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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
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(Exact name of registrant as specified in its charter)
DELAWARE 36-314597
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(State of incorporation (IRS Employer Identification No.)
or organization)
1585 Broadway,
New York, New York 10036
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(Address of principal (Zip Code)
executive offices)
If this Form relates to If this Form relates to the
the registration of a registration of a class of
class of debt securities debt securities and is to become
and is effective upon filing effective simultaneously with the
pursuant to General effectiveness of a concurrent
Instruction A(c)(1) please registration statement under
check the following box. [ ] the Securities Act of 1933
pursuant to General Instruction
A(c)(2) please check the
following box. [ ]
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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10% Reset Performance THE AMERICAN STOCK EXCHANGE
Equity-linked Redemption
Quarterly-pay Securities
Due April 15, 1999
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
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Item 1. Description of the Registrant's Securities to be
Registered.
The title of the class of securities to be registered hereunder
is: "10% Reset Performance Equity-linked Redemption Quarterly-pay Securities
Due April 15, 1999" (the "Reset PERQS"). The Reset PERQS were issued by
Morgan Stanley Group Inc. ("Morgan Stanley") as predecessor of Morgan Stanley,
Dean Witter, Discover & Co. (the "Registrant"). A description of the Reset
PERQS is set forth under the caption "Description of Debt Securities" in the
prospectus (the "Original Morgan Stanley Prospectus") included within the
Registration Statement of Morgan Stanley on Form S-3 (Registration No.
333-18005) (the "Registration Statement"), as supplemented by the information
under the caption "Description of Notes" in the prospectus supplement dated
January 24, 1997 (the "Original Morgan Stanley Prospectus Supplement") and
filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended
(the "Act"), which description is incorporated herein by reference, and as
further supplemented by the description of the Reset PERQS contained in the
pricing supplement dated April 17, 1997 (the "Original Morgan Stanley Pricing
Supplement") and filed pursuant to Rule 424(b) under the Act, which contains
the final terms and provisions of the Reset PERQS and is hereby deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof.
Because Morgan Stanley & Co. Incorporated, Dean Witter Reynolds
Inc. and other broker-dealer affiliates of the Registrant continue to have
a prospectus delivery requirement in connection with sales of the Reset
PERQs in market-making transactions, such sales will be accompanied by
delivery of the Registrant's prospectus included within its Registration
Statement on Form S-3 (Registration No. 333-27881) as supplemented by a
market-making prospectus supplement dated June 2, 1997, in addition to the
Original Morgan Stanley Prospectus, Prospectus Supplement, and Pricing
Supplement.
Item 2. Exhibits.
The following documents are filed as exhibits hereto:
4.1 Form of Global Note evidencing the Reset PERQS.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
(Registrant)
Date: June 27, 1997 By: /s/ Ralph L. Pellecchio
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Name: Ralph L. Pellecchio
Title: Assistant Secretary
INDEX TO EXHIBITS
Exhibit No. Page No.
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4.1 Form of Global Note evidencing the Reset PERQS A-1
EXHIBIT 4.1
FIXED RATE SENIOR NOTE
REGISTERED REGISTERED
No. FXR U.S. $60,000,075
CUSIP: 617446455
Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository Trust Company
and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET
FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
MORGAN STANLEY GROUP INC.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Fixed Rate)
RESET PERFORMANCE EQUITY-LINKED
REDEMPTION QUARTERLY-PAY SECURITIES ("RESET PERQS")
10% RESET PERQS DUE APRIL 15, 1999
RESET PERQS MANDATORILY EXCHANGEABLE
FOR SHARES OF COMMON STOCK OF
ADVANCED MICRO DEVICES, INC.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: ORIGINAL
April 24, 1997 DATE: N/A 10% per annum MATURITY DATE:
(equivalent to $3.8625 April 15, 1999
per annum per Reset
PERQS)
INTEREST ACCRUAL DATE: INITIAL REDEMPTION APPLICABILITY OF OPTIONAL
April 24, 1997 PERCENTAGE: N/A MODIFIED REPAYMENT
PAYMENT UPON DATES(S): N/A
ACCELERATION:
N/A
TOTAL AMOUNT OF OID: ANNUAL REDEMPTION If yes, state Issue Price:
N/A PERCENTAGE REDUCTION:
N/A
ORIGINAL YIELD TO SPECIFIED CURRENCY: U.S.
MATURITY: N/A Dollars
INITIAL ACCRUAL PERIOD: APPLICABILITY OF
N/A ANNUAL INTEREST
PAYMENTS: N/A
APPLICABILITY OF ISSUER's
OPTION TO EXTEND ORIGINAL
MATURITY DATE: N/A
If yes, state Final Maturity Date:
OTHER PROVISIONS: (See
below)
</TABLE>
Interest Payment Dates:.. Each January 15, April 15, July 15 and October 15,
beginning July 15, 1997.
Issue Price:............. $38.625 per Reset PERQS
Denominations:........... $38.625 and integral multiples thereof
Exchange at Maturity:.... At maturity (including as a result of an
Acceleration Event), upon delivery of this Reset
PERQS to the Trustee, each $38.625 principal amount
of this Reset PERQS shall be applied by the Issuer
as payment for a number of shares of the common
stock, $.01 par value ("AMD Stock"), of Advanced
Micro Devices, Inc. ("AMD") at the Exchange Ratio.
The Exchange Ratio, initially set at 1.0, is
subject to adjustment on April 15, 1998 (or if such
date is not a Trading Day on which no Market
Disruption Event occurs, the immediately succeeding
Trading Day on which no Market Disruption Event
occurs (the "First Year Determination Date")) and
at maturity in order to cap the value of the AMD
Stock to be received upon delivery of this Reset
PERQS at $70.40 per each $38.625 principal amount
of this Reset PERQS (182.27% of the Initial Price).
Solely for purposes of adjustment upon the
occurrence of certain corporate events, the number
of shares of AMD Stock to be delivered at maturity
shall also be adjusted by an Exchange Factor,
initially set at 1.0. See "Exchange Factor" and
"Antidilution Adjustments" below.
