Without Consent of
Holders. Without the consent of any Holders, the Corporation, when authorized
by a Board Resolution or Officer's Certificate, the Agent and the Collateral
Agent, at any time and from time to time, may enter into one or more
agreements supplemental hereto, in form satisfactory to the Agent, for any
of the following purposes:
(i) to evidence the succession of another Person to the
Corporation and the assumption by any such successor of the covenants
of the Corporation herein and in the Purchase Contracts; or
(ii) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent or Collateral Agent with respect to the
Units; or
(iii) to add to the covenants of the Corporation, Collateral
Agent or Agent such further covenants, restrictions, conditions or
provisions as the Corporation, Collateral Agent and Agent shall
consider to be for the protection of the Holders, and to make the
occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions of
the Corporation a Purchase Contract Default permitting the enforcement
of all or any of the several remedies provided in this Agreement as
herein set forth; provided that in respect of any such additional
covenant, restriction, condition or provision such supplemental
agreement may provide for a particular period of grace after default
(which period may be shorter or longer than that allowed in the case
of other defaults) or may provide for an immediate enforcement upon
such a Purchase Contract Default or may limit the remedies available
to the Holders upon such a Purchase Contract Default or may limit the
right of the Holders to waive such Purchase Default; or
(iv) to comply with the Securities Act of 1933, as amended,
the Exchange Act or the Investment Company Act of 1940, as amended; or
(v) to cure any ambiguity, to correct or supplement any
provision herein or in the Purchase Contracts of any series that may be
inconsistent with any other provision herein or therein, or to modify,
alter, amend or supplement any other provisions with respect to
matters or questions arising under this Agreement or under such
Purchase Contracts; provided that such action shall not adversely
affect the interests of the Holders in any material respect.
Section 7.2. Supplemental Agreements with Consent of Holders.
With the consent of the Holders of not less than a majority of all Unsettled
Purchase Contracts constituting a part of any series of Units Outstanding, in
the case of clause (A) below, and with the consent of the Holders of not less
than a majority of all Units Outstanding, in the case of clause (B) below, by
Act of said Holders delivered to the Corporation and the Agent, the
Corporation, when authorized by a Board Resolution or Officer's Certificate,
the Agent and the Collateral Agent may enter into an agreement or agreements
supplemental hereto for the purpose of (A) modifying in any manner the terms
of the Purchase Contracts or this Agreement with respect to the Purchase
Contracts or the rights of the Holders of Units with respect to the Purchase
Contracts or (B) modifying in any manner the other terms of this Agreement or
the other rights of Holders of Units; provided, however, that no such
supplemental agreement shall (i) without the consent of the Holder of each
Outstanding Purchase Contract affected thereby in the case of clauses (1), (2)
and (3) below and (ii) without the consent of the Holder of each Unit affected
thereby, in the case of clauses (4) and (5) below:
(1) impair the right to institute suit for the enforcement
of any Purchase Contract, or
(2) reduce the percentage of the Purchase Contracts
constituting a part of any series of Units Outstanding, the consent of
whose Holders is required for any modification or amendment of the
provisions of this Agreement relating to the Purchase Contracts or for
any waiver of any Purchase Contract Defaults hereunder and their
consequences provided for in this Agreement relating to the Purchase
Contracts, or
(3) modify or affect (in any manner materially adverse to
the Holders) the Holders' rights and obligations under the Purchase
Contracts; or
(4) modify or affect (in any manner materially adverse to
the Holders) the terms of this Agreement or such Holder's Units (other
than the terms referred to in clause (1), (2) or (3) above); or
(5) reduce the percentage of Holders of Units whose consent
is required for any modification or amendment of the provisions of this
Agreement (other than the terms referred to in clause (1), (2) or (3)
above).
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental agreement,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 7.3. Execution of Supplemental Agreements. In
exchange for accepting the additional agencies or duties created by, any
supplemental agreement permitted by this Article or the modifications thereby
of the agencies or duties created by this Agreement, each of the Agent and the
Collateral Agent shall be entitled to receive and (subject to Sections 6.1 and
5.3, respectively) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental agreement is
authorized or permitted by this Agreement. Each of the Agent and the
Collateral Agent may, but shall not be obligated to, enter into any such
supplemental agreement that affects the Agent's or the Collateral Agent's
rights, duties or immunities under this Agreement or otherwise.
Section 7.4. Effect of Supplemental Agreements. Upon the
execution of any supplemental agreement under this Article, this Agreement
shall be modified in accordance therewith, and such supplemental agreement
shall form a part of this Agreement for all purposes; and every Holder of
Units, theretofore or thereafter authenticated, countersigned, executed and
delivered hereunder, under the Warrant Agreement and/or under the Indenture
shall be bound thereby.
Section 7.5. Reference to Supplemental Agreements. Unit
Certificates, Debt Securities, Warrants, Purchase Contracts and Prepaid
Purchase Contracts authenticated, countersigned, executed and delivered after
the execution of any supplemental agreement pursuant to this Article may, and
shall if required by the Agent, bear a notation in form approved by the Agent
as to any matter provided for in such supplemental agreement. If the
Corporation shall so determine, new Unit Certificates, Debt Securities,
Warrants, Purchase Contracts and Prepaid Purchase Contracts so modified as to
conform, in the opinion of the Agent, and the Corporation, to any such
supplemental agreement may be prepared and executed by the Corporation and
authenticated, executed, countersigned and delivered by the Trustee, the
Warrant Agent and the Agent, as applicable, in exchange for Outstanding Unit
Certificates, Debt Securities, Warrants, Purchase Contracts and Prepaid
Purchase Contracts.
ARTICLE 8
Consolidation, Merger, Sale or Conveyance
Section 8.1. Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions. The Corporation covenants
that it will not merge or consolidate with any other corporation or sell,
convey or lease all or substantially all of its assets to any Person, firm or
corporation, except that the Corporation may merge or consolidate with, or
sell, convey or lease all or substantially all of its assets to, any other
corporation, provided that (i) the Corporation shall be the continuing
corporation, or the successor corporation (if other than the Corporation)
shall be a corporation organized and existing under the laws of the United
States of America or a state thereof or the District of Columbia and such
corporation shall assume the due and punctual performance and observance of
all of the covenants and conditions of this Agreement to be performed by the
Corporation by supplemental agreement in form satisfactory to the Agent and
the Collateral Agent, executed and delivered to the Agent and the Collateral
Agent by such corporation, and (ii) neither the Corporation nor such successor
corporation immediately after such merger or consolidation, or such sale,
conveyance or lease shall be in default in the performance of any such
covenant or condition.
Section 8.2. Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Corporation with the same effect as if it
had been named herein as the Corporation. Such successor corporation thereupon
may cause to be signed, and may issue (subject to the provisions of the
Indenture and the Warrant Agreement) either in its own name or in the name of
Morgan Stanley, Dean Witter, Discover & Co. any or all of the Unit
Certificates, Debt Securities, Warrants, Prepaid Purchase Contracts and
Purchase Contracts issuable hereunder which theretofore shall not have been
signed by the Corporation and delivered to the Agent; and, upon the order of
such successor corporation, instead of the Corporation, and subject to all the
terms, conditions and limitations in this Agreement prescribed, the Trustee,
the Warrant Agent and the Agent shall authenticate, countersign, execute and
deliver, as applicable, any Unit Certificates, Debt Securities, Warrants,
Prepaid Purchase Contracts and Purchase Contracts that previously shall have
been signed and delivered by the officers of the Corporation to the Trustee,
the Warrant Agent and the Agent for authentication, execution and
countersignature, and any Unit Certificate, Debt Securities, Warrants, Prepaid
Purchase Contracts and Purchase Contracts evidencing Units which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee, the Warrant Agent and the Agent for such purpose. All the Purchase
Contracts so issued shall in all respects have the same legal rank and benefit
under this Agreement as the Purchase Contracts theretofore or thereafter issued
in accordance with the terms of this Agreement as though all of such Purchase
Contracts had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or
lease such change in phraseology and form (but not in substance) may be made in
the Unit Certificates and Purchase Contracts thereafter to be issued as may be
appropriate.