If on the First Year Determination Date the First
Year Closing Price, as determined by the
Calculation Agent, is less than or equal to $52.15
(the "First Year Cap Price"), no adjustment to the
Exchange Ratio shall be made at such time. If the
First Year Closing Price exceeds the First Year Cap
Price, the Exchange Ratio shall be adjusted by the
Calculation Agent so that the new Exchange Ratio
shall equal the product of (i) the existing
Exchange Ratio and (ii) a fraction the numerator of
which shall be the First Year Cap Price and the
denominator of which shall be the First Year
Closing Price.
In addition, on the First Year Determination Date,
the Calculation Agent shall establish the "Second
Year Cap Price" that shall be equal to the greater
of (x) 135% of the First Year Closing Price and (y)
the First Year Cap Price. The Issuer shall cause
the Calculation Agent promptly to send written
notice of the Second Year Cap Price and of any such
adjustment to the Exchange Ratio by first-class
mail to The Depository Trust Company, New York,
New York (the "Depositary").
If the Maturity Price, as determined by the
Calculation Agent, is less than or equal to the
Second Year Cap Price, no further adjustment to the
Exchange Ratio shall be made. If the Maturity
Price exceeds the Second Year Cap Price, the
existing Exchange Ratio shall be adjusted by the
Calculation Agent so that the final Exchange Ratio
shall equal the product of (i) the existing
Exchange Ratio and (ii) a fraction the numerator of
which shall be the Second Year Cap Price and the
denominator of which shall be the Maturity Price.
The number of shares of AMD Stock to be delivered
at maturity shall be subject to any applicable
adjustments (i) to the Exchange Factor and (ii) in
the Exchange Property, as defined in paragraph 5
under "Antidilution Adjustments" below, to be
delivered instead of, or in addition to, such AMD
Stock as a result of any corporate event described
under "Antidilution Adjustments" below, in each
case, required to be made prior to the close of
business on the second Trading Day immediately
prior to maturity.
All percentages resulting from any calculation with
respect to this Reset PERQS (and the First Year Cap
Price and the Second Year Cap Price) shall be
rounded to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a
percentage point rounded upwards (e.g., 9.876545%
(or .09876545) would be rounded to 9.87655% (or
.0987655)), and all dollar amounts related to
payments at maturity resulting from such
calculation shall be rounded to the nearest cent
with one-half cent being rounded upwards.
The Issuer shall, or shall cause the Calculation
Agent to, provide written notice to the Trustee at
its New York office and to the Depositary, on which
notice the Trustee and the Depositary may
conclusively rely, on or prior to 10:30 a.m. on the
Trading Day immediately prior to maturity of this
Reset PERQS, of the amount of AMD Stock (or the
amount of Exchange Property) to be delivered with
respect to each $38.625 principal amount of this
Reset PERQS and of the amount of any cash to be
paid in lieu of fractional shares of AMD Stock (or
of any other securities included in the Exchange
Property, if applicable) for each $38.625 principal
amount of this Reset PERQS; provided that, if the
maturity date of this Reset PERQS is accelerated
(x) because of the consummation of a Reorganization
Event (as defined in paragraph 5 of the
"Antidilution Adjustments" below) where the
Exchange Property consists only of cash, (y)
because of an Acceleration Event (as defined below)
or (z) because of an acceleration as described
under "Alternate Exchange Calculation in case of
an Event of Default" below, the Issuer shall
give notice of such acceleration as promptly as
possible, and in no case later than two Business
Days following such deemed maturity date, (i) to
the holder of this Reset PERQS by mailing notice
of such acceleration by first class mail,
postage prepaid and (ii) to the Trustee and the
Depositary by telephone or facsimile confirmed
by mailing such notice to the Trustee at its New
York office and to the Depositary by first class
mail, postage prepaid. Any notice that is
mailed in the manner herein provided shall be
conclusively presumed to have been duly given,
whether or not the holder of this Reset PERQS
receives the notice. If the maturity of this
Reset PERQS is accelerated in the manner
described in the immediately preceding sentence,
no interest on the amounts payable with respect
to this Reset PERQS shall accrue for the period
from and after such accelerated maturity date;
provided, that the Issuer has deposited with the
Exchange Agent the AMD Stock, the Exchange
Property or any cash due with respect to such
acceleration.
The Issuer shall, or shall cause the Calculation
Agent to, deliver any such shares of AMD Stock (or
any Exchange Property) and cash in respect of
interest and any fractional shares of AMD Stock (or
any Exchange Property) and cash otherwise due upon
any acceleration described above to the Trustee for
delivery to the holder. The Calculation Agent
shall determine the Exchange Ratio applicable at
the maturity of this Reset PERQS and calculate the
Exchange Factor. References to payment "per Reset
PERQS" refer to each $38.625 principal amount of
this Reset PERQS.
If this Reset PERQS is not surrendered for exchange
at maturity, it shall be deemed to be no longer
Outstanding under, and as defined in, the Senior
Indenture (as defined below), except with respect
to the holder's right to receive the AMD Stock
(and, if applicable, any Exchange Property) due at
maturity.
No Fractional Shares:.... Upon delivery of this Reset PERQS to the Trustee at
maturity (including as a result of an Acceleration
Event), the Issuer shall pay cash in lieu of
issuing fractional shares of AMD Stock in an amount
equal to the corresponding fractional Market Price
of such fraction of a share of AMD Stock as
determined by the Calculation Agent as of the
second scheduled Trading Day prior to maturity of
this Reset PERQS.
Initial Price:........... $38.625
First Year Closing Price: First Year Closing Price means the product of (i)
the Market Price of one share of AMD Stock and (ii)
the Exchange Factor, each determined as of the
First Year Determination Date.
Maturity Price:.......... Maturity Price means the product of (i) the Market
Price of one share of AMD Stock and (ii) the
Exchange Factor, each determined as of the
second scheduled Trading Day immediately prior
to maturity.
First Year Cap Price:.... $52.15
Second Year Cap Price:... Second Year Cap Price means the greater of (x)135%
of the First Year Closing Price and (y) the First
Year Cap Price. See "Exchange at Maturity" above.