Section 8.3. Opinion of Counsel to Agent. The Agent and the
Collateral Agent, subject to Sections 6.1 and 6.3 and Sections 5.3 and 5.5,
respectively, may receive an Opinion of Counsel as conclusive evidence that
any such consolidation, merger, sale, conveyance or lease, and any such
assumption, complies with the provisions of this Article.
ARTICLE 9
Covenants
Section 9.1. Performance under Purchase Contracts. The
Corporation covenants and agrees for the benefit of the Holders of the Units
that it will duly and punctually perform its obligations under the Purchase
Contracts in accordance with the terms of the Purchase Contracts and this
Agreement.
Section 9.2. Maintenance of Office or Agency. So long as
Units or Purchase Contracts are authorized for issuance pursuant to this
Agreement or are Outstanding hereunder, the Corporation will maintain in the
Borough of Manhattan, The City of New York, an office or agency where
Registered Units may be presented or surrendered for payment or acquisition of
Purchase Contract Property or where Purchase Contract Property or other
property may be tendered for delivery, where Registered Units may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Corporation in respect of Units and this Agreement may
be served. The Corporation hereby initially designates the Agent as its office
or agency in the Borough of Manhattan, The City of New York, for each of said
purposes. The Corporation will give prompt written notice to the Agent of the
location, and any change in the location, of such office or agency. The
Corporation will maintain one or more offices or agencies in a city or cities
located outside the United States (including any city in which such an agency
is required to be maintained under the rules of any stock exchange on which
the Units of such series, or the Securities constituting such Units, are
listed) where the Unregistered Units, if any, of each series may be presented
or surrendered for payment or acquisition of Purchase Contract Property or
where Purchase Contract Property or other property may be tendered for
delivery. No payment or delivery of Purchase Contract Property on any
Unregistered Unit will be made upon presentation of such Unregistered Unit at
an agency of the Corporation within the United States nor will any payment or
delivery of Purchase Contract Property be made by transfer to an account in,
or by mail to an address in, the United States unless pursuant to applicable
United States laws and regulations then in effect such payment can be made
without adverse tax consequences to the Corporation. Notwithstanding the
foregoing, payments in U.S. dollars of Unregistered Units of any series
appertaining thereto which are payable in Dollars may be made at an agency of
the Corporation maintained in the Borough of Manhattan, The City of New York
if such payment in Dollars at each agency maintained by the Corporation
outside the United States for payment on such Unregistered Units is illegal or
effectively precluded by exchange controls or other similar restrictions. If
at any time the Corporation shall fail to maintain any such required office or
agency or shall fail to furnish the Agent with the name and address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Agent, and the Corporation hereby appoints
the Agent as its agent to receive all such presentations, surrenders, notices
and demands.
The Corporation may also from time to time designate one or more
other offices or agencies where Debt Securities, Warrants, Prepaid Purchase
Contracts, Purchase Contracts and Unit Certificates may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Corporation of its obligations to maintain
offices or agencies provided for in this Section. The Corporation will give
prompt written notice to the Agent of any such designation or rescission and
of any change in the location of any such other office or agency.
Section 9.3. Money for Payments to Be Held in Trust. Any
money or other property deposited with the Agent, in trust for payment with
respect to any Unit, remaining unclaimed for two years after such payment has
become due and payable shall be paid to the Corporation on request of the
Corporation pursuant to an Officer's Certificate; and the Holder of such Unit
shall thereafter, as an unsecured general creditor, look only to the
Corporation for payment thereof, and all liability of the Agent with respect
to such trust money or other property shall thereupon cease.
In the event that (i) the Corporation has delivered Purchase
Contract Property (or the cash value thereof) to the Agent against tender of
payment for such Purchase Contract Property or Warrant Property (or the cash
value thereof) to the Warrant Agent against tender of payment for such Warrant
Property (or, in the case of Purchase Contracts or Warrants calling for the
purchase of Purchase Contract Property or Warrant Property, as the case may
be, by the Corporation, the Corporation has tendered payment) and (ii) a
Holder of a Unit Certificate fails to present and surrender the appropriate
Unit Certificate to the Agent or Warrant Agent, as appropriate, the Purchase
Contract Property, the Warrant Property or the cash value thereof or the
Corporation's payment for Purchase Contract Property or Warrant Property, as
the case may be, deliverable upon settlement of the Purchase Contracts or
Warrants, as the case may be, evidenced by such Unit Certificate, together
with any distributions thereon (and, if an effective Cash Settlement with
respect to the obligations under such Purchase Contracts or Warrants has been
made, payments in respect of principal of the Debt Securities that are part of
such Units), shall be held by the Agent, in trust, for the benefit of such
Holder, until such Unit Certificate is presented and surrendered or such Holder
delivers to the Agent, the Warrant Agent, the Trustee, and the Corporation (A)
evidence to their satisfaction that such certificate has been destroyed, lost
or stolen and (B) such security or indemnity as may be required by them to hold
each of them and any agent of any of them harmless. In the event such Unit
Certificate is not presented and surrendered or such Holder does not satisfy
the applicable conditions specified in the preceding sentence on or prior to
the date two years after the date of settlement of the related Purchase
Contract or Warrant, as the case may be, any distributions received by the
Agent with respect to the Purchase Contract Property delivered in respect of
the Unit Certificates shall be paid to the Corporation, on the request of the
Corporation pursuant to an Officer's Certificate, and the Holders of such Unit
shall thereafter, as unsecured general creditors, look only to the Corporation
for payment thereof and all liability of the Agent with respect to such trust
assets shall thereafter cease.
Section 9.4. Statements of Officers of the Corporation as to
Default. The Corporation will deliver to the Agent, on or before March 31 in
each year, an Officer's Certificate stating whether or not to the best
knowledge of the signers thereof the Corporation is in default in the
performance and observance of any of the terms, provisions and conditions
hereof or of any Purchase Contracts, and, if the Corporation shall be in
default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 9.5. [Negative Pledge. Neither the Corporation nor any
successor corporation will, or will permit any Subsidiary (as hereinafter
defined) to, create, assume, incur or guarantee any indebtedness for borrowed
money secured by a pledge, lien or other encumbrance (except for Permitted
Liens, as hereinafter defined) on the Voting Securities (as hereinafter
defined) of Morgan Stanley & Co. Incorporated, a Delaware corporation and a
wholly owned subsidiary of the Corporation, or Morgan Stanley & Co.
Incorporated Limited, an English company and an indirect wholly owned
subsidiary of the Corporation, Greenwood Trust Company, a Delaware chartered
bank and an indirect wholly owned subsidiary of the Corporation, Dean Witter
Reynolds Inc., a Delaware corporation and a wholly owned subsidiary of the
Corporation, or any Subsidiary succeeding to any substantial part of the
business now conducted by any of such corporations (collectively, the
"Principal Subsidiaries") or (ii) Voting Securities of a Subsidiary that owns,
directly or indirectly, Voting Securities of any of the Principal Subsidiaries
(other than directors' qualifying shares) unless the Corporation shall cause
the Units and the Securities constituting the Units to be secured equally and
ratably with (or, at the Corporation's option, prior to) any indebtedness
secured thereby. "Subsidiary" means any corporation, partnership or other
entity of which at the time of determination the Corporation owns or controls
directly or indirectly more than 50% of the shares of voting stock or
equivalent interest. "Permitted Liens" means liens for taxes or assessments or
governmental charges or levies not then due and delinquent or the validity of
which is being contested in good faith or which are less than $1,000,000 in
amount, liens created by or resulting from any litigation or legal proceeding
which is currently being contested in good faith by appropriate proceedings or
which involves claims of less than $1,000,000, deposits to secure (or in lieu
of) surety, stay, appeal or customs bonds and such other liens as the Board of
Directors of the Corporation determines do not materially detract from or
interfere with the present value or control of the Voting Securities subject
thereto or affected thereby. "Voting Securities" means stock of any class or
classes having general voting power under ordinary circumstances to elect a
majority of the board of directors, managers or trustees of the corporation in
question, provided that, for the purposes hereof, stock which carries only the
right to vote conditionally on the happening of an event shall not be
considered voting stock whether or not such event shall have happened.