Exchange Factor:......... The Exchange Factor shall be set initially at 1.0,
but shall be subject to adjustment upon the
occurrence of certain corporate events through and
including the second scheduled Trading Day
immediately prior to maturity. See "Antidilution
Adjustments" below.
Market Price:............ If AMD Stock (or any other security for which a
Market Price must be determined) is listed on a
national securities exchange, is a security of The
Nasdaq National Market ("NASDAQ NMS") or is
included in the OTC Bulletin Board Service ("OTC
Bulletin Board") operated by the National
Association of Securities Dealers, Inc. (the
"NASD"), the Market Price for one share of AMD
Stock (or one unit of any such other security) on
any Trading Day means (i) the last reported sale
price, regular way, on such day on the principal
United States securities exchange registered under
the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), on which AMD Stock (or such
other security) is listed or admitted to trading or
(ii) if not listed or admitted to trading on any
such securities exchange or if such last reported
sale price is not obtainable, the last reported
sale price on the over-the-counter market as
reported on the NASDAQ NMS or OTC Bulletin Board on
such day. If the last reported sale price is not
available pursuant to clause (i) or (ii) of the
preceding sentence, the Market Price for any
Trading Day shall be the mean, as determined by the
Calculation Agent, of the bid prices for AMD Stock
(or such other security) obtained from as many
dealers in such stock, but not exceeding three, as
will make such bid prices available to the
Calculation Agent. The term "NASDAQ NMS security"
shall include a security included in any successor
to such system and the term "OTC Bulletin Board
Service" shall include any successor service
thereto.
Trading Day:............. A day, as determined by the Calculation Agent, on
which trading is generally conducted (i) on the New
York Stock Exchange ("NYSE"), the American Stock
Exchange ("AMEX") and the NASDAQ NMS, (ii) on the
Chicago Mercantile Exchange, (iii) on the Chicago
Board of Options Exchange and (iv) in the over-
the-counter market for equity securities in the
United States.
Acceleration Event:...... If on any date the product of the Market Price per
share of AMD Stock, as determined by the
Calculation Agent, and the Exchange Factor is less
than $2.00, the maturity date of this Reset PERQS
shall be deemed to be accelerated to such date, and
each $38.625 principal amount of this Reset PERQS
shall be applied by the Issuer as payment for a
number of shares of AMD Stock at the then current
Exchange Ratio, as adjusted by the then current
Exchange Factor. See also "Antidilution
Adjustments" below.
Calculation Agent:....... Morgan Stanley & Co. Incorporated and its
successors ("MS & Co.")
Antidilution Adjustments: The Exchange Factor shall be adjusted by the
Calculation Agent as follows:
1. If AMD Stock is subject to a stock split or
reverse stock split, then once such split has
become effective, the Exchange Factor shall be
adjusted to equal the product of the prior Exchange
Factor and the number of shares issued in such
stock split or reverse stock split with respect to
one share of AMD Stock.
2. If AMD Stock is subject to a stock dividend
(issuance of additional shares of AMD Stock) that
is given ratably to all holders of shares of AMD
Stock, then once the dividend has become effective
and AMD Stock is trading ex-dividend, the Exchange
Factor shall be adjusted so that the new Exchange
Factor shall equal the prior Exchange Factor plus
the product of (i) the number of shares issued with
respect to one share of AMD Stock and (ii) the
prior Exchange Factor.
3. There shall be no adjustments to the Exchange
Factor to reflect cash dividends or other
distributions paid with respect to AMD Stock other
than distributions described in clause (v) of
paragraph 5 below and Extraordinary Dividends as
described below. A cash dividend or other
distribution with respect to AMD Stock shall be
deemed to be an "Extraordinary Dividend" if such
dividend or other distribution exceeds the
immediately preceding non-Extraordinary Dividend
for AMD Stock by an amount equal to at least 10%
of the Market Price of AMD Stock on the Trading
Day preceding the ex-dividend date for the
payment of such Extraordinary Dividend (the "ex-
dividend date"). If an Extraordinary Dividend
occurs with respect to AMD Stock, the Exchange
Factor with respect to AMD Stock shall be
adjusted on the ex-dividend date with respect to
such Extraordinary Dividend so that the new
Exchange Factor shall equal the product of (i)
the then current Exchange Factor and (ii) a
fraction, the numerator of which is the Market
Price on the Trading Day preceding the ex-
dividend date, and the denominator of which is
the amount by which the Market Price on the
Trading Day preceding the ex-dividend date
exceeds the Extraordinary Dividend Amount. The
"Extraordinary Dividend Amount" with respect to
an Extraordinary Dividend for AMD Stock shall
equal (i) in the case of cash dividends or other
distributions that constitute quarterly
dividends, the amount per share of such
Extraordinary Dividend minus the amount per
share of the immediately preceding non-
Extraordinary Dividend for AMD Stock or (ii) in
the case of cash dividends or other
distributions that do not constitute quarterly
dividends, the amount per share of such
Extraordinary Dividend. To the extent an
Extraordinary Dividend is not paid in cash, the
value of the non-cash component shall be
determined by the Calculation Agent, whose
determination shall be conclusive. A
distribution on the AMD Stock described in
clause (v) of paragraph 5 below that also
constitutes an Extraordinary Dividend shall
cause an adjustment to the Exchange Factor
pursuant only to clause (v) of paragraph 5.
4. If AMD issues rights or warrants to all holders
of AMD Stock to subscribe for or purchase AMD Stock
at an exercise price per share less than the Market
Price of the AMD Stock on both (i) the date the
exercise price of such rights or warrants is
determined and (ii) the expiration date of such
rights or warrants, and if the expiration date of
such rights or warrants precedes the maturity of
this Reset PERQS, then the Exchange Factor shall be
adjusted to equal the product of the prior Exchange
Factor and a fraction, the numerator of which shall
be the number of shares of AMD Stock outstanding
immediately prior to the issuance of such rights or
warrants plus the number of additional shares of
AMD Stock offered for subscription or purchase
pursuant to such rights or warrants and the
denominator of which shall be the number of shares
of AMD Stock outstanding immediately prior to the
issuance of such rights or warrants plus the number
of additional shares of AMD Stock which the
aggregate offering price of the total number of
shares of AMD Stock so offered for subscription or
purchase pursuant to such rights or warrants would
purchase at the Market Price on the expiration date
of such rights or warrants, which shall be
determined by multiplying such total number of
shares offered by the exercise price of such rights
or warrants and dividing the product so obtained by
such Market Price.
5. If (i) there occurs any reclassification of AMD
Stock, (ii) AMD or any surviving entity or
subsequent surviving entity of AMD (a "AMD
Successor") has been subject to a merger,
combination or consolidation and is not the
surviving entity, (iii) any statutory exchange of
securities of AMD or any AMD Successor with another
corporation occurs (other than pursuant to clause
(ii) above), (iv) AMD is liquidated, (v) AMD issues
to all of its shareholders equity securities of an
issuer other than AMD (other than in a transaction
described in clauses (ii), (iii) or (iv) above) (a
"Spin-off Event") or (vi) a tender or exchange
offer is consummated for all the outstanding shares
of AMD Stock (any such event in clauses (i) through
(vi) a "Reorganization Event"), the method of
determining the amount payable upon exchange at
maturity for this Reset PERQS shall be adjusted to
provide that each holder of this Reset PERQS shall
be entitled to receive at maturity, in respect of
each $38.625 principal amount of this Reset PERQS,
securities, cash or any other assets distributed in
any such Reorganization Event, including, in the
case of a Spin-off Event, the share of AMD Stock
with respect to which the spun-off security was
issued (collectively, the "Exchange Property")
in an amount with a value equal to (a) if the
Exchange Ratio has not been adjusted prior to
maturity, the Transaction Value or (b) if the
Exchange Ratio has been adjusted, an amount
equal to the product of the final Exchange Ratio
and the Transaction Value. In addition,
following a Reorganization Event, the method of
determining the Maturity Price shall be adjusted
so that the Maturity Price shall mean the
Transaction Value as of the second scheduled
Trading Day immediately prior to maturity, and
if the Reorganization Event occurs prior to the
First Year Determination Date, the First Year
Closing Price shall mean the Transaction Value
determined as of the First Year Determination
Date. Notwithstanding the above, if the
Exchange Property received in any such
Reorganization Event consists only of cash, the
maturity date of this Reset PERQS shall be
deemed to be accelerated to the date on which
such cash is distributed to holders of AMD Stock
and the holder shall receive in lieu of any AMD
Stock and as liquidated damages in full
satisfaction of the Issuer's obligations under
this Reset PERQS the product of (i) the
Transaction Value as of such date and (ii) the
then current Exchange Ratio adjusted as if such
date were the next to occur of either the First
Year Determination Date or the second scheduled
Trading Day prior to maturity. If Exchange
Property consists of more than one type of
property, the holder of this Reset PERQS shall
receive at maturity a pro rata share of each
such type of Exchange Property. "Transaction
Value" at any date means (i) for any cash
received in any such Reorganization Event, the
amount of cash received per share of AMD Stock,
as adjusted by the Exchange Factor, (ii) for any
property other than cash or securities received
in any such Reorganization Event, the market
value, as determined by the Calculation Agent,
as of the date of receipt, of such Exchange
Property received for each share of AMD Stock,
as adjusted by the Exchange Factor and (iii) for
any security received in any such Reorganization
Event, an amount equal to the Market Price, as
of the date on which the Transaction Value is
determined, per share of such security
multiplied by the quantity of such security
received for each share of AMD Stock, as
adjusted by the Exchange Factor.
For purposes of paragraph 5 above, in the case of a
consummated tender or exchange offer for all
Exchange Property of a particular type, Exchange
Property shall be deemed to include the amount of
cash or other property paid by the offeror in the
tender or exchange offer with respect to such
Exchange Property (in an amount determined on the
basis of the rate of exchange in such tender or
exchange offer). In the event of a tender or
exchange offer with respect to Exchange Property in
which an offeree may elect to receive cash or other
property, Exchange Property shall be deemed to
include the kind and amount of cash and other
property received by offerees who elect to receive
cash.
No adjustments to the Exchange Factor shall be
required unless such adjustment would require a
change of at least 0.1% in the Exchange Factor then
in effect. The Exchange Factor resulting from any
of the adjustments specified above shall be rounded
to the nearest one thousandth with five
ten-thousandths being rounded upward.
No adjustments to the Exchange Factor or method of
calculating the Exchange Ratio shall be made other
than those specified above.
Notwithstanding the foregoing, the amount payable
by the Issuer at maturity with respect to this
Reset PERQS, determined as of the second scheduled
Trading Day prior to maturity, shall not under any
circumstances exceed $70.40 per Reset PERQS or an
amount of AMD stock having an equivalent value as
of such second scheduled Trading Day.
The Calculation Agent shall be solely responsible
for the determination and calculation of any
adjustments to the Exchange Factor or method of
calculating the Exchange Ratio and of any related
determinations and calculations with respect to any
distributions of stock, other securities or other
property or assets (including cash) in connection
with any corporate event described in paragraph 5
above, and its determinations and calculations with
respect thereto shall be conclusive.
The Calculation Agent shall provide information as
to any adjustments to the Exchange Factor or method
of calculating the Exchange Ratio upon written
request by any holder of this Reset PERQS.
Market Disruption Event:. "Market Disruption Event" means, with respect to
AMD Stock (and any other security that may be
included as Exchange Property):
(i) a suspension, absence or material limitation of
trading of AMD Stock (or any such security) on the
primary market for AMD Stock (or any such security)
for more than two hours of trading or during the
one-half hour period preceding the close of trading
in such market; or the suspension or material
limitation on the primary market for trading in
options contracts related to AMD Stock (or any such
security), if available, during the one-half hour
period preceding the close of trading in the
applicable market, in each case as determined by
the Calculation Agent in its sole discretion; and
(ii) a determination by the Calculation Agent in
its sole discretion that the event described in
clause (i) above materially interfered with the
ability of the Issuer or any of its affiliates to
unwind all or a material portion of the hedge with
respect to the 10% Reset PERQS Due April 15, 1999
(Mandatorily Exchangeable for Shares of Common
Stock of Advanced Micro Devices, Inc.).