Section 9.6. Luxembourg Publications. In the event of the
publication of any notice pursuant to this Agreement, the party making such
publication in the Borough of Manhattan, The City of New York, and London
shall also, to the extent that notice is required to be given to Holders of
Units of any series or Securities constituting such Units by applicable
Luxembourg law or stock exchange regulation, as evidenced by an Officer's
Certificate delivered to such party, make a similar publication in Luxembourg.
ARTICLE 10
Redemptions
Section 10.1. Optional Redemption of Purchase Contracts;
Redemption Upon Redemption of Debt Securities. If this Article is specified as
applicable pursuant to Section 3.2 in connection with the issuance of the
Purchase Contracts of a series, any or all of such Purchase Contracts may be
redeemed at the option of the Corporation, or from time to time in part, on
such date or dates and at a redemption price per Purchase Contract as shall be
specified pursuant to Section 3.2; provided that no redemption shall result in
there being more than zero but fewer than the minimum amount of Unsettled
Purchase Contracts that may remain Outstanding after such redemption, as
specified pursuant to Section 3.2.
Unless otherwise specified pursuant to Section 2.3, in the
event that the Corporation shall redeem any Debt Security constituting part of
a Unit of any series pursuant to the provisions of the Indenture or such Debt
Security, the Corporation shall redeem any Purchase Contract or, to the extent
permitted under or pursuant to the Warrant Agreement, Warrant constituting
part of the same Unit on the redemption date of such related Debt Security.
Section 10.2. Notice of Redemption; Partial Redemptions.
Unless otherwise specified pursuant to Section 3.2, the Corporation or, upon
Issuer Order of the Corporation, the Agent in the name and at the expense of
the Corporation, shall give notice of redemption to the Holders of Purchase
Contracts in the manner and to the extent provided in Section 11.6, at least
30 days and not more than 60 days prior to the date fixed for redemption. Any
notice which is given in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives the
notice. Failure to give notice by mail, or any defect in the notice to the
Holder of any Purchase Contract, shall not affect the validity of the
proceedings for the redemption of any other Purchase Contract.
The notice of redemption to each Holder of Registered Purchase
Contracts shall specify the number of Registered Purchase Contracts held by
such Holder to be redeemed, the date fixed for redemption, the redemption
price, the place or places of payment and that payment will be made upon
presentation and surrender of Unit Certificates with respect to such
Registered Purchase Contracts evidenced by Unit Certificates.
The Corporation's obligation to provide funds for redemption
shall be deemed fulfilled if, on or before 12:00 noon, local time in the place
of payment, on the redemption date specified in the notice of redemption given
as provided in this Section, the Corporation shall deposit with the Agent or
with one or more paying agents an amount of money sufficient to redeem on the
redemption date all the Purchase Contracts called for redemption at the
appropriate redemption price, together with irrevocable instructions and
authorization that such funds be applied to the redemption of the Purchase
Contracts called for redemption upon surrender of Unit Certificates
representing such Purchase Contracts, properly endorsed and assigned for
transfer, in accordance with this Article.
The Corporation will deliver to the Agent at least 15 days
prior to the mailing of the notice of redemption an Officer's Certificate
stating the aggregate number of Purchase Contracts to be redeemed on such date
and that the Corporation has complied with the provisions of Section 10.1 and
of said Purchase Contracts subject to said redemption.
If fewer than all the Purchase Contracts are to be redeemed,
the Agent, prior to the mailing of the redemption notice, shall select the
Purchase Contracts to be redeemed on a pro rata basis, by lot or by such other
means as shall be acceptable to the Agent. Appropriate adjustment shall be
made to prevent the fractional redemption of Purchase Contracts, such that
Purchase Contracts are redeemed only in whole and not in part.
The Agent shall promptly notify the Corporation in writing of
the Purchase Contracts so selected for redemption.
Section 10.3. Payment of Purchase Contracts Called for
Redemption. If notice of redemption has been given as above provided, (i) the
Purchase Contracts specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, and (ii) on and after the date fixed for redemption (unless the
Corporation shall default in the payment of such Purchase Contracts at the
redemption price) such Purchase Contracts shall cease from and after the date
fixed for redemption to be entitled to any benefit under this Agreement, the
Holders thereof shall have no right or obligation in respect of such Purchase
Contracts except the right to receive the redemption price thereof and the
Purchase Contracts shall terminate and shall no longer be deemed to be
Outstanding.
If so specified pursuant to Section 3.2, on presentation and
surrender of Unit Certificates representing such Purchase Contracts, properly
endorsed and assigned for transfer, at a place of payment specified in said
notice, said Purchase Contracts shall be paid and redeemed by the Corporation
at the applicable redemption price. Following such redemption, the Unit
Certificates evidencing such Closed Purchase Contracts shall be cancelled in
accordance with Section 2.11. In the case of (i) Definitive Units,
certificates evidencing any Outstanding Debt Securities relating to such
redeemed Purchase Contracts shall be executed, authenticated and delivered in
accordance with the terms of the Indenture and (ii) Global Units, if a Global
Debt Security not constituting part of a Global Unit has not previously been
issued by the Corporation, a second Global Debenture evidencing any
Outstanding Debt Security relating to such redeemed Purchase Contracts shall
be executed, authenticated and delivered in accordance with the Indenture. If
a second Global Debt Security referred to in clause (ii) of the immediately
preceding sentence has already been issued, the Agent shall note thereon an
appropriate increase in the number of Debt Securities represented by such
Global Debt Security.
Any interest accrued on funds deposited with the Agent or any
Paying Agent in connection with this Article Ten shall be paid to the
Corporation from time to time and the Holders of Purchase Contracts (whether
or not such Purchase Contracts are to be redeemed with such funds) shall have
no claim to any such interest. Any funds deposited and unclaimed at the end of
two years from any redemption date shall be repaid or released to the
Corporation, on the request of the Corporation pursuant to an Officer's
Certificate, after which the Holder(s) of Purchase Contracts so called for
redemption shall look only to the Corporation for payment of the redemption
price, without any interest thereon and all liability of the Agent with
respect to the redemption price shall cease.
Section 10.4. Exclusion of Certain Purchase Contracts from
Eligibility for Selection for Redemption. Purchase Contracts shall be excluded
from eligibility for selection for a partial redemption if they are identified
by registration and certificate number in an Officer's Certificate delivered
by the Corporation to the Agent at least 10 days prior to the date of the
mailing of a notice of redemption as being owned of record and beneficially
by, and not pledged or hypothecated by (a) the Corporation or (b) an Affiliate
of the Corporation. Purchase Contracts shall also be excluded from eligibility
for selection for a partial redemption if they are the subject of an
Acceleration Notice.
ARTICLE 11
Miscellaneous Provisions
Section 11.1. Incorporators, Stockholders, Officers and
Directors of the Corporation Immune from Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Agreement, or in any
Debt Security, Prepaid Purchase Contract, Warrant Agreement or any Purchase
Contract, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, or against any past, present or future stockholder,
officer, attorney-in-fact or director, as such, of the Corporation or of any
successor corporation, either directly or through the Corporation or any
successor corporation, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or penalty or by any legal or
equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Units by the Holders thereof and as part
of the consideration for the issue thereof, provided that nothing in this
Article shall impair the obligations, covenants and agreements of the
Corporation contained in this Agreement and in any Debt Securities, Prepaid
Purchase Contracts, Warrants or Purchase Contracts constituting a part of the
Units of any series.