For purposes of determining whether a Market
Disruption Event has occurred: (1) a limitation on
the hours or number of days of trading shall not
constitute a Market Disruption Event if it results
from an announced change in the regular business
hours of the relevant exchange, (2) a decision to
permanently discontinue trading in the relevant
option contract shall not constitute a Market
Disruption Event, (3) limitations pursuant to New
York Stock Exchange Rule 80A (or any applicable
rule or regulation enacted or promulgated by the
New York Stock Exchange, any other self-
regulatory organization or the Securities and
Exchange Commission of similar scope as
determined by the Calculation Agent) on trading
during significant market fluctuations shall
constitute a suspension, absence or material
limitation of trading, (4) a suspension of
trading in an options contract on AMD Stock (or
any such security) by the primary securities
market trading in such options, if available, by
reason of (x) a price change exceeding limits
set by such securities exchange or market, (y)
an imbalance of orders relating to such
contracts or (z) a disparity in bid and ask
quotes relating to such contracts shall
constitute a suspension or material limitation
of trading in options contracts related to AMD
Stock (or any such security) and (5) a
suspension, absence or material limitation of
trading on the primary securities market on
which options contracts related to AMD Stock (or
any such security) are traded shall not include
any time when such securities market is itself
closed for trading under ordinary circumstances.
Alternate Exchange
Calculation in case of an
Event of Default:........ In case an Event of Default with respect to this
Reset PERQS shall have occurred and be continuing,
the holder of this Reset PERQS shall be entitled to
receive, upon any acceleration of this Reset PERQS,
an amount determined by MS & Co., as Calculation
Agent, equal to the Issue Price of this Reset
PERQS, plus any accrued interest to, but not
including, the date of acceleration.
Treatment of Reset PERQS
for United States Federal
Income Tax Purposes:..... The Issuer, by its sale of this Reset PERQS, and
the holders of this Reset PERQS (and any successor
holder of this Reset PERQS), by its respective
purchase thereof, agree (in the absence of an
administrative ruling or judicial determination to
the contrary) to treat this Reset PERQS as a
forward contract for the purchase of AMD Stock at
maturity (including as a result of acceleration
other than as a result of an Event of Default)
coupled with an interest bearing cash deposit
pledged by the holder of this Reset PERQS to the
Issuer.
Morgan Stanley Group Inc., a Delaware corporation (together with its
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to CEDE & CO., or registered assignees, the amount of AMD Stock (or other
Exchange Property), as determined in accordance with the provisions set forth
under "Exchange at Maturity" above, due with respect to the principal sum of
U.S. $60,000,075 (UNITED STATES DOLLARS SIXTY MILLION SEVENTY-FIVE), on the
Original Maturity Date specified above or, if the maturity hereof is extended
in accordance with the procedures set forth below to an Extended Maturity
Date, as defined below, on such Extended Maturity Date (except to the extent
previously redeemed or repaid) and to pay interest thereon at the Interest
Rate per annum specified above or, if the interest rate hereon is reset or
re-established in connection with an extension of maturity in accordance with
the procedures specified on the reverse hereof, at the interest rate per annum
determined pursuant to such procedures, from and including the Interest
Accrual Date specified above until the principal hereof is paid or duly made
available for payment (except as provided below), monthly, quarterly,
semiannually or annually in arrears as specified above as the Interest Payment
Period on each Interest Payment Date (as specified above) commencing on the
Interest Payment Date next succeeding the Interest Accrual Date specified
above, and at maturity (or on any redemption or repayment date); provided,
however, that if the Interest Accrual Date occurs between a Record Date, as
defined below, and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date succeeding the
Interest Accrual Date to the registered holder of this Note on the Record Date
with respect to such second Interest Payment Date; and provided, further, that
if this Note is subject to "Annual Interest Payments," interest payments shall
be made annually in arrears and the term "Interest Payment Date" shall be
deemed to mean the first day of March in each year.
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for,
or, if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until, but excluding the date the principal hereof has
been paid or duly made available for payment (except as provided below). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the date 15 calendar days prior to such
Interest Payment Date (whether or not a Business Day) (each such date a
"Record Date"); provided, however, that interest payable at maturity (or on
any redemption or repayment date) will be payable to the person to whom the
principal hereof shall be payable. As used herein, "Business Day" means any
day, other than a Saturday or Sunday, that is neither a legal holiday nor a
day on which banking institutions are authorized or required by law or
regulation to close in The City of New York and (i) with respect to Notes
denominated in a Specified Currency other than U.S. dollars, Australian
dollars or European Currency Units ("ECUs"), in the principal financial center
of the country of the Specified Currency, (ii) with respect to Notes
denominated in Australian dollars, in Sydney and (iii) with respect to Notes
denominated in ECUs, that is not a non-ECU clearing day, as determined by the
ECU Banking Association in Paris.
Payment of the principal of this Note, any premium and the interest due
at maturity (or on any redemption or repayment date), unless this Note is
denominated in a Specified Currency other than U.S. dollars and is to be paid
in whole or in part in such Specified Currency, will be made in immediately
available funds upon surrender of this Note at the office or agency of the
Paying Agent, as defined on the reverse hereof, maintained for that purpose in
the Borough of Manhattan, The City of New York, or at such other paying agency
as the Issuer may determine, in U.S. dollars. U.S. dollar payments of
interest, other than interest due at maturity or on any date of redemption or
repayment, will be made by U.S. dollar check mailed to the address of the
person entitled thereto as such address shall appear in the Note register. A
holder of U.S. $10,000,000 or more in aggregate principal amount of Notes
having the same Interest Payment Date, the interest on which is payable in
U.S. dollars, shall be entitled to receive payments of interest, other than
interest due at maturity or on any date of redemption or repayment, by wire
transfer of immediately available funds if appropriate wire transfer
instructions have been received by the Paying Agent in writing not less than
15 calendar days prior to the applicable Interest Payment Date.