Section 11.2. Compliance Certificates and Opinions. Except as
otherwise expressly provided by this Agreement, upon any application or
request by the Corporation to the Agent or Collateral Agent to take any action
under any provision of this Agreement, the Corporation, as applicable, shall
furnish to the Agent or Collateral Agent an Officer's Certificate stating that
all conditions precedent, if any, provided for in this Agreement relating to
the proposed action have been complied with and an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required
by any provision of this Agreement relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(i) a statement that each individual signing such
certificate or opinion has reached such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 11.3. Form of Documents Delivered to Agent or
Collateral Agent. In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate, statement or opinion of an officer or counsel
of or for the Corporation may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to the matters
upon which his certificate, statement or opinion is based are erroneous. Any
such certificate, statement or opinion may be based, insofar as it relates to
factual matters, upon a certificate, statement or opinion of, or
representations by, an officer or officers of the Corporation, as applicable,
stating that the information with respect to such factual matters is in the
possession of the Corporation, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement, they may, but need not, be consolidated
and form one instrument.
Section 11.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Agent and, where it is
hereby expressly required, to the Corporation. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Agreement and (subject to
Section 6.1) conclusive in favor of the Agent and the Corporation, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Agent deems
sufficient.
(c) Subject to Section 2.3(a)(vii), the ownership (i) of Registered
Units of any series shall be proved by the Purchase Contract Register for such
series, with respect to any Purchase Contracts constituting a part of such
Units, the Warrant Register for such series with respect to any Warrants
constituting a part of such Units and the Debt Security Register for such
series, with respect to any Debt Securities or Prepaid Purchase Contracts
constituting a part of such Units, and (ii) of Unregistered Units shall be
proved by possession of the Unit Certificates evidencing such Units or by the
appropriate records of the depositary for such Units.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Unit Certificate shall bind every
future Holder of the same Unit Certificate and the Holder of every Unit
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof with respect to anything done, omitted or suffered
to be done by the Agent or the Corporation in reliance thereon, whether or not
notation of such action is made upon such Unit Certificate.
(e) The Corporation may set a record date for purposes of
determining the identity of Holders of Units entitled to consent to any action
by consent authorized or permitted hereby. Unless otherwise specified pursuant
to Section 2.3, such record date shall be the later of 30 days prior to the
first solicitation of such consent or the date of the most recent list of
Holders of Units furnished to the Agent, pursuant hereto.
Section 11.5. Notices, Etc.. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Agreement to be made upon, given or
furnished to, or filed with,
(a) the Agent or the Collateral Agent, as the case may be, by any
Holder or by the Corporation shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if made, given, furnished or filed
in writing and personally delivered or mailed, first-class postage prepaid, to
the Agent at its Corporate Trust Office, Attention: Corporate Trustee
Administration Department, or at any other address previously furnished in
writing by the Agent or the Collateral Agent, as the case may be, to the
Holders and the Corporation, or
(b) the Corporation by the Agent, the Collateral Agent or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first-class postage prepaid, addressed to the
Corporation at 1585 Broadway, New York, New York 10036, Attention:
, or at any other address previously furnished in writing to
the Agent and the Collateral Agent by the Corporation.
Section 11.6. Notices to Holders; Waiver. Where this Agreement
provides for notice to Holders of Registered Securities or Registered Units of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided or as provided in the Letter of Representations) if in
writing and mailed, first-class postage prepaid, to each such Holder affected
by such event, at such Holder's address as it appears in the relevant Security
Registers, with respect to the Securities constituting such Unit, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Agreement provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Agent, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Agent
shall constitute a sufficient notification for every purpose hereunder.
Where this Agreement provides for notice to Holders of
Unregistered Securities or Unregistered Units of any event, such notice shall
be sufficiently given (unless otherwise specified herein or pursuant to
Section 2.3 or 3.2) by publication in a newspaper in the English language of
general circulation in the Borough of Manhattan, The City of New York, and in
The City of London or, if publication in London is not practical, in an
English language newspaper with general circulation in Western Europe. 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.
Section 11.7. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 11.8. Successors and Assigns. All covenants and
agreements in this Agreement, the Units, the Purchase Contracts and the Unit
Certificates by the Corporation shall bind its successors and assigns, whether
so expressed or not.
Section 11.9. Separability Clause. In case any provision in
this Agreement or in the Units, Unit Certificates or the Purchase Contracts
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof and thereof shall not in any
way be affected or impaired thereby.
Section 11.10. Benefits of Agreement. Nothing in this
Agreement or in the Units, Unit Certificates, the Indenture, the Debt
Securities, the Prepaid Purchase Contracts, the Warrants or the Purchase
Contracts, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, any benefits or any legal or
equitable right, remedy or claim under this Agreement. The Holders from time
to time shall be parties to this Agreement and shall be bound by all of the
terms and conditions hereof and of the Indenture, the Units, the Debt
Securities, the Prepaid Purchase Contracts, the Warrants and the Purchase
Contracts evidenced by the Units, by their acceptance of delivery of such
Units.
Section 11.11. Governing Law. This Agreement, the Units and
the Purchase Contracts shall be governed and construed in accordance with the
laws of the State of New York.
Section 11.12. Legal Holidays. Unless otherwise specified
pursuant to Section 3.2, in any case where any Settlement Date shall not be a
Business Day, then (notwithstanding any other provisions of this Agreement or
the Purchase Contracts) the Purchase Contracts shall not be performed on such
date, but shall be performed on the next succeeding Business Day with the same
force and effect as if performed on such Settlement Date; provided that no
interest or other amounts shall accrue or be payable by the Corporation or any
Holder for the period from and after any such Settlement Date.
Section 11.13. Counterparts. This Agreement may be executed in
any number of counterparts by the parties hereto on separate counterparts,
each of which, when so executed and delivered, shall be deemed an original,
but all such counterparts shall together constitute one and the same
instrument.
Section 11.14. Appointment of Certain Agents. (a) Pursuant to
Section 2.3 hereof, the Corporation may, in connection with any series of
Purchase Contracts appoint Morgan Stanley & Co. Incorporated, Morgan Stanley &
Co. International Limited or any other Person as Calculation Agent to make any
calculations as may be required pursuant to the terms of any such series of
Purchase Contracts. Any such Calculation Agent shall act as an independent
expert and, unless otherwise provided by this Agreement, its calculations and
determinations under this Agreement shall, absent manifest error, be final and
binding on the Corporation, the Agent and the Holders. Any such calculations
will be made available to the Holders for inspection at the Agent's Office.
(b) Unless otherwise specified pursuant to Section 2.3, the
Corporation hereby appoints Chase as the Paying Agent under the Indenture with
respect to each Debt Security comprised by any Unit issued hereunder.
Section 11.15. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times during normal business
hours at the Corporate Trust Office of the Agent for inspection by any Holder.
IN WITNESS WHEREOF, the Corporation, the Agent, the Collateral
Agent, the Trustee and the Warrant Agent have duly executed this Agreement as
of the day and year first above set forth, and all Holders of Units shall
become parties hereto by and upon acceptance by them of delivery of Units
issued in accordance with the terms hereof.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
By:______________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Agent
By:______________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Collateral Agent
By:______________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee and Paying Agent under the
Indenture
By:______________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Warrant Agent under the Warrant
Agreement
By:______________________________________
Name:
Title:
EXHIBIT A
[[FORM OF UNIT CERTIFICATE]
[FACE]
[IF THE UNIT CERTIFICATE IS TO BE A GLOBAL REGISTERED UNIT
CERTIFICATE, INSERT--This Unit Certificate is a global Unit Certificate within
the meaning of the Unit Agreement hereinafter referred to and is registered in
the name of the Depository Trust Company (the "Depositary") or a nominee of
the Depositary. Unless and until it is exchanged in whole or in part for Units
in definitive registered form, this Unit Certificate 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).
Unless this Unit Certificate is presented by an authorized
representative of The Depositary (55 Water Street, New York) to Morgan
Stanley, Dean Witter, Discover & Co. or its agent for registration of
transfer, exchange or payment, and any Unit issued is registered in the name
of Cede & Co. or such other name as requested by an authorized representative
of the Depositary and any payment hereon is made to Cede & Co. or such other
entity as is requested by an authorized representative of the Depositary, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
UNIT CERTIFICATE
(issuable in integral multiples of whole Units)
Evidencing the Ownership of, or Rights and Obligations
of the Holder Under, the Securities
Specified Below
[Specify Securities Constituting Part of these Units]
Certificate No. _____ Number of Units [Up To](1)
This Unit Certificate certifies that _____________________ (the
"Holder"), or [registered assigns](2), is the [registered](2) owner of
[ ( ) Units](3) [the number of Units specified in Schedule A hereto.](1)
Each Unit represents ownership by the Holder of [specify
Securities constituting parts of the Unit] [, subject to the pledge of such
Debt Securities by such Holder pursuant to the Unit Agreement (the "Unit
Agreement") dated as of June 2, 1997 among the Corporation, The Chase
Manhattan Bank, as Agent, as Collateral Agent, as Trustee and Paying Agent
under the Indenture referred to therein, and as Warrant Agent under the
Warrant Agreement referred to therein and the Holders from time to time of the
Units described therein. Pursuant to the Unit Agreement, the Debt Securities
constituting part of the Units evidenced hereby have been pledged to the
Collateral Agent to secure the obligations of the Holder under the Purchase
Contract constituting part of such Units.](4)
[For so long as the [Warrant] [Purchase Contract] underlying
each Unit represented hereby remains in effect such Unit shall not be
separable into its constituent parts and the rights and obligations of the
Holder of such Unit in respect of such constituent parts may be transferred
and exchanged only as a Unit.](5)
[Designated Security Register:](6)
[Other Terms of Units:]
[INSERT APPROPRIATE DEBT SECURITY CERTIFICATE OR
WARRANT
CERTIFICATE, AS APPLICABLE]
- ----------
(1) Insert in Global Unit Certificates
(2) Insert in Registered Units
(3) Insert in Definitive Unit Certificates
(4) Insert in Registered Units consisting of Non-Separable Debt Securities
and Purchase Contracts
(5) Insert in non-separable Units.
(6) Insert in non-separable Registered Units.
- ------------------------------------------------------------------------------
Reference is hereby made to the further provisions of this certificate set
forth on the succeeding pages hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
- ------------------------------------------------------------------------------
[FORM OF PURCHASE CONTRACT
CONTEMPLATING SALE BY MORGAN STANLEY,
DEAN WITTER, DISCOVER & CO.]
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
[Insert Designation of Purchase Contracts]
PURCHASE CONTRACT(S)
Purchase Contracts between
Morgan Stanley, Dean Witter, Discover & Co.
and
________________
or registered assigns,
as holder hereunder (the "Holder")
All capitalized terms used but not defined herein that are
defined in the Unit Agreement (described below) have the meanings set forth
therein, and if not defined therein, have the meaning set forth below.
Purchase Contract Property:
Quantity:
Purchase Price:
Settlement Date:
Payment Location:
Method of Settlement:
Currency of Settlement
Payment:
Authorized Number of
Purchase Contracts:
Contract Fees:
Corporation Acceleration:
Holders' Acceleration:
Redemption Provisions:
Other Terms:
Subject to the conditions hereinafter set forth, the Holder
agrees to purchase and Morgan Stanley, Dean Witter, Discover & Co., a
corporation duly incorporated and existing under the laws of the State of
Delaware (the "Corporation"), agrees to sell, subject to the terms of the Unit
Agreement referred to below and as set forth herein, on the Settlement Date,
the Quantity of Purchase Contract Property, for the Purchase Price. The
Purchase Contract(s) evidenced hereby shall not entitle the Holder to purchase
the Purchase Contract Property prior to the Settlement Date.
The Purchase Price for the Purchase Contract Property purchased
pursuant to the Purchase Contracts evidenced hereby shall be payable at the
Payment Location on the Settlement Date pursuant to the Method of Settlement
in the Currency of Settlement Payment.
Each Purchase Contract evidenced hereby is one of a duly
authorized issue of not more than the Authorized Number of Purchase Contracts
of the Corporation relating to the purchase by Holders of not more than the
Aggregate Quantity of Purchase Contract Property issued under the Unit
Agreement, dated as of June 2, 1997 (the "Unit Agreement"), among the
Corporation, The Chase Manhattan Bank, as Agent (the "Agent") and as
Collateral Agent thereunder, as Warrant Agent (the "Warrant Agent") under the
Warrant Agreement referred to therein, as Trustee (the "Trustee") and Paying
Agent under the Indenture referred to therein, and the holders from time to
time of Units, to which Unit Agreement and supplemental agreements thereto
reference is hereby made for a description of the respective rights,
limitations of rights, obligations, duties and immunities thereunder of the
Agent, the Collateral Agent, the Corporation and the Holders and of the terms
upon which the Purchase Contracts are, and are to be, executed, countersigned,
executed on behalf of the Holder and delivered.
The Agent may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents in connection with any
transfer or exchange of each Purchase Contract evidenced hereby. No service
charge shall be required for any such registration of transfer or exchange,
but the Corporation and the Agent may require payment of a sum sufficient
to cover any tax or other governmental charge imposed in connection with
any registration of transfer or exchange of Units.
Upon registration of transfer of this Purchase Contract, the
transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the Agent pursuant to
the Unit Agreement), under the terms of the Unit Agreement and the Purchase
Contracts evidenced hereby and the transferor shall be released from the
obligations under the Purchase Contracts hereby. The Corporation covenants and
agrees, and the Holder, by his acceptance hereof, likewise covenants and
agrees, to be bound by the provisions of this paragraph.
The extent to which, and the terms upon which, any cash or other
property (other than the Purchase Contract Property) is payable or deliverable
with respect to the Purchase Contracts evidenced hereby is described above
under "Contract Fees". The extent to which, and the terms upon which, the
Corporation may accelerate the obligations of the Corporation and the Holders
of the Purchase Contracts evidenced hereby is described above under
"Corporation Acceleration". The extent to which, and the terms upon which, the
Holders of such Purchase Contracts may accelerate the obligations of the
Corporation and the Holders of the Purchase Contracts is described above under
"Holders' Acceleration". The extent to which, and the terms upon which, the
Corporation may redeem the Purchase Contracts evidenced hereby is described
above under "Redemption Provisions".
Subject to certain exceptions, the terms of the Purchase
Contracts and the provisions of the Unit Agreement may be amended with the
consent of the affected Holders of not less than a majority of the Purchase
Contracts evidenced by all Outstanding Units and certain Purchase Contract
Defaults may be waived with the consent of the Holders of a majority of the
Purchase Contracts evidenced by all Outstanding Units. Without the consent of
any Holder of Units, the terms of the Unit Agreement the Purchase Contracts
may be amended to, among other things, cure any ambiguity, to correct or
supplement any provision in the Unit Agreement or Purchase Contract to add to
covenants of the Corporation, Collateral Agent or Agent or to make any other
provisions with respect to matters or questions arising under the Unit
Agreement or the Purchase Contracts that do not adversely affect the interests
of the Holders in any material respect.
Holders of the Purchase Contracts may not enforce the Unit
Agreement or such Purchase Contracts except as provided in the Unit Agreement.
Any incorporator, or past, present or future stockholder,
officer, attorney-in-fact or director, as such, of the Corporation shall not
have any liability for any obligations of the Corporation under the Purchase
Contracts or the Unit Agreement or for any claim based on, with respect to or
by reason of such obligations or their creation. The Holder by his acceptance
hereof waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by,
and construed in accordance with, the laws of the State of New York.
Prior to due presentment of a Unit Certificate or Purchase
Contract for registration of transfer, the Corporation, the Trustee, the
Agent, the Warrant Agent and the Collateral Agent, and any agent of the
Corporation, the Trustee, the Agent, the Warrant Agent and the Collateral
Agent may treat the Person in whose name this Purchase Contract is registered
as a party to the Purchase Contracts evidenced hereby for the purpose of
performance of such Purchase Contracts and for all other purposes whatsoever,
and neither the Corporation, the Trustee, the Agent, the Warrant Agent and the
Collateral Agent nor any such agent shall be affected by notice to the
contrary.