If this Note is denominated in a Specified Currency other than U.S.
dollars, and the holder does not elect (in whole or in part) to receive
payment in U.S. dollars pursuant to the next succeeding paragraph, payments of
interest, principal or any premium with regard to this Note will be made by
wire transfer of immediately available funds to an account maintained by the
holder hereof with a bank located outside the United States if appropriate
wire transfer instructions have been received by the Paying Agent in writing
not less than 15 calendar days prior to the applicable payment date, provided
that, if such wire transfer instructions are not received, such payments will
be made by check payable in such Specified Currency mailed to the address of
the person entitled thereto as such address shall appear in the Note register,
and provided, further, that payment of the principal of this Note, any premium
and the interest due at maturity (or on any redemption or repayment date) will
be made upon surrender of this Note at the office or agency referred to in the
preceding paragraph.
Unless otherwise indicated herein, the holder of this Note, if
denominated in a Specified Currency other than U.S. dollars, may elect to
receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the Record
Date or at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be. Such election shall remain
in effect unless such request is revoked by written notice to the Paying Agent
as to all or a portion of payments on this Note at least five Business Days
prior to such Record Date or at least ten days prior to the Maturity Date or
any redemption or repayment date, as the case may be.
If the holder elects to receive all or a portion of payments of
principal of and any premium and interest on this Note, if denominated in a
Specified Currency other than U.S. dollars, in U.S. dollars, the Exchange Rate
Agent will convert such payments into U.S. dollars. In the event of such an
election, payment in respect of this Note will be based upon the exchange rate
as determined by the Exchange Rate Agent based on the highest bid quotation in
The City of New York received by such Exchange Rate Agent at approximately
11:00 A.M., New York City time, on the second Business Day preceding the
applicable payment date from three recognized foreign exchange dealers (one of
which may be the Exchange Rate Agent unless such Exchange Rate Agent is Morgan
Stanley & Co. Incorporated), for the purchase by the quoting dealer of U.S.
dollars for the Specified Currency for settlement on such payment date in the
amount of the Specified Currency payable in the absence of such election to
such holder and at which the applicable dealer commits to execute a contract.
If such bid quotations are not available, such payment will be made in the
Specified Currency. All currency exchange costs will be borne by the holder
of this Note by deductions from such payments.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Senior Indenture, as defined on
the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: April 24, 1997 MORGAN STANLEY GROUP INC.
By:
--------------------------------
Name: Eileen K. Murray
Title: Treasurer
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 Indenture dated as of May 15, 1991 and a Second Supplemental
Indenture dated as of April 15, 1996 (as so supplemented, the "Senior
Indenture"), between the Issuer and The Chase Manhattan Bank (formerly
known as Chemical Bank), as Trustee (the "Trustee," which term includes any
successor trustee under the Senior Indenture), to which Senior Indenture
and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and
immunities of the Issuer, the Trustee and holders of the Notes and the
terms upon which the Notes are, and are to be, authenticated and delivered.
The Issuer has appointed 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.
Exercise of such repayment option by the holder hereof shall be
irrevocable. In the event of repayment of this Note in part only, a new
Note or Notes for the amount of the unpaid portion hereof shall be issued
in the name of the holder hereof upon the cancellation hereof.
If so indicated on the face of this Note, the Issuer has the option to
extend the Original Maturity Date hereof for one or more periods of one or
more whole years (each an "Extension Period") up to but not beyond the Final
Maturity Date specified on the face hereof and in connection therewith to
establish a new interest rate and new redemption provisions for the Extension
Period.
The Issuer may exercise such option by notifying the Paying Agent of
such exercise at least 45 but not more than 60 days prior to the Original
Maturity Date or, if the maturity hereof has already been extended, prior to
the maturity date then in effect (an "Extended Maturity Date"), such notice to
be accompanied by the form of the Extension Notice referred to below. No
later than 38 days prior to the Original Maturity Date or an Extended Maturity
Date, as the case may be (each, a "Maturity Date"), the Paying Agent will mail
to the holder hereof a notice (the "Extension Notice") relating to such
Extension Period, first class mail, postage prepaid, setting forth (a) the
election of the Issuer to extend the maturity of this Note; (b) the new
Extended Maturity Date; (c) the interest rate applicable to the Extension
Period; and (d) the provisions, if any, for redemption during the Extension
Period, including the date or dates on which, the period or periods during
which and the price or prices at which such redemption may occur during the
Extension Period. Upon the mailing by the Paying Agent of an Extension Notice
to the holder of this Note, the maturity hereof shall be extended
automatically, and, except as modified by the Extension Notice and as
described in the next paragraph, this Note will have the same terms it had
prior to the mailing of such Extension Notice.
Notwithstanding the foregoing, not later than 10:00 A.M., New York City
time, on the twentieth calendar day prior to the Maturity Date in effect
immediately preceding the mailing of the applicable Extension Notice (or if
such day is not a Business Day, not later than 10:00 A.M., New York City time,
on the immediately succeeding Business Day), the Issuer may, at its option,
revoke the interest rate provided for in such Extension Notice and establish a
higher interest rate for the Extension Period by causing the Paying Agent to
send notice of such higher interest rate to the holder of this Note by first
class mail, postage prepaid, or by such other means as shall be agreed between
the Issuer and the Paying Agent. Such notice shall be irrevocable. All Notes
with respect to which the Maturity Date is extended in accordance with an
Extension Notice will bear such higher interest rate for the Extension Period,
whether or not tendered for repayment.
If the Issuer elects to extend the maturity hereof, the holder of this
Note will have the option to require the Issuer to repay this Note on the
Maturity Date in effect immediately preceding the mailing of the applicable
Extension Notice at a price equal to the principal amount hereof plus any
accrued and unpaid interest to such date. In order for this Note to be so
repaid on such Maturity Date, the holder hereof must follow the procedures set
forth above for optional repayment, except that the period for delivery of
this Note or notification to the Paying Agent shall be at least 25 but not
more than 35 days prior to the Maturity Date in effect immediately preceding
the mailing of the applicable Extension Notice and except that if the
holder hereof has tendered this Note for repayment pursuant to this
paragraph he may, by written notice to the Paying Agent, revoke any such
tender for repayment until 3:00 P.M., New York City time, on the twentieth
calendar day prior to the Maturity Date then in effect (or, if such day is
not a Business Day, until 3:00 P.M., New York City time, on the immediately
succeeding Business Day).