The Holder, by his acceptance hereof, authorizes the Agent to
execute the Purchase Contracts evidenced hereby on his behalf, authorizes and
directs the Agent on his behalf to take such other action, and covenants and
agrees to take such other action, as may be necessary or appropriate, or as
may be required by the Agent, to effectuate the provisions of the Unit
Agreement relating to the purchase of the Purchase Contract Property [and the
pledge of the Debt Securities constituting part of the Unit of which this
Purchase Contract forms a part to the Collateral Agent on the Holder's
behalf,](7) appoints the agent as his attorney-in-fact for any and all such
purposes, and agrees to be bound by the terms thereof.
The Purchase Contracts shall not, prior to the performance
thereof, entitle the Holder to any of the rights of a holder of the Purchase
Contract Property.
No Purchase Contract evidenced hereby shall be valid or
obligatory for any purpose until countersigned and executed on behalf of the
Holder by the Agent, pursuant to the Unit Agreement.
IN WITNESS WHEREOF, Morgan Stanley, Dean Witter, Discover & Co.
has caused this instrument to be duly executed.
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:______________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Agent, and as attorney-in-fact
of the Holder hereof
By:____________________________
Authorized Officer
Countersigned:
THE CHASE MANHATTAN BANK,
as Agent
By:____________________________
Authorized Officer
- ----------
(7) Insert in Registered Units consisting of Non-Separable Debt Securities and
Purchase Contracts.
[FORM OF PURCHASE CONTRACT
CONTEMPLATING PURCHASE BY MORGAN STANLEY,
DEAN WITTER, DISCOVER & CO.]
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
PURCHASE CONTRACT(S)
Purchase Contracts between
Morgan Stanley, Dean Witter, Discover & Co.
and
________________
or registered assigns,
as holder hereunder (the "Holder")
All capitalized terms used but not defined herein that are defined in the Unit
Agreement (described below) have the meanings set forth therein, and if not
defined therein, have the meaning set forth below.
Purchase Contract Property:
Quantity:
Purchase Price:
Settlement Date:
Payment Location:
Method of Settlement:
Method of Computing Settlement
Amount:
Currency of Settlement Payment:
Authorized Number of Purchase
Contracts:
Aggregate Purchase Price:
Contract Fees:
Corporation Acceleration:
Holders' Acceleration:
Redemption Provisions:
Other Terms:
Subject to the conditions hereinafter set forth, the Holder
agrees to sell and Morgan Stanley, Dean Witter, Discover & Co., a corporation
duly incorporated and existing under the laws of the State of Delaware (the
"Corporation"), agrees to purchase, subject to the terms of the Unit Agreement
referred to below and as set forth herein, on the Settlement Date, the
Quantity of Purchase Contract Property, for the Purchase Price. The Purchase
Contract(s) evidenced hereby shall not entitle the Corporation to purchase the
Purchase Contract Property, or the Holder to receive the Purchase Price, prior
to the Settlement Date.
If so indicated under Method of Settlement above, the parties'
obligations under the Purchase Contracts evidenced hereby may be settled by
payment of the Settlement Amount by the Corporation or the Holder, as the case
may be. The Settlement Amount payable pursuant to the Purchase Contracts
evidenced hereby, as determined in accordance with the Method of Computing
Settlement Amount, shall be payable on the Settlement Date in the Currency of
Settlement Payment pursuant to the Method of Settlement at the Payment
Location; provided that any Settlement Amount payable by Holders pursuant to
the Purchase Contracts evidenced hereby may be deducted from the principal
payment that may be payable by the Corporation with respect to any Debt
Securities comprised by the Units of which such Purchase Contacts are a part.
Each Purchase Contract evidenced hereby is one of a duly
authorized issue of not more than the Authorized Number of Purchase Contracts
of the Corporation issued under the Unit Agreement, dated as of June 2, 1997
(the "Unit Agreement"), among the Corporation, The Chase Manhattan Bank, as
Agent (the "Agent") and as Collateral Agent thereunder, as Warrant Agent (the
"Warrant Agent") under the Warrant Agreement referred to therein, as Trustee
(the "Trustee") and Paying Agent under the Indenture referred to therein, and
the holders from time to time of Units, to which Unit Agreement and
supplemental agreements thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and
immunities thereunder of the Agent, the Corporation and the Holders and of the
terms upon which the Purchase Contracts are, and are to be, executed,
countersigned, executed on behalf of the Holder and delivered.
The Agent may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents in connection with any
transfer or exchange of each Purchase Contract evidenced hereby. No service
charge shall be required for any such registration of transfer or exchange,
but the Corporation and the Agent may require payment of a sum sufficient
to cover any tax or other governmental charge imposed in connection with
any registration of transfer or exchange of Units.
Upon registration of transfer of this Purchase Contract, the
transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the Agent pursuant to
the Unit Agreement), under the terms of the Unit Agreement and the Purchase
Contracts evidenced hereby and the transferor shall be released from the
obligations under the Purchase Contracts hereby. The Corporation covenants and
agrees, and the Holder, by his acceptance hereof, likewise covenants and
agrees, to be bound by the provisions of this paragraph.
The extent to which, and the terms upon which, any cash or other
property (other than the Purchase Contract Property) is payable or deliverable
with respect to the Purchase Contracts evidenced hereby is described above
under "Contract Fees". The extent to which, and the terms upon which, the
Corporation may accelerate the obligations of the Corporation and the Holders
of the Purchase Contracts evidenced hereby is described above under
"Corporation Acceleration". The extent to which, and the terms upon which, the
Holders of such Purchase Contracts may accelerate the obligations of the
Corporation and the Holders of the Purchase Contracts is described above under
"Holders' Acceleration". The extent to which, and the terms upon which, the
Corporation may redeem the Purchase Contracts evidenced hereby is described
above under "Redemption Provisions".
Subject to certain exceptions, the terms of the Purchase
Contracts and the provisions of the Unit Agreement may be amended with the
consent of the affected Holders of not less than a majority of the Purchase
Contracts evidenced by all Outstanding Units and certain Purchase Contract
Defaults may be waived with the consent of the Holders of a majority of the
Purchase Contracts evidenced by all Outstanding Units. Without the consent of
any Holder of Units, the terms of the Unit Agreement or the Purchase Contracts
may be amended to, among other things, cure any ambiguity, to correct or
supplement any provision in the Unit Agreement or Purchase Contract, to add
to the covenants of the Corporation, Collateral Agent or Agent for the
protection of the Holders, or to make any other provisions with respect to
matters or questions arising under the Unit Agreement or the Purchase
Contracts that do not adversely affect the interests of the Holders in any
material respect.
Holders of the Purchase Contracts may not enforce the Unit
Agreement or such Purchase Contracts except as provided in the Unit Agreement.
Any incorporator, or past, present or future stockholder,
officer, attorney-in-fact or director, as such, of the Corporation shall not
have any liability for any obligations of the Corporation under the Purchase
Contracts or the Unit Agreement or for any claim based on, with respect to or
by reason of such obligations or their creation. The Holder by his acceptance
hereof waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by,
and construed in accordance with, the laws of the State of New York.
Prior to due presentment of a Unit Certificate or Purchase
Contract for registration of transfer, the Corporation, the Agent, the
Trustee, the Warrant Agent and the Collateral Agent, and any agent of the
Corporation, the Agent, the Trustee, the Warrant Agent and the Collateral
Agent may treat the Person in whose name this Purchase Contract is registered
as a party to the Purchase Contracts evidenced hereby for the purpose of
performance of such Purchase Contracts and for all other purposes whatsoever,
and neither the Corporation, the Agent, the Trustee, the Warrant Agent and the
Collateral Agent nor any such agent shall be affected by notice to the
contrary.
The Holder, by his acceptance hereof, authorizes the Agent to
execute the Purchase Contracts evidenced hereby on his behalf, authorizes and
directs the Agent on his behalf to take such other action, and covenants and
agrees to take such other action, as may be necessary or appropriate, or as
may be required by the Agent, to effectuate the provisions of the Unit
Agreement relating to the purchase of the Purchase Contract Property [and the
pledge of the Debt Securities constituting part of the Unit of which this
Purchase Contract forms a part to the Collateral Agent on the Holder's
behalf,](8) appoints the agent as his attorney-in-fact for any and all such
purposes, and agrees to be bound by the terms thereof.
No Purchase Contract evidenced hereby shall be valid or
obligatory for any purpose until countersigned and executed on behalf of the
Holder by the Agent, pursuant to the Unit Agreement.
IN WITNESS WHEREOF, Morgan Stanley, Dean Witter, Discover & Co.
has caused this instrument to be duly executed.
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:___________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as
Agent, and as attorney-in-fact of the
Holder hereof
By:____________________________
Authorized Officer
Countersigned:
THE CHASE MANHATTAN BANK, as
Agent
By:____________________________
Authorized Officer
- ----------
(8) Insert in Registered Units consisting of Debt Securities and Purchase
Contracts.
[IF PURCHASE CONTRACT IS A GLOBAL PURCHASE CONTRACT, INSERT]
SCHEDULE I
GLOBAL
PURCHASE CONTRACT
SCHEDULE OF EXCHANGES
The initial number of Purchase Contracts represented by this
Global Purchase Contract is __________. In accordance with the Unit Agreement
pursuant to which this Global Purchase Contract has been issued, the following
(A) exchanges of [the number of Purchase Contracts indicated below for a like
number of Purchase Contracts represented by a Global Purchase Contract that
has been separated from a Unit (a "Separated Purchase Contract")](1) [the
number of Purchase Contracts that had been represented by a Global Purchase
Contract that is part of a Unit (an "Attached Unit Purchase Contract") for a
like number of Purchase Contracts represented by this Purchase Contract](2)
and (B) settlements of the number of Purchase Contracts indicated below have
been made:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
Number of
Attached Unit
Purchase
Contracts
Exchanged for
Reduced Purchase Increased Reduced
Number Number Contracts Number Number
Exchanged for Outstanding represented by Outstanding Number of Outstanding Notation
Date of Separated Following this Separated Following Purchase Following Made by or
Exchange or Purchase Such Purchase Such Contracts Such on Behalf of
Settlement Contract(1) Exchange(1) Contract(2) Exchange(2) Settled Settlement Agent
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------
1 Applies only if this Purchase Contractis part of a Unit
2 Applies only if this Purchase Contract has been separated from a Unit
[IF PURCHASE CONTRACT IS SEPARATED FROM UNIT, INSERT]
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned assigns and transfers the Purchase
Contract(s) represented by this Certificate to:
_________________ (Insert assignee's social security or tax identification
number)
_________________ (Insert address and zip code of assignee)
and irrevocably appoints _________________
agent to transfer this Certificate on the books of the Corporation. The agent
may substitute another to act for him or her.
Date:
Signature(s):_________________________________________________________________
_________________________________________________________________
(Sign exactly as your name appears on the other side of this Certificate)
NOTICE: The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion program),
pursuant to S.E.C. Rule 17Ad-15.]
[IF UNIT CERTIFICATE IS A GLOBAL UNIT CERTIFICATE, INSERT -
SCHEDULE A
GLOBAL
UNIT CERTIFICATE
SCHEDULE OF EXCHANGES
The initial number of Units represented by this Global Unit
Certificate is _________. In accordance with the Unit Agreement pursuant to
which this Global Unit Certificate has been issued, the following reductions of
the number of Units represented by this Global Unit Certificate have occurred:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Number Reduced by
Separation of the Number Reduced by Number Reduced by Number of Units Notation Made by or
Date of Component Parts of Exercise of Universal Settlement of Purchase Outstanding Following on Behalf of Paying
Reduction this Unit Warrants Contracts any such Reduction Agent
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
[IF UNIT IS A DEFINITIVE UNIT, INSERT -
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned assigns and transfers the Unit(s)
represented by this Certificate to:
_________________ (Insert assignee's social security or tax identification
number)
_________________ (Insert address and zip code of assignee)
and irrevocably appoints _________________________________
agent to transfer this Unit Certificate on the books of the Corporation. The
agent may substitute another to act for him or her.
Date:
Signature(s):_________________________________________________________________
_________________________________________________________________
(Sign exactly as your name appears on the other side of this Certificate)
NOTICE: The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion program),
pursuant to S.E.C. Rule 17Ad-15.]
Exhibit 15
To the Directors and Shareholders of Dean Witter, Discover & Co.
(to be renamed Morgan Stanley, Dean Witter, Discover & Co.):
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited
interim consolidated financial information of Dean Witter, Discover & Co.
and subsidiaries as of March 31, 1997 and for the three month periods ended
March 31, 1997 and 1996, as indicated in our report dated April 30, 1997;
because we did not perform an audit, we expressed no opinion on that
information.
We are aware that our report referred to above, which is included in
your Quarterly Report on Form 10-Q for the quarter ended March 31, 1997, is
incorporated by reference in the following Registration Statements of Dean
Witter, Discover & Co.:
Filed on Form S-3:
Registration Statement No. 33-57202
Registration Statement No. 33-60734
Registration Statement No. 33-89748
Registration Statement No. 33-92172
Registration Statement No. 333-7947
Registration Statement No. 333-22409
Filed on Form S-4:
Registration Statement No. 333-25003
Filed on Form S-8:
Registration Statement No. 33-62374
Registration Statement No. 33-63024
Registration Statement No. 33-63026
Registration Statement No. 33-78038
Registration Statement No. 33-79516
Registration Statement No. 33-82240
Registration Statement No. 33-82242
Registration Statement No. 33-82244
Registration Statement No. 333-4212
We are also aware that the aforementioned report, pursuant to Rule
436(c) under the Securities Act of 1933, is not considered a part of the
Registration Statement prepared or certified by an accountant or a report
prepared or certified by an accountant within the meaning of Sections 7 and
11 of that Act.
DELOITTE & TOUCHE LLP
New York, New York
May 28, 1997
Exhibit 23-a
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Dean Witter, Discover & Co. (to be renamed Morgan Stanley, Dean Witter,
Discover & Co.) on Form S-3 (relating to the registration of $1,000,000 of
Debt Securities, Warrants, Preferred Stock, Depositary Shares, Purchase
Contracts and Units) of our reports dated February 21, 1997, appearing in
and incorporated by reference in the Annual Report on Form 10-K of Dean
Witter, Discover & Co. for the year ended December 31, 1996, and to the
reference to us under the heading "Experts" in the Prospectus, which is
part of this Registration Statement.
DELOITTE & TOUCHE LLP
New York, New York
May 28, 1997
EXHIBIT 23-b
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 for the registration of $1,000,000 of debt
securities, warrants, preferred stock, purchase contracts and units and in the
related Prospectus of Dean Witter, Discover & Co. (to be renamed Morgan
Stanley, Dean Witter, Discover & Co.) for $1,000,000 of the same securities
and to the incorporation by reference therein of our report, dated January 7,
1997, with respect to the consolidated financial statements and financial
statement schedule of Morgan Stanley Group Inc. incorporated by reference and
included in its Annual Report on Form 10-K for the fiscal year ended November
30, 1996, filed with the Securities and Exchange Commission.
Ernst & Young LLP
New York, New York
May 28, 1997
EXHIBIT 25-a
______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
_________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)___________
_________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
_________________
270 Park Avenue 10017
New York, New York (Zip Code)
(Address of principal executive offices)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_________________
Dean Witter, Discover & Co.
(to be renamed Morgan Stanley, Dean Witter, Discover & Co.)
(Exact name of obligor as specified in its charter)
Delaware 36-3145972
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
Two World Trade Center
New York, New York 10048
(Address of principal executive offices) (Zip Code)
_________________
Debt Securities
(Title of the indenture securities)
______________________________________________________________________________
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see
Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 19th day
of May , 1997.
THE CHASE MANHATTAN BANK
By /s/T. J. Foley
----------------------
T. J. Foley
Vice President
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1996, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
--------------
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin............................................... $11,509
Interest-bearing balances........................................................................ 8,457
Securities:.......................................................................................