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Unless otherwise provided
on the face hereof, interest payments for this Note will be computed and paid
on the basis of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity Date (or
any redemption or repayment date) does not fall on a Business Day, payment
of interest, premium, if any, or principal otherwise payable on such date
need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest
Payment Date or on the Maturity Date (or any redemption or repayment date),
and no interest on such payment shall accrue for the period from and after
the Interest Payment Date or the Maturity Date (or any redemption or
repayment date) to such next succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and pari passu with all other existing and future unsecured
and unsubordinated indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and, if
denominated in U.S. dollars, is issuable only in denominations of U.S. $1,000
and any integral multiple of U.S. $1,000 in excess thereof. If this Note is
denominated in a Specified Currency other than U.S. dollars, then, unless a
higher minimum denomination is required by applicable law, it is issuable only
in denominations of the equivalent of U.S. $1,000 (rounded to an integral
multiple of 1,000 units of such Specified Currency), or any amount in excess
thereof which is an integral multiple of 1,000 units of such Specified
Currency, as determined by reference to the noon dollar buying rate in New
York City for cable transfers of such Specified Currency published by the
Federal Reserve Bank of New York (the "Market Exchange Rate") on the Business
Day immediately preceding the date of issuance; provided, however, in the case
of ECUs, the Market Exchange Rate shall be the rate of exchange determined by
the Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities, or any
successor publication, on the Business Day immediately preceding the date of
issuance.
The Trustee has been appointed registrar for the Notes, and the Trustee
will maintain at its office in The City of New York a register for the
registration and transfer of Notes. This Note may be transferred at the
aforesaid office of the Trustee by surrendering this Note for cancellation,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and duly executed by the registered holder hereof in person or by the
holder's attorney duly authorized in writing, and thereupon the Trustee shall
issue in the name of the transferee or transferees, in exchange herefor, a new
Note or Notes having identical terms and provisions and having a like
aggregate principal amount in authorized denominations, subject to the terms
and conditions set forth herein; provided, however, that the Trustee will not
be required (i) to register the transfer of or exchange any Note that has been
called for redemption in whole or in part, except the unredeemed portion of
Notes being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of such
Note not required to be repurchased, or (iii) to register the transfer of or
exchange Notes to the extent and during the period so provided in the Senior
Indenture with respect to the redemption of Notes. Notes are exchangeable at
said office for other Notes of other authorized denominations of equal
aggregate principal amount having identical terms and provisions. All such
exchanges and transfers of Notes will be free of charge, but the Issuer may
require payment of a sum sufficient to cover any tax or other governmental
charge in connection therewith. All Notes surrendered for exchange shall be
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and executed by the registered holder in person or by the holder's
attorney duly authorized in writing. The date of registration of any Note
delivered upon any exchange or transfer of Notes shall be such that no gain or
loss of interest results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Note so destroyed or lost or stolen, but, in the case of any destroyed or
lost or stolen Note, only upon receipt of evidence satisfactory to the
Trustee and the Issuer that such Note was destroyed or lost or stolen and,
if required, upon receipt also of indemnity satisfactory to each of them.
All expenses and reasonable charges associated with procuring such
indemnity and with the preparation, authentication and delivery of a new
Note shall be borne by the owner of the Note mutilated, defaced, destroyed,
lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default (as
defined in the Senior Indenture) due to the default in payment of principal
of, premium, if any, or interest on, any series of debt securities issued
under the Senior Indenture, including the series of Senior Medium-Term Notes
of which this Note forms a part, or due to the default in the performance or
breach of any other covenant or warranty of the Issuer applicable to the debt
securities of such series but not applicable to all outstanding debt
securities issued under the Senior Indenture shall have occurred and be
continuing, either the Trustee or the holders of not less than 25% in
principal amount of the debt securities of each affected series (voting as
a single class) may then declare the principal of all debt securities of
all such series and interest accrued thereon to be due and payable
immediately and (b) if an Event of Default due to a default in the
performance of any other of the covenants or agreements in the Senior
Indenture applicable to all outstanding debt securities issued thereunder,
including this Note, or due to certain events of bankruptcy, insolvency and
reorganization of the Issuer, shall have occurred and be continuing, either
the Trustee or the holders of not less than 25% in principal amount of all
debt securities issued under the Senior Indenture then outstanding (treated
as one class) may declare the principal of all such debt securities and
interest accrued thereon to be due and payable immediately, but upon
certain conditions such declarations may be annulled and past defaults may
be waived (except a continuing default in payment of principal (or premium,
if any) or interest on such debt securities) by the holders of a majority
in principal amount of the debt securities of all affected series then
outstanding.
If the face hereof indicates that this Note is subject to "Modified
Payment upon Acceleration," then (i) if the principal hereof is declared to be
due and payable as described in the preceding paragraph, the amount of
principal due and payable with respect to this Note shall be limited to the
aggregate principal amount hereof multiplied by the sum of the Issue Price
specified on the face hereof (expressed as a percentage of the aggregate
principal amount) plus the original issue discount amortized from the Interest
Accrual Date to the date of declaration, which amortization shall be
calculated using the "interest method" (computed in accordance with generally
accepted accounting principles in effect on the date of declaration), (ii) for
the purpose of any vote of securityholders taken pursuant to the Senior
Indenture prior to the acceleration of payment of this Note, the principal
amount hereof shall equal the amount that would be due and payable hereon,
calculated as set forth in clause (i) above, if this Note were declared to be
due and payable on the date of any such vote and (iii) for the purpose of any
vote of securityholders taken pursuant to the Senior Indenture following the
acceleration of payment of this Note, the principal amount hereof shall equal
the amount of principal due and payable with respect to this Note, calculated
as set forth in clause (i) above.
The Senior Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected;
or (b) reduce the aforesaid percentage in principal amount of debt securities
the consent of the holders of which is required for any such supplemental
indenture, without the consent of the holders of each debt security so
affected.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking
community, then the Issuer will be entitled to satisfy its obligations to the
holder of this Note by making such payments in U.S. dollars on the basis of
the Market Exchange Rate on the date of such payment or, if the Market
Exchange Rate is not available on such date, as of the most recent practicable
date; provided, however, that if such Specified Currency is replaced by a
single European currency (expected to be named the Euro), the payment of
principal of, premium, if any, or interest on any Note denominated in such
currency shall be effected in the new single European currency in conformity
with legally applicable measures taken pursuant to, or by virtue of, the
treaty establishing the European Community (the "EC"), as amended by the
treaty on European Union (as so amended, the "Treaty"). Any payment made
under such circumstances in U.S. dollars (or, if applicable, such new
single European currency) where the required payment is in a Specified
Currency other than U.S. dollars will not constitute an Event of Default.
Subject to the provisions below, the value of the ECU, in which the
Notes may be denominated or may be payable, is equal to the value of the ECU
that is from time to time used as the unit of account of the EC. If the ECU
becomes a currency in its own right in accordance with the Treaty, all
references to ECU in the Notes shall be construed as references to such
currency.
With respect to each due date for the payment of principal of, or
interest on, the Notes on or after the first business day in Brussels on which
the ECU ceases to be used as the unit of account of the EC, and has not become
a currency in its own right replacing all or some of the currencies of the
member States of the EC, the Issuer shall choose a substitute currency (the
"Chosen Currency"), which may be any currency which was, on the last day on
which the ECU was used as the unit of account of the EC, a component currency
of the ECU or U.S. dollars, in which all payments due on or after that date
with respect to the Notes and coupons shall be made. Notice of the Chosen
Currency so selected shall be provided by first class mail to each holder at
the address of such holder which appears on the books maintained by the
registrar and to the Paying Agent. The amount of each payment in such Chosen
Currency shall be computed on the basis of the equivalent of the ECU in that
currency, determined as described below, as of the fourth business day in
Brussels prior to the date on which such payment is due.
On the first business day in Brussels on which the ECU ceases to be
used as the unit of account of the EC, and has not become a currency in its
own right replacing all or some of the currencies of the member States of the
EC, the Issuer shall select a Chosen Currency in which all payments with
respect to Notes and coupons having a due date prior thereto but not yet
presented for payment are to be made. The amount of each payment in such
Chosen Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as of any
date (the "Day of Valuation") shall be determined by, or on behalf of, the
Exchange Rate Agent on the following basis. The amounts and components
composing the ECU for this purpose (the "Components") shall be the amounts
and components that composed the ECU as of the last date on which the ECU
was used as the unit of account of the EC. The equivalent of the ECU in
the Chosen Currency shall be calculated by, first, aggregating the U.S.
dollar equivalents of the Components; and then, in the case of a chosen
Currency other than U.S. dollars, using the rate used for determining the
U.S. dollar equivalent of the Components in the Chosen Currency as set
forth below, calculating the equivalent in the Chosen Currency of such
aggregate amount in U.S. dollars.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated on the face hereof.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 P.M., Brussels time, on
the Day of Valuation, as obtained by, or on behalf of, the Exchange Rate
Agent from one or more major banks, as selected by the Issuer, in the
country of issue of the component currency in question.
If for any reason no direct quotations are available for a Component as
of a Day of Valuation from any of the banks selected for this purpose, in
computing the U.S. dollar equivalent of such Component, the Exchange Rate
Agent shall (except as provided below) use the most recent direct quotations
for such Component obtained by it or on its behalf, provided that such
quotations were prevailing in the country of issue not more than two Business
Days before such Day of Valuation. If such most recent quotations were so
prevailing in the country of issue more than two Business Days before such Day
of Valuation, the Exchange Rate Agent shall determine the U.S. dollar
equivalent of such Component on the basis of cross rates derived from the
middle spot delivery quotations for such component currency and for the U.S.
dollar prevailing at 2:30 P.M., Brussels time, on such Day of Valuation, as
obtained by, or on behalf of, the Exchange Rate Agent from one or more major
banks, as selected by the Issuer, in a country other than the country of issue
of such component currency. Notwithstanding the foregoing, the Exchange Rate
Agent shall determine the U.S. dollar equivalent of such Component on the
basis of such cross rates if the Issuer or such agent judges that the
equivalent so calculated is more representative than the U.S. dollar
equivalent calculated as provided in the first sentence of this paragraph.
Unless otherwise specified by the Issuer, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations or
for any other reason, the market to be referred to in respect of such currency
shall be that upon which a non-resident issuer of securities denominated in
such currency would purchase such currency in order to make payments in
respect of such securities.
Payments in the Chosen Currency will be made at the specified office of
a paying agent in the country of the Chosen Currency, or, if none, or at the
option of the holder, at the specified office of any Paying Agent either by a
check drawn on, or by transfer to an account maintained by the holder with, a
bank in the principal financial center of the country of the Chosen Currency.
All determinations referred to above made by, or on behalf of, the
Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will cause to be
maintained an office or agency for the payment of the principal of and
premium, if any, and interest on this Note as herein provided in the Borough
of Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, transfer and exchange as aforesaid of the
Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be
such an agency, the Issuer shall keep the Trustee advised of the names and
locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or
any Paying Agent for payment of the principal of or interest or premium, if
any, on any Notes that remain unclaimed at the end of two years after such
principal, interest or premium shall have become due and payable (whether
at maturity or upon call for redemption or otherwise), (i) the Trustee or
such Paying Agent shall notify the holders of such Notes that such moneys
shall be repaid to the Issuer and any person claiming such moneys shall
thereafter look only to the Issuer for payment thereof and (ii) such moneys
shall be so repaid to the Issuer. Upon such repayment all liability of the
Trustee or such Paying Agent with respect to such moneys shall thereupon
cease, without, however, limiting in any way any obligation that the Issuer
may have to pay the principal of or interest or premium, if any, on this
Note as the same shall become due.
No provision of this Note or of the Senior Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium,
if any, or the interest on this Note, for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Senior Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Senior Indenture
and not otherwise defined herein shall have the meanings assigned to them in
the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT Custodian
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(Minor) (Cust)
Under Uniform Gifts to Minors Act
--------------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
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[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
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[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
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(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:
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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.