Held to maturity securities....................................................................... 3,128
Available for sale securities..................................................................... 40,534
Federal Funds sold and securities purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds sold............................................................................... 9,222
Securities purchased under agreements to resell.................................................. 422
Loans and lease financing receivables:
Loans and leases, net of unearned income $133,935
Less: Allowance for loan and lease losses 2,789
Less: Allocated transfer risk reserve 16
--------------
Loans and leases, net of unearned income,allowance, and reserve................................... 131,130
Trading Assets.................................................................................... 49,876
Premises and fixed assets (including capitalized leases).......................................... 2,877
Other real estate owned........................................................................... 290
Investments in unconsolidated subsidiaries and associated companies............................... 124
Customer's liability to this bank on acceptances outstanding...................................... 2,313
Intangible assets................................................................................. 1,316
Other assets...................................................................................... 11,231
TOTAL ASSETS --------------
$272,429
==============
</TABLE>
LIABILITIES
<TABLE>
<CAPTION>
Deposits
<S> <C>
In domestic offices.............................................................................. $87,006
Noninterest-bearing.............................................................................. $35,783
Interest-bearing ................................................................................ 51,223
In foreign offices, Edge and Agreement subsidiaries, and IBF's................................... 73,206
Noninterest-bearing.............................................................................. $4,347
Interest-bearing................................................................................. 68,859
Federal funds purchased and securities sold under agreements to repurchase in domestic offices
of the bank and of its Edge and Agreement subsidiaries, and in IBF's Federal funds purchased..... 14,980
Securities sold under agreements to repurchase.................................................... 10,125
Demand notes issued to the U.S. Treasury.......................................................... 1,867
Trading liabilities............................................................................... 34,783
Other Borrowed money:
With a remaining maturity of one year or less.................................................... 14,639
With a remaining maturity of more than one year.................................................. 425
Mortgage indebtedness and obligations under capitalized leases................................... 40
Bank's liability on acceptances executed and outstanding.......................................... 2,267
Subordinated notes and debentures................................................................. 5,471
Other liabilities................................................................................. 11,343
TOTAL LIABILITIES................................................................................. 256,152
Limited-Life Preferred stock and related surplus 550
</TABLE>
EQUITY CAPITAL
<TABLE>
<CAPTION>
<S> <C>
Common stock...................................................................................... 1,251
Surplus........................................................................................... 10,243
Undivided profits and capital reserves............................................................ 4,526
Net unrealized holding gains (Losses) on available-for-sale securities............................ (309)
Cumulative foreign currency translation adjustments............................................... 16
TOTAL EQUITY CAPITAL.............................................................................. 15,727
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK AND EQUITY CAPITAL................................ $272,429
=======
</TABLE>
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
THOMAS G. LABRECQUE )
EXHIBIT 25-b
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
---------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
---------------
DEAN WITTER, DISCOVER & CO.
(to be renamed Morgan Stanley, Dean Witter, Discover & Co.)
(Exact name of obligor as specified in its charter)
Delaware 36-3145972
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
Two World Trade Center
New York, New York 10048
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
Item 1. General Information. Furnish the following information as to the
trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance
Corporation, Washington, D.C., The Board of Governors of the Federal
Reserve System, Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate of
the trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of this
Statement of Eligibility.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise corporate
trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 16th day of May,
1997.
The First National Bank of Chicago,
Trustee
/s/ Richard D. Manella
By:______________________________
Richard D. Manella
Vice President
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 25.1 to the Registration Statement on Form
S-3 of SunAmerica Inc. filed with the Securities and Exchange Commission on
October 25, 1996 (Registration No. 333-14201).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
May 16, 1997
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Dean Witter,
Discover & Co. (to be renamed Morgan Stanley, Dean Witter, Discover & Co.) and
The First National Bank of Chicago, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request
therefor.
Very truly yours,
The First National Bank of Chicago
/s/ Richard D. Manella
By:______________________________
Richard D. Manella
Vice President
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Call Date: 12/31/96
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in C400
Thousands RCFD BIL MIL THOU -
------------------- ---- ------------ -----
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository
institutions (from Schedule RC-A):
a. Noninterest-bearing balances and
currency and coin(1)..................... 0081 4,586,399 1.a.
b. Interest-bearing balances(2)............. 0071 5,224,838 1.b.
2. Securities
a. Held-to-maturity securities(from
Schedule RC-B, column A)................. 1754 0 2.a.
b. Available-for-sale securities (from
Schedule RC-B, column D)................. 1773 3,335,304 2.b.
3. Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold....................... 0276 4,157,626 3.a.
b. Securities purchased under agreements
to resell................................ 0277 96,125 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned
income (from Schedule RC-C).............. RCFD 2122 23,448,929 4.a.
b. LESS: Allowance for loan and lease
losses................................... RCFD 3123 419,373 4.b.
c. LESS: Allocated transfer risk reserve.... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus
4.b and 4.c)............................. 2125 23,029,556 4.d.
5. Assets held in trading accounts................ 3545 7,888,514 5.
6. Premises and fixed assets (including
capitalized leases)............................ 2145 701,700 6.
7. Other real estate owned (from Schedule
RC-M)....................................... 2150 11,061 7.
8. Investments in unconsolidated subsidiaries
and associated companies (from Schedule
RC-M)....................................... 2130 62,681 8.
9. Customers' liability to this bank on
acceptances outstanding..................... 2155 480,933 9.
10. Intangible assets (from Schedule RC-M)...... 2143 303,014 10.
11. Other assets (from Schedule RC-F)........... 2160 1,745,155 11.
12. Total assets (sum of items 1 through 11).... 2170 51,622,906 12.
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: The First National Bank of Chicago
Call Date: 12/31/96
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in C400
Thousands RCFD BIL MIL THOU -
------------------- ---- ------------ -----
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of
columns A and C from Schedule RC-E,
part 1).................................. RCON 2200 22,032,796 13.a.
(1) Noninterest-bearing(1)............... RCON 6631 9,190,670 13.a.1
(2) Interest-bearing..................... RCON 6636 12,842,126 13.a.2
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs (from Schedule
RC-E, part II)........................... RCFN 2200 10,861,857 13.b.
(1) Noninterest bearing.................. RCFN 6631 285,745 13.b.1
(2) Interest-bearing..................... RCFN 6636 10,576,382 13.b.2
14. Federal funds purchased and securities
sold under agreements to repurchase in
domestic offices of the bank and of
its Edge and Agreement subsidiaries,
and in IBFs:
a. Federal funds purchased.................. RCFD 0278 2,639,255 14.a.
b. Securities sold under agreements to
repurchase............................... RCFD 0279 66,564 14.b.
15. a. Demand notes issued to the U.S. Treasury. RCON 2840 121,352 15.a.
b. Trading Liabilities...................... RCFD 3548 5,793,742 15b.
16. Other borrowed money:
a. With original maturity of one year
or less.................................. RCFD 2332 2,665,232 16.a.
b. With original maturity of more than one
year..................................... RCFD 2333 58,105 16b.
17. Mortgage indebtedness and obligations under
capitalized leases.......................... RCFD 2910 285,671 17.
18. Bank's liability on acceptance executed and
outstanding................................. RCFD 2920 480,933 18.
19. Subordinated notes and debentures........... RCFD 3200 1,400,000 19.
20. Other liabilities (from Schedule RC-G)...... RCFD 2930 1,199,147 20.
21. Total liabilities (sum of items 13
through 20)................................. RCFD 2948 47,604,654 21.
22. Limited-Life preferred stock and related
surplus..................................... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related
surplus..................................... RCFD 3838 0 23.
24. Common stock................................ RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to
preferred stock)............................ RCFD 3839 2,934,523 25.
26. a. Undivided profits and capital reserves... RCFD 3632 865,652 26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities............ RCFD 8434 18,441 26.b.
27. Cumulative foreign currency translation
adjustments................................. RCFD 3284 (1,222) 27.
28. Total equity capital (sum of items 23
through 27)................................. RCFD 3210 4,018,252 28.
29. Total liabilities, limited-life preferred
stock, and equity capital (sum of
items 21, 22, and 28)....................... RCFD 3300 51,622,906 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external auditors as Number
of any date during 1995...........................RCFD 6724 N/A M.1.
---------
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may
be required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
